In the Interest of X.W., a child.
C.W. and DEPARTMENT OF CHILDREN AND FAMILIES, Appellees. GUARDIAN AD LITEM PROGRAM, Appellant,
FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF
from the Circuit Court for Lee County; Amy Hawthorne, Judge.
Elizabeth Goldfarb, Sanford, for Appellant.
A. Butler of Alderuccio & Butler, LLC, Naples, for
appearance for remaining Appellee.
Guardian ad Litem Program (GAL) appeals from a final order
denying its petition to terminate the parental rights of
C.W., the father of X.W. X.W. was conceived as the result of
a sexual battery by C.W. upon X.W.'s mother-a minor. The
trial court found that the sexual battery and C.W.'s
lengthy incarceration for that offense established statutory
grounds for termination, but it denied the petition on the
basis that termination would not be in X.W.'s best
interests and was not the least restrictive means of
protecting him from harm. The best interests and least
restrictive means findings are legally and factually infirm.
filed a petition for the termination of C.W.'s parental
rights on October 14, 2016. The petition alleged five
statutory grounds for termination: (1) C.W.'s involvement
with X.W. was a threat to X.W.'s life, safety, and
well-being under section 39.806(1)(c), Florida Statutes
(2016); (2) C.W. was incarcerated and expected to remain so
for a significant portion of X.W.'s minority under
section 39.806(1)(d); (3) C.W. had engaged in egregious
conduct that threatened the life, safety, or health of X.W.
under section 39.806(1)(f); (4) C.W. had subjected the child
or another child to a sexual battery under section
39.806(1)(g); and (5) X.W. had been conceived as the result
of a sexual battery made unlawful by section 794.011, Florida
Statutes, under section 39.806(1)(m). Each ground was based
on C.W.'s sexual battery of X.W.'s mother. The GAL
alleged that termination of C.W.'s parental rights was in
X.W.'s best interests because of the gravity of the
offense committed by C.W., the lack of any significant
relationship between C.W. and X.W., and the strength of
X.W.'s relationship with his maternal grandmother, who is
available to adopt X.W.
case proceeded to an adjudicatory hearing, see
§ 39.809, at which the evidence established the
following. On the evening of September 22, 2013, S.B. ran
away from home for one night. She was eleven years old at the
time. While away, she met C.W. in a park. He was twenty-five.
C.W. took S.B. to his apartment and had sex with her. No one
disputes that this was an unlawful sexual battery in
violation of section 794.011. X.W. was conceived as a result
and was born on May 29, 2014.
pleaded guilty to one count of lewd or lascivious battery and
one count of impregnating a child under the age of
sixteen. On December 15, 2014, he was sentenced to
ten years' imprisonment and qualified as a sexual
offender. His anticipated release date is in 2024, at which
point X.W. will be ten years old. Upon release, C.W. will be
subject to five years of sex offender probation, which
includes significant restrictions on his ability to parent
X.W. According to the probation orders in the record, he will
be unable to have unsupervised contact with X.W. and will be
allowed supervised contact only upon the recommendation of a
qualified practitioner in a sexual offender treatment program
who bases the recommendation on a risk assessment. He also
will be unable to have any contact with S.B. unless the
contact is approved by S.B., a qualified practitioner, and
the sentencing court. And he will be unable to live within
1000 feet of a school, child care facility, park, playground,
or other place where children regularly congregate.
was sheltered, adjudicated dependent as to both C.W. and
S.B., and placed with his maternal grandmother-S.B.'s
mother. By everyone's account, X.W. looks to his maternal
grandmother as his mother figure. The two are closely bonded,
and X.W. goes to his grandmother for love and affection.
X.W.'s maternal grandmother handles all the day-to-day
duties a parent would ordinarily handle for a child. She is
willing to take care of X.W. as long as necessary and is also
willing to adopt him. She wants to wait on adoption until
S.B. turns eighteen, however, so that S.B. has a chance to
make her own decision about whether she wants to be a parent
lives in the home with X.W. At the time of the hearing, she
was fifteen years old and in ninth grade. S.B.'s
relationship to X.W. is akin to a brother-sister
relationship. S.B. is interested in things most
fifteen-year-olds are interested in-things like going to
school and being with friends. While there is love between
S.B. and X.W., S.B. is not his caregiver. There was no
evidence that S.B. is likely to be willing and able to be
X.W.'s caregiver when she turns eighteen.
maternal grandmother testified that C.W. sent her a care
package around the holidays and also wrote a letter to her in
which he asked about X.W. She also testified that C.W.'s
family, with her approval, had been taking X.W. to visit with
C.W. in prison every two weeks until the termination
proceedings were instituted. A representative of the GAL
testified that there is not a current bond between C.W. and
X.W. and that forming a bond after C.W. is released from
prison would be very difficult due to the conditions ...