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In re X.W.

Florida Court of Appeals, Second District

February 9, 2018

In the Interest of X.W., a child.


         Appeal from the Circuit Court for Lee County; Amy Hawthorne, Judge.

          Sara Elizabeth Goldfarb, Sanford, for Appellant.

          Toni A. Butler of Alderuccio & Butler, LLC, Naples, for Appellee C.W.

         No appearance for remaining Appellee.

          SALARIO, Judge.

         The 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. We reverse.


         The GAL 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.

         The 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.

         C.W. pleaded guilty to one count of lewd or lascivious battery and one count of impregnating a child under the age of sixteen.[1] 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.

         X.W. 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 to X.W.[2]

         S.B. 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.

         X.W.'s 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.[3] 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 ...

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