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Florida Guardian AD Litem Program v. R. V.

Florida Court of Appeals, Fifth District

September 13, 2019

FLORIDA GUARDIAN AD LITEM PROGRAM, Appellant,
v.
R. V. AND I.G., PARENTS OF E.
v.
AND B.G., CHILDREN AND DEPARTMENT OF CHILDREN AND FAMILIES, Appellees.

         NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

          Appeal from the Circuit Court for Brevard County, Ali B. Majeed, Senior Judge.

          Thomasina F. Moore, Statewide Director of Appeals, and Joanna Summers Brunell, Senior Attorney, Appellate Division, of Statewide Guardian ad Litem Office, Tallahassee, for Appellant.

          Shari J. Wilson, Rockledge, for Appellee, R.V.

          Kelley Schaeffer, of Children's Legal Services, Bradenton, for Appellee, Department of Children and Families.

          No Appearance for Appellee, I.G.

          PER CURIAM.

         The Guardian ad Litem ("GAL") appeals the orders denying two petitions to terminate the parental rights ("TPR") of the mother, R.V. ("Mother"), as to her two children, B.G. and E.V.[1] The petitions were originally filed by the Department of Children and Families ("DCF").[2] When DCF chose not to go forward, the GAL adopted and prosecuted the petitions through trial. The GAL asserts that the trial court erred in finding that no statutory grounds for termination had been proved and that the trial court's order is legally deficient. Because we agree that the trial court's order is legally deficient and prevents meaningful appellate review, we reverse for the trial court's reconsideration and entry of an appropriate order.

         Mother's chronic substance abuse and anger/domestic violence issues, directed primarily at Father, led to DCF sheltering B.G. when he was almost two years old, and he had been out of his parents' care for more than three years by the time of the adjudicatory hearing on the petitions. E.V. has never lived with either of his parents, as he was removed at birth after testing positive for opiates. Mother has on some occasions admitted to family members that she is a drug addict, while at other times denying any substance abuse issues.

         Mother agreed to perform the tasks set forth in her original case plan and then affirmed her agreement to adhere to a case plan that was modified during a mediation conference. Indeed, Mother's signature and that of her attorney are found on the mediation agreement that modified her original case plan. The modified case plan required Mother to be evaluated for substance abuse, undergo substance abuse therapy, submit to random drug screens, complete anger management counseling, obtain stable income, and obtain stable housing.[3]

         At trial, it was agreed that Mother had completed the substance abuse evaluation and had initially begun substance abuse counseling. Conflicting evidence was presented with regard to whether Mother had completed the agreed-upon course of substance abuse counseling and whether she continues to abuse drugs. Despite Mother's claims to the contrary, competent, substantial evidence presented during trial demonstrated Mother was non-compliant with submitting to random drug screens. She repeatedly refused to participate by not providing samples, missing appointments, or refusing to come out of her room at a home. On one occasion, instead of providing a urine sample, she offered what appeared to be apple cider or vinegar. Furthermore, when she objected to the DCF field testing, she repeatedly failed to promptly report to an independent lab for testing. Finally, Mother repeatedly, though not consistently, tested positive for the use of illicit substances or drugs for which she presented no prescription.[4]

         The trial court was presented with evidence that Mother was briefly employed, once in Florida and once in Georgia; however, there was no competent, substantial evidence that Mother had achieved the status of having stable income. If the trial court actually determined that Mother had the financial wherewithal to meaningfully contribute to the support of her children during those periods of employment, then that would be evidence that Mother abandoned her children because, "[a] finding of abandonment can be made based upon a parent's failure to support the child if the parent is able to do so." J.C. v. Dep't of Child. & Fams., 264 So.3d 973, 977 (Fla. 4th DCA 2019). While the evidence was not clear, it would appear that when employed, she spent her earnings on herself, as she never sent any money to be used for the benefit of her children to their caregivers. When the trial court's order is not supported by the evidence, reversal is appropriate. D.N.O. v. L.McC., 820 So.2d 1064, 1066 (Fla. 2d DCA 2002). The trial court's order is further deficient in that there were no findings set forth regarding whether Mother had made appropriate effort to obtain employment and stable income. Dep't of Child. & Fams. v. S.H., 734 So.2d 1080, 1081 (Fla. 1st DCA 1999).[5]

         During supervised visitation sessions, Mother did occasionally provide gifts and snacks for the children; however, it was not clear whether she or relatives provided the purchase money, and in any event, that was the extent of the support Mother provided. While Mother moved around quite a bit during the pendency of these cases, she did appear to find stable housing through the generosity of various relatives. As of the time of the adjudicatory hearing, Mother lived with one of her aunts who testified that she was willing to have Mother and both children live in her house on a permanent basis if they so wished.

         Throughout the hearing and in its order denying the TPRs, the trial court repeatedly discussed important issues faced by various members of our society, including perceived wide-spread unemployment, lack of suitable housing, and substance abuse. The focus, however, of this hearing should have remained on whether or not Mother had complied with her agreed-upon case plan by obtaining stable employment, securing stable housing, and getting professional assistance that resulted in her no longer abusing controlled substances. Although this Court agrees with the trial court's statements that Mother had made efforts to comply with her case plan-the issue is whether she substantially complied in a timely fashion-not whether she "has made tremendous strides," as the trial court remarked in its order. "While the trial court may have been moved by the mother's professed desire to do ...


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