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Mother v. Department of Children And Families And Guardian Ad Litem Program

Florida Court of Appeals, Fourth District

September 18, 2019

Q.L., the mother, Appellant,
v.
DEPARTMENT OF CHILDREN AND FAMILIES and GUARDIAN AD LITEM PROGRAM, Appellees.

         Not final until disposition of timely filed motion for rehearing.

          Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Alberto Ribas, Jr., Judge; L.T. Case No. 12-3451CJ-DP (A, B, C).

          Lori D. Shelby, Fort Lauderdale, for appellant.

          Ashley Moody, Attorney General, Tallahassee, and Carolyn Schwarz, Assistant Attorney General, Children's Legal Services, Fort Lauderdale, for appellee, Department of Children and Families.

          Thomasina F. Moore, Statewide Director of Appeals, and Laura J. Lee, Senior Attorney, Appellate Division, Florida Statewide Guardian Ad Litem Office, Tallahassee, and Nicholas A. Brown, Carlton Fields, P.A., Defending Best Interests Project, Tampa, for appellee, Guardian Ad Litem Program.

          GROSS, J.

         A mother who never harmed her children (or any other child) had her parental rights terminated based on past conduct which, in the opinions of her caseworker and the guardian ad litem, would likely cause harm to her children in the future. Because the Department failed to prove statutory grounds for termination of the mother's parental rights by competent, substantial evidence, we reverse.

         The trial consisted of five days of testimony, beginning in August 2017 and concluding in May 2018. Nine months later, the court issued its final judgment terminating the parental rights of the mother and the father.[1]The court terminated the mother's parental rights on two statutory grounds: section 39.806(1)(c) (parent's past conduct demonstrates continuing involvement in parent-child relationship threatens to harm the child irrespective of services); and section 39.806(1)(e)3. (child has been in care 12 of past 22 months and parent is not in substantial compliance with case plan). The following facts were found by the trial court:

May 2012 - the children were sheltered when the mother was arrested.
June 2012 - the mother was offered a case plan with a reunification goal. Her initial case plan tasks were: individual counseling with a focus on decision making, random drug screens, substance abuse evaluation, "psychological with an ability to parent," obtain and maintain stable housing and income, and pay child support.
February 2013 - the father choked the mother to the point that she lost consciousness.
November 2013 - the mother had her restraining order against the father lifted.
2014 - the mother's case plan was amended to add domestic violence for victims and couples counseling.
Early 2015 - the children were reunited with the parents.
June 2015 - the parents fell three months behind on their rent.
July 2015 - the parents borrowed rent money from their pastor on the condition that they prepare a budget to avoid being in the same position in the future.
August 2015 - the GAL visited the apartment unannounced because the parents were not returning her calls to coordinate a home visit. She found that a person who was not background screened was watching the children. The apartment was in deplorable condition including bugs, maggots, garbage, and dirty dishes in the kitchen sink and on the floor. When the mother returned to the apartment, she screamed and cursed at the GAL. She was "unable to control herself and went on a verbal rampage directed at the GAL in the presence of the children."
September 2015 - the parents once again fell behind on their rent and were ultimately evicted a few months later.
November 2015 - the mother had an angry outburst in court and kicked a door in the courtroom. As a result, her case plan was amended to add individual counseling with an anger management component.
December 2015 - on the GAL's motion, the mother's case plan was amended to add a life coach.
December 2015 - the mother ended her eleven-year relationship with the father.
January 1, 2016 - the apartment was in deplorable condition again - roaches, dirty dishes, little food, a dog on the porch, and clothes on the bathroom floor next to the bathtub.
February 2016 - another domestic violence incident. When the mother went to the paternal grandmother's home to drop off the children's laundry, the father was there and he attacked her because he did not believe she was wearing underwear. The mother called the police, the child advocate, the GAL, and obtained a restraining order.

         The children were taken into custody.

July 2016 - the Department petitioned for termination of the parents' rights to their three children, ages 6, 5, and 2.
November 2016 - the maternal great grandmother stated that she was no longer willing to keep the children due to problems with the mother and father. The mother had another angry outburst in court.
January 2017 - another domestic violence incident. The father stole the mother's money and phone and tried to steal her car. The mother jumped in the back of the car to stop him. The father eventually exited the car. The mother called the police, the GAL, and the child advocate, and sought a restraining order.[2]
June 2017 - the mother was arrested for driving with a suspended license and resisting without violence. The officer testified that the mother refused to get back into her car, that she cursed at the officer, and that she was very belligerent.
November 2017 - The mother was cited for speeding and once again, driving with a suspended license.

         The court noted that the mother had completed all of the court-ordered tasks and was successfully discharged from all of her services; she had voluntarily completed additional tasks (batterers intervention and parenting for special needs children); and she had broken off her relationship with the father. However, the issue, as framed by the court, was "whether or not the mother had gained insight" from the services provided.

         The court concluded, based on the totality of the circumstances, that the mother was not in substantial compliance with her case plan and that her continuing involvement in the parent-child relationship threatened the life, safety, well-being, or physical, mental, or emotional health of the children irrespective of services.[3]

         The court noted that the first removal of the children resulted from the mother being arrested and that the mother "still exhibits poor decision-making skills and impulse control/anger management issues that can put the physical and emotional well-being of the children at risk." Citing many of the incidents recounted above, the court found that the mother exhibited poor judgment "consistent with . . . a lack of insight with regards to the services [she] had previously completed."

         The court found an ongoing domestic violence threat because the last two incidents occurred after the mother broke off the relationship with the father. The court also found that the mother was not able to provide a safe and stable home for the children based on the incidents that occurred during reunification (parents fell behind on the rent, were bailed out and made a budget, but then fell behind again and were evicted; parents left the children with a person who had not been background-screened; the parents allowed the apartment to be in a deplorable condition on two occasions to such a degree that it caused a hazard to the children; and the mother went on a verbal rampage against the GAL in front of the children).

         The court summarized its reasoning as follows:

The mother continues to exhibit poor judgment and anger management issues, which would place the children at risk if they were in her care. The mother continues to exhibit behaviors, even after the break-up of the relationship with the father, which would place the children at risk due to domestic violence issues. The mother was unable to maintain stable housing after the initial reunification. The mother was unable to maintain the home hazard free after the initial reunification. Rather, the home was found to be in deplorable conditions on more than one occasion. There were maggots, dirty dishes, garbage, roaches, a foul odor, and caked on food seen in the home. These are not conditions that children should live in.

Findings Lacking Evidentiary Support

         Before reaching the merits, we note that two of the court's conclusions lack evidentiary support. The court's finding of an ongoing domestic violence threat involving the father is not supported by the record. The testimony established that the mother broke up with the father in December 2015 and that there were two domestic violence incidents in the thirteen months after the breakup. It is undisputed that the mother got a restraining order after the first incident and petitioned for another restraining order after the second incident. The last incident of domestic violence was in January 2017. There was no evidence of domestic violence in the twenty-six months preceding issuance of the final judgment. In addition, the mother had not lived with the father for the three years preceding the final judgment and had a restraining order preventing him from being near her for most of that time. On similar facts, in L.B. v. Dep't of Children & Families, 835 So.2d 1189, 1194 (Fla. ...


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