final until disposition of timely filed motion for rehearing.
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).
D. Shelby, Fort Lauderdale, for appellant.
Moody, Attorney General, Tallahassee, and Carolyn Schwarz,
Assistant Attorney General, Children's Legal Services,
Fort Lauderdale, for appellee, Department of Children and
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.
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.
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.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
June 2015 - the parents fell three months behind on
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
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.
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.
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
November 2017 - The mother was cited for speeding
and once again, driving with a suspended license.
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.
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.
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
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
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
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. ...