final until disposition of timely filed motion for rehearing.
from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Stacey Schulman, Judge; L.T. Case No.
P. Ryan, Regional Counsel, and Paul O'Neil, Assistant
Regional Counsel, Office of Criminal Conflict and Civil
Regional Counsel, Fourth District, West Palm Beach, for
Moody, Attorney General, Tallahassee, and Carolyn Schwarz,
Assistant Attorney General, Children's Legal Services,
Fort Lauderdale, for appellee Department of Children and
Thomasina Moore, Statewide Director of Appeals, Statewide
Guardian ad Litem Office, and Samantha Costas Valley, Senior
Attorney, Statewide Guardian ad Litem Office, Tallahassee,
for appellee Guardian ad Litem.
incarcerated father appeals from the trial court's final
judgment of termination of parental rights as to his son. The
father raises several arguments, including that the trial
court erred in basing its decision, in part, on its finding
that the father's criminal history included having been
designated as a habitual violent felony offender (HVFO), when
in fact he had been designated as a violent career criminal
(VCC). We affirm.
final hearing, the appellees introduced into evidence an
exhibit containing copies of the father's sentencing
documents from his criminal convictions. The exhibit
contained a sentencing document showing that the father
initially was incorrectly designated as an HVFO. However, the
same exhibit later contained a corrected sentencing document
deleting the HVFO designation, and instead adding a correct
the trial court inadvertently relied on the incorrect HVFO
designation as one ground, among others, to terminate the
father's parental rights under section 39.806(1)(d)2.,
Florida Statutes (2018) (permitting termination of parental
rights when "[t]he incarcerated parent has been
determined by the court to be . . . a habitual
violent felony offender as defined in s. 775.084 . . .
appellees, without disputing the trial court's error in
relying on the incorrect HVFO designation, nevertheless seek
affirmance based on three alternative arguments:
(1) the father failed to preserve this error for appellate
(2) if the father preserved the error for review, then the
"tipsy coachman" doctrine supports affirmance
because section 39.806(1)(d)2., Florida Statutes (2018),
permits termination of parental rights when "[t]he
incarcerated parent has been determined by the court to be a
violent career criminal as defined in s. 775.084
[or] a habitual violent felony offender as defined in s.
775.084 . . . ." (emphasis added); and
(3) if the "tipsy coachman" doctrine cannot be
applied here, then this court still should affirm, because
competent, substantial evidence supports the trial
court's separate termination basis under section
39.806(1)(d)1., Florida Statutes (2018) ("[t]he period
of time for which the parent is expected to be incarcerated
will constitute a significant portion of the child's
minority"), along with the trial court's other
findings that termination was in the child's manifest
best interest, and was the least restrictive means of
protecting the child from harm.
conclude that the appellees' first argument lacks merit.
The father preserved the designation error for appellate
review by orally bringing the error to the trial court's
attention during the ...