C.P., THE FATHER v. DEPARTMENT OF CHILDREN AND FAMILIES

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

C.P., the father,

Appellant,

v.

DEPARTMENT OF CHILDREN AND FAMILIES and GUARDIAN AD

LITEM,

Appellees.

No. 4D21-465

[July 14, 2021]

Appeal from the Circuit Court for the Seventeenth Judicial Circuit,

Broward County; Yael Gamm, Judge; L.T. Case No. 2018-1291 DP.

Denise E. Kistner of Law Offices of Denise E. Kistner, P.A., 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, Rebecca L.

Bartlett, Senior Attorney, Appellate Division, Statewide Guardian ad Litem

Office, Tallahassee, for appellee Guardian ad Litem.

KLINGENSMITH, J.

C.P. (“the father”) appeals the trial court’s final judgment terminating

his parental rights to his two minor children. 1 The trial court found

grounds to terminate the father’s parental rights to one child, C.F.P.,

under sections 39.806(1)(b) (abandonment); 39.806(1)(c) (continuing

involvement threatens child’s well-being irrespective of services); and

39.806(1)(e)1. (failure to substantially comply with case plan), Florida

Statutes (2020). As to the other child, C.Y.P., the trial court only found

grounds to terminate the father’s parental rights under section

1 The mother’s appeal of the final judgment terminating her parental rights to

these two minor children was affirmed per curiam by this court. See A.W. v.

Guardian Ad Litem, 4D21-38, 2021 WL 2105428 (Fla. 4th DCA May 25, 2021).

39.806(1)(b). For the reasons set forth below, we affirm the judgment

terminating the father’s parental rights as to both children on the grounds

of abandonment under section 39.806(1)(b), but reverse the findings as to

C.F.P. based on sections 39.806(1)(c) and 39.806(1)(e)1.

“While a trial court’s decision to terminate parental rights must be

based upon clear and convincing evidence, [appellate] review is limited to

whether competent substantial evidence supports the trial court’s

judgment.” M.D. v. State, Dep’t of Children & Families, 187 So. 3d 1275,

1277 (Fla. 4th DCA 2016) (quoting J.G. v. Dep’t of Children & Families, 22

So. 3d 774, 775 (Fla. 4th DCA 2009)). “A trial court’s finding of clear and

convincing evidence is reversible only if clearly erroneous or lacking in

evidentiary support.” S.S. v. D.L., 944 So. 2d 553, 557 (Fla. 4th DCA

2007).

The State may terminate parental rights if a parent “abandon[s]” their

child. See § 39.806(1)(b), Fla. Stat. (2020). Under the relevant statute,

“abandonment” means that the parent or caregiver, “while being able, has

made no significant contribution to the child’s care and maintenance or

has failed to establish or maintain a substantial and positive relationship

with the child, or both.” § 39.01(1), Fla. Stat. (2020). To “establish or

maintain a substantial and positive relationship with the child” a parent

must make “frequent and regular contact with the child through frequent

and regular visitation or frequent and regular communication to or with

the child” and must “exercise [their] parental rights and responsibilities.”

Id. “Marginal efforts and incidental or token visits or communications are

not sufficient to establish or maintain a substantial and positive

relationship with a child.” Id.

In this case, the father has been incarcerated since June 2018 after he

was arrested on a drug charge and is serving a five-year sentence which

would last through 2023 (although he testified that he expected to be

released in June 2021). Under section 39.01(1), “[t]he qualifying phrase

‘while being able’ excludes involuntary abandonment.” B.F. v. State, Dep’t

of Children & Families, 237 So. 3d 390, 393 (Fla. 4th DCA 2018) (quoting

T.S. ex rel. D.H. v. Dep’t of Children & Families, 969 So. 2d 494, 496 (Fla.

1st DCA 2007)). “Although a parent’s incarceration can be a factor the

court considers for terminating parental rights based on abandonment,

incarceration alone is insufficient.” Id. (quoting T.S., 969 So. 2d at 496).

“[T]he parent’s efforts, or lack thereof, to assume parental duties while

incarcerated must be considered in light of the limited opportunities to

assume those duties while in prison.” Id. (quoting In re T.H., 979 So. 2d

1075, 1080 (Fla. 2d DCA 2008)).

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The evidence showed that prior to the father’s incarceration, he was not

very involved in caring for C.Y.P. When the Department of Children and

Families (“DCF”) filed shelter and dependency petitions against the mother

in April 2018, the father did not request custody of C.Y.P., who was eight

months old at the time. From the date DCF filed the petitions against the

mother to the date of the father’s arrest two months later, the father did

not visit or speak to C.Y.P. After the father was incarcerated and C.F.P.

was born in September 2018, there was testimony that he still did not

make efforts to communicate directly with the children. Although the

father frequently inquired how the children were, he did not send letters

to the children through their advocate, and he did not call them through

their advocate or via the prison phone. After he was incarcerated, the only

time the father had contact with the children, in-person or otherwise, was

when the children’s foster parents brought them to visit him in prison a

year after his incarceration. Accordingly, competent, substantial evidence

supports the termination of the father’s parental rights to both children

under section 39.806(1)(b) for abandonment.

The father argues that the lack of relationship between him and the

children was due to his incarceration, the children’s age, and DCF’s lack

of efforts to assist him in maintaining contact with the children. However,

the evidence showed that DCF provided opportunities for the father to

maintain contact with the children, but he failed to take advantage of

them. He could have asked the advocate to send letters to the children on

his behalf or to facilitate a call with them, but he did not. See M.D., 187

So. 3d at 1277 (finding of abandonment despite father sending two letters

to his daughter during the two years he was incarcerated was supported

by competent, substantial evidence). The fact that the children were too

young to read the letters did not negate the father’s duty to send them if

that was his only means of maintaining his relationship with them while

he was in prison. See B.F., 237 So. 3d at 393 (finding that the father was

able to maintain a relationship with his two-year-old son while he was

incarcerated); T.C.S. v. State, Dep’t of Health & Rehab. Servs. (In re G.R.S.),

647 So. 2d 1025, 1028 (Fla. 4th DCA 1994) (finding the father made

attempts to maintain two-way communication between himself and his

thirteen-month-old child by communicating through the child’s

custodians).

The father also argues that his completion of parenting counseling,

individual counseling, and a substance abuse program should have been

considered before his rights were terminated. While it was laudable that

the father completed these programs, they did not negate his duty to

maintain contact with the children. See R.L. v. Dep’t of Children &

Families, 273 So. 3d 1012, 1014 (Fla. 4th DCA 2019) (“[W]hile the father

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had completed his case plan goals to the extent he was able to do so in

prison, he had sent only the one letter to J.L.”).

Although DCF successfully proved abandonment under section

39.806(1)(b), it did not prove that termination of the father’s parental

rights as to C.F.P. was warranted under section 39.806(1)(c). The record

does not reveal competent, substantial evidence supporting DCF’s

allegation that continuing the parent-child relationship threatened the

child’s well-being irrespective of services. To terminate parental rights on

that ground, “the evidence must show a parent’s past conduct or current

mental condition makes the risk of future harm to the child likely.” D.B.

v. Dep’t of Children & Families, 87 So. 3d 1279, 1282 (Fla. 4th DCA 2012).

Additionally, “there must be no reasonable basis to conclude that past

behaviors will improve.” Id. There was little evidence of the father’s past

conduct towards C.F.P. as he has been incarcerated for almost all of

C.F.P.’s life. The only evidence that DCF presented regarding the father’s

conduct towards C.F.P. was his failure to maintain contact with him. Even

if the father’s past conduct met the standard for termination, DCF “failed

to specify why it felt the father was not amenable to services.” T.M. v. Dep’t

of Children & Families, 905 So. 2d 993, 997 (Fla. 4th DCA 2005). In fact,

the evidence showed that the father was amenable to services. He

completed his required individual counseling and parenting counseling

and a voluntary substance abuse program while he was in jail. Because

he completed these programs after the detrimental past conduct occurred,

there is a reasonable basis to conclude that his conduct may improve. See

D.B., 87 So. 3d at 1282 (stating that to terminate parental rights under

this ground “there must be no reasonable basis to conclude that past

behaviors will improve”).

Additionally, DCF did not prove termination of the father’s rights to

C.F.P. was warranted under section 39.806(1)(e)1., because the record did

not show that the father failed to substantially comply with the case plan.

“‘Substantial compliance’ means that the circumstances which caused the

creation of the case plan have been significantly remedied to the extent

that the well-being and safety of the child will not be endangered upon the

child’s remaining with or being returned to the child’s parent.” §

39.01(84), Fla. Stat. (2020). “Where a court is terminating parental rights

based on a parent’s failure to comply with a case plan or a performance

agreement, it is axiomatic that the parent must have the substantial ability

to comply with the plan or agreement.” In re G.M., Jr., 71 So. 3d 924, 926

(Fla. 2d DCA 2011). When a parent is incarcerated, they typically do not

have the ability to comply with many aspects of a case plan. See id.

(stating that the father “did not have the ability to comply with his case

[plan] because of his incarceration and the Department’s failure to assist

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him”). Here, the father completed all the case plan tasks that he could

while he was in jail: individual counseling and parenting counseling. He

even completed a voluntary substance abuse program. However, the

father did not have the ability to provide proof of stable housing and stable

income. See In re G.M., Jr., 71 So. 3d at 926; In Interest of E.L.H., Jr., 687

So. 2d 924, 925 (Fla. 2d DCA 1997); see also In re R.S., 48 So. 3d 1035,

1036 (Fla. 2d DCA 2010) (noting that the father was incarcerated and

could not complete the stable housing and stable income tasks in his case

plan). It is also unclear whether the father had the ability to provide the

child support envisioned under his case plan due to his “limited

opportunities” to earn money while in jail. See B.F., 237 So. 3d at 393.

We reverse the portion of the order terminating the father’s parental

rights as to C.F.P. under sections 39.806(1)(c) and 39.806(1)(e)1. We

remand for those grounds and findings that are inconsistent with this

opinion to be stricken from the final judgment. However, we affirm the

termination of the father’s parental rights as to both children under

section 39.806(1)(b). We also affirm the findings that termination of the

father’s parental rights was in the “manifest best interests of the children,”

and that termination was the least restrictive means to protect the children

from serious harm since the father did not contest the trial court’s findings

on these issues. See E.T. v. Dep’t of Children & Families, 261 So. 3d 593,

598 (Fla. 4th DCA 2019) (failure to challenge certain grounds for

termination in an initial brief constitutes waiver of those grounds).

Affirmed in part, reversed in part, and remanded.

KUNTZ and ARTAU, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.

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