DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
January Term 2011
J.C., the Child, DEPARTMENT OF CHILDREN AND FAMILY SERVICES
and GUARDIAN AD LITEM PROGRAM,
K.K., the Father,
[June 22, 2011]
The Department of Children and Families, the Guardian ad Litem
program, and the child all appeal an order of the trial court declining to
terminate the rights of the father of the child. Without ever determining
the manifest best interest of the child, the trial court determined that,
although grounds for termination existed, termination was not the least
restrictive means of eliminating harm to the child. Because the trial
court failed to determine the manifest best interest, we reverse for further
J.C., a male child, was born on December 30, 2008. The mother
came to the attention of DCF in December 2008, when she tested positive
for methadone while pregnant with J.C. Although J.C. tested negative
for drugs at his birth, DCF filed a dependency petition after J.C.’s birth
and requested that the parents complete a case plan. The court left the
child with the mother, who was living with her parents, and ordered
weekly visitation for the father. In January 2009, the father submitted to
a drug screen, which was positive for marijuana.
In March 2009, DCF sheltered the child based on the mother’s
ongoing substance abuse and history of non-compliance with DCF
services. Likewise, DCF determined that it was not appropriate to place
the child with the father, in light of his ongoing marijuana use and his
previous history with DCF. At the shelter hearing, the court placed the
child in licensed care and gave the father supervised visitation with the
At a mediation held in April 2009, the parties reached an agreement
on the case plan tasks for the parents. In particular, the father agreed to
complete the following case plan tasks: a) undergo individual and
parental counseling; b) complete a substance abuse evaluation; c)
complete 10 consecutive negative drug screens; d) participate in
supervised visitation with the child; e) submit to a paternity test; f)
demonstrate stable income; g) pay $262.50 in child support or provide
in-kind services; h) refrain from any violations of law; i) maintain stable
housing; and j) maintain contact with the DCF. The case plan and
mediated settlement agreement further required the father to meet with
the case manager at least once per month and to notify the DCF within
72 hours if he changed his phone number or address.
A few days after the mediation, the trial court adjudicated the child
dependent based upon th e father’s consent.
Th e grounds for the
adjudication of dependency included the father’s substance abuse
issues, his previous history with DCF (which included having his rights
terminated as to a different child), his failure to comply with previously
offered services, and his failure to provide for J.C.’s care. The court
approved the mediated case plan, which provided for a goal of
reunification/adoption and set forth a goal date of December 4, 2009.
Essentially, the father failed to complete any of the case plan tasks.
And after visiting with the child a few times in April 2009, he
disappeared. Although the DCF case managers attempted to find him,
they never located him. He did not contact his case manager or his
attorney for the next year.
DCF filed a petition to terminate both parents’ rights in November
2009. While the petition was pending, the father contacted DCF in April
2010 wanting to see his son. DCF refused to provide additional services
to the father, since he had abandoned his child during the preceding
year and failed to comply with the case plan. On his own, however, the
father attended drug counseling and parenting classes, and he was
allowed to begin visits with his son. At first the child did not interact
with him and viewed him as a stranger, but the child later began relating
to him, more like a playmate, according to the case manager.
After several continuances of th e final hearing, to which DCF
objected, the case finally went to trial in October 2010. The child’s foster
parents are willing to adopt, but the father sought reunification with the
child. At trial, the father attempted to place the blame on DCF for the
lack of communication and his failure to complete his case plan. The
father gave various explanations for his lack of contact with DCF and
with his son.
Th e trial court, however, found that the father’s
explanations were not credible.
The social worker assigned to enable visitation between the father and
child testified that the father and child interacted very well. The father
acted appropriately with the child, and the child seemed to enjoy their
time together. She observed that a bond was beginning to form between
the two. However, a much greater bond existed between the foster
mother and the child.
Because the child had some behavioral problems, he was being seen
by a child therapist. She observed one visit between the father and son.
In her opinion, the child and father were not bonded. The child’s
primary attachment was to the foster mother. Removing this bond would
harm the child, although it is not impossible to change primary
attachment figures in a child’s life. However, harm to the child in the
form of behavioral problems and inability to form good relationships in
the future can occur. If required, a gradual process of assimilation
between the new primary caretaker and the child would be optimal and
would best reduce the harm to the child. In her opinion, however, it was
not in the child’s best interest to change his placement.
DCF presented the evidence of the father’s complete failure to
complete any of his case plan as well as his disappearance for an entire
year of the child’s life. In his defense, the father presented evidence of
his present attempts to complete the same tasks that were in his case
plan. He is engaged to a woman with a child whom he helps parent.
They live in a home owned by his fiancée’s mother and pay her rent. He
is employed, although his fiancée earns the greater amount of money in
the household. He detailed the efforts he has made to stop his drug
addiction and to develop his parenting skills. And he provided pictures
of his home and the room he has decorated for his child should he be
After hearing all the evidence, the trial court found that statutory
grounds for termination were proven in that the mother abandoned the
child. It also found that the father abandoned the child between May
2009 and April 2010, and failed to substantially complete his case plan
tasks within nine months. The court further found that DCF made
reasonable efforts to assist the father in completing the case plan.
Notwithstanding the court’s findings regarding th e father’s noncompliance, the court praised the father’s efforts subsequent to the case
The court then made a manifest best interest finding but only as it
related to the mother. The court considered the factors in section
39.810, Florida Statutes, and made the following findings, which we
summarize as follows:
a) The only suitable permanent custody arrangement with a
relative of the child is with the father. In addition the child
has been in a preadoptive placement for over six months and
has integrated into that family;
b) The mother does not have the ability and disposition to
provide for the child’s food, clothing, and medical care, but
the father does;
c) The mother does not have the capacity to care for the
child’s safety and well-being, but the father does, and the
child’s physical mental and emotional health would not be
endangered upon his return to the father;
d) The child is receiving therapy for his behavioral problems;
e) The child has no relationship with his mother, but the
child recognizes the father and sees him as a playmate;
f) The child’s current custodians are willing to adopt but the
father seeks reunification;
g) The child “has bonded with his current custodians and
their children. This bond can be transferred to the father.
The likelihood that J.C. will enter into a more stable and
permanent family relationship, either in his pre-adoptive
placement or with his father, as a result of a permanent
termination of mother’s rights is very high”;
h) There is a loving and warm relationship between the child
and his foster family, but with assistance, this bond could be
transferred to the father;
i) The child is too young to express a preference; and
j) The Guardian ad Litem recommended a termination of
parental rights of both the mother and father.
The court terminated the parental rights of the mother but denied
termination of the father’s rights. The court never made an explicit
determination as to whether termination of the father’s rights was in the
child’s best interest. Instead, the court determined that termination of
the father’s parental rights was not the least restrictive means to protect
the child from harm. The court explained: “The father’s success in
completing the case plan tasks and his persistence in establishing a
relationship with his son demonstrate that reunification is a reasonable
and less restrictive alternative to terminating his parental rights.” The
court thus re-adjudicated the child dependent and ordered the
Department to file a new case plan for reuniting the father with the child.
This appeal follows.
There is a two-step statutory process to terminate parental rights.
First, the trial court must find a ground for termination under section
39.806. See Rathburn v. Dep’t of Children & Families, 826 So. 2d 521,
523 (Fla. 4th DCA 2002). Second, the court must consider under section
39.810 what is in the manifest best interest of the child based upon all
the relevant criteria. Id. Finally, because of a parent’s fundamental
liberty interest in the care and custody of his child, before permanently
severing the parental relationship, the state must establish that
termination of parental rights is the least restrictive means of protecting
the child from harm. See Padgett v. Dep’t of Health & Rehabilitative
Servs., 577 So. 2d 565, 571 (Fla. 1991); J.G. v. Dep’t of Children &
Families, 22 So. 3d 774, 775 (Fla. 4th DCA 2009). “This means that HRS
ordinarily must show that it has made a good faith effort to rehabilitate
the parent a n d reunite the family, s u c h as through a current
performance agreement or other such plan for the present child.”
Padgett, 577 So. 2d at 571.
Once a court determines, as it did here, that a ground for termination
of parental rights has been proved, section 39.810, Florida Statutes,
requires that “[i]n a hearing on a petition for termination of parental
rights, the court shall consider the manifest best interests of the child.”
Section 39.810 further provides that “[f]or the
purpose of determining the manifest best interests of the child, the court
shall consider and evaluate all relevant factors . . . .” While the trial
court conducted the manifest best interest determination with respect to
the mother, it did not conduct the same analysis once it determined that
a ground for termination of the father’s rights existed. The analysis of
the statutory factors applied to the mother do not necessarily show that
the best interests of the child have been determined as to the father.
The statute provides enumerated factors that the court should
consider in evaluating the manifest best interests of the child:
For the purpose of determining the manifest best interests of
the child, the court shall consider and evaluate all relevant
factors, including, but not limited to:
(1) Any suitable permanent custody arrangement with a
relative of the child. However, the availability of a
nonadoptive placement with a relative may not receive
greater consideration than any other factor weighing on the
manifest best interest of the child and may not be considered
as a factor weighing against termination of parental rights.
If a child has been in a stable or preadoptive placement for
not less than 6 months, the availability of a different
placement, including a placement with a relative, may not be
considered as a ground to deny the termination of parental
(2) The ability and disposition of the parent or parents to
provide the child with food, clothing, medical care or other
remedial care recognized and permitted under state law
instead of medical care, and other material needs of the
(3) The capacity of the parent or parents to care for the child
to the extent that the child’s safety, well-being, and physical,
mental, and emotional health will not be endangered upon
the child’s return home.
(4) The present mental and physical health needs of the child
and such future needs of the child to the extent that such
future needs c a n be ascertained based o n th e present
condition of the child.
(5) The love, affection, and other emotional ties existing
between the child and the child’s parent or parents, siblings,
and other relatives, and the degree of harm to the child that
would arise from the termination of parental rights and
(6) The likelihood of an older child remaining in long-term
foster care upon termination of parental rights, d u e to
emotional or behavioral problems or any special needs of the
(7) The child’s ability to form a significant relationship with a
parental substitute and the likelihood that the child will
enter into a more stable and permanent family relationship
as a result of permanent termination of parental rights and
(8) The length of time that the child has lived in a stable,
satisfactory environment and the desirability of maintaining
(9) The depth of the relationship existing between the child
and the present custodian.
(10) The reasonable preferences and wishes of the child, if
the court deems the child to be of sufficient intelligence,
understanding, and experience to express a preference.
(11) The recommendations for the child provided b y the
child’s guardian ad litem or legal representative.
§ 39.810, Fla. Stat. (2010).
While the trial court found that, as to the mother, the father as well as
the foster family, could constitute a suitable family placement, the
court’s analysis does not comport with the statute when applied to the
father. As to the father, there is not a suitable relative placement, but in
a n y event because the child has been in a stable or preadoptive
placement for over six months, the availability of another placement may
not be considered as a ground for denying termination. Undoubtedly,
the Legislature considered that it would not be in the child’s best interest
to disrupt the child’s stable and lengthy placement with another family.
The court found that the father had the ability to provide for the child
financially and the capacity to provide for the child’s mental and physical
health. Little evidence was produced on this issue, because the father
has never had to provide for the child’s physical and emotional health.
More importantly, while the court found that the child presently had
behavioral issues and was receiving therapy, there was no evidence that
the father had the capacity to deal with those issues. In fact, only the
child’s therapist testified as to the child’s issues, which involve
aggressive and anxious behaviors. She told the court that the child’s
behavior issues would most likely increase should the child be removed
from his present placement, and this would generally cause long-term
The court did not find that the child had a significant relationship as
yet with the father. Although the child was bonded to the foster family,
the court found that the bond could be transferred to the father. By this
determination, the court did not analyze what was in the best interest of
the child but whether the father/child relationship could be resurrected.
Moreover, while reintegration was possible, the child’s therapist testified
that it would have to occur over a long period of time, thus prolonging
the time the child would be in foster care and lacking stability. Because
the child is at the critical stage in developing his primary attachments,
the therapist testified that a change during this period of his life would
produce more harm. The therapist also maintained that it would not be
in the child’s best interest to be removed from his current placement.
The child has existed in his present placement for over a year and
recognizes his foster mother as his primary attachment. He is very
bonded to her. The foster family has expressed a desire to adopt J.C.
The Guardian a d Litem, the case manager, a n d th e therapist all
recommended termination of the father’s rights.
From a review of the statutory factors, many appear to lean toward a
determination that it would be in the child’s best interest to terminate
the father’s rights so that the child could remain in a stable, loving family
and not experience any harm from a change in placement. That is why
the trial court’s best interest analysis, focused on the termination of the
mother’s rights, does not satisfy the statutory requirement as applied to
The court must conduct this analysis before denying
termination. This is not an issue for the appellate court to decide in the
first instance on appeal.
Without performing the best interest calculation, the court determined
that termination was not the least restrictive means of protecting the
child from harm. The “least restrictive means” test, however, is not
intended to preserve a parental bond at the cost of a child’s future. Dep’t
of Children and Families v. B.B., 824 So. 2d 1000, 1009 (Fla. 5th DCA
2002). That standard, as noted in Padgett, means that DCF has
provided a case plan with the provision of services and the time to
effectuate a reunion between parent and child. See In re K.W., 891 So.
2d 1068 (Fla. 2d DCA 2004). The Legislature has established that time
is of the essence in completing a case plan. “The failure of the parent . . .
to substantially comply with the case plan for a period of 9 months after
an adjudication of the child as a dependent child or the child’s placement
into shelter care, whichever occurs first, constitutes evidence of
continuing abuse, neglect, or abandonment . . . .” § 39.806(1)(e)1., Fla.
Stat. In fact, the Legislature reduced the time for substantial completion
from one year to nine months in 2008. See Ch. 2008-245, Laws of
K.W. is similar to this case. There, DCF sought to terminate the
parental rights of a mother to her child. When the child was born, both
mother and child tested positive for drugs. After removal, the mother
was provided with a case plan. When she did not substantially comply,
DCF sought termination which the trial court granted. The mother, S.S.,
contested the termination on appeal on the ground that it was not the
least restrictive means because long-term relative placement was
available. In rejecting long-term placement as opposed to termination,
the court summarized:
In the case before us, the record demonstrates that S.S.
was provided with a case plan and ample time to comply
with the requirements and seek reunification. She failed to
avail herself of this opportunity. Furthermore, this child has
been with the maternal cousin since she was only two
months old. The record supports the trial court’s finding
that the child has established a parental bond with the
cousin and that, due to the limited contact that S.S. has had
with the child, there are minimal or n o emotional ties
existing between S.S. and th e child. While the court is
required to consider the least restrictive means, the least
restrictive means test is not intended “to preserve a parental
bond at the cost of a child’s future.” Dep’t of Children &
Families v. B.B., 824 So.2d 1000, 1009 (Fla. 5th DCA 2002).
Since there is little or no bond to protect and there was never
a parent-child relationship to reestablish, long-term relative
placement was not in the best interest of the child and was
not required by the “least restrictive means” test.
K.W., 891 So. 2d at 1070.
Similarly, in this case the father was given a case plan and had over a
year to complete it. Instead, he disappeared from his child’s life for an
entire year. And as in K.W., there is no bond to protect nor was there
ever a parent-child relationship to reestablish. The child has developed a
substantial bond with his foster family. As defined in Padgett, the least
restrictive means test was clearly met in this case. The father’s belated
attempts to become a good father amount to too little too late in terms of
the least restrictive means test. The child’s interests are paramount over
the father’s desire to now parent his child, where the child would have to
remain in foster care for a substantial period of time to effectuate a
reunion without harming the child further. The trial court’s conclusion
o n this issue not only was not supported b y clear and convincing
evidence, it was not supported by competent substantial evidence.
Thus, this case comes down to the missing analysis of what is in the
child’s manifest best interest—termination or reunification? We reverse
and remand for further proceedings for the court to determine this issue.
The court may take additional testimony in making its decision.
POLEN and LEVINE, JJ., concur.
Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Susan Lubitz, Senior Judge; L.T. Case No. 09-300036 DP.
Julie H. Littky-Rubin of Clark, Fountain, La Vista, Prather, Keen &
Littky-Rubin, LLP and John Walsh and Kelly P. Moore Bertisch, West
Palm Beach, for appellant J.C.
Jeffrey Dana Gillen, West Palm Beach, for appellant Department of
Children and Family Services.
Hillary Kambour, Tavares, for Guardian ad Litem Program.
John Brewer, Lake Worth, for appellee.
Not final until disposition of timely filed motion for rehearing.