DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
J.O., the Father,
Appellant,
v.
STATE OF FLORIDA, DEPARTMENT OF CHILDREN AND FAMILIES,
Appellee.
No. 4D20-2615
[June 9, 2021]
Appeal from the Circuit Court for the Nineteenth Judicial Circuit,
Okeechobee County; Laurie E. Buchanan, Judge; L.T. Case No.
2019000118DPAXMX.
Crystal J. Marsh of Marsh Law Firm, P.A., Stuart, for appellant.
Andrew Feigenbaum, Children’s Legal Services, West Palm Beach, for
appellee.
Thomasina F. Moore, Statewide Director of Appeals, Statewide
Guardian Ad Litem Office, Tallahassee, for Guardian Ad Litem Program.
PER CURIAM.
The Department of Children and Families petitioned for termination of
parental rights as to the mother and J.O. (“the father”) based on a material
breach of the case plan and abandonment of the children. After an
adjudicatory hearing, the trial court terminated the parental rights of both
parents. The father appeals.
We affirm the termination of parental rights on the ground of material
breach of the case plan. The evidence established that in February 2020,
the father consented to a dependency case plan, which required him to
complete a substance abuse evaluation and follow up on
recommendations, submit to random drug tests, contact his case manager
every fourteen days, undergo a mental health evaluation and complete any
treatment and education determined to be necessary, participate in a
batterer’s intervention program, undergo a parenting evaluation, and
participate in parenting education classes and follow all
recommendations, among other tasks. The parents were granted
supervised visitation. The case plan had a goal of reunification by August
17, 2020.
On the day the case plan was accepted, the case manager referred the
father to a batterer’s intervention program. There is no evidence he
attended. Shortly after the case plan began, the father submitted to two
drug tests and a substance abuse evaluation. He tested positive for
marijuana, methamphetamine, amphetamines, and alcohol. The
substance abuse evaluator advised the father to enter the New Horizons
detox program, and she informed him he would be referred to an inpatient
program while there. She recommended he complete a 90-day inpatient
substance abuse program and submit to further random drug tests. The
father’s case manager also instructed the father go to the detox program.
The father failed to follow through and did not submit to any more drug
tests. A parenting evaluation was scheduled for the day after the father’s
substance abuse evaluation, but he failed to attend. Afterward, and for a
three-month period, the father did not respond to the case manager’s
telephone calls and texts, actually hanging up on her on the occasion she
was able to make contact with him. He did not submit a requested
schedule for supervised visitation, and thus did not take advantage of the
opportunity to have supervised visits with the children. He did not provide
any sort of child support and did not ask how the children were doing.
The case manager did not refer the father for other services, such as a
mental health evaluation and parenting classes, because the father needed
to attend a detox program first.
In early April 2020, during an encounter with the father, a detective
with the Okeechobee Sheriff’s Office found synthetic marijuana in the
father’s vehicle. The father was not arrested at that time due to capacity
limits at the jail. The father was arrested in late May 2020 for possession
of methamphetamine. At that point in time, due to the pandemic, the jail
no longer offered services such as Narcotics Anonymous meetings. After
the father was arrested, he wrote letters to the children.
We affirm the termination of the father’s parental rights, as there was
competent substantial evidence supporting the trial court’s finding of a
material breach of the case plan. The father argues that he was unable to
comply with his case plan due to his incarceration and the Department’s
lack of a provision of services. We reject this argument, as the father was
at liberty for a significant period of the case plan and failed to report to
detox and keep in contact with his case manager so that he could avail
himself of services. See A.F. v. Dep’t of Children & Families,
276 So. 3d 61,
65 (Fla. 1st DCA 2019) (affirming termination where the father had several
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months to work on his case plan before his incarceration, yet failed to avail
himself of services); W.S. v. Dep’t of Children & Families,
961 So. 2d 1131,
1133 (Fla. 4th DCA 2007) (affirming termination where the father “made
no effort at all to comply with the case plan during the times when he was
not incarcerated”); T.C. v. Dep’t of Children & Families,
961 So. 2d 1060,
1061-62 (Fla. 4th DCA 2007) (affirming termination where mother failed
to avail herself of services offered by the Department during the period she
was at liberty and instead continued to use drugs and failed to give the
Department her contact information).
The father relies on cases that are distinguishable. Unlike in In re C.N.,
51 So. 3d 1224 (Fla. 2d DCA 2011), the Department here did not rely on
the father’s arrest and incarceration to prove a material breach of the case
plan. Further, T.M. v. Department of Children & Families,
905 So. 2d 993
(Fla. 4th DCA 2005), is distinguishable in that the father there was
incarcerated at the inception of the case plan, and the Department made
no effort to assist the father in securing services while in prison. Here, the
father was at liberty for much of the period of his case plan, and the
Department attempted to offer him services during that time.
The father asserts, without any record evidence, that services were not
available during the time he was at liberty. The record indicates otherwise,
as he underwent a substance abuse evaluation, he was referred to New
Horizons for detox, and he was scheduled for a parenting evaluation.
The Department also sought to terminate the father’s parental rights
based on abandonment. However, the final judgment is not clear as to
whether the trial court terminated based on this ground. There are
conflicting provisions in the judgment. The judgment provides on page
two that there was clear and convincing evidence supporting termination
on both material breach and abandonment. But the court made findings
only as to material breach and it concluded later in the judgment that
termination was based on material breach. As such, we remand for entry
of an amended final judgment clearly indicating whether termination also
is based on abandonment and making the required findings. See §
39.809(5), Fla. Stat. (2020) (requiring order on adjudicatory hearing for
termination of parental rights petition to contain findings of fact and
conclusions of law); § 39.811(5), Fla. Stat. (2020) (requiring termination
order to “briefly stat[e] the facts upon which its decision to terminate the
parental rights is made”).
Affirmed in part, reversed in part, and remanded with instructions.
WARNER, CIKLIN and ARTAU, JJ., concur.
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Not final until disposition of timely filed motion for rehearing.
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