NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
In the Interest of A.R., a child. )
___________________________________ )
)
R.R., )
)
Appellant, )
)
v. ) Case No. 2D13-3036
)
M.M., )
)
Appellee. )
___________________________________ )
Opinion filed July 18, 2014.
Appeal from the Circuit Court for Collier
County; Elizabeth V. Krier, Judge.
Radha Rothrock of Rothrock Law Firm PL,
Bonita Springs, for Appellant.
Cary Alan Cliff of Cary Alan Cliff, P.A.,
Naples, for Appellee.
KHOUZAM, Judge.
The Father appeals the final judgment terminating his parental rights to his
minor child, A.R. On August 16, 2012, the Mother filed a private petition for involuntary
termination of the Father's parental rights, arguing that the Father's parental rights
should be terminated pursuant to—among other grounds—section 39.806(1)(d)(1),
Florida Statutes (2012). That section provides for termination of parental rights where
"[t]he period of time for which the parent is expected to be incarcerated will constitute a
significant portion of the child's minority." After a hearing, the court granted the petition
and terminated the Father's parental rights on this ground.
On appeal, the Father argues that the circuit court erred by failing to find
that termination was the least restrictive means of preventing harm to the child and
failing to adequately support its finding that termination was in the child's manifest best
interests. He also claims that the court erred by not allowing him to present evidence
that the Mother thwarted his efforts to maintain a relationship with the child, finding that
such evidence was irrelevant to an analysis under section 39.806(1)(d)(1). We agree
that the court erred and therefore reverse for a full evidentiary hearing.
The Florida Supreme Court has held that in addressing the termination of
parental rights under section 39.806(1)(d)(1), a court must not only consider the length
of the parent's incarceration but also whether termination is the least restrictive means
of protecting the child from harm and in the manifest best interests of the child. See
B.C. v. Fla. Dep't. of Children & Families,
887 So. 2d 1046, 1053 (Fla. 2004). The
incarcerated parent's relationship with the child and efforts to maintain that relationship
while in prison are relevant to these inquiries. As the supreme court has stated:
Termination of the parental rights of a parent who has played
a supportive and beneficial role in the child's life despite the
disabilities of incarceration probably would not meet these
additional statutory and constitutional criteria. Cf. [In Interest
of B.W.,
498 So. 2d 946, 948 (Fla. 1986)] (stating that
"efforts, or lack thereof," by incarcerated parent "to assume
his parental duties through communicating with and
supporting his children must be measured against his limited
opportunity to assume those duties while imprisoned").
Further, termination of an incarcerated parent's rights when
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another parent retains custody, which is permitted under
section 39.810(3), Florida Statutes, would in many cases be
contrary to the child's best interests if the custodial parent
facilitates contact with the incarcerated parent.
In sum, termination cannot rest exclusively on the
length of incarceration. The actual effect of incarceration on
the parent-child relationship must also be considered in light
of the additional statutory and constitutional requirements.
As we recently stated in [Florida Department of Children &
Families v. F.L.,
880 So. 2d 602 (Fla. 2004)] concerning the
court's obligation to assess when termination is the least
restrictive means of protecting the child from serious harm,
the termination decision as a whole "can be made only after
a judicious assessment of all relevant circumstances."
880
So. 2d at 608. We are confident that trial judges will
diligently apply all the statutory and constitutional criteria in
ruling on petitions for termination.
Id. at 1053-54.
Here, the court completely failed to address in its final judgment whether
termination was the least restrictive means of protecting the child. And though the court
did recite the required statutory factors on the manifest best interests of the child, the
findings on these factors show that the court placed undue focus on the fact that the
Father was incarcerated, failing to consider other relevant factors, such as the nature of
the Father's relationship with the child. Indeed, the record shows that the court limited
questioning about the Father's attempts to maintain a relationship with the child and the
extent to which the Mother thwarted the relationship between the Father and the child.
So the court did not give the Father the opportunity to present evidence on this
important factor. Accordingly, we reverse and remand for a full evidentiary hearing.
Reversed and remanded.
MORRIS and SLEET, JJ., Concur.
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