M.D., the Father v. State of Florida, Department of Children and Families , 2016 Fla. App. LEXIS 5306 ( 2016 )

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
M.D., the Father,
Appellant,
v.
STATE OF FLORIDA, DEPARTMENT OF CHILDREN AND FAMILIES,
Appellee.
No. 4D15-3858
[April 6, 2016]
Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Kenneth L. Gillespie, Judge; L.T. Case No. 11-5768
CJDP.
Katherine L. Corrigan of KLC Law, P.A., Fort Lauderdale, for
appellant.
Pamela Jo Bondi, Attorney General, Tallahassee, and Carolyn
Schwarz, Assistant Attorney General, Children’s Legal Services, Fort
Lauderdale, for appellee.
Kelley Schaeffer, Sanford, for Guardian Ad Litem Program.
CIKLIN, C.J.
M.D. (“the Father”) timely appeals a final judgment terminating his
parental rights as to his four-year-old daughter based on a finding that
he abandoned her. Because competent, substantial evidence supports
the trial court’s judgment, we affirm.
The child has been sheltered on and off her entire life, the first time
just a few days after her birth. In January 2015, the Department of
Children and Families (“the Department”) petitioned for termination of
each parent’s parental rights.1 The petition alleged that the Father
abandoned the child as defined in section 39.01, Florida Statutes, in that
he has failed to maintain a substantial and positive relationship with
1 A consent default was entered for the Mother, who is not a party to this
appeal.
her. Specifically, the Department contended he had not participated in
visitation with the child since July 2014 and had not contacted the
Department regarding her safety and well-being.
The Father was incarcerated at the time of trial, and had been for
approximately two years prior. The Department presented evidence that
the Father was advised of his right to exercise visitation via
correspondence on multiple occasions, yet he sent only two letters to the
child in the duration of his incarceration. The record includes letters to
the Father from a children’s advocate assigned to the case advising him
that correspondence to the child may be mailed to the advocate’s
attention at the address printed on the advocate’s letterhead. The
successor advocate testified at trial that she also sent the Father a letter
informing him of how he could contact his daughter. The successor
advocate confirmed that the Father received the letter.
The Father admitted that, for the six months leading up to his
incarceration, he was not as involved in his daughter’s life as he
previously had been, and that the last time he saw his daughter was
sometime around her second birthday. The Father testified that he sent
his daughter letters on a weekly basis during his incarceration, all
addressed to the attention of a child advocate. He contended that he had
proof of the letters, but was not allowed to bring the letters with him. On
the last day of trial, the Father brought eight letters with him, but he had
no proof that they had actually been mailed. He also contended that he
was not allowed to send letters to his attorney. The Father further
provided inconsistent testimony about prior arrests. At one point, the
Father was asked if he understood perjury and what would happen if he
did not tell the truth in court, to which he replied, “Pretty much nothing
because I’m already incarcerated. What’s the worst that can happen?
I’m already locked up. Another month or two on my sentence.”
In a thorough and well-documented order, the trial judge terminated
the Father’s parental rights. The trial judge specifically found that the
Father knew how to communicate with the child in an effort to maintain
a relationship, but he did not, and found the Father’s testimony not to be
credible.
On appeal, the Father argues he did not abandon the child because
he did everything in his power to maintain a positive relationship with
her. In support of his argument, he points to the eight letters produced
at trial.
The Department asserts that the Father’s argument would require
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this court to improperly reweigh the evidence, and that competent,
substantial evidence supports the trial court’s finding that the Father
abandoned the child. We agree with the Department.
“While a trial court’s decision to terminate parental rights must be
based upon clear and convincing evidence, our review is limited to
whether competent substantial evidence supports the trial court’s
judgment.” J.G. v. Dep’t of Children & Families, 22 So. 3d 774, 775 (Fla.
4th DCA 2009). “[S]o long as the trial court’s ruling on one of the
statutory grounds set forth in section 39.806, Florida Statutes, is
supported by the evidence, the court’s decision is affirmable.” J.E. v.
Dep’t of Children & Families, 126 So. 3d 424, 427-28 (Fla. 4th DCA
2013).
Parental rights may be terminated when a child is abandoned. §
39.806(1)(b), Fla. Stat. (2015).
“Abandoned” or “abandonment” means a situation in which
the parent or legal custodian of a child or, in the absence of
a parent or legal custodian, the 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.
For purposes of this subsection, “establish or maintain a
substantial and positive relationship” includes, but is not
limited to, frequent and regular contact with the child
through frequent and regular visitation or frequent and
regular communication to or with the child, and the exercise of
parental rights and responsibilities. Marginal efforts and
incidental or token visits or communications are not
sufficient to establish or maintain a substantial and positive
relationship with a child.
§ 39.01(1), Fla. Stat. (2015) (emphasis added).
Here, the trial court’s finding of abandonment was supported by
competent, substantial evidence. Testimony established that, aside from
two letters, the Father failed to communicate with the child during his
approximately two-year period of incarceration. He further testified that
he had little involvement with the child in the six months leading up to
his incarceration. Accordingly, the Department proved that the Father
failed to maintain a substantial and positive relationship with the child
as defined by section 39.01(1).
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Although the Father provided contrary testimony regarding the
volume of his correspondence with the child, the trial court specifically
found his testimony not credible. We decline to reweigh the testimony
and evidence or substitute our judgment for the trier of fact; rather, we
affirm based on the competent, substantial evidence in the record before
us to support a finding of abandonment. See C.S. v. Dep’t of Children &
Families, 178 So. 3d 937, 940 (Fla. 4th DCA 2015).
We decline to address the second issue raised by the Father, as we
find it without merit.
Affirmed.
WARNER and KLINGENSMITH, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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