FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
_____________________________
No. 1D18-4552
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C.G. and C.G.,
Appellants,
v.
R.C.,
Appellee.
_____________________________
On appeal from the Circuit Court for Union County.
David P. Kreider, Judge.
September 12, 2019
JAY, J.
Appellants C.G. and C.G. filed a petition to terminate the
parental rights of Appellee R.C. to the minor child, R.—Appellee’s
son by C.G.—pending adoption of R. by C.G.’s husband. Appellee,
who is incarcerated, refused to give his consent to the adoption.
Therefore, Appellants set out to prove by clear and convincing
evidence that Appellee had abandoned R. by being incarcerated
during a significant period of R.’s minority. Following a hearing,
the trial court entered its Order Denying Petition to Terminate
Parental Rights and Petition for Adoption, in which, through its
interpretation of the relevant statute, denied Appellants’ petition.
We agree with Appellants that the trial court misconstrued the
relevant statutory provisions and reverse the final order.
I.
Appellee was incarcerated on drug trafficking charges in
January 2010, less than a month before R.’s fifth birthday. His
tentative release date is March 17, 2023. R. will be eighteen at the
time of release. Prior to Appellee’s incarceration, he had physical
custody of R. and his daughter—R.’s biological older sister—since
R. was six months old. When R. was four, however, his sister went
missing while Appellee was working. Tragically, the sister has
never been found.
Appellants, who had gone through an on-again, off-again
relationship for approximately eleven years, ultimately married in
December 2014. After Appellee was arrested on drug trafficking
charges and incarcerated in 2010, the mother, C.G., sought and
obtained custody of R. She testified that her son was “a broken
little boy” when she gained custody of him—abusing animals and
urinating on the floor. She described him as being “real quiet, just
. . . like empty.” As a result, the trial court ordered counseling for
R. with Dr. Christy Monaghan, who saw him once a week for a
little over a year.
According to C.G., R. knew his father was in prison, but to her
knowledge, did not know why he was in prison until she later told
him he had been incarcerated for drugs. Until 2013, once or twice
a month, R. would be taken to the prison to visit Appellee by his
paternal grandmother and great-grandmother. But C.G. testified
that when R. returned home from the visits, he would be angry and
“act out.” Appellee sent cards to R. at Christmas and on his
birthday, but C.G. left it up to R. whether to respond to Appellee;
he chose not to.
C.G. admitted that the Department of Children and Families
removed R. from her custody in 2013 when a dependency case was
opened. In 2015, R. was reunited with his mother, but Appellee
was denied visitation rights. R. also resumed counseling through
the Department due to what his mother claimed were “really bad
anger outbursts.” To her knowledge, R. made it clear to the
counselor that he did not want to have anything to do with
Appellee. C.G. announced she had been “sober” since the end of
2013. At the time of the hearing, C.G. testified that R. was in the
eighth grade, was doing well, was happy, and laughed. She stated
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that her husband, C.G., functioned as a “dad” for R., and expressed
her belief that the two had “bonded.”
For his part, Appellee testified that when he was first
incarcerated, his mother and grandmother would bring R. to visit
him in prison once or twice a month, testimony that was confirmed
by both women. During these visits, Appellee’s mother would
present R. with clothes and other gifts because Appellee had no
independent source of income to purchase such items. Appellee
“absolutely” believed he had formed a bond with his son. He did
not want his parental rights to R. terminated, because he loved
him. He agreed with counsel that he had done everything in his
power to remain in R.’s life while incarcerated and testified that
he would not be a danger to his son. He admitted that he had not
been in favor of the counseling R. received after his sister
disappeared, and insisted R. never exhibited any behavioral
problems while he was living with him. In a turnabout, however,
Appellee later conceded his son had been traumatized and had
possibly needed counseling over the past years.
II.
The trial court’s decision to deny Appellants’ petition to
terminate Appellee’s parental rights to R. pending their petition
for stepparent adoption, was predicated on a complex, interlocking
interpretation of the factors in section 63.089, Florida Statutes
(2017). Those factors placed on Appellants multiple, overlapping
burdens to prove by clear and convincing evidence not only that
Appellee’s period of incarceration was for a significant period of
R.’s minority, but also that Appellee had, in general, “abandoned”
R., as that term is defined in section 63.032, Florida Statutes, and
further, that Appellee had abandoned R. according to the elements
set forth in section 63.089(4)(a)1.-4., Florida Statutes.
A.
The order on review presents a pure question of law and
statutory interpretation. Therefore, our review is de novo.
Townsend v. R.J. Reynolds,
192 So. 3d 1223, 1225 (Fla. 2016)
(citing Daniels v. Fla. Dep’t of Health,
898 So. 2d 61, 64 (Fla. 2005)).
Our analysis must begin with “the actual language used in the
statute.”
Id. at 1228 (citing Joshua v. City of Gainesville,
768 So.
3
2d 432, 435 (Fla. 2000)); accord Lopez v. Hall,
233 So. 3d 451, 453
(Fla. 2018) (citing Holly v. Auld,
450 So. 2d 217, 219 (Fla. 1984)).
It is beyond dispute that “‘[w]here the statute’s language is clear
or unambiguous, courts need not employ principles of statutory
construction to determine and effectuate legislative intent.’”
Id.
(quoting Trinidad v. Fla. Peninsula Ins. Co.,
121 So. 3d 433, 439
(Fla. 2013) (citing Fla. Dep’t of Children & Family Servs. v. P.E.,
14 So. 3d 228, 234 (Fla. 2009))). “Instead, when clear and
unambiguous, ‘the statute’s plain and ordinary meaning must
control . . . .’”
Id. (quoting Daniels,
898 So. 2d at 64–65); see also In
re Adoption of Baby E.A.W.,
658 So. 2d 961, 966 (Fla. 1995).
Only when the language of the statute is ambiguous does a
court turn to the rules of statutory interpretation and construction.
Anderson v. State,
87 So. 3d 774, 777 (Fla. 2012). One such rule of
construction mentioned in Anderson is the doctrine of in pari
materia, which “requires courts to construe statutes that relate to
the same subject matter together to harmonize those statutes and
give effect to legislative intent.”
Id. Anderson went on to observe
that similar to the doctrine of in pari materia is the principle that
a statute “be read as a consistent whole,” according “meaning and
harmony to all of its parts, with effect given to every clause and
related provision.”
Id. (citing Larimore v. State,
2 So. 3d 101, 106
(Fla. 2008)). Although the trial court in the present case did not
expressly cite to these two rules of construction, the tenor of its
analysis suggests that it effectively employed them. It is our view,
however, that the court needlessly went beyond the plain meaning
of the statute.
The language of section 63.089(4) is clear and unambiguous.
Unpacked, it provides a cascade of independent factors for the trial
court to evaluate in determining the issue of abandonment. To
begin with, section 63.089(3), Florida Statutes, provides in
relevant part:
Grounds for terminating parental rights
pending adoption.--The court may enter a judgment
terminating parental rights pending adoption if the court
determines by clear and convincing evidence, supported
by written findings of fact, that each person whose
consent to adoption is required under s. 63.062:
4
....
(e) Has been properly served notice of the proceeding
in accordance with the requirements of this chapter and
has been determined under subsection (4) to have
abandoned the minor; . . .
(Emphasis added.)
Section 63.089(4), Florida Statutes, adds:
Finding of abandonment.--A finding of
abandonment resulting in a termination of parental
rights must be based upon clear and convincing evidence
that a parent or person having legal custody has
abandoned the child in accordance with the definition
contained in s. 63.032. A finding of abandonment may
also be based upon emotional abuse or a refusal to provide
reasonable financial support, when able, to a birth
mother during her pregnancy or on whether the person
alleged to have abandoned the child, while being able,
failed to establish contact with the child or accept
responsibility for the child’s welfare.
Section 63.032(1), Florida Statutes, defines “abandoned” to
mean
a situation in which the parent or person having legal
custody of a child, while being able, makes little or no
provision for the child’s support or makes little or no
effort to communicate with the child, which situation is
sufficient to evince an intent to reject parental
responsibilities. If, in the opinion of the court, the efforts
of such parent or person having legal custody of the child
to support and communicate with the child are only
marginal efforts that do not evince a settled purpose to
assume all parental duties, the court may declare the
child to be abandoned. In making this decision, the court
may consider the conduct of a father towards the child’s
mother during her pregnancy.
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Having referenced abandonment as defined in section
63.032(1), section 63.089(4) continues:
(a) In making a determination of abandonment at a
hearing for termination of parental rights under this
chapter, the court shall consider, among other relevant
factors not inconsistent with this section:
1. Whether the actions alleged to constitute
abandonment demonstrate a willful disregard for the
safety or welfare of the child or the unborn child;
2. Whether the person alleged to have abandoned the
child, while being able, failed to provide financial
support;
3. Whether the person alleged to have abandoned the
child, while being able, failed to pay for medical
treatment; and
4. Whether the amount of support provided or
medical expenses paid was appropriate, taking into
consideration the needs of the child and relative means
and resources available to the person alleged to have
abandoned the child.
Subsection (4)(a) requires no parsing. According to its terms, the
trial court will make a finding of abandonment as defined in
section 63.032(1) and, in doing so, consider the four factors in
subparagraphs 1.-4.
But, section 63.089(4)(b), Florida Statutes, contemplates a
distinctly different scenario, as is evident in its opening sentence:
The child has been abandoned when the parent of a
child is incarcerated on or after October 1, 2001, in a
federal, state, or county correctional institution and:
1. The period of time for which the parent has been
or is expected to be incarcerated will constitute a
significant portion of the child’s minority. In determining
whether the period of time is significant, the court shall
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consider the child’s age and the child’s need for a
permanent and stable home. The period of time begins on
the date that the parent enters into incarceration; . . . .
(Emphasis added.) The emphasized language of this paragraph is
unassailably definitional. It expresses the essential nature of
“abandonment” in the context of an incarcerated parent who will
remain so for a “significant portion of the child’s minority.” §
63.089(4)(b)1., Fla. Stat. In addition, paragraph (b) dictates that,
in determining whether the period of incarceration is “significant,”
the court “shall consider the child’s age and the child’s need for a
permanent and stable home.” Id. By its clear terms, subsection
(4)(b) is an independent, alternative means of establishing
abandonment.
In the instant case, however, the trial court applied the factors
in section 63.089(4) linearly, beginning with the introductory
reference to the definition of abandonment in section 63.032, then
proceeding downward to the salient considerations in subsections
(4)(a) and (4)(b). The result was a legal analysis that eviscerated
the legislative concept of abandonment through incarceration. The
significance of this misplaced examination is evidenced by the way
in which the court evaluated the facts under section 63.089(4)(b)1.:
The Father was incarcerated in January 2010. The
[F]ather’s tentative release date is March 20, 2023, which
is after the child reaches the age of 18. The period of
incarceration will be 13 years. The child is currently 13
years old. . . . While few people could argue 13 out of 18
years is not a significant period of time, the child has not
also been abandoned by the [F]ather as required by
section 63.089(4) and defined in section 63.032, Fla. Stat.
Therefore, the ground for termination listed in section
63.089(4)(b), Fla. Stat. has not been met.
There is no foundation in section 63.089(4) to support the
emphasized language in the above-quoted paragraph. Put another
way, there is no suggestion in the statutory language that
abandonment in the context of section 63.089(4)(b) is contingent
on any other definition of abandonment that precedes it in the
statute. Lending credence to this notion that section 63.089(4)(b)
offers up separate reasons for finding abandonment is the fact that
7
it proposes three distinct disjunctive scenarios of parental
incarceration that would constitute abandonment. See §
63.089(4)(b)1.-3, Fla. Stat. Unquestionably, by its plain terms,
section 63.089(4)(b) is to be read separate and apart from section
63.089(4) and (4)(a).
Moreover, the trial court’s misapprehension that the
definition of “abandoned” in section 63.032(1) overlays all of
section 63.089(4) led it to accord undue importance to the Second
District’s opinion in In re B.W.G.,
198 So. 3d 1025, 1027 (Fla. 2d
DCA 2016), and that decision’s emphasis on the parent’s conduct
as manifesting a settled purpose to permanently forgo all parental
rights—behavior evincing a complete relinquishment of
responsibility. But B.W.G. did not involve an incarcerated parent.
The analysis in that case proceeded under sections 63.032 and
63.089(4)(a).
However, and as noted by the trial court below, the Second
District in B.W.G. further observed that “incarceration alone does
not constitute abandonment as a matter of law,” citing to T.H. v.
Dep’t of Children & Family Servs.,
979 So. 2d 1075, 1080 (Fla. 2d
DCA 2008), J.T. v. Dep’t of Children & Family Servs.,
819 So. 2d
270, 272 (Fla. 2d DCA 2002), and, lastly, R.R. v. M.M.,
143 So. 3d
449, 450 (Fla. 2d DCA 2014). That observation is sound, and
section 63.089(4)(b) reflects its wisdom by predicating
abandonment under that subsection not on incarceration alone,
but on a period of incarceration that will constitute “a significant
portion of the child’s minority” and requiring the court to consider
“the child’s age and the child’s need for a permanent and stable
home.” Moreover, T.H., J.T., and R.R. involved different facts and
proceeded under chapter 39.
The trial court acknowledged the Fifth District’s observation
in M.S.B. v. R.B.,
93 So. 3d 532 (Fla. 5th DCA 2012) (Mem.), that
“[s]ection 63.089(4)(b), Florida Statutes (2011), provides that
where a parent is or will be incarcerated for a significant period of
a child’s minority, the child is deemed to have been abandoned.”
Id. at 532 n.1. (emphasis added). The trial court concluded,
however, that “[i]f incarceration for a significant period of the
child’s minority should, by itself, constitute grounds for
termination of parental rights absent a finding that the parent also
8
did not abandon the child according to the definition of section
63.032(1), the legislature should amend the statutes to reflect
this.” That conclusion is not consistent with the statute, since the
unambiguous language of section 63.089(4)(b) provides that “[t]he
child has been abandoned when” the parent will be incarcerated
for a significant period of the child’s minority. (Emphasis added.)
The Fifth District in M.S.B. got it right.
Appellee defends the trial court’s reliance on the introductory
language of section 63.089(4) by analogizing it to the statutory
analysis employed in Hilton v. State,
961 So. 2d 284 (Fla. 2007). In
Hilton, the Florida Supreme Court declared: “It is a question of
statutory interpretation as to whether section 316.610 of the
Florida Statutes permits a [traffic] stop for a cracked windshield
on the basis that the crack renders the windshield ‘not in proper
adjustment or repair,’ even if the crack does not otherwise render
the vehicle unsafe.”
Id. at 288. To resolve the question presented,
the supreme court was asked to interpret two independent
statutes. First, it considered section 316.610, Florida Statutes,
which addresses the safety of vehicles and provides that a vehicle
is unsafe when it (1) is “in such unsafe condition” as to be
dangerous; (2) “does not contain those parts or is not at all times
equipped with such lamps and other equipment in proper condition
and adjustment as required” in chapter 316; or (3) is “equipped in
any manner in violation” of chapter 316.
Id. In the event that any
of the foregoing violations is observed by law enforcement, the law
enforcement officer is authorized to stop the vehicle and inspect it.
Because the officer in Hilton performed a traffic stop based on a
cracked windshield, the supreme court by necessity had to turn to
section 316.2952, Florida Statutes, which “enumerates the specific
windshield requirements for Florida vehicles.”
Id. at 289. To
understand how the two statutes applied to the facts before it, the
supreme court turned to “the introductory paragraph of 316.610”
and focused on that portion providing “that it is a violation for a
vehicle to be driven ‘which does not contain those parts or is not at
all times equipped with such lamps and other equipment in proper
condition and adjustment as required in this chapter.’”
Id.
(emphasis in original).
But it went on to observe that the section governing
windshields in chapter 316—section 316.2952—“requires only: (1)
9
that a vehicle have a windshield in a fixed and upright position
that is equipped with safety glazing; (2) that the windshield be
equipped with a driver-controlled device for cleaning moisture
from the windshield; and (3) that windshield wipers be maintained
in good working order. See § 316.2952, Fla. Stat. (2001).” Id. In
giving effect to the operative language in both statutes, the
supreme court reasoned that
any other problems with windshields, such as chips,
dings, or cracks, are not within section 316.2952 and do
not constitute a traffic violation under that statute. To
conclude that any defect or damage renders a vehicle’s
equipment “not in proper adjustment or repair,” and,
therefore, subject to stop and inspection by law
enforcement officers pursuant to section 316.610(1),
would ignore the language in the introductory paragraph
of the statute which provides that it is a violation for a
vehicle not to have equipment that is in proper condition
or adjustment “as required in this chapter.”
Id. at 289-90 (emphasis added). In short, the introductory
language in section 316.610 was necessary to generally define the
violation, but required the supreme court to independently
reference section 316.2952 to determine the statutory
requirements for windshields in order to find if a violation had in
fact occurred.
In this case, Appellee seizes on the supreme court’s reliance
in Hilton on the “introductory language” of section 316.610, and
urges that the “introductory language” of section 63.089(4) be
given the same gloss. However, the statutory analysis employed in
Hilton is unsuitable for understanding how section 63.089(4)
operates for the simple reason that, at issue here, is a
comprehensive statutory formula for determining if a child has
been abandoned by a parent, not a singular statute setting forth
guidelines for vehicular safety that requires the factfinder to
search chapter 316 for the discrete vehicular equipment
requirements. That process requires reading different statutory
sections in pari materia. But the introductory language of section
63.089(4) does not require going outside the statutory criteria
apart from the reference to section 63.032. It does not alter the fact
10
that section 63.089(4)(b) provides an alternative ground for a
finding of abandonment. To apply Hilton chapter and verse here
would be to ignore the clear and unambiguous language of section
63.089(4).
Accordingly, the trial court erred as a matter of law in
concluding that the ground for termination listed in section
63.089(4)(b) had not been met because Appellants failed to prove
by clear and convincing evidence that Appellee abandoned R. as
that term is defined in section 63.032(1) and section 63.089(4)(a).
As a result, the cause must be remanded for the court to reconsider
Appellants’ petition under the correct interpretation of the statute.
B.
Moreover, due to evidentiary errors committed by the trial
court, a new hearing is required on remand. Specifically, the trial
court erred in ruling that Appellants could not present the
testimony of Detective Piscitello because it was not relevant, and
in denying Appellants’ “Motion to Review Dependency File in
Baker County.”
Appellants proffered the testimony of Detective Piscitello,
which revealed that he would be testifying to the events
surrounding the disappearance of Appellee and C.G.’s young
daughter, Haleigh, while she and R. were in Appellee’s custody.
Detective Piscitello would have testified that Appellee left his
children in the care of his then seventeen-year-old girlfriend—who
had a known drug abuse issue—while Appellee worked the night
shift at his job. Detective Piscitello stated that when he arrived at
the scene in the early morning hours of February 10, 2009,
Appellee was agitated, had an injury to his hand from punching a
door, and seemed intoxicated and emotional. The investigation
was still active at the time of the hearing and no one had been
charged with Haleigh’s disappearance. The relevance of the
proffered testimony is undeniable. Appellee’s judgment in leaving
his two young children in the care of a drug-addicted teenager
highlights the issue of R.’s need for a stable and permanent home.
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On remand, the trial court should permit Detective Piscitello to
testify. ∗
Lastly, in denying Appellants’ motion to review the Baker
County dependency file, the trial court ruled that the mother could
inspect the file in her capacity as the child’s parent. However, it
held that the mother’s attorney was her attorney “in the context of
the adoption case, not the dependency case,” and “[i]t would not be
appropriate to grant [counsel] access to the dependency file
because [counsel] did not act as [the mother’s] attorney in the
dependency case.”
Section 39.0132(3), Florida Statutes, is the operative statute,
but nothing in the statute limits which attorney of the parent has
access to the dependency file. Moreover, it is conceivable that once
the mother was given access to the dependency file, she would
simply turn the information over to her present counsel. Appellee
defends the court’s decision on the basis of the language in section
39.0132(3) subjecting the right to access the records to “the
provisions of section 63.162 . . . .” Section 63.162(2), Florida
Statutes, states in pertinent part:
In the case of an adoption not handled by the department
or a child-placing agency licensed by the department, the
department must be given notice of hearing and be
permitted to present to the court a report on the
∗
However, as to the propriety of the trial court’s exclusion of
Pam Dudek—a classification-sentence specialist at Appellee’s
prison—we hold that the issue was not preserved for our review.
Appellants did not proffer or attempt to proffer her testimony.
Instead, they afforded the trial court only a snapshot of what she
might have said. “We cannot consider the admissibility of excluded
testimony which is not present in the record.” Savell v. State, No.
1D19-0136,
2019 WL 3783381, *1 (Fla. 1st DCA Aug. 13, 2019); see
also Cardenas v. State,
816 So. 2d 724, 725 (Fla. 1st DCA 2002)
(holding “[a] proffer of excluded testimony is necessary to preserve
a claim that the testimony was erroneously excluded,” (citing
Lucas v. State,
568 So. 2d 18, 22 (Fla. 1990))).
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advisability of disclosing or not disclosing information
pertaining to the adoption.
(Emphasis added.) As Appellants point out, they were not seeking
information pertaining to an adoption, but information from the
recent dependency proceedings relevant to proving grounds for the
termination of Appellee’s parental rights. Consequently, we hold
that the trial court erred in denying the Appellants’ motion for
counsel to obtain the records.
III.
In conclusion, the trial court’s misinterpretation of the
provisions of section 63.089(4) and its erroneous evidentiary
rulings warrant reversal and remand for a new hearing.
REVERSED and REMANDED for further proceedings consistent
with this opinion.
WOLF and ROBERTS, JJ., concur.
_____________________________
Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
_____________________________
William S. Graessle and Jonathan W. Graessle of William S.
Graessle, P.A., Jacksonville, and Carol A. Caldwell, St. Augustine,
for Appellants.
David Maldonado of The Maldonado Law Firm, P.A., Lakeland, for
Appellee.
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