State of Florida, Department of etc. v. T. S., the Father and A. B., the Mother ( 2015 )

IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA
STATE OF FLORIDA, NOT FINAL UNTIL TIME EXPIRES TO
DEPARTMENT OF CHILDREN FILE MOTION FOR REHEARING AND
AND FAMILIES AND DISPOSITION THEREOF IF FILED
GUARDIAN AD LITEM
PROGRAM, CASE NO. 1D14-4207
Appellants,
v.
T. S., THE FATHER AND A. B.,
THE MOTHER,
Appellees.
_____________________________/
Opinion filed January 16, 2015.
An appeal from the Circuit Court for Duval County.
David M. Gooding, Judge.
Ward L. Metzger, Jacksonville, and Kelley Schaeffer, Sanford, for Appellants.
Crystal McBee Frusciante, Jupiter, for Appellees.
PER CURIAM.
The trial court found that the Department of Children and Families
established the statutory factors for termination of parental rights and that
termination was in the manifest best interests of the child. These findings are not
disputed on appeal, and would ordinarily support a termination order. The trial
court, however, concluded that termination was not the least restrictive means to
protect the child from harm, a ruling the Department now appeals. We agree with
the Department that the trial court improperly relied on “the availability of a
nonadoptive placement with a relative” when assessing the least restrictive means,
which is expressly prohibited by section 39.810(1), Florida Statutes. See also In re
Z.C., 88 So. 3d 977, 989 (Fla. 2d DCA 2012) (en banc) (“[t]he court misapplied
the manifest best interests and least restrictive means tests by basing its decision
not to terminate solely on the availability of the alternative placement.”). We
conclude that remand is necessary to determine whether termination is appropriate
under the correct legal factors.
We note that the trial court relied on A.H. v. Dep’t of Children & Families,
144 So. 3d 662 (Fla. 1st DCA 2014), and G.H. v. Dep’t of Children & Families,
145 So. 3d 884 (Fla. 1st DCA 2014). In both cases, this Court held that measures
short of termination were available and that termination was not the least
restrictive means to protect the child from harm. Neither case requires the outcome
reached below.
In A.H., the Department conceded on appeal that the least restrictive means
test was not met. 144 So. 3d at 664. There was a pre-existing permanent
guardianship with an unrelated foster mother, and the Department wanted to
terminate the natural parents’ rights so the foster mother could adopt. Id. But the
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child’s interactions with the birth mother were positive, even though they were
irregular—an expert testified that they “did not see any reason why the child could
not form a bond with her.” And the permanent guardian testified that, although she
wanted to adopt the child, there was “no indication” the birth mother was a danger
to the child, and that she believed “the child would like to maintain a relationship
with the mother and his siblings.” Id. The Department conceded, and this Court
held, that maintaining the permanent guardianship and allowing the birth mother to
pursue a relationship was a less restrictive alternative to termination. Id. at 666.
But here, no pre-existing guardianship existed, and thereby no concession
from the Department that a permanency plan could continue with positive
interactions between mother and child. Indeed, the trial court’s findings were that it
would be unsafe for the child to be with his mother, and that the mother displayed
serious misconduct on some of her supervised visits. Further, the permanency plan
here was for the aunt to adopt the child after termination. No party even asked the
trial court for a permanent guardianship with the aunt. Instead, the trial court
decided it was possible for the aunt to become a permanent guardian and found
that this possibility meant there was a measure short of termination available.
Simply because a permanent guardianship and irregular visitation existed in
A.H. does not mean that a trial judge must create an unsolicited permanent
guardianship for the sole purpose of avoiding a least restrictive means outcome.
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Moreover, A.H. did not create an exception to section 39.810(1)—trial courts still
cannot consider “the availability of a nonadoptive placement with a relative,”
which the trial court did when it relied on a future permanent guardianship with the
child’s aunt.
G.H.—which did not alter the least restrictive means analysis—is also
distinguishable. The child at issue was sexually abused by her older brother, but
had a “strong emotional bond with her parents.” 145 So. 3d at 885-86. And there
was evidence that termination would harm the child. But the trial court terminated
parental rights because it concluded “the harm suffered by the separation would be
less than what would occur if the child was returned to them.” Id. at 886. This
Court reversed because removing the brother was a less restrictive alternative than
terminating the parents’ rights. No such alternative is available in this case.
On remand, the trial court should reevaluate the availability of least
restrictive means without considering the nonadoptive placement with a relative.
REVERSED and REMANDED.
WOLF, MAKAR, and OSTERHAUS, JJ. CONCUR.
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