B.A., THE MOTHER v. DEPT. OF CHILDREN & FAMILIES ( 2020 )


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  •         DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
    FOURTH DISTRICT
    B.A., the Mother,
    Appellant,
    v.
    STATE OF FLORIDA, DEPARTMENT OF CHILDREN AND FAMILIES,
    Appellee.
    No. 4D20-270
    [May 27, 2020]
    Appeal from the Circuit Court for the Nineteenth Judicial Circuit, St.
    Lucie County; Robert B. Meadows, Judge; L.T. Case No.
    562019DP000127.
    Antony P. Ryan, Director, and Paul O’Neil, Assistant Regional Counsel,
    Office of Criminal Conflict and Civil Regional Counsel, West Palm Beach,
    for appellant.
    Andrew Feigenbaum, Children’s Legal Services, West Palm Beach, for
    appellee.
    Craig Robert Lewis, Defending Best Interests Project, Florida Statewide
    Guardian Ad Litem Office, Miami Beach, and Thomasina F. Moore,
    Statewide Director of Appeals, and Samantha C. Valley, Senior Attorney,
    Statewide Guardian Ad Litem Office, Tallahassee, for Guardian Ad Litem
    Program.
    CIKLIN, J.
    B.A. (“the mother”) appeals a final judgment terminating her parental
    rights. We conclude that neither of the two statutory grounds relied upon
    for termination of parental rights (“TPR”) was proven by competent,
    substantial evidence, and we reverse.
    The trial court’s determination that TPR was proper under section
    39.806(1)(c), Florida Statutes (2019), was based on the mother’s history
    and findings related to (1) her “pattern of behavior” of completing services
    to obtain reunification with her children, (2) her reverting back to alcohol
    abuse and domestic violence with the child’s father “once the Department
    terminates supervision,” and (3) the fact that “[t]he mother . . . continue[s]
    to be in a relationship with [the father] to the detriment of her children.”
    At the TPR hearing, the Department established that the mother had
    previously and successfully completed a case plan that included
    substance abuse treatment. She was reunified with her children in 2015
    with Department supervision concluding in 2016. The Department was
    permitted to admit records from prior cases to establish some of these
    facts, but, importantly, the trial court indicated that it would not consider
    any hearsay allegations within the records. The testimonial evidence
    established that the mother began consuming alcohol again at the end of
    2018, and that the children were removed due to an incident of domestic
    violence between the mother and father in May 2019, which incident
    occurred while they were both drinking. Even though the mother was not
    offered a case plan, she became sober immediately upon the removal of
    the children and successfully completed a substance abuse treatment
    program. She is currently in an “aftercare” program for substance abuse.
    To terminate parental rights, one of the grounds set forth in section
    39.806, Florida Statutes (2019), must be established by clear and
    convincing evidence. J.G. v. Dep’t of Children & Families, 
    22 So. 3d 774
    ,
    775 (Fla. 4th DCA 2009). Clear and convincing evidence has been defined
    as an “intermediate level of proof [that] entails both a qualitative and
    quantitative standard. The evidence must be credible; the memories of the
    witnesses must be clear and without confusion; and the sum total of the
    evidence must be of sufficient weight to convince the trier of fact without
    hesitancy.” In re N.F., 
    82 So. 3d 1188
    , 1191 (Fla. 2d DCA 2012) (alteration
    in original) (quoting In re Davey, 
    645 So. 2d 398
    , 404 (Fla. 1994)).
    “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.,
    
    22 So. 3d at 775
    . “Competent substantial evidence is tantamount to
    legally sufficient evidence.” Dusseau v. Metro. Dade Cty. Bd. of Cty.
    Comm’rs, 
    794 So. 2d 1270
    , 1274 (Fla. 2001). “Sufficiency is a test of
    adequacy. Sufficient evidence is ‘such evidence, in character, weight, or
    amount, as will legally justify the judicial or official action demanded.’”
    Tibbs v. State, 
    397 So. 2d 1120
    , 1123 (Fla. 1981) (quoting Black’s Law
    Dictionary 1285 (5th ed. 1979)).
    Section 39.806(1)(c) provides that grounds for termination may be
    established:
    When the parent or parents engaged in conduct toward the
    child or toward other children that demonstrates that the
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    continuing involvement of the parent or parents in the parent-
    child relationship threatens the life, safety, well-being, or
    physical, mental, or emotional health of the child irrespective
    of the provision of services. Provision of services may be
    evidenced by proof that services were provided through a
    previous plan or offered as a case plan from a child welfare
    agency.
    § 39.806(1)(c), Fla. Stat. (2019). “To terminate the mother’s rights under
    [section 39.806(1)(c)], the Department was required to prove that the
    children’s ‘life, safety, or health would be threatened by continued
    interaction with the parent, regardless of the provision of services’ and that
    ‘there is no reasonable basis to believe the parent will improve.’” Q.L. v.
    Dep’t of Children & Families, 
    280 So. 3d 107
    , 114 (Fla. 4th DCA 2019)
    (quoting T.O. v. Dep’t of Children & Families, 
    21 So. 3d 173
    , 179 (Fla. 4th
    DCA 2009)). There must be proof “either that services have been provided
    to the parent or that it would be futile to even attempt to provide services
    to address the parent’s issues.” C.W. v. Dep’t of Children & Families, 
    228 So. 3d 725
    , 725 (Fla. 1st DCA 2017).
    The portion of the TPR order terminating the mother’s rights pursuant
    to subsection (1)(c) was based on the trial court’s findings of the mother’s
    history of both alcohol abuse and domestic violence. The record does not
    support TPR with respect to either of these issues.
    First, we address the mother’s alcoholism. Proof of both elements
    outlined in Q.L. is questionable in this case, but the Department clearly
    failed to prove that there was no reasonable basis to believe that the
    mother would improve. “Typically, this second evidentiary requirement is
    established through expert testimony. Where there is no expert testimony
    on this issue, . . . reversal may be appropriate because the trial court’s
    findings would be speculative.” Q.L., 280 So. 3d at 115.
    Here, as in Q.L., the Department did not call any experts to testify and
    it presented no testimony that the mother would not or could not
    rehabilitate. On the contrary, the evidence indicated that the mother
    previously and successfully completed substance abuse treatment and
    then spent years both sober and unsupervised. After the removal, the
    mother again entered and successfully completed a substance abuse
    program—despite receiving no offer of a case plan. The evidence at the
    TPR hearing indicated that she has not had an alcoholic drink since the
    incident that led to the latest removal. Moreover, the mother’s testimony
    indicated that the substance abuse program she most recently completed
    was much more comprehensive than her previous program. In light of the
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    mother’s success and her expressed desire to overcome her addiction—
    along with the absence of any affirmative evidence that the mother is
    unlikely to improve with treatment—we see no competent, substantial
    evidence to support a determination that there was no reasonable basis to
    believe the mother would improve. 1
    Second, the trial court’s factual findings regarding a history of domestic
    violence and that “[t]he mother . . . continue[s] to be in a relationship” with
    the father are not supported by the record. On the contrary, the
    Department proved only a single instance of domestic violence which
    occurred immediately prior to the shelter order. The Department contends
    that the case manager’s testimony established a history of domestic
    violence. In relevant part, the case manager testified that she had been
    assigned to the case for fewer than three months, she was “briefly” made
    aware of the family’s history, and that she familiarized herself “with the
    file” “to the best of [her] ability,” but that she may not have been able to
    view everything due to the age of the case. She further testified that, in
    the instant case, the children were removed due to substance abuse and
    violence in the home, and that those were the “same reasons” addressed
    in prior dependency cases. She explained that there were not “any services
    that the Department could offer in this case that [it has] not already offered
    in the two prior cases.”
    1 We acknowledge that there are many circumstances in which expert testimony
    may not be necessary to establish that a parent is not amenable to treatment.
    See, e.g., R.K. v. Dep’t of Children & Families, 
    898 So. 2d 998
    , 1000-01 (Fla. 5th
    DCA 2005) (affirming termination of parental rights where mother had a 15-year
    history of drug abuse, used cocaine while pregnant with children, and did well
    while in residential drug treatment, but failed to complete multiple treatment
    programs, and upon leaving last facility, violated her probation and was
    incarcerated); S.J. v. Dep’t of Children & Family Servs., 
    866 So. 2d 770
    , 771 (Fla.
    4th DCA 2004) (affirming termination of parental rights where mother was twice
    unsuccessfully discharged from outpatient substance abuse treatment, refused
    inpatient treatment, and was arrested four times while under Department
    supervision). However, these cases are vastly distinguishable from the facts at
    hand, and “[w]here the record demonstrates a reasonable basis exists to find the
    parent’s problems could be improved, parental rights cannot be terminated.”
    M.H. v. Dep’t of Children & Families, 
    866 So. 2d 220
    , 223 (Fla. 1st DCA 2004)
    (finding no evidence to establish a reasonable basis that mother would not
    improve where, despite drug addiction and relapses, mother sought treatment
    before Department involvement, continued to seek help both through the
    Department and on her own, and expressed a “strong desire to overcome her
    addiction and parent her children”).
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    Simply stated, the case manager’s testimony was not competent,
    substantial evidence of a history of domestic violence. The case manager’s
    testimony was expressly equivocal and she lacked personal knowledge of
    the history of the case. Furthermore, simply stating that the children were
    removed for the “same reasons” as in prior cases provided no substance,
    quantity, or detail surrounding any alleged past instance of domestic
    violence. We find that her testimony lacked the nature and weight of
    evidence required for establishing a past history of domestic violence in
    this context.
    Moreover, there was no evidence to support a conclusion that the
    parents were in an ongoing relationship. The evidence established just the
    opposite: the parents separated following removal, they no longer live
    together, and they are no longer romantically involved with one another.
    Accordingly, this court must evaluate whether termination under
    section 39.806(1)(c) is proper based on the evidence of one incident of
    domestic violence. “Termination under this section is termination based
    on prospective abuse or neglect. Essentially, the trial court is asked to
    look at the parent’s current . . . condition or past behavior and predict
    whether the parent will likely harm the child in the future.” Q.L., 280 So.
    3d at 113-14 (emphasis in original). Because the parents were no longer
    living together and there was no evidence of any reconciliations following
    prior instances of domestic violence or any other evidence indicating a
    likelihood of harm to the children based on domestic violence, it cannot be
    said that the Department proved that there is likelihood of harm to the
    children based on domestic violence.
    Furthermore, the Department failed to offer a case plan following the
    single proven incident, and there is nothing in the record to demonstrate
    whether or not the mother would improve with the assistance of services.
    Thus, any determination that domestic violence services would be futile
    was based on raw speculation with little if any evidentiary support.
    The second ground for termination in the order of TPR is based on
    section 39.806(1)(l), Florida Statutes (2019), under which termination is
    permissible where “[o]n three or more occasions the child or another child
    of the parent or parents has been placed in out-of-home care pursuant to
    this chapter . . . , and the conditions that led to the child’s out-of-home
    placement were caused by the parent or parents.” The evidence was
    similarly insufficient to support a TPR under this subsection. The
    Department proved that children were removed from the home on three
    dates but there was not competent, substantial evidence to establish that
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    the conditions that led to the earlier removals were caused by the mother.
    The Department failed to meet its burden.
    In sum, there was not sufficient evidence to support termination of the
    mother’s parental rights under either statutory ground. Consequently, we
    reverse and remand.
    Reversed and remanded.
    KLINGENSMITH, J., and LEVENSON, JEFFREY, Associate Judge, concur.
    *        *        *
    Not final until disposition of timely filed motion for rehearing.
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