Third District Court of Appeal
State of Florida
Opinion filed April 20, 2022.
Not final until disposition of timely filed motion for rehearing.
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No. 3D21-1935
Lower Tribunal No. 19-15372
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S.A., The Mother,
Appellant,
vs.
Department of Children and Families, et al.,
Appellees.
An Appeal from the Circuit Court for Miami-Dade County, Denise
Martinez-Scanziani, Judge.
S.A., The Mother, in proper person.
Karla Perkins, for appellee Department of Children & Families; Sara
Elizabeth Goldfarb, Statewide Director of Appeals, and Desirée Erin
Fernández, Senior Attorney (Tallahassee), for appellee Guardian ad Litem.
Before SCALES, LINDSEY and GORDO, JJ.
GORDO, J.
S.A., the mother, appeals a trial court order terminating her parental
rights. We have jurisdiction. Fla. R. App. P. 9.030(b)(1)(A). Because the
record contains competent, substantial evidence demonstrating the mother
materially breached the case plan and failed to substantially comply with its
terms in violation of section 39.806(1)(e)1. and 2., Florida Statutes (2021),
we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In June 2019, the mother was arrested for disorderly conduct and child
neglect as to her child H.D. after exhibiting aggressive behavior at a local
mall. The mother subsequently spent twenty-two days in jail. The
Department of Children and Families (“DCF”) investigated and implemented
a safety plan. During its investigation, it was discovered the mother had a
severe psychiatric condition, had been involuntarily hospitalized pursuant to
Florida’s Baker Act more than ten times and was not compliant with her
medication. 1 As part of the safety plan, H.D. was placed in her paternal great
grandmother’s care. The great grandmother also agreed to supervise visits
between H.D. and her parents.
1
In 2009, the mother was diagnosed with schizoaffective disorder, bipolar
type.
2
In August 2019, H.D. was sheltered and DCF petitioned for her
dependency. The mother failed to appear at the arraignment hearing. In
September 2019, the trial court adjudicated H.D. dependent and accepted
DCF’s proposed six-month case plan with the goal of reunification. The trial
court ordered the mother to complete the case plan tasks which in part,
required she attend individual therapy, undergo a mental health evaluation,
comply with any recommended treatment and participate in medication
management.
At her first judicial review hearing, the mother was present and was
found to be partially compliant with the case plan, however she had not seen
a psychiatrist and continued to refuse to take her medication. The trial court
ordered a new case plan with a reunification goal date of July 2020. Days
later, the mother was again involuntarily hospitalized after decompensating
because she elected to stop taking her medication.
In April 2020, the mother decided to comply with taking her medication
and became more stabilized. The trial court ordered a new case plan which
required the mother to additionally submit to in-patient mental health
treatment with a reunification goal date of October 2020. The plan was
ordered based on her psychiatrist’s recommendation that she required 24-
hour medical care for a period to fully stabilize and become medication
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compliant. After the hearing, the mother refused to attend in-patient
treatment. In September 2020, the mother stopped seeing her psychiatrist,
stopped attending medication management and was subsequently
hospitalized involuntarily for two weeks after refusing to take her medication.
At the October 2020 hearing, the trial court again found the mother
continued to be in material breach of her case plan. The mother failed to
attend her medication management appointments and was not taking her
medication. Nonetheless, the trial court extended the reunification case plan
one last time to allow the mother an opportunity to meet the goal date of
January 2021. In January 2021, the mother resumed monthly appointments
with her psychiatrist. The mother thereafter failed to return H.D. within the
required time under the unsupervised visitation order. Consequently, the
trial court changed the visitation order to require supervised visitation.
In February 2021, DCF filed a petition for termination for parental rights
under section 39.806(1)(e)1., Florida Statutes, and 39.806(1)(e)2., Florida
Statutes. The court held a trial and heard testimony from the mother, the
father, the mother’s psychiatrist, the mother’s individual therapist, the child’s
current caregiver, the mother’s Family Resource Center Case Manager, the
Guardian Ad Litem and others.
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At trial, the father described how the mother is often not on medication
and that while they resided together, he had to take care of her as she was
unable to care for herself. The mother’s psychiatrist indicated the mother
consistently refused to take her medication because she believed it was not
necessary. The Child Protective Investigator testified that the child’s safety
was endangered when the mother was not on her medication. The mother’s
case manager testified that when the mother is off her medication she is
disoriented and lacks the ability to comprehend basic instructions. Further,
the mother relayed to her case manager that she did not take her medication
because she did not like the way it made her feel and was only currently
taking it because of the case plan.
The mother’s individual therapist testified the mother had not reached
her treatment goal and continued to believe that she could cope without
medication. The therapist indicated that remaining consistent with her
medication is an issue they discuss in every session. The therapist further
stated he believed the mother was only complying with her medication
treatment plan to regain custody of her daughter. The paternal great
grandmother also appeared at trial and described H.D. as “agitated” and
“upset” whenever she had visitation with her parents. She went on to state
that while H.D. usually falls asleep between 8:30 and 9:00 p.m. in her care,
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after visitation with her parents H.D. will remain awake until midnight to 1:00
a.m. and her appetite is poor.
The consensus in testimony was that the child’s safety is in danger
when the mother is off her medication and the mother refused to be medically
compliant. The mother’s medical records indicate that when she is off her
medication, she is subject to hallucinations, delusions and depression which
result in a significant loss of functioning. Her treating therapist considered
her a danger to herself and others when she is not medically compliant.
At the conclusion of the trial, the court entered final judgment
terminating the mother’s parental rights and made findings that H.D. is stable
and bonded to her great grandmother, who has indicated a willingness to
adopt H.D. This appeal followed.
LEGAL ANALYSIS
“Appellate review of a termination of parental rights case is ‘highly
deferential. . . . a finding that evidence is clear and convincing enjoys a
presumption of correctness and will not be overturned on appeal unless
clearly erroneous or lacking in evidentiary support.’” Fla. Dep’t of Child. &
Families v. A.R.,
253 So. 3d 1158, 1164 (Fla. 3d DCA 2018) (quoting C.G.
v. Dep’t of Child. & Families,
67 So. 3d 1141, 1143 (Fla. 3d DCA 2011))).
“While a trial court’s decision to terminate parental rights must be based on
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clear and convincing evidence, our review is limited to whether competent
substantial evidence supports the trial court’s judgment.” J.E. v. Dep’t of
Child. & Families,
126 So. 3d 424, 427 (Fla. 4th DCA 2013).
Section 39.806(1)(e)1. provides “[t]he failure of the parent or parents
to substantially comply with the case plan for a period of 12 months after an
adjudication of the child as a dependent child or the child’s placement into
shelter care, whichever occurs first, constitutes evidence of continuing
abuse, neglect, or abandonment.” Failure to substantially comply “means
that the circumstances which gave rise to creation of the case plan have not
been significantly remedied to the extent that the well-being and safety of the
child will be endangered upon the child’s remaining with or being returned to
the parents.” B.L. v. Dep’t of Child. & Families,
950 So. 2d 1264, 1266 (Fla.
5th DCA 2007).
Here, the trial court heard extensive evidence that the mother was
never in substantial compliance with the case plan within the twelve-month
period after H.D. was adjudicated as a dependent. Based on the testimony
adduced at trial, the trial court found by competent substantial evidence, the
mother materially breached the case plan by refusing to take medication for
her diagnosed schizoaffective disorder and is merely complying with portions
of the case plan to regain custody of her daughter, rather than becoming
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rehabilitated. The trial court also found by competent substantial evidence
that when the mother refused to take her medication, she is hostile,
confused, disoriented and lacks the ability to comprehend the most basic
instructions, leaving her unable to safely care for her child. Such behavior
constitutes grounds to terminate parental rights. See D.B. v. Dep’t of Child.
& Families,
87 So. 3d 1279, 1282 (Fla. 4th DCA 2012) (affirming the
termination of a father’s parental rights where competent substantial
evidence showing the “Child would prospectively suffer abuse or neglect
while in the care and control of the Father” because of his continued
noncompliance with treatment for schizophrenia); C.B. v. Dep’t of Child. &
Families,
257 So. 3d 1078, 1082 (Fla. 4th DCA 2018) (finding a mother’s
parental rights were properly terminated “[b]ecause the mother did not
complete the case plan tasks required to address mental health issues”);
C.G. v. Dep’t of Child. & Families,
67 So. 3d 1141, 1144 (Fla. 3d DCA 2011)
(finding a mother’s parental rights were properly terminated where she “failed
to complete the assigned psychotherapy sessions, medication management
program and the dyadic therapy” and this failure to comply, endangered her
child).
Section 39.806(1)(e)2. provides termination of parental rights may
occur where “[t]he parent or parents have materially breached the case plan
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by their action or inaction.” “In order to prove the parent or parents have
materially breached the case plan, the court must find by clear and
convincing evidence that the parent or parents are unlikely or unable to
substantially comply with the case plan before time to comply with the case
plan expires.” § 39.806(1)(e)2., Fla. Stat.
“Time is of the essence for permanency of children in the dependency
system.” Id. This child was sheltered in August 2019 and has since been in
the custody of her paternal great grandmother for over two years.
Unfortunately, the mother refused or was unable to substantially comply with
the case plan despite being given almost two years to do so. We therefore
find the trial court’s findings are supported by competent substantial
evidence. While it is clear the mother loves her child and wants to retain
parental rights, “[w]here the trial court’s finding that there is clear and
convincing evidence to terminate parental rights is supported by competent,
substantial evidence, the appellate court has no choice but to affirm.” D.G.
v. Dep’t of Child. & Families,
77 So. 3d 201, 207 (Fla. 4th DCA 2011).
Affirmed.
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