A.R., THE MOTHER v. DEPARTMENT OF CHILDREN AND FAMILIES

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
A.R., the mother,
Appellant,
v.
DEPARTMENT OF CHILDREN & FAMILIES and
GUARDIAN AD LITEM,
Appellees.
No. 4D21-2346
[February 2, 2022]
Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Alberto Ribas, Jr., Judge; L.T. Case No. 2013-6413 DP.
Antony P. Ryan, Regional Counsel, and Richard G. Bartmon, Assistant
Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel,
West Palm Beach, for appellant.
Carolyn Schwarz, Children’s Legal Services, Fort Lauderdale,
for appellee Department of Children and Families.
Sara Elizabeth Goldfarb, Statewide Director of Appeals, and Samantha
Costas Valley, Senior Attorney, Statewide Guardian Ad Litem Office,
Tallahassee, for appellee Guardian ad Litem.
ON MOTION FOR WRITTEN OPINION AND FOR CERTIFICATION OF
QUESTION OF GREAT PUBLIC IMPORTANCE
PER CURIAM.
We grant Appellant’s motion for written opinion and for certification of
question of great public importance, withdraw our per curiam affirmance
dated January 13, 2022, and issue the following in its place:
We affirm the final judgment of termination of the Mother’s parental
rights under section 39.806(1)(l), Florida Statutes (2020). See K.A. v. Dep’t
of Child. & Fams., 46 Fla. L. Weekly D2609 (Fla. 4th DCA Dec. 8, 2021);
N.B. v. Fla. Dep’t of Child. & Fams., 183 So. 3d 1186 (Fla. 3d DCA 2016).
As we did in K.A., we once again certify the following question to the
supreme court concerning the constitutionality of section 39.806(1)(l):
DOES THE 2008 ADDITION OF SUBPARAGRAPH (l) TO
SECTION 39.806(1), FLORIDA STATUTES, WHICH
PROVIDES FOR TERMINATION OF PARENTAL RIGHTS
WHEN “ON THREE OR MORE OCCASIONS THE CHILD OR
ANOTHER CHILD OF THE PARENT OR PARENTS HAS BEEN
PLACED IN OUT-OF-HOME CARE . . . AND THE CONDITIONS
THAT LED TO THE CHILD’S OUT-OF-HOME PLACEMENT
WERE CAUSED BY THE PARENT OR PARENTS,”
UNCONSTITUTIONALLY REMOVE THE STATE’S BURDEN TO
PROVE THAT THE PARENT’S OR PARENTS’ CONDUCT
POSES A SUBSTANTIAL RISK OF HARM TO THE CHILD OR
CHILDREN AFFECTED BY THE TERMINATION OF
PARENTAL RIGHTS AND IS THE LEAST RESTRICTIVE
MEANS OF PROTECTING THE CHILD OR CHILDREN FROM
SERIOUS HARM?
Affirmed, and question certified.
DAMOORGIAN, CIKLIN and KLINGENSMITH, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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