K.D., Mother of C.D., Minor Child v. Department of Children and Families

FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
_____________________________
No. 1D18-50
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K.D., Mother of C.D., Minor
Child,
Appellant,
v.
DEPARTMENT OF CHILDREN AND
FAMILIES,
Appellee.
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On appeal from the Circuit Court for Bay County.
Brantley S. Clark, Judge.
April 13, 2018
ROBERTS, J.
K.D., the mother, appeals an order terminating her parental
rights. * K.D. does not contest the grounds for termination, but
argues that the Department of Children and Families (the
Department) failed to prove by clear and convincing evidence that
termination was the least restrictive means of protecting the child,
C.D. We disagree and affirm the order terminating the mother’s
parental rights to C.D.
* The father voluntarily surrendered his parental rights to
C.D.
The mother has suffered from chronic substance abuse for
over a decade. Since 2008, the Department has removed seven
older children from her care, primarily due to her substance abuse
problems. The instant appeal concerns her child, C.D., born on
October 27, 2016. C.D. tested positive for cocaine and marijuana
at birth and was sheltered three days later based on the drug
exposure. The mother was found in violation of her drug offender
probation and was criminally committed to an inpatient substance
abuse treatment facility, A Woman’s Addiction Recovery Effort
(AWARE). At the time of the adjudicatory hearing on termination,
the mother had been living at AWARE for almost three months
and was, by all accounts, doing very well. The mother does not
dispute that AWARE was providing for all of her needs and she
was not living independently.
Based on her chronic substance abuse and her history with
the Department, the Department did not offer the mother a case
plan, but instead filed an expedited petition to terminate her
parental rights under sections 39.806(1)(c), (i), (j), and (l), Florida
Statutes (2016). The Department alleged termination was the
least restrictive means to protect C.D. because the mother’s
chronic substance abuse, which had not been remedied despite
services offered to her in the past, posed a significant risk of harm
to the child. After an adjudicatory hearing in which the trial court
received testimony from the mother, C.D.’s caregiver, the child
protection investigator, the assigned case manager, the guardian
ad litem, and the AWARE program director as well as
documentary evidence related to the removals of the mother’s
seven older children, the trial court found the Department had
established by clear and convincing evidence the four grounds for
termination alleged in the petition. The court also found by clear
and convincing evidence that termination of the mother’s parental
rights was the least restrictive means to protect C.D. from harm.
On appeal, the mother only challenges the trial court’s finding
of least restrictive means because termination was effectuated
without the Department offering her a case plan. Our review,
confined to the least restrictive means prong of the termination
order, is “highly deferential” and limited to whether competent,
substantial evidence supports the trial court’s judgment and
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whether we “‘cannot say that no one could reasonably find such
evidence to be clear and convincing.’” J.P. v. Fla. Dep’t of Children
& Families, 183 So. 3d 1198, 1203 (Fla. 1st DCA 2016) (quoting
N.L. v. Dep’t of Children & Families, 843 So. 2d 996, 1000 (Fla. 1st
DCA 2003)). Our role is not to reweigh the evidence heard by the
trial court. J.P., 183 So. 3d at 1204.
Because parental rights are a fundamental liberty interest,
termination must be the “least restrictive means of protecting the
child from serious harm.” Padgett v. Dep’t of Health & Rehab.
Servs., 577 So. 2d 565, 571 (Fla. 1991). This means that the
Department ordinarily must show that it has made a good faith
effort to rehabilitate the parent and to reunify the family, often
through a case plan and related services. Id. However, a case plan
is not a mandatory prerequisite to termination. Under section
39.806(2), Florida Statutes (2016), reasonable efforts to preserve
and reunify families are not required when termination is proven
under sections 39.806(1)(b) through (d) or (1)(f) through (m).
Termination, here, was premised on sections 39.806(1)(c), (i), (j),
and (l); therefore, the Department was not obligated to offer the
mother a case plan before seeking to terminate her parental rights.
The Florida Supreme Court has recognized in “extraordinary
circumstances,” termination without a case plan is the least
restrictive means. In re T.M., 641 So. 2d 410, 413 (Fla. 1994). The
“extraordinary circumstances” here, namely the mother’s decade-
long substance abuse and involvement with the Department,
allowed the Department to swiftly remove C.D. and seek
termination due to the child’s substantial risk of potential harm
from the mother’s continued involvement. See R.W. v. Dep’t of
Children & Families, 228 So. 3d 730, 733 (Fla. 5th DCA 2017)
(recognizing “extraordinary circumstances” for termination
without a case plan include termination based on continuing abuse
through continued involvement under section 39.806(1)(c)). We
find no merit to the mother’s argument that termination was
improper without her first being offered a case plan.
The mother seems to suggest that termination was improperly
based solely on events occurring in and around 2008 when she
failed to engage in services offered to her and had some of her
children removed. She suggests that she is doing well in AWARE
now and should have another chance to engage in a case plan and
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services. The mother’s narrow view of the past decade ignores her
chronic substance abuse that led to the removal of seven of her
children. Most importantly, she glosses over her own admitted
drug use while pregnant with C.D., who was born suffering the
consequences. The trial court received evidence that the mother
was presently doing well, and acknowledged her progress, but
appropriately recognized that the case was not all about the
mother as the ultimate welfare of the child remains paramount.
We agree with the trial court and decline the mother’s invitation
to reweigh the evidence. The least restrictive means prong is not
“intended to preserve parental bonds at the cost of a child’s future.
Instead, this test requires that ‘those measures short of
termination should be utilized if such measures can permit the
safe re-establishment of the parent-child bond.’” A.H. v. Dep’t of
Children & Families, 144 So. 3d 662, 665-66 (Fla. 1st DCA 2014)
(quoting L.W. v. Dep’t of Children & Families, 71 So. 3d 221, 224
(Fla. 4th DCA 2011)). Under the “extraordinary circumstances” of
this case, termination was the least restrictive means of protecting
C.D. from serious harm.
Based on the foregoing, the order terminating the mother’s
parental rights as to C.D. is AFFIRMED.
LEWIS and JAY, JJ., concur.
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Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
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Susan Barber, Assistant Regional Conflict Counsel, Tallahassee;
Crystal M. Frusciante of Frusciante Law Firm, P.A., Sunrise; and
Megan O. Peak, Assistant Regional Conflict Counsel, Panama
City, for Appellant.
Sarah J. Rumph of Children's Legal Services, Tallahassee, for
Appellee Florida Department of Children and Families.
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Jesse Ryan Butler of Dickinson & Gibbons, P.A., Sarasota;
Thomasina F. Moore and Sara Goldfarb, Sanford, for Guardian Ad
Litem Program.
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