B.V., Father of E.E.V., A Minor Child v. Department of Children and Families

FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
_____________________________
No. 1D21-29
_____________________________
B.V., Father of E.E.V., A Minor
Child,
Appellant,
v.
DEPARTMENT OF CHILDREN AND
FAMILIES,
Appellee.
_____________________________
On appeal from the Circuit Court for Clay County.
Steven B. Whittington, Judge.
September 17, 2021
M.K. THOMAS, J.
B.V. appeals from a final order terminating his parental
rights pursuant to section 39.806(1)(c), Florida Statutes. B.V.
raises three issues on appeal: (1) the trial court’s finding that
Appellant engaged in conduct towards the child that demonstrated
his continuing involvement would threaten his life, safety, well-
being or physical, mental, or emotional health, irrespective of the
provision of services, is not supported by competent, substantial
evidence; (2) the trial court erred in finding termination was in the
child’s best interest; and (3) the trial court erred in finding
termination was the least restrictive means of protecting the child
from harm. Finding no error, we affirm the final order. However,
given B.V. was deported and participated in a case plan following
his deportation, we write to explain how the trial court’s finding
that termination was appropriate under section 39.806(1)(c) is
supported by competent, substantial evidence.
Facts
The child, born February 26, 2018, was taken into custody by
the Department on July 18, 2018, and placed with a foster family.
The Department became involved after it received reports of
abuse. The shelter petition stated that B.V.’s address was
unknown and the child was residing with its mother. The mother,
who is married to B.V., apparently had issues with substance
abuse, and there were reports of violence in the home, including
an altercation involving B.V. Shortly after the child was sheltered,
B.V. was deported to El Salvador. B.V. was granted supervised
visitation of three, ninety-minute visits per week.
Although the mother did not complete her case plan tasks and
subsequently surrendered her parental rights, B.V. engaged in
services in El Salvador, such as completing a parenting class and
anger management. Initially, B.V. indicated that he did not wish
to be reunited with the child in El Salvador, but instead, he was
attempting to return to the United States.
In May 2019, the Department indicated that it recommended
an amendment to the case plan goal to adoption. At a hearing the
following month, B.V. expressed for the first time a desire to have
the child sent to him in El Salvador.
Thereafter, an international home study was completed on the
father’s residence in El Salvador, which was not approved. During
the home study, B.V. again indicated that although he wished to
be reunited with his son, he did not want his son in El Salvador
due to the conditions there. B.V. reported working in the fields and
operating a truck three days per week with a monthly income of
$160.00. His house is made of mixed materials (sheet, cement,
wood, plastic). It does not have a shower, and the toilet is compost
and located outside. Bathing is done outdoors. There is no drinking
water system. It was also noted that there is no health center in
the community, but a health care worker visits the community
once a week. If there is a medical emergency, a resident must leave
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the community and travel to San Salvador. The area was described
as a high-risk community due to the presence of gangs in the area.
It was determined that the house was not adequate for the child
due in part to the lack of medical care and the child suffering from
asthma.
On June 30, 2020, the Department filed a petition seeking to
terminate B.V.’s parental rights pursuant to section 39.806(1)(c),
claiming the child was at risk of future harm irrespective of the
provision of services. The Guardian ad Litem filed a report opining
that termination of parental rights was in the child’s manifest best
interest. Prior to the hearing on the termination petition, the
parties stipulated that “[i]t is unknown if or when [B.V.] will be
able to return to the United States to care for his Minor Child.”
The evidence showed B.V. was likely deported because his
visa had expired. The child was months old when sheltered and
almost three at the time of the hearing. During that time, B.V.
would participate in video visitation two days a week for fifteen
minutes each. B.V. speaks Spanish, and the child was either too
young to communicate or unable to understand Spanish as his
foster family speaks English. The child’s three older siblings were
placed with the same foster family and were subsequently adopted.
The child had bonded with his siblings and views his foster parents
as parental figures. The child does not identify B.V. as his father.
The foster parents and the Guardian ad Litem all agreed that it
would be detrimental to the child at this point to remove him from
the foster home. The Guardian ad Litem believed termination of
B.V.’s parental rights was in the child’s best interest given the
amount of time the child was in foster case and the need for
permanency. The foster parents indicated their desire to adopt the
child.
B.V. expressed that he hoped to return to the United States
and be reunited with the child here. The Department believed that
upon his return, B.V. intended to live with the mother, as would
be required by his visa, which the Department found concerning
because the mother’s parental rights had been terminated, and the
child could not safely be placed in a home in which she resides. For
his part, B.V. claimed he planned to separate from the mother
upon his return; however, he acknowledged that his resident visa
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application is based on his marriage to the mother, and he had not
informed Immigration of his plan to separate. According to B.V.,
he is awaiting an appointment for an interview at the Embassy.
The trial court found by clear and convincing evidence that
termination of B.V.’s parental rights was appropriate under
section 39.806(1)(c), that termination was in the manifest best
interest of the child, and that termination was the least restrictive
means of protecting the child from harm.
Analysis
Section 39.806(1)(c) provides that termination of parental
rights may be established under the following circumstance:
When the parent or parents engaged in conduct toward
the child or toward other children that demonstrate that
the 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.
To terminate parental rights under this section, the trial court
must find: (1) the child’s life, safety, or health would be threatened
by continued interaction with the parent, regardless of the
provision of services; (2) there is no reasonable basis to believe the
parent will improve; and (3) termination is the least restrictive
means of protecting the child from harm. M.H. v. Dep’t of Children
& Families, 866 So. 2d 220, 222–23 (Fla. 1st DCA 2004).
In terminating B.V.’s parental rights, the trial court noted the
unique circumstances presented by this case. In support of its
decision, the trial court stated:
Generally, under a subsection 39.806(1)(c) case, it is
alleged that a parent has engaged in past behavior, such
as drug or alcohol abuse or domestic violence, and that
such behavior is likely to continue in the future despite
the provision of services. That is not the case here.
Instead, the past behavior was Father’s deportation and
his subsequent complete inability to parent the child. In
the two-and-a-half years since being deported, Father has
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been unable to remedy this circumstance. As a result,
[the child] has been raised and cared for in foster care.
During the time that is often regarded as the most
formative of a child’s life, [the child] has completely
bonded with the [foster] family. [The child] naturally
views [the foster parents] as his father and mother.
The trial court further opined that the child regarded the other
children in the home as his siblings and would be devastated if he
were removed from the foster home. The trial court did not find
B.V.’s testimony that he has a “very good” relationship with the
child to be credible. Rather, the trial court concluded that the
“[f]ather has no relationship with” the child. Ultimately, the trial
court held that delaying permanency any longer would cause harm
to the child, stating, “[t]o allow [the child] to continue for some
indefinite time into the future would only cause [the child] to face
greater harm than he would suffer now if reunification occurred.”
Competent, substantial evidence supports the trial court’s
findings. There is no debate B.V. was deported to El Salvador when
the child was only several months old, and the child has lived with
his foster parents most of his life. Both the foster mother and
Guardian ad Litem testified as to the lack of communication and
relationship between the child and B.V. Except for B.V., everyone
agreed that removing the child from the foster home at this point
would be detrimental to the child.
Regardless, B.V. essentially argues that his deportation does
not constitute past behavior that threatens the child, and there is
no basis to support the conclusion that B.V.’s situation will not
improve. There is no case law in Florida addressing termination of
parental rights where the parent was deported but complied with
a case plan. We find persuasive several Texas cases in which the
trial courts likened deportation to incarceration, given that in both
circumstances, the parent cannot reside with the child, is not in
the child’s daily life, and is in many ways unable to parent the
child. See In re E.N.C., 384 S.W. 3d 796 (Tex. 2012) (noting that
deportation is like incarceration in that the parent is no longer
available to reside with their child in their home in the United
States); Interest of H.J.Y.S., 2019 WL 8071614 (Tex. Ct. App. 2019)
(noting that deportation is like incarceration as both are a
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consequence of an action, and in both cases, a parent is absent from
the child’s daily life and is unable to provide support).
Florida law specifically addresses termination of an
incarcerated parent’s rights. Pursuant to section 39.806(1)(d)3.,
Florida Statutes, an incarcerated parent’s parental rights may be
terminated if, among other things, the court determines by clear
and convincing evidence that continuing the parental relationship
with the parent would be harmful to the child and, for this reason,
that termination of parental rights of the incarcerated parent is in
the best interest of the child. When determining harm, the court
considers the age of the child; the relationship between the child
and the parent; the nature of the parent’s current and past
provisions for the child’s developmental, cognitive, psychological,
and physical needs; the parent’s history of criminal behavior,
which may include the frequency of incarceration and the
unavailability of the parent to the child due to incarceration; and
any other factor the court deems relevant. Id.While incarceration is a factor the court may consider in
deciding whether to terminate parental rights, incarceration alone
is insufficient grounds to terminate parental rights. See In re T.B.,
819 So. 2d 270, 272 (Fla. 2d DCA 2002). We find this rule should
also apply to deportation. Thus, deportation alone cannot be a
ground for termination of parental rights. See In re E.N.C., 384
S.W. 3d at 805; Interest of H.J.Y.S., 2019 WL 8071614 at 5.
In Department of Children and Families v. J.S., 183 So. 3d
1177, 1185–86 (Fla. 4th DCA 2016), the court held that an
incarcerated father’s continued parental relationship with his
child would be contrary to the child’s best interest, providing a
basis for termination of the father’s parental rights, where the
father had no relationship with the child, did not provide for the
child’s needs in any way except for the involuntary distribution of
his Social Security benefits, was incarcerated for committing
armed burglaries and felony assault, and would not be available to
parent the child for several years due to his incarceration.
Similarly, in D.S. v. Department of Children and Families, 164
So. 3d 29, 30 (Fla. 4th DCA 2015), the court affirmed termination
of parental rights after it was determined the incarcerated parent
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did not have a relationship with the child. The court opined as
follows:
As to P.S., the state proved by clear and convincing
evidence that the child is thriving in his foster family’s
care and does not wish to see his father. The father has
not been able to maintain much contact with P.S. Thus,
the father’s incarceration has been significant in that
P.S., at a young age, has become bonded with the foster
family to the exclusion of D.S. The foster parents wish to
adopt P.S. To deprive him of this continuing relationship
with his foster parents would prevent him from achieving
a permanent and stable home. Thus, the court’s
conclusion that the state proved a ground for termination
is supported by competent, substantial evidence.
Moreover, for these same reasons, we conclude that
termination was both in the manifest best interest and
the least strictive means to prevent harm to P.S.
Id. at 34–35.
Adopting the reasoning of our colleagues in the Fourth
District, we note that termination here is not based solely on B.V.’s
deportation, but rather the effects of that deportation, such as the
continued absence on the child and B.V’s inability to parent.
Additionally, subsection 39.806(1)(d) allows for termination of an
incarcerated parent’s rights where continuing a parental
relationship would be harmful to the child. This is similar to the
standard set forth in subsection (1)(c), which is at issue in the
instant case. Subsection (d) provides factors to be considered when
determining harm to the child. When considering those factors
here, termination is appropriate. The child was only months old
when B.V. was deported and he was placed into foster care. He is
now three years old. The child has no relationship with B.V. and
does not identify him as a parent. The child and B.V. do not speak
the same language. There is no evidence B.V. has ever provided for
the child’s emotional or physical needs. Evidence supports that the
child would be devastated if he were now removed from the foster
parent’s home. Additionally, although B.V. testified that he is
attempting to return to the United States, he stipulated that he
does not know if or when that will occur. Further complicating his
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reentry to the United States, B.V. testified that his resident visa
application is based on his marriage to the mother. However, B.V.
plans on separating from the mother upon his return, which could
put his visa at risk. If he does not separate from the mother, the
child cannot be returned to his care given the mother’s issues and
termination of her parental rights. There are no services the
Department could provide which would assist the father in
rectifying his immigration issues or the problems that arise from
the same.
In many ways, this case is similar to J.S. and D.S. in which
the court found termination of parental rights was appropriate. In
those cases, as is the case here, there is a complete lack of
relationship between the child and B.V., and B.V. does not have
the ability to care for the child. Additionally, the child has formed
a strong bond with his foster parents who desire to adopt him.
Conclusion
It is clear that B.V.’s deportation and subsequent inability to
return to the United States or parent the child in any meaningful
way “threatens the . . . mental, or emotional health of the child
irrespective of the provision of services.” § 39.806(1)(c), Fla. Stat.
Thus, we find that the trial court did not err in holding that the
Department proved termination under section 39.806(1)(c) was
appropriate. Additionally, as found by the trial court, to delay
permanency any further would only cause further harm to the
child, which is contrary to the purpose of the chapter. See §
39.001(1)(h), Fla. Stat. (A purpose of this chapter is “[t]o ensure
that permanent placement with the biological or adoptive family
is achieved as soon as possible for every child in foster care and
that no child remains in foster care longer than a year.”); S.M. v.
Fla. Dep’t of Children & Families, 202 So. 3d 769, 782–83 (Fla.
2016) (explaining that there “is a strong policy incentive in
achieving permanency for children in care as quickly as possible”
and that lack of permanency causes harm to a child). Accordingly,
we affirm the final order terminating B.V.’s parental rights.
AFFIRMED.
ROBERTS, J., concurs; B.L. THOMAS, J., concurs in result only.
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_____________________________
Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
_____________________________
Michael A. Tupper, Tupper Law, P.A., Jacksonville, for Appellant.
Ward L. Metzger, Department of Children and Families,
Jacksonville; Thomasina F. Moore and Laura J. Lee, Statewide
Guardian ad Litem, Tallahassee, for Appellee.
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