L.J. v. DCF

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FIFTH DISTRICT
NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
L.J. a/k/a M.L., FATHER OF A.J., A CHILD,
Appellant,
v. Case No. 5D17-1069
DEPARTMENT OF CHILDREN AND FAMILIES,
Appellee.
_______________________________________/
Opinion filed June 15, 2017
Appeal from the Circuit Court for
Orange County,
Daniel Dawson, Judge.
Ryan Thomas Truskoski, of Ryan Thomas
Truskoski, P.A., Orlando, for Appellant.
Kelley Schaeffer, Appellate Counsel,
Department of Children & Families,
Bradenton, for Appellee.
C. Andrew Roy, of Winderweedle, Haines,
Ward & Woodman, P.A., Winter Park, for
Guardian ad Litem.
PER CURIAM.
L.J., a.k.a. M.L., Father of A.J. ("Father"), appeals the trial court's final order
terminating his parental rights to A.J., a minor child. Father argues the trial court erred by
failing to include a finding that reunification posed a substantial risk of harm to A.J.
Finding that competent, substantial evidence supports termination of Father's parental
rights, we affirm the trial court's order but remand for the trial court to enter additional
findings consistent with this opinion.
Immediately following A.J.'s birth, the Department of Children and Families (the
"Department") filed a shelter petition after both A.J. and his mother ("Mother") tested
positive for cocaine. The Department later petitioned to involuntarily terminate the rights
of both parents. After the Department located Father in jail, the trial court ordered a DNA
test, which established Father's paternity of A.J. The Department then filed an amended
petition for termination of parental rights on the basis that Father's rights to his two other
children were terminated in 2009 and 2014.1
At the subsequent trial, the trial court took judicial notice of official records from
Michigan showing that Father previously had his parental rights to one child terminated.
In the Michigan case, Father admitted that he also had his rights to another child
terminated in Tennessee. The Department presented extensive testimony establishing
that Father never saw A.J., did not provide financial support, had a history of substance
abuse, and was often incarcerated. The Department's witnesses further testified that
Father lacked the capacity to care for A.J., and that he failed to remedy the reasons for
which his rights to his other children were terminated.
The trial court entered a final judgment terminating Father's parental rights to A.J.
on the basis that he had rights to two other children terminated. The trial court's order
included findings as to each statutory factor, discussed A.J.'s manifest best interests, and
explained that termination was the least restrictive means of protecting A.J. from harm.
1 In the interim, Mother entered a voluntary surrender of her parental rights.
2
Father appealed the order, raising only the argument that the trial court improperly failed
to include a finding that reunification posed a substantial risk of harm to A.J.
"Where a trial court has found that there is clear and convincing evidence
supporting a termination of parental rights, such findings enjoy a presumption of
correctness and will not be overturned unless clearly erroneous and lacking evidentiary
support." L.F. v. Dep't of Child. & Fams., 888 So. 2d 147, 148 (Fla. 5th DCA 2004) (citing
C.C. v. Dep't of Child. & Fams., 886 So. 2d 244 (Fla. 5th DCA 2004)). "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." N.L. v. Dep't of Child. & Fam. Servs., 843 So. 2d 996, 999 (Fla. 1st DCA 2003)
(quoting In re Adoption of Baby E.A.W., 658 So. 2d 961, 967 (Fla. 1995)).
Section 39.806(1)(i), Florida Statutes (2017), provides that a trial court may
terminate parental rights where "[t]he parental rights of the parent to a sibling of the child
have been involuntarily terminated." In Florida Department Of Children & Families v. F.L.,
880 So. 2d 602, 609 (Fla. 2004), the Florida Supreme Court explained that, to pass
constitutional muster, the Department must also establish "that reunification would be a
substantial risk to the child and that termination is the least restrictive way to protect the
child." The court then set forth several factors for trial courts to consider when determining
whether the parent's conduct poses a significant risk of harm to the child:
Specifically, if the parent's conduct that led to the involuntary
termination involved egregious abuse or neglect of another
child, this will tend to indicate a greater risk of harm to the
current child. The amount of time that has passed since the
prior involuntary termination will also be relevant. A very
recent involuntary termination will tend to indicate a greater
current risk. Finally, evidence of any change in circumstances
since the prior involuntary termination will obviously be
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significant to a determination of risk to a current child. While a
parent's past conduct necessarily has some predictive value
as to that parent's likely future conduct, positive life changes
can overcome a negative history.
Id. In other words, the Department must prove "that the parent suffers from a condition
that makes probable the prospect of future abuse or neglect of a child and that the
condition was one which was likely to continue." R.K. v. Dep't of Child. & Fams., 898 So.
2d 998, 1000 (Fla. 5th DCA 2005) (citing Dep't of Child. & Fams. v. B.B., 824 So. 2d 1000(Fla. 5th DCA 2002)).
We find that, although the evidence presented at the hearing supports termination
of Father's parental rights under section 39.806(1)(i), the trial court failed to include the
required finding that "reunification would be a substantial risk to the child." See F.L., 890
So. 2d at 609. We disagree with Father's assertion that an outright reversal and remand
for additional dependency proceedings is the correct disposition in this appeal. Rather,
we affirm the trial court's finding that the evidence warranted termination of Father's
parental rights but remand for the trial court to include findings concerning whether
reunification poses a substantial risk of harm to A.J. See E.I. v. Dep't of Child. & Fams.,
979 So. 2d 378, 379 (Fla. 4th DCA 2008) (affirming denial of motion for reunification but
remanding for entry of statutorily compliant order); P.J. v. Dep't of Child. & Fams., 783
So. 2d 1148, 1149 (Fla. 5th DCA 2001) (vacating termination order and remanding "with
instructions to enter a termination order which complies with the statute").
AFFIRMED in part; REVERSED in part; REMANDED with instructions.
ORFINGER, WALLIS and LAMBERT, JJ., concur.
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