Case Law Update
Justice Administrative Com'n v. Harp, 24 So.3d 779 (Fla. 5th DCA 2009)
Trial court is not statutorily authorized to appoint counsel to a parent who has
executed a voluntary written surrender of his or her parental rights. The mother
signed surrenders before petition filed, then the trial court appointed counsel for the
termination of parental rights. Justice Administrative Com’n (JAC) refused to pay for
an attorney for the TPR where the mother signed a voluntary surrender. Court agreed
Justice Admin. Comm’n v. Berry, 5 So.3d 696 (Fla. 3d DCA 2009) Trial court cannot
determine putative fathers to be indigent where their whereabouts were unknown and
they did not appear at termination proceedings; there is no law requiring appointment
of counsel for parent who does not appear for termination proceeding, and trial court
departed from essential requirements of law in requiring JAC to pay fees for attorneys
appointed to represent putative fathers.
C.L.R. v. Department of Children and Families, 913 So.2d 764 (Fla. 5th DCA 2005)
Even though still considered a “party” to the proceedings, an uncharged parent has
statutory right to notice but NOT to appointed counsel.
Permanent Guardianship – Specific Findings of Endangerment
C.A. v. Department of Children & Families, 27 So.3d 241 (Fla. 4th DCA 2010)
Mother’s motion for reunification was denied and the child was placed in permanent
guardianship. The Fourth DCA REVERSED holding that the trial court did not make
specific findings of endangerment.
Non-offending Parent – Substantial Compliance with Case Plan
M.M. v. Department of Children and Families, 29 So.3d 1200 (Fla. 5th DCA 2010)
Mother moved for reunification under §39.521 arguing that she was in substantial
compliance with her case plan. Although DCF agreed, the trial court never addressed
case plan compliance but placed children with non-offending Father and terminated
The Fifth DCA reversed: “This court has repeatedly held that it is reversible error to
permanently award custody to a nonoffending parent when the offending parent has a
case plan goal of reunification and has either substantially complied with the plan, or
where the time for compliance has not yet expired -- at least without a finding that
reunification would be detrimental to the children.” Remanded for determination if
Mother substantially complied with her case plan.
Specific Findings of Fact Required – Permanent Guardianship
R.T., Sr. v. Department of Children and Families, 27 So.3d 195 (Fla. 5th DCA 2010).
Father appealed order which terminated service and placed child in permanent
guardianship. The fifth DCA reversed the trial court’s order, finding that there were
insufficient findings to support permanent guardianship.
There must be specific findings of fact in order placing child in permanent
guardianship. It is not enough for a trial court’s order to refer to general problems or
Termination of Parental Rights
Putative Father Registry
D.M. v. Department of Children and Families, 31 So.3d 945 (Fla. 5th DCA 2010) Mother’s
TPR reversed and remanded because DCF failed to follow through with checking the
putative father registry on the named Father.
Fifth DCA held “This may have been considered a formality under the circumstances of
the case and it may turn out to be a formality, but it is a formality that must be observed.
Otherwise, there is a risk of unnecessary judicial labor and delay in permanent placement
of the child.”
Termination of Parental Rights
No Right to Jury Trial – No Error if Child Not Present
W.S. v. Department of Children and Families, 31 So.3d 329 (Fla. 4th DCA 2010) If court
finds not in child best interest to attend TPR, no error in failure to be present. Also, there
is no right to jury trial, because TPR is NOT criminal in nature and thus, protections are
not available.“We have addressed this issue because we have seen it raised in other
briefs, not because of its merit. Indeed, for the many reasons outlined by our supreme
court in S.B., we agree that termination proceedings do not require all of the protections of
a criminal trial. A jury trial for termination proceedings would be highly detrimental to the
child, the focus of the state’s concern.”
A.C. v. Department of Children and Families, --- So.3d ----, 2010 WL 1460207 (Fla. 3d
The mother surrendered children. Mother sought to vacate surrenders, claiming fraud,
duress and/or mistake, because person she thought would adopt her children, changed
their mind. Trial court held a hearing and found that during colloquy, court specifically
inquired and said that no guarantee that child would be adopted by current caretaker. The
Third DCA held that there was no evidence of fraud duress or mistake.
Notice - Case Plan Changes
R.N. v. Department of Children and Families, 25 So.3d 697 (Fla. 5th DCA 2010).
Father was noticed for hearing to change visitation based on act of domestic
violence in front of his children. At the hearing, DCF moved to amend case
plan. Father said this was a due process violation because he had no notice of
case plan amendment.
Fifth DCA held that no notice was needed. Statute and rule changed in 2007 to
remove notice requirement for case plan amendment except that he was on
notice about motion to change visitation as well as any other relief necessary
and reasonable to protect the children.
Issues at Shelter
P.U. v. Department of Children and Families, 24 So.3d 706 (Fla. 4th DCA 2009)
The trial court’s shelter order was reversed because it was based on the mother
living with friends where the child was sexually abused. However, no evidence
presented to the trial court that the mother failed to protect the child or that the
mother should have or could have foreseen the sexual abuse. The mother
acted appropriately following the incident by reporting it immediately and moving
from that residence. Homelessness not enough.
L.M.B. v. Department of Children and Families, 28 So.3d 217 (Fla. 4th DCA
2010) Mother was not permitted to present evidence at shelter hearing because
the court determined that it had a “policy of determining probable cause for
removal from the “four corners” of the verified shelter petition.”
Rule 8.305(b)(3) says probable cause determined at a non-adversarial hearing
but (4) says that “all interested persons shall have an opportunity to be heard
and present evidence. The Fourth DCA held that if the trial court did not give
parents an opportunity to be heard, that is a violation of due process.
Rights of Non-Relatives
L.D. v. Florida Department of Children and Families, 24 So.3d 754 (Fla. 3d DCA 2009)
Reminder that non-relatives basically have no rights. FACTS: child in permanent
guardianship with non-relative for 2 years. The mother substantially completes her case
plan and everyone agrees she should be reunified, but worried she won’t let the child see
her guardians. Court orders visitation with guardians.
The Third DCA REVERSED holding that a non-relative has no right to visitation
No Valid Case Plan
In re E.C.,--- So.3d ----, 2010 WL 1049937 (Fla. 2d DCA)
Parents’ rights terminated due to case plan non-compliance. §39.806(1)(e). Five
children adjudicated dependent when sixth child is born and later adjudicated dependent.
However, the case plan filed and accepted after this last adjudication failed to name the
sixth child. No dispute that parents failed to substantially comply with tasks and TPR was
granted as to this sixth child. On appeal, parents argue that error in terminating parental
rights pursuant to (e) because no valid case plan naming sixth child.
Second DCA: Parents raising this issue first time on appeal so they must prove
fundamental error. Because parents acknowledged existence of case plan and
requirements of completion (in judicial reviews and at trial) the failure to list the sixth child
on the case plan was a technicality that did not warrant reversal of TPR.
Abandonment-Need a Case Plan?
Depends on your Jurisdiction
Yes, if you are in the Fifth DCA
C.A.T. v. Department of Children and Families, 10 So.3d 682 (Fla. 5th DCA 2009).
Father never given a reunification case plan. He appealed TPR based on
abandonment. Fifth DCA: LRM not satisfied because DCF did not make
reasonable efforts to rehabilitate father and reunite him with child. Please note:
evidence of bond between father and child (from GAL).
No, if you are in the Fourth DCA
C.A.H. v. Department of Children & Families, 830 So.2d 939 (Fla. 4th DCA 2002)
Mother never given reunification case plan. She appealed TPR based upon
abandonment. COURT: LRM satisfied without case plan. This is not an “ordinary”
case under Padgett.
K.J. ex rel. A.J. v. Department of Children and Families, --- So.3d ----, 2010 WL 1477567
(Fla. 1st DCA). The mother appealed the trial court’s order terminating her parental
rights. The trial court’s termination order was based upon § 39.806(1)(c) and §
39.806(1)( l ). Section 39.3806(1)(l), which took effect on July 1, 2008, provides that
parental rights may be terminated if “[o]n three or more occasions the child or another
child of the parent or parents has been placed in out-of-home care pursuant to this
chapter, and the conditions that led to the child's out-of-home placement were caused by
the parent or parents.”
Majority did not discuss issue. BUT in concurrence, addressed mom’s argument that
several of the removals occurred before the existence of this provision and thus she did
not have notice of the possibility of termination (issue of retroactivity). Stating that the
Mother had no “vested right in the Legislature never reevaluating how to protect children
in the state of Florida.”
How Much is Substantial Portion of Time?
J.W.B. v. Department of Children and Families, 8 So.3d 1191 (Fla. 5th DCA 2009)
Father's incarceration from the time child was 16 months old to the time child
would be 12 years old, 60 percent of the time before child would reach 18 years of
age, was a “substantial portion” of the time before child attained the age of 18
Single Order Adjudicating Dependency
P.S. v. Department of Children and Families, 4 So.3d 719 (Fla. 5th DCA 2009).
Cannot issue second dependency order addressing second parent. Instead, pursuant to
§39.507(7) the court must supplement the original dependency order with findings
addressing whether the second parent abused, abandoned or neglected the child(ren).
T.O. v. Department of Children and Families, 21 So.3d 173 (Fla. 4th DCA 2009). Child
hearsay statements admitted regarding domestic violence and sexual abuse despite the fact
that when the child took the stand she could recall NONE of the abuse.
Fourth DCA affirmed the termination of parental rights order, finding that despite her
unavailability at trial, there was sufficient corroborating evidence of both the sexual abuse and
the domestic violence. The corroborating evidence of the sexual abuse was the therapist’s
testimony that the child suffered from post-traumatic stress disorder as the result of either
exposure to sexual activity or sexual abuse. The corroborating evidence of the domestic
violence was testimony that when the child saw her father (the perpetrator) at a visitation she
appeared extremely afraid and upset. This evidence tended to prove that she witnessed
violence by the father.
Shuler v. Guardian Ad Litem Program,17 So.3d 333 (Fla. 5th DCA 2009). Mother and
legal father (married to mom at time of birth) have their parental rights terminated by
default. Biological dad comes to court and claims paternity. Trial court told him to file
paternity claim, but he waits until after termination of parents’ rights to do so. GAL
moves for child to placed for adoption with custodian. Trial court grants motion.
Court of appeal affirms. Biological dad has no rights unless found to be the father via a
paternity action. Because he sat on his rights until termination, he forfeited them.
“The statute plainly contemplates that, once the parental rights of the legal parents are
terminated, the child is to be placed in DCF custody for the purpose of adoption. The
statute does not contemplate that a child who becomes adoptable when his or her legal
parents' parental rights have been terminated, can somehow become unadoptable
when someone else then claims to be the child's biological father.
In issuing our ruling we recognize that if a man who impregnates a married woman were
permitted to assert a claim to the child after the legal parents' parental rights were
terminated, that claim would be open-ended perhaps leaving children who might
otherwise be adopted without families.”
Least Restrictive Means
N.S. v. Department of Children and Families, --- So.3d ----, 2010 WL 1875624 (Fla.
Parent’s challenge to termination of parental rights based upon the existence of a
permanent guardianship with a relative is dismissed by Third DCA which found:
“The existence of possible placement with a relative is irrelevant to the least
restrictive means test, where DCF made reasonable efforts to rehabilitate the
Mother and provide services to her and her children with the goal of reuniting them
as a functional family.” (Also, good case for TPR of a low-functioning parent)
B.B. v. Department of Children and Families, 13 So.3d 183 (Fla. 5th DCA 2009)
“However, the fact that a long-term placement with a relative exists does not
preclude terminating a parent's rights. The least restrictive means test requires
DCF to make a good faith effort to rehabilitate the parent and reunite the family
through a case plan before terminating a parent's rights.”