Mother filed a petition for dependency regarding her son, A.A.A.-E., based on abandonment by Father 12 years prior in Honduras. Mother moved to the United States and left her son with his grandparents. Father assisted the child with illegally entering the United States when his grandparents could not continue to care for him. A.A.A.-E. was detained by immigration and then placed by immigration with his mother in Florida. Mother was willing and able to safely care for A.A.A.-E. The only risk of any harm to the child was the possibility of deportation.

 

Department of Children and Families v. B.C., 2016 WL 635072 (Fla. 1st DCA)

The Department of Children and Families and the Guardian ad Litem Program appealed denial of a petition for termination of parental rights. The First District Court of Appeal (First DCA) reversed denial and remanded for further proceedings.

 

Although the trial court found the termination of parental rights was statutorily warranted and in the manifest best interests of the children, the trial court denied termination finding that termination was not the least restrictive means to protect the children from harm. Specifically, the trial court found the children were safe from harm in telephonic contact and supervised visitation with Mother. Despite clear and convincing evidence that the parental bond was beyond reunification and should be terminated, the trial court relied on three recent cases ( G.H. v. Department of Children and Families, 145 So.3d 884 (Fla. 1st DCA 2014); A.H. v. Department of Children and Families, 144 So.3d 662 (Fla. 1st DCA 2014); C.D. v. Department of Children and Families, 164 So. 3d 40 (Fla 1st DCA 2015)) that suggested minimal and controlled supervised visitation automatically stops termination.

 

The First DCA distinguished all three cases from the facts at hand and noted "the uniformity of judicial precedent rejecting the notion that termination is impossible under the least restrictive means test simply because some limited and highly restricted contact with a parent may pose no harm." The "least restrictive means test does not stand as an impenetrable barrier to achieving what is ultimately in the child's best interest" when clear and convicting evidence establishes both grounds for termination and that termination is in the best interest of the child.

Mother appealed termination of her parental rights under § 39.806(1)(f). The Third District Court of Appeal (Third DCA) reversed termination.

 

The underlying petition for termination of Mother's rights alleged that Mother took E.C. to the hospital with "second degree, caustic, liquid burns" on his back, buttocks, right shoulder and right side of his body. Mother reported she believed her other child caused the injuries but was not able to provide a "cohesive explanation" for how the injuries occurred.

 

The Third DCA examined whether the record contained substantial evidence to support finding the Department established by clear and convincing evidence that mother either engaged in egregious conduct or had the opportunity and capability to prevent egregious conduct and knowingly failed to do so. As to the trial court's finding that mother engaged in egregious conduct, the Third DCA found that finding to be based in speculation. No evidence was presented as to how the injury occurred, who caused the injury, or what caused the injury. Two other individuals were in the residence at the time E.C. was injured. The Third DCA noted that Mother took E.C. to urgent care immediately after discovering the injury. As to whether Mother failed to prevent egregious conduct, the Third DCA found the record was devoid of any evidence that mother had the opportunity and capability to prevent the conduct or "to even suggest" that she knowingly failed to prevent the conduct.