2D02-2566 / S.B., motherA

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State: Florida

Court: Florida Southern District Court

Docket No: 2D02-2566

Case Date: 01/29/2003

Plaintiff: 2D02-2566 / S.B., mother

Defendant: Department of Children & Family Services

Preview:NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
In the Interest of:                              )
)
S.Q., C.Q., T.Q., and S.B.,                      )
)
Children.                                        )
)
)
S.B., mother,                                    )
)
Appellant,                                       )
)
v.                                               )   Case No. 2D02-2566
)
DEPARTMENT OF CHILDREN                           )
AND FAMILY SERVICES,                             )
)
Appellee.                                        )
)
Opinion filed January 29, 2003.
Appeal from the Circuit Court for
Sarasota County; Robert W. McDonald,
Jr., Judge.
Jeffrey A. King, Special Appointed
Public Defender, Sarasota, for
Appellant.
Melanie Newby, Department of Children
and Family Services, Sarasota, for
Appellee.

ALTENBERND, Judge.
S.B. (the mother) appeals an order terminating her parental rights to four
children.   We reverse because the Department of Children and Family Services did not
prove the grounds for termination pursuant to section 39.806(1)(e), Florida Statutes
(2002).   Moreover, because there was no evidence that the youngest child was ever
abandoned, abused, or neglected so as to support her continued dependency, we direct
the trial court upon remand to immediately reexamine whether this child is dependent.
This case began in November 1998 when the mother's three older
children, S.Q., T.Q. and C.Q., were adjudicated dependent, apparently due to an
unknown psychotic episode requiring the mother's hospitalization.   During this episode,
the mother was apparently misdiagnosed as schizophrenic.   An expert opined that with
proper medication the mother could reunite with her children and therefore a case plan
was established.   It appears that the mother was close to reunification with her three
children when she became pregnant with her fourth child, S.B., in the fall of 1999.   The
case plan was temporarily delayed, in part because it relied upon the mother taking
medications that could be harmful if taken while pregnant.
When S.B. was born in June 2000, the child initially remained in the care
of the mother.   The mother was reevaluated to determine whether she needed to begin
taking medications again.   The conclusion of the reevaluation was that the mother was
not schizophrenic and did not require medications.   Although a new case plan was
developed, there appears to have been little analysis of whether there was a continued
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need for dependency and, if so, what specific tasks would be necessary to alleviate that
need.
In November 2000, the Department sheltered the youngest child, S.B.
The shelter petition alleged that the child was found in the care of a babysitter who was
intoxicated.   Other record evidence suggests the child was sheltered because a routine
urinalysis required of the mother revealed alcohol use.   There was no order adjudicating
this child dependent, however, until after the Department first proceeded to trial to seek
termination of the mother's parental rights for these four children in June 2001.
In the first trial, the Department sought to terminate the mother's parental
rights pursuant to sections 39.806(1)(c) and (e), Florida Statutes (2001) (allowing
termination when continued involvement of parent with children would threaten life,
safety, and well-being of children or when children have been adjudicated dependent
and continue to be abandoned, abused, or neglected as can be evidenced by non-
compliance with case plan for period of twelve months).   At the time of this trial, the
mother was pregnant and within a month of delivering a fifth child.   Judge Lee E.
Haworth denied the petition for termination.   He recognized that the entire dependency
of these children was based upon a "false premise"--the misdiagnosis of schizophrenia.
Judge Haworth expressed his concern that the simultaneous reunification of all four
children with the mother could be disastrous.   He therefore adjudicated all four children
dependent and, in an attempt to place the case back on track, required the entry of a
new case plan with a goal of reunification to include twelve very specific tasks for the
mother.   Moreover, Judge Haworth ordered one of the children returned to the mother
within sixty days after the birth of her fifth child, with staggered reunifications of the
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remaining children thereafter if everything progressed according to plan.   The fifth child
was born two weeks after the trial.
Judge Haworth entered his written order denying termination and requiring
staggered reunification on July 16, 2001.   On July 17, 2001, the Department submitted
an amended case plan.   This case plan set forth 17 very detailed tasks for the mother to
complete, modeled on the tasks indicated by Judge Haworth, but much more extensive
than that required by the court.   Three of these tasks were required only upon
reunification of the youngest child with the mother.
No child was ever reunited with the mother.   Rather, the Department filed
reports indicating its concerns about reuniting the first child, and no further action was
taken.   Apparently, the case was reassigned to a new judge during this time.   Although
the mother made significant progress on her case plan until December 2001, thereafter
the relationship between the mother and the Department appears to have deteriorated
and the mother's compliance declined.   In January 2002, seven months after Judge
Haworth's order, the Department amended the case plan to again pursue a goal of
termination and adoption.   The Department filed a second petition for termination of
parental rights on February 15, 2002, which was granted on May 24, 2002, less than a
year after the entry of Judge Haworth's order denying termination and requiring a new
case plan.   Although the petition sought termination pursuant to sections 39.806(1)(c)
and (e), at trial the Department indicated it was proceeding solely based on section
39.806(1)                                                                                     (e).   In the order granting the termination of parental rights, Judge Robert W.
McDonald concluded that the Department had established the grounds for termination
under section 39.806(1)(e) and detailed the facts supporting his finding that the mother
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had failed to comply with her case plan thus justifying a termination of her parental
rights.
Section 39.806(1)(e) provides:
A petition for termination of parental rights may also be filed
when a child has been adjudicated dependent, a case plan
has been filed with the court, and the child continues to be
abused, neglected, or abandoned by the parents.   In this
case, the failure of the parents to substantially comply for a
period of 12 months after an adjudication of the child as a
dependent child or the child's placement into shelter care,
whichever came first, constitutes evidence of continuing
abuse, neglect, or abandonment unless the failure to sub-
stantially comply with the case plan was due either to the
lack of financial resources of the parents or to the failure of
the department to make reasonable efforts to reunify the
parent and child.
The trial court erred in failing to require the Department to prove the
elements required by section 39.806(1)(e) before terminating the mother's parental
rights.   Specifically, the Department did not establish that the mother continued to
abuse, neglect, or abandon her children by failing to substantially comply with the
applicable case plan for a period of twelve months.   Rather, the new case plan, which
attempted for the first time to address the new reasons for finding the children
dependent, was in effect only between July 2001 and May 2002.   We therefore reverse
the order terminating the mother's parental rights.   See C.C. v. Dep't of Children &
Family Servs., 812 So. 2d 520, 521 (Fla. 1st DCA 2002) (reversing termination because
trial court's finding that parent neglected or abandoned child for twelve months was
clearly erroneous when trial court terminated parental rights seven months after child
was adjudicated dependent); Gaines v. Dep't of Children & Families, 711 So. 2d 190
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(Fla. 5th DCA 1998) (reversing termination where Department never offered mother
opportunity to abide by performance agreement for at least twelve months).
On remand, we require the trial court to immediately address whether the
youngest child, S.B., is a dependent child.   See § 39.01(14), Fla. Stat. (2002) (defining
dependent child, in part, as one who was abandoned, abused, or neglected or is at
substantial risk of imminent abuse, abandonment, or neglect).   Although Judge Haworth
adjudicated all of the children, including S.B., dependent after the first unsuccessful
termination trial, he did so based upon concerns that the mother could not handle all
four children being returned at once.   He anticipated the children would be reunited with
the mother within a short time frame and actually entered a disposition order requiring
S.B. be returned to the mother after the birth of her fifth child.   At the second termination
trial, the guardian ad litem opined that the mother could "probably" handle parenting this
child, although she had concerns regarding whether the mother could parent all five
children.   On remand, if this child is not dependent as defined by section 39.01(14), the
child must be returned to the mother.
Because we are reversing the order terminating the mother's parental
rights and remanding for further proceedings, we express concerns regarding the trial
court's findings that the mother was not in substantial compliance with her case plan
and that termination was in the manifest best interests of these children.   Section
39.01(68) defines "substantial compliance" to mean "that the circumstances which
caused the creation of the case plan have been significantly remedied to the extent that
the well-being and safety of the child will not be endangered upon the child's remaining
with or being returned to the child's parent."   In this case, the mother had completed
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many of the tasks related to improving her parenting skills.   The tasks she had not
completed related primarily to financial matters, for example, maintaining stable
employment and obtaining a GED.   There was no indication that the mother's lack of
employment or financial resources ever resulted in the neglect or abuse of the children.
To the contrary, the mother had obtained housing appropriate to accommodate all of the
children despite her relative poverty.   Admittedly, the mother's decision to have two
additional children while her first three children were the subject of dependency pro-
ceedings has contributed to her difficulties in complying with a case plan, but it is far
from clear that the mother cannot earn the right to regain custody of some or all of the
children subject to these proceedings.
Finally, there was little evidence that termination was in the manifest best
interests of these children.   See, e.g., J.L.C. v. State of Fla., Dep't of Children & Family
Servs. (In the Interest of K.C.C.), 750 So. 2d 58 (Fla. 2d DCA 1999) (taking issue with
trial court's finding that termination was in child's best interest when only evidence about
children's condition showed that they required counseling due to anxiety over separation
from their parents).   The children's clinical specialist specifically stated termination was
in the children's interest simply because they needed some kind of permanency.
Indeed, the children's need for permanency was highlighted by the fact that the three
older children had been in four or more foster placements.   However, the evidence
established that the Department had no available plan to provide permanency to these
children if their mother's parental rights were terminated.   The current foster parents for
these children testified that they would keep the children as foster children for now, but
two of the foster homes were unwilling to adopt and the third family could not indicate
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whether they would adopt or not.   Thus, it appears the children's only hope of
permanency may depend upon reunification with their mother if at all possible.
Reversed and remanded for proceedings consistent with this opinion.
WHATLEY and SILBERMAN, JJ., Concur.
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