S.L. v. Department of Children & Families
Case No. 4D11-3844

The trial court rendered an order terminating a mother’s parental rights to her minor child, S.A. S.A., whose father was serving a long sentence of incarceration, was residing with his half-siblings (the mother’s other children) and their father. The Department had sought to terminate both of S.A.’s parents’ rights to him in order to give S.A. permanency. However, the Department had not moved to terminate the mother’s rights to her children that were living with their father. The mother, S.L., appealed, arguing that the trial court’s finding that termination was the least restrictive means of protecting S.A. was not supported by competent substantial evidence. Specifically, the mother argued that termination was not the least restrictive means where the trial court did not also terminate her parental rights to her other children. In support, the mother relied upon In re G.R., 793 So. 2d 988 (Fla. 2d DCA 2001).

In a written opinion, the Fourth District Court of Appeal (“DCA”) distinguished S.L.’s factual circumstances from those present in In re G.R. The Fourth DCA noted that the facts of S.L.’s case were completely different. Unlike the mother in In re G.R., S.L. had made no progress on her case plan, had not seen S.A. more than a year, and resided out of state. The Fourth DCA therefore affirmed, concluding that the trial court had correctly applied the least restrictive means test as to S.A. individually.

L.K. v. Department of Children and Families, 4D10 – 5124
June 15, 2011

The Fourth District Court of Appeal addressed a final order terminating L.K.’s parental rights as to her daughter, G.B. The Department initiated dependency proceedings regarding G.B and took her into the Department’s custody. Shortly thereafter, L.K. was incarcerated for narcotics. The evidence showed that during L.K.’s incarceration, she made several attempts to contact G.B. as well as inquire about G.B’s general well-being through another family member. The Department then filed a petition for termination of parental rights on the basis of abandonment.  The trial court held that L.K. had not made a sufficient effort to establish a substantial relationship with G.B. and that it was in the child’s best interests to terminate her parental rights.  In so finding, the trial court ruled that L.K’s attempts to substantially comply with her case plan were irrelevant to its determination of abandonment.

L.K. argued that the trial court erred in excluding evidence that L.K. substantially complied with her case plan.  The Fourth District agreed.  In reversing, the Fourth District cited B.T. v. Department of Children and Families, which held that incarceration is a factor that can be considered in abandonment cases, but the parent’s efforts to assume parental duties while incarcerated must also be considered in light of the limited opportunities to assume those duties while in prison.  16 So.3d 940, 941 (Fla. 5th DCA 2009).  The Fourth District held that the trial court should have considered L.K.’s attempts to substantially comply with her case plan before terminating her parental rights.