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The Law Offices of Robin Bresky Boca Raton & West Palm Beach Appellate Attorney
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A Parent’s Efforts to Assume Parental Duties While Incarcerated is Relevant and Admissible in a Proceeding for Termination of Parental Rights.

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.

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