B.T. v. Fla. Dep't of Children & Families, No. 1D19-2788

300 So.3d 1273

B.T., Father of B.L.T. and B.T., Minor Children, Appellant,

v.State of Florida DEPARTMENT OF CHILDREN AND FAMILIES; and Guardian Ad Litem, on behalf of B.L.T. and B.T., Appellees.

B.T., Father of M.T., a Minor Child, Appellant,

v.State of Florida Department of Children and Families; and Guardian Ad Litem, on behalf of M.T., Appellees.

X.T., Mother of M.T., a Minor Child, Appellant,

v.State of Florida Department of Children and Families; and Guardian Ad Litem, on behalf of M.T., Appellees.

No. 1D19-2788

No. 1D19-2791

No. 1D19-2974

District Court of Appeal of Florida, First District.

August 11, 2020

Ryan Thomas Truskoski of Ryan Thomas Truskoski, P.A., Orlando, for Appellant B.T., in Case No. 19-2788; Jennifer Barbookles of Law Office of Jennifer Barbookles, P.A., Tampa, for Appellant B.T., in Case No. 19-2791; Jason Zandecki, Tampa, for Appellant X.T., in Case No. 19-2974.

Sarah J. Rumph, Tallahassee, for Appellee State of Florida Department of Children and Families; Thomasina F. Moore, Tallahassee, and Sara Elizabeth Goldfarb, Tallahassee, for Appellee Guardian ad Litem, on behalf of M.T., B.T., and B.L.T.

TANENBAUM, J.

Here we have consolidated appeals from an unmarried man, B.T. (to avoid confusion, let us call him "Mr. B.T."), and an unmarried woman, X.T., regarding an order for termination of their parental rights ("TPR") as to three children—M.T., B.L.T., and B.T.¹ Mr. B.T. and X.T. do not dispute the sufficiency of the evidence presented at trial to support termination. They do not contend that there was any flaw in the two-day trial that led to the TPR. The parents instead contend that two deficiencies in the trial court's final TPR order violate their respective rights to due process.

Their first claim stems from the trial court's citation in its order to several grounds for termination listed in section 39.806(1), Florida Statutes (2018), that were not pleaded by DCF in the TPR petitions against the parents. The trial court, however, cited those statutory grounds in addition to at least one statutory ground for termination as to each parent that was pleaded. Neither parent raised this purported facial defect in a motion for rehearing, which would have given the trial court an opportunity to consider whether there was an error it needed to correct. The parents, then, did not preserve the issue for appellate review, so in the absence of fundamental error, we affirm on this claim.

The parents’ other claim addresses the trial court's failure to advise them, orally and in writing, of their rights to challenge the effectiveness of their lawyers’ representation within 20 days of the TPR order being rendered. Florida Rule of Juvenile Procedure 8.530(a) does require this notice, but we reject this claim as a basis for reversal. This procedural defect itself did not affect the TPR order, and the parents fail to identify a substantive right that they lost as a result of not receiving the required notice. There is no due process violation here to remedy, so we affirm on this claim as well.

I.

Florida law requires that a TPR petition "contain facts supporting," inter alia , an allegation "[t]hat at least one of the grounds listed in s. 39.806 has been met." § 39.802(4)(a), Fla. Stat. (2018). There must be an adjudicatory hearing (i.e. , a trial) at which the trial court will "consider the elements required for termination," each of which "must be established by clear and convincing evidence before the petition is granted." § 39.809(1), Fla. Stat. (2018) ; see also Fla. R. Juv. P. 8.525(a). Those required elements are as follows: 1) sufficient proof "of at least one of the grounds for termination" listed in section 39.806, Florida Statutes ; 2) the child's manifest best interests would be served by granting the petition to terminate parental rights, based on the criteria set out in section 39.810, Florida Statutes ; and 3) termination "is the least restrictive means of protecting the child from serious harm." C.M. v. Dep't of Children & Families , 953 So. 2d 547, 550 (Fla. 1st DCA 2007). The trial court must "enter a written order with the findings of fact and conclusions of law." § 39.809(5), Fla. Stat.

Mr. B.T. and X.T. do not contend that these requirements were not met. The TPR petitions by DCF made allegations supporting multiple statutory grounds for termination as to each parent. There was a trial. The trial court entered a written order that made findings of fact and set out the statutory grounds for termination that were supported by those findings. Moreover, neither Mr. B.T. nor X.T. challenge the trial court's findings as to the manifest best interests of the children or the least restrictive means to protect their safety, though the trial court concluded that those elements had been satisfied as well.

The parents instead focus their first claim on a straight facial comparison of the statutory references in the TPR order against those in the TPR petitions. In the two petitions pertaining to Mr. B.T., DCF alleged that it could prove two statutory grounds. First, DCF alleged that Mr. B.T.’s continuing conduct threatened the life, safety, well-being, and health of the three children (M.T., B.L.T., and B.T.). See § 39.806(1)(c), Fla. Stat. (2018). DCF described Mr. B.T.’s "violent behaviors," his continued neglect of the children, and the ongoing domestic violence between him and the mother of B.L.T. and B.T. It also described how Mr. B.T. "allowed the children to be around his father, who is on sexual offender probation." According to DCF in its petitions, Mr. B.T. "refuses to see ... the danger that his violence and neglectful care poses to the children" and that he "does not understand his protective role." Second, DCF alleged that three other children of the prolific Mr. B.T. previously had been removed from his custody, never to return. See § 39.806(1)(l), Fla. Stat. (2018). In addition, M.T., B.L.T., and B.T. previously had been removed from B.T.’s custody on at least one other occasion.

Regarding X.T. (M.T.’s mother), DCF alleged it could prove two statutory grounds for termination as well. One of those also was section 39.806(1)(c). DCF described how X.T. had "been under protective services on multiple occasions since 2013 and has never completed a reunification case plan." Moreover, DCF referenced X.T.’s "history of substance abuse," involvement with Pennsylvania's "[d]ependency system," her "history of instability," her homelessness several years back, her failure to engage in a prior case plan and to maintain contact with M.T., and her violation of prior court orders governing visitation. According to DCF, X.T. could not "safely be reunified with the child." DCF's second ground for termination as to X.T. was abandonment. See § 39.806(1)(b), Fla. Stat. (2018). To buttress this statutory basis, DCF alleged that X.T. "while being able, has made no significant contribution to [M.T.’s] care and maintenance," that she "does not financially support" M.T., and that she "has not been regularly involved in the child's life since 2013" and has not "demonstrated a desire to be reunified with [M.T.]."

In the TPR order now on review, the trial court set out facts that it "found by clear and convincing evidence" to support each of the elements of termination. As to Mr. B.T., the trial court determined that previously there "were at least three removals" of children of his. The order includes findings that Mr. B.T. "had a constant problem with housing," such that he "has not had an adequate home where he could safely raise a child"; that he "has an anger control problem that has never been fully addressed by completing the tasks on his case plans"; that he had boasted to a case worker that his father had sexually abused M.T. but "was no longer a problem because [the two men] had a fist fight"; that Mr. B.T. cursed at and threatened M.T., belittled her, and once referred to M.T. as "that little bitch"; and that Mr. B.T. "takes no responsibility for his anger, his drinking, his fighting, his manipulation, or anything else." As to X.T., the trial court did not make as many findings, but it still determined that "there were three removals from" her as well.² Furthermore, according to the order, X.T. "never completed a case plan" and there was "no proof that she has housing, support for any of the children, or has in any way prepared to act as the mother to any of these children." To be clear here, neither parent challenges the sufficiency of the evidence supporting these findings.

In sum, the order catalogs the following five paragraphs of section 39.806 as statutory grounds for termination, which the trial court concluded were established by the facts: (1)(c) (conduct threatening the children, which DCF had cited in its petitions against both Mr. B.T. and X.T.); (1)(e) (failure to complete a case plan); (1)(i) (prior termination of parental rights to siblings); (1)(j) (extensive history of substance abuse); and (1)(l) (three or more prior removals, which DCF had cited regarding Mr. B.T. but not X.T.).

Before delving into the parents’ first claim, we should be clear on what is not in contention in these appeals. In their exiguous initial briefs, the parents do not (and of course could not) contend that the final order relies entirely on statutory bases that went unmentioned in the petitions against them. Indeed, one statutory basis for termination cited in the order, section 39.806(1)(c), appears in the petitions against both parents. As we already noted, the parents also do not contest the sufficiency of the evidence supporting the statutory bases on which the trial court relied for termination, or of the evidence supporting the other two elements required for termination. Finally, the parents do not address any of the trial proceedings or any of the evidence that was introduced.

The parents, then, effectively concede on appeal that the trial court terminated their parental rights based on the constitutionally...