In re C.N.

51 So.3d 1224

In the Interest of C.N., M.N., and D.N., children.M.N., Appellant,

v.Department of Children and Family Services and Guardian Ad Litem Program, Appellees.

No. 2D10-2086.

District Court of Appeal of Florida, Second District.

Jan. 14, 2011.

Norman A. Palumbo, Jr., Tampa, for Appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and David J. Lopez, Assistant Attorney General, Tampa, for Appellee Department of Children and Family Services.

Jennifer S. Paullin, Tavares, for Appellee Guardian ad Litem Program.

WALLACE, Judge.

M.N. (the Father) appeals the trial court's order terminating his parental rights to his three children, C.N., M.N., and D.N., based on the material breach of a case plan under section 39.806(1)(e)(2), Florida Statutes (2008).¹ The Father breached case plan tasks requiring him to commit no further law violations and to avoid further involvement in crimes of violence. Although the Father was imprisoned for four years, the Department of Children and Family Services (DCF) did not seek to terminate the Father's parental rights under section 39.806(1)(d) relating to parents who are incarcerated.

We are asked to decide whether the commission of no new law violations constitutes a valid case plan task and may support termination of the Father's parental rights when his imprisonment resulting from a new law violation made it impossible for him to complete his other case plan tasks within the allotted time. We conclude that the statutory scheme for the termination of parental rights makes section 39.806(1)(d) the exclusive method forthe termination of parental rights based on the fact of a parent's incarceration. In addition, the Father did not commit any of the crimes for which the termination of parental rights is authorized under subsections 39.806(1)(g) and (1)(h). For these reasons, we reverse the circuit court's order and remand for further proceedings.

I. THE FACTS AND PROCEDURAL BACKGROUND

The children were sheltered on February 28, 2009. On that date, C.N. was four years old, M.N. was two, and D.N. was four months. DCF alleged in its probable cause affidavit that the parents were incarcerated and the children were left without a caregiver. The Father was subsequently released from jail, but the children's mother remained incarcerated. DCF filed a petition for dependency on April 13, 2009. The Father consented by default, and a case plan was approved on April 22, 2009.

The Father had been arrested at least twelve times since 2002 for such crimes as battery, firing a weapon into a building, aggravated assault, burglary, and resisting arrest. The case plan noted that the Father had an extensive history of violent crime and domestic violence. The case plan tasks assigned to the Father included (1) no further law violations; (2) no further involvement in crimes of violence; (3) a domestic violence assessment and completion of a domestic violence program; (4) anger management assessment and class; (5) substance abuse evaluation and treatment, if ordered; (6) financial stability; and (7) stable housing for six months prior to reunification. The target date for completion of the case plan was January 4, 2010.

The Father promptly began taking steps to comply with his case plan. He obtained referrals and went to the necessary evaluations. The substance abuse evaluation resulted in a recommendation of no treatment. As a result of the anger management and domestic abuse evaluation, the Father was required to attend a domestic violence program. He began the program, but he did not complete it because he was arrested for the commission of a new crime. The Father claims that he maintained stable employment. But the Father's compliance with this case plan task was disputed at trial because he offered no evidence—other than his own testimony—that he actually had stable employment. The Father's case manager testified that she had made several requests for pay stubs but that the Father had never complied. The case manager also testified that the Father had never provided her with evidence that he had obtained stable housing, although he insisted that he did have stable housing. The case manager had never visited the Father's stated residence because it was in a high-crime area.

In June 2009, the Father was arrested again for contributing to the delinquency of a minor, aggravated assault with a deadly weapon, and aggravated battery on a pregnant woman. He was convicted on the latter two charges and sentenced to four years in prison. The State apparently dropped the charge of contributing to the delinquency of a minor.

On September 2, 2009, DCF filed a petition seeking the termination of the Father's parental rights. DCF alleged that the Father's new crimes and resulting imprisonment constituted a material breach of his case plan, "making it unlikely that he will be able to substantially comply with his case plan within the one-year period mandated by the Florida Legislature." ², ³The trial court agreed. In its order, the trial court made the following finding of fact:

At the time of the [F]ather's incarceration, he was not substantially compliant with his case plan. The court notes that the [F]ather's case plan contains two tasks that address no further law violations: the no further law violations task and the no further involvement in crimes of violence. The Father has failed to comply with both of these tasks and now finds himself in prison until late 2012 or early 2013. The [F]ather is unable to complete his case plan in prison.

Based on this finding, the trial court concluded that grounds existed for termination of the Father's parental rights based on noncompliance with his case plan tasks:

Pursuant to Florida Statute 39.806(1)(e)(2) (2009), the child has been adjudicated dependent, a case plan has been filed with the Court, and the [F]ather has materially breached the case plan by making it unlikely that he will be able to substantially comply with the case plan before the time for compliance expires. The [F]ather's failure to substantially comply was not due to either the lack of financial resources of the [F]ather or to the failure of [DCF] to make reasonable efforts to reunify the [F]ather and child[ren].

Thus the trial court granted DCF's petition and terminated the Father's parental rights to his three children. This appeal followed.

II. DISCUSSION

A. Incarceration Under Section 39.806(1)(d)

Section 39.806(1)(d) establishes three separate grounds upon which a court may terminate the parental rights of a parent incarcerated in a state or federal correctional institution:

1. The period of time for which the parent is expected to be incarcerated will constitute a substantial portion of the period of time before the child will attain the age of 18 years;

2. The incarcerated parent has been determined ... to be a violent career criminal as defined in s. 775.084, a habitual violent felony offender as defined in s. 775.084, or a sexual predator as defined in s. 775.21; has been convicted of first[-]degree or second[-]degree murder in violation of s. 782.04 or a sexual battery that constitutes a capital, life, or first[-]degree felony violation of s. 794.011; or has been convicted of an offense in another jurisdiction which is substantially similar to one of the offenses listed in this paragraph....

3. The court determines by clear and convincing evidence that continuing the parental relationship ... would be harmful to the child and ... that termination of the parental rights of the incarcerated parent is in the best interest of the child.

In the Father's case, none of the three grounds relating to incarcerated parentsapplies. First, the Father will be incarcerated for no more than four years. With gain time, he may be released from prison as early as September 2012. The oldest of the three children will only be eight years old at that time, leaving more than ten years before the oldest child reaches the age of eighteen. Under these circumstances, the trial court could not terminate the Father's parental rights on the statutory ground that the period of his incarceration would constitute a substantial portion of the children's lives. See B.C. v. Fla. Dep't of Children & Families, 887 So.2d 1046, 1052 (Fla.2004). Second, the Father does not qualify as a violent career criminal, a habitual violent felony offender, or a sexual predator, and he has not been convicted of first- or second-degree murder or sexual battery. Third, the trial court did not find that continuing the parental relationship with the Father would be harmful to the children. So the termination of the Father's parental rights because of his incarceration under section 39.806(1)(d) was not an option. Perhaps for this reason, DCF did not rely on section 39.806(1)(d) in its petition for the termination of the Father's parental rights.

The trial court emphasized that the basis for its findings under section 39.806(1)(e)(2) was the Father's commission of a new violent crime, not the resulting incarceration. The Father acknowledges this fact in his brief, but he argues that the trial court inappropriately considered the length of the incarceration as a factor. In fact, the trial court did consider the length of the Father's incarceration to be an issue in the case. At the hearing, the trial court pointedly noted that by the time of the Father's release, he would have been incarcerated for over half of the oldest child's life and for almost the entirety of the younger two children's lives. Nevertheless, the trial court grounded its decision to grant the petition on a material breach of the case plan, not the length of the Father's incarceration.

B. The Material Breach of a Case Plan Under Section 39.806(1)(e)(2)

The inapplicability of section 39.806(1)(d) brings us to the issue of whether the Father's parental rights could properly be terminated for material breach of his case plan under section 39.806(1)(e)(2). In the few months between...