S.S. v. Dep't of Children & Families , s. 5D11–1184

75 So.3d 818

S.S., Mother of A.S., G.S., J.S., and J.T., Children, Appellant,

v.DEPARTMENT OF CHILDREN AND FAMILIES.

Nos. 5D11–1184

5D11–1187.

District Court of Appeal of Florida, Fifth District.

Dec. 8, 2011.

Carl A. Morgan, Melbourne, for Appellant.

Rosemarie Farrell, Orlando, for Appellee.

Laura E. Lawson, Tavares, for Guardian Ad Litem.PER CURIAM.

S.S. (“the mother”) appeals from a final judgment terminating her parental rights to her three oldest children, A.S., G.S., and J.S. In another pending appeal, No. 5D–11–1187, the mother challenges the concurrent termination of parental rights to her fourth child, J.T., who was born shortly after dependency proceedings were initiated in this case. Because the underlying facts, initial briefs, and answer briefs in these two appeals are virtually identical, we consolidate them for resolution on our own motion.

The mother argues that DCF failed to prove by clear and convincing evidence its two asserted grounds for termination—continuing abuse or neglect as evidenced by material breach of case plan tasks and behavior toward the children indicating that continued involvement with them would be harmful to them. Instead of attempting to demonstrate a lack of competent, substantial evidence to support the trial court's fact findings, the mother simply recapitulates the trial court's findings as her statement of facts, essentially conceding that there is no basis to challenge them. In her argument section, the mother then points to conflicting evidence which the trial court rejected, effectively asking this court to reweigh the evidence—which we cannot and will not do. See, e.g., Blue Lakes Apartments, Ltd. v. George Gowing, Inc., 464 So.2d 705, 708–09 (Fla. 4th DCA 1985) (explaining that when the standard of review is competent, substantial evidence, an appellate court must disregard conflicting evidence and accept the facts in evidence which support the trial court's findings).

Our review of the record confirms that competent, substantial evidence supports the trial court's findings that DCF proved both statutory grounds for termination of the mother's parental rights. The evidence demonstrated continuing abuse and neglect of the children after DCF's intervention and provision of services as evidenced by the mother's material breach of her case plan tasks. These included failing to provide a stable and non-hazardous home, failing to maintain stable employment and income, failing to complete anger management classes and individual counseling, failing to remain drug free, and failing to refrain from committing several new law violations—including criminal child neglect. In addition, the mother's diagnosed personality disorders and behavior toward the children, which in part resulted in the conviction for child neglect,¹ amply demonstrated that her continuing contact with them would likely result in future harm to them despite the provision of services. Accordingly, we affirm the termination of parental rights in these cases. C.G. v. Dep't of Children & Families, 67 So.3d 1141, 1143 (Fla. 3d DCA 2011).

One issue merits further discussion. Regarding her new law violations, the mother argues that this factor cannot be considered based on the Second District's opinion in In the Interest of C.N., 51 So.3d 1224 (Fla. 2d DCA 2011). That case held that DCF may not include a requirement of no new law violations as a case plan task, and that violation of this requirement, standing alone, is not a proper basis to terminate parental rights. Id. at 1232. The court reached this conclusion based on its reading of section 39.806 and on common sense. It noted that, under section 39.806, Florida Statutes, merely committing a criminal offense is not grounds for TPR. Instead, incarceration under certain circumstances and committing certain crimes are grounds for termination under sections 39.806(1)(d), (g) and (h), Florida Statutes. Thus, the C.N. panel reasoned that allowing a circuit court to expand the list of crimes for which termination may be authorized by inserting a no new law violation condition into the case plan amounted to judicial legislation in violation of separation of powers. Id. at 1233. The court concluded that this statutory scheme comported with common sense in that:

A parent's commission of a crime is not directly correlated with poor parenting skills or risk to the child; a person who commits a crime may still be an excellent parent. It all depends on the nature of the crime. A parent's commission of some crimes, e.g., aggravated child abuse, obviously warrants intervention to protect the affected child or children. But the commission of many other crimes may have little to do with the offender's effectiveness as a parent or with the child's welfare.

Id. The court recognized that several appellate opinions had affirmed terminations based on breaches of case plans for committing new law violations but noted that unlike the case before it, those prior termination cases were supported by other case plan breaches and more egregious circumstances. Id.

DCF asks this court to address C.N., acknowledge that its holding is limited to finding that violation of a no new law violation case plan condition, standing alone, is insufficient to support termination, and to confirm that the language in that opinion stating that such a condition may not be made...