DCYF Can NOT Terminate a Parents Rights For Not Jumping Through All Hoops

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DCYF Can NOT Terminate a Parents Rights For Not Jumping Through All Hoops

Note: It's too bad they do it every day in New Hampshire. No parent get's a break!

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
January Term 2010
C.A., the mother,
Appellant,
v.
DEPARTMENT OF CHILDREN & FAMILIES,
Appellee.
No. 4D09-3578
[ February 17, 2010 ]
TAYLOR, J.
The mother, C.A., appeals a trial court order placing her thirteenyear-old daughter in a permanent guardianship with the maternal
grandparents and denying the mother’s motion for reunification. The
Department of Children & Families concedes error as to the trial court’s
failure to make specific written findings explaining why reunification was
not possible. We accept this concession of error as proper because
written findings are required by section 39.6221(2)(a), Florida Statutes
(2009). Moreover, because we find that the record is devoid of competent
substantial evidence to support the permanent guardianship
determination, we reverse and remand for reunification of the child with
the mother under the Department’s supervision.
The record reveals that the trial court based its decision to place the
child in permanent guardianship with the grandparents solely on the
mother’s failure to complete her case plan to the Department’s
satisfaction. However, as we stated in an earlier appeal in this case, a
parent’s non-compliance with a case plan is not a statutory ground for
placement of a child in a permanent guardianship, although it is a factor
that may be “relevant to the trial court’s inquiry regarding the parent’s
fitness to care for the child and whether reunification is possible.” See
C.A. v. Dep’t of Children & Families, 988 So. 2d 1247, 1249 (Fla. 4th DCA
2008). Here, the evidence and findings do not show that the mother’s
failure to complete her few remaining tasks has any bearing upon her
fitness to care for the child or whether reunification would be detrimental
to the child’s physical, mental, or emotional health.2
The main concern that led to the child’s dependency adjudication and
placement in her maternal grandparents’ home in January 2007 was the
mother’s dependency on prescription medication for pain management.
The mother entered into a case plan requiring her to perform numerous
tasks: obtaining individual and family counseling; undergoing
psychological, substance abuse, and psychiatric evaluations; attending
parenting classes; obtaining stable housing and income; and completing
a comprehensive medical evaluation to evaluate non-narcotic
alternatives. The trial court found that the mother completed all of her
case plan tasks, except individual and family counseling. Further, the
trial court found she had not sufficiently complied with an additional
requirement to produce a prescription log.
When this case was last before us, we remanded it to give the mother
additional time to comply with her case plan, specifically to complete the
“most important remaining task” — a medical evaluation at the
University of Miami to explore non-narcotic alternatives for her pain
management. C.A., 988 So. 2d at 1248. The mother has since completed
the medical evaluation. The independent evaluator, Dr. Campillo at the
University of Miami, concluded that the mother’s pain medication
regimen is appropriate to her condition and recommended that she
continue with her medication management. The guardian ad litem in
this case recommended reunification, pointing out that the mother had
raised the daughter for twelve years without any problems. The trial
court acknowledged that the child is bonded to the mother.
It is well-settled that the Department has the burden of proving that
reunification with the parent would endanger the child. See In re A.M., 5
So. 3d 809,809 (Fla. 2d DCA 2009) (reversing permanent guardianship
and ordering reunification where there was no competent substantial
evidence in the record to support a determination that, at the time of the
permanency hearing, reunification would have endangered the child’s
safety, well-being, and health); C.D. v. Dep’t of Children & Families, 974
So. 2d 495, 501 (Fla. 1st DCA 2008) (reversing permanent guardianship
and remanding for reunification under DCF supervision); G.V. v. Dep’t of
Children & Families, 985 So. 2d 1243, 1247 (Fla. 4th DCA 2008)
(ordering reunification where DCF’s only witnesses did not base their
opinions opposing reunification on the statutory ground of endangerment
to the children’s “safety, well-being, and physical, mental and emotional
health”). See also In the Matter of Metz, 27 P.3d 156 (Or. Ct. App. 2001)
(reversing termination of parental rights where evidence failed to support
finding that mother’s prescription medications for her chronic pain made
her unable to meet children’s needs).3
Here, the trial court made no findings, either orally or in writing, that
reunification would endanger the child’s safety, well-being, and physical,
mental, and emotional health, and there is no competent substantial
evidence in the record to support such a determination. Given the
protracted proceedings in this matter, including a prior reversal on
appeal, we see no justification for remanding this matter solely to allow
the Department another chance to retry the case and further delay the
statutory goal of permanency of the child. Accordingly, we reverse the
order placing the child in a permanent guardianship and remand for
reunification of the child with the mother under the Department’s
supervision.
Reversed and Remanded with instructions that the motion for
reunification be granted and DCF’s supervision reinstated.
GERBER and LEVINE, JJ., concur.
* * *
Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Lisa M. Porter, Judge; L.T. Case No. 07-276 CJDP.
Lori D. Shelby, Fort Lauderdale, for appellant.
Bill McCollum, Attorney General, Tallahassee, and Thomas B. Arden,
Assistant Attorney General, Fort Lauderdale, for appellee.
Not final until disposition of timely filed motion for rehearing.