Posted by Nydia Streets of Streets Law in Florida Child Custody
Termination of a parent’s rights in Florida requires a three-prong test: “A petitioning party must first prove at least one of the enumerated statutory grounds for termination of parental rights by clear and convincing evidence. N.B. v. Dep’t of Child. & Fams., 289 So. 3d 29, 32 (Fla. 3d DCA 2019). The trial court must then consider whether termination is in the best interests of the child. Finally, because the fundamental right of parents to procreate and make decisions regarding the care, custody, and control of their children is recognized by both the Florida Constitution and the United States Constitution, and the right ‘does not evaporate simply because they have not been model parents,’ [. . .], a petitioning party must further prove that termination is ‘the least restrictive means of protecting the child from serious harm.’” This is explored in the case M.M.W. v. J.W., 3D21-2419 (Fla. 3d DCA August 3, 2022).
In this case, the father filed a private petition to terminate the mother’s parental rights. The parties were divorced in 2011 and as part of their parenting plan, they agreed to abstain from alcohol and drug use during their time-sharing periods and 24-hours before. The mother agreed to attend therapy and submit to drug testing for ninety days. After about a year, the father filed a motion for full timesharing, alleging the mother failed to pick the children up from school, was sending hostile text messages to father and was bringing the children to school late. Eventually, the parties entered a settlement agreement in which the mother acknowledged a substance abuse problem and which required her to enroll in inpatient treatment. The father was granted sole parental responsibility and full timesharing pending the mother’s compliance with one year of random substance abuse testing.
The mother did not enroll in inpatient treatment or submit to substance abuse testing, but she did attend therapy with various providers. The father eventually filed a petition to terminate the mother’s parental rights, alleging abandonment and chronic substance abuse. No case plan was offered to the mother. After a hearing, the court entered an order terminating the mother’s parental rights, and she appealed, arguing “(1) her due process rights were violated because the final order terminated her parental rights on unpled statutory grounds; (2) there is no competent, substantial evidence establishing she failed or refused to submit to available treatment; and (3) the father failed to establish termination was the least restrictive means to protect the children from harm.”
The appellate court found the father satisfied the first statutory prong in that he provided competent, substantial evidence that the mother suffered from a chronic substance abuse disorder. However, with regard to the second prong, the court found “[E]xperienced treatment providers unanimously concluded that the mother required residential treatment. In the order of termination, the trial court concluded the mother refused or failed to submit to available treatment. A careful review of the record, however, yields the opposite conclusion. A confluence of pandemic-related delays and capacity issues initially prevented enrollment. When restrictions were eventually lifted, the mother was placed on a waiting list for an available bed. The testifying social worker, however, was unable to confirm whether the mother was ever informed that a bed became available. Further, the mother presented uncontroverted evidence she lacked adequate financial resources to pay for residential treatment. Under these circumstances, we conclude the father failed to present competent, substantial evidence the mother refused or failed to complete available treatment.”
As to the mother’s argument that she was denied due process, the appellate court agreed where the mother’s rights were terminated based on a statutory ground not pled by the father. The court concluded ‘Nonetheless, because the mother’s first two issues on appeal are dispositive, we decline to reach whether the father satisfied his burden on this prong [referring to the least restrictive means test.’”
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