        DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT

                              D.S., the Father,
                                 Appellant,

                                      v.

             DEPARTMENT OF CHILDREN AND FAMILIES,
                           Appellee.

                              No. 4D14-3144

                              [April 22, 2015]

   Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Hope Bristol, Judge; L.T. Case No. 2012-3813 CJDP.

  Antony P. Ryan, Regional Counsel, and Paulina Forrest, Assistant
Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel,
West Palm Beach, for appellant.

   Pamela Jo Bondi, Attorney General, Tallahassee, and Carolyn Schwarz,
Assistant Attorney General, Fort Lauderdale, for appellee Department of
Children and Families.

   Patricia Murphy Propheter, Sanford, for appellee Guardian ad Litem
Program.

WARNER, J.

   D.S., an incarcerated parent, appeals the termination of his parental
rights as to his three children. The trial court terminated his rights based
upon his incarceration. Because we conclude that competent substantial
evidence does not support the termination as to two of the children, nor is
termination in the children’s manifest best interest nor the least restrictive
means to prevent harm to the children, we reverse. We affirm the
termination as to one of the children, who does not reside with the other
two and who has not maintained a continuing relationship with D.S.

  D.S., the father, has three children: D.S., Jr. (born 2006), P.S. (born
2008), and K.S. (born 2011). The children were sheltered on May 30, 2012,
due to the mother’s substance abuse and medical neglect. The mother
was found with drugs, and K.S., the youngest child, was found to be
medically neglected, requiring hospitalization.

   A month before the children were removed from the mother, D.S. was
arrested and jailed on charges of robbery, aggravated assault, and other
related charges.    Despite this arrest, both parents were offered a
reunification plan which went into effect on October 4, 2012. The plan
required D.S. to comply with the conditions of his incarceration. D.S. was
sentenced to six years of incarceration in January 2013, with an
anticipated maximum release date of February 2018.

   After their removal from the mother, two of the children, D.S., Jr. and
K.S., the oldest and youngest child, were taken in by D.S.’s sister, the
paternal aunt. The third child, P.S., was put in the custody of the
Department and placed in non-relative foster care. At a judicial review in
February 2013, the court adopted the goal of reunification. However, when
the mother failed several drug tests, the Department filed a petition to
terminate both parents’ rights in July 2013, alleging D.S.’s incarceration
for “a significant portion of the child[ren]’s minority,” as the sole ground
for termination of D.S.’s rights. In that petition, the Department noted
that the paternal aunt had custody of D.S., Jr. and K.S. and provided a
suitable permanent custody arrangement. P.S. was in foster care with
another family. At the time of the filing of the petition for termination,
D.S., Jr., was seven, P.S. was four, and K.S. was two.

   At the hearing on termination, D.S. testified that he did not know that
the mother was using illegal drugs at the time the children were placed in
a shelter. Although he was incarcerated, his early release date is May
2017, with a maximum date of February 2018, with probation to follow.

    D.S. has maintained consistent contact with his two children who
reside with his sister. He writes them letters almost every week and visits
with them by phone two to three times a week. They have good
conversations, and the boys tell him they love him. Although K.S. was
only a year old when D.S. was incarcerated, K.S. has warmed up to D.S.
through visits to prison (which are contact visits) and the telephone calls.
The aunt has brought the children four or five times to visit D.S. in prison.
He has only been able to speak with the third child, P.S., twice due to his
foster-care placement, but he still attempts to call every time he has
telephone visitation with the other siblings.

   He was glad that his sister was taking care of D.S. and K.S. He testified
that “she has no problem taking care of them until I’m released.” The aunt
was doing it for his children, not him, because their parents had left them

                                     2
when they were children. D.S. also noted that his father later came back
and took him, for which D.S. was glad, comparing this to his own
children’s situation.

    Before he was incarcerated D.S. was employed laying tile, and his
brother has offered him a job when he gets out doing the same work. When
he goes on work release eighteen months prior to his release from prison,
he will be able to provide support for his children and accumulate money
for housing.

   The Guardian ad Litem assigned to the children visits them at least
once a month. She has never observed the children interacting with the
father on the phone or in person. When she has visited with the children,
they do not ask her for either their mother or their father, nor do they tell
her that they want to go home to their parents. P.S. looks to his caretakers
as his parents, calling them “mommy” and “daddy” generally. D.S., Jr.
and K.S. are also happy with their aunt and her family. They have bonded
with them. She felt it important to continue their current placement.
When asked if the case “should remain open” until the father was released
from incarceration and could be reunified with the children, the guardian
simply said “that would not enable any kind of permanency for the kids,
and they’re young and they need permanency now, not in four years from
now.” The guardian also testified that both the foster parents of P.S. and
the aunt wish to adopt the children.

   Both D.S., Jr. and P.S. are in therapy. Interestingly, the guardian
testified that the reason D.S., Jr. continued in therapy was for the
therapist to work with D.S., Jr. “so that [he] can place himself in that
family and feel comfortable and good about it and continue on with it.”
This appears inconsistent with the guardian’s testimony that D.S., Jr. was
bonded with his aunt and uncle. Moreover, D.S., Jr. talked about his
father with the guardian and even showed her a picture that he had taken
when he visited his father in prison, also contradicting her earlier
testimony that the children never talked about their father.

   P.S. has difficulty in sharing and is in therapy for that issue as well as
aggressiveness. This is one reason why his foster home is good for him,
the guardian opined, because he is the only child in the home, and the
caregivers can address these issues continually. P.S. has stated that he
does not want to visit D.S. in prison.

    The Department’s termination of parental rights specialist testified that
all three children know that D.S. is their father, even though they also look
to their caretakers as parental figures. When asked what risk the children

                                     3
would face if the father’s rights were not terminated and he was given a
chance to get housing and income once he was released from prison, the
specialist simply said “these children will be at a standstill,” and, they need
permanency. Despite this, she admitted that when he would be released
from prison, all the children would have “a good way before they turn
eighteen . . . [a] good amount of time.”

    Last, the paternal aunt who has custody of D.S., Jr. and K.S. testified
that her brother maintains continuous contact with the two children
through multiple phone calls each week as well as sending cards and
letters. She has taken the children four or five times to see their father in
prison. He tries to keep up with their progress. The children are very
excited when their father calls, although at K.S.’s young age he generally
wants to play and does not really understand talking on the phone. Both
children address their father as “daddy,” even though K.S. may not have
a complete understanding of that. Nevertheless, both children have a bond
with their father - D.S., Jr., more so than K.S. She did not believe that the
children would be harmed in any way if the father were allowed to continue
his relationship with his children.

    She testified that she would be willing to keep the children under
permanent guardianship. But when questioned by the Department’s
attorney, she explained that she needed to speak to her husband and her
own children about it. As to adoption, she again was not certain, because
it was a long-term commitment and she would have to “sit down and really
talk about moving forward.” Thus, she contradicted the Guardian’s
testimony that she was willing to adopt.

   The trial court ultimately entered a judgment terminating both parents’
rights to the children and giving custody to the Department for the
purposes of adoption. As to the father, the court found the children were
in permanent stable homes with their caregivers. P.S. has little contact
with D.S. and did not wish to visit him. The court found that K.S. has no
bond with D.S., although D.S., Jr. does have a strong bond with him.
Incorrectly, the court found that D.S., Jr. had only two visits with the
father during the years the children had been in care. While never
specifically finding that the period of D.S.’s incarceration constituted a
significant period, the court found that the evidence showed that the
children should not have to wait another three years for their father to be
released from prison.

   The court also made findings on the factors required in section
39.810(1)-(11), Florida Statutes, including: (1) there was a suitable
permanent custody arrangement with the aunt for D.S., Jr. and K.S. but

                                      4
not for P.S.; (2) the father does not have the ability to provide for the
children while incarcerated; (3) the father is not in a position to take the
children now; (4) only D.S., Jr. has a slight bond with his father but there
would be no harm in severing that bond, as the risk of returning him to
his parents is greater; (5) the children are suitable for adoption, and the
paternal aunt is “willing to consider” adoption, while the foster parents of
P.S. want to adopt him; (6) the children have formed a bond with their
caregivers, and keeping them in their current placement is desirable; and
(7) the guardian recommends adoption.

   The court found that termination of the father’s rights was also the least
restrictive means to protect the children. In explaining that finding, the
court found that K.S. had no idea who his father was (contrary to the
testimony of the aunt who said that K.S. did have some understanding
that D.S. was his father). The court found P.S. has not shown any interest
in having a relationship with D.S. D.S., Jr. did show a bond with his
father, but the court found he was in need of permanency and should not
have to wait for three more years until his father is released from custody.
The court thus terminated the rights to the children and ordered all three
children to be committed to the Department for purposes of securing their
adoption. From this final judgment, the father appeals.

   Termination of parental rights by the state requires clear and
convincing evidence of: (1) a statutory ground for termination set forth in
section 39.806, Florida Statutes; (2) that termination is in the manifest
best interest of the child pursuant to section 39.810; and (3) that
termination is the least restrictive means of protecting the child from
harm. See Padgett v. Dep’t of Health & Rehab. Servs., 577 So. 2d 565, 570-
71 (Fla. 1991). A finding of least restrictive means is required because
“parental rights constitute a fundamental liberty interest.” Id. at 571.
Further, the determinations must be individualized to each child. In re
K.A., 880 So. 2d 705, 710 (Fla. 2d DCA 2004) (“[T]he trial court must
individually determine whether the termination of parental rights to each
child is permitted by the statute, is the least restrictive means to protect
that child, and is in that child’s manifest best interests.”); accord, S.L. v.
Dep’t of Children & Families, 82 So. 3d 203, 204 (Fla. 4th DCA 2012).

   The Department filed its petition to terminate D.S.’s parental rights to
all three of his children, alleging as grounds for termination his
incarceration for a significant period of the children’s lives. Section
39.806(1)(d), Florida Statutes (2013), provides:

      (1) Grounds for the termination of parental rights may be
      established under any of the following circumstances:

                                      5
                                   ***
      (d) When the parent of a child is incarcerated and either:

      1. The period of time for which the parent is expected to be
      incarcerated will constitute a significant portion of the child’s
      minority. When determining whether the period of time is
      significant, the court shall consider the child’s age and the
      child’s need for a permanent and stable home. The period of
      time begins on the date that the parent enters into
      incarceration.

The prior version of this statute permitted termination of parental rights
when a parent was incarcerated for a period constituting “a substantial
portion of the period of time before the child will attain the age of 18
years.”1 § 39.806(1)(d)1., Fla. Stat. (2011). In B.C. v. Florida Department
of Children and Families, 887 So. 2d 1046 (Fla. 2004), the supreme court
interpreted this to mean the time of incarceration remaining when the
petition for termination was filed, not the entire length of incarceration.
But the court also noted that termination also must be in the manifest
best interest of the child and the least restrictive means of protecting the
child from harm. The court concluded that “termination cannot rest
exclusively on the length of incarceration.           The actual effect of
incarceration on the parent-child relationship must also be considered in
light of the additional statutory and constitutional requirements.” Id. at
1054.

   The amended statute appears to incorporate the concepts of B.C. that
incarceration must be more than a quantitative analysis. Thus, the court
must look both at the length of the incarceration as well as its effect on
the child’s need for permanency. In other words, the statute requires both
a quantitative and qualitative dimension to the inquiry. In addition,
however, the state must still prove that termination is in the manifest best
interest of the child and the least restrictive means of protecting the child
from harm.




1 D.S. did not raise the issue of whether application of the amended statute would
be an unconstitutional retroactive application of the statute, because D.S. was
incarcerated prior to its effective date. We have concluded, however, that in this
case the result should be the same regardless of which version of the statute is
applied.


                                        6
   In percentage terms, the father’s incarceration amounts to
approximately 27% to 33% of the children’s minorities, figures which B.C.
would conclude does not constitute a “substantial” portion of the
children’s minorities. See B.C., 887 So. 2d at 1054-55. Therefore, to be
significant it must affect the children’s need for permanency.

   As to P.S., the state proved by clear and convincing evidence that the
child is thriving in his foster family’s care and does not wish to see his
father. The father has not been able to maintain much contact with P.S.
Thus, the father’s incarceration has been significant in that P.S., at a
young age, has become bonded with the foster family to the exclusion of
D.S. The foster parents wish to adopt P.S. To deprive him of this
continuing relationship with his foster parents would prevent him from
achieving a permanent and stable home. Thus, the court’s conclusion that
the state proved a ground for termination is supported by competent
substantial evidence. Moreover, for these same reasons, we conclude that
termination was both in the manifest best interest and least restrictive
means to prevent harm to P.S.

    As to D.S., Jr. and K.S., the state has not proved this ground for
termination. The children reside in a stable home with D.S.’s sister, their
aunt. They are not in the custody of the Department or in foster care but
in the care of a relative. Thus, to leave them in this placement would not
allow them to languish in foster care. D.S. has maintained as close a
relationship as his incarceration has allowed him to maintain with the
children, and D.S., Jr., in particular. While the children are bonded to the
aunt and uncle, they still know that D.S. is their father and have regular
interaction with him, including regular phone calls, letters, and visits.
When D.S. is released from prison, D.S., Jr. will be eleven and K.S. will be
six. Because they are with relatives, they will still be in contact with their
present caregivers even when D.S. is reunited with the children.

   Other than the guardian ad litem and termination specialist simply
stating that the children need permanency, there was no evidence of any
harm that would occur to the children if they had to wait to be reunited
with their father. They have not exhibited any signs of conflict or
confusion. They have not been passed around from foster home to foster
home. They have continued interaction with D.S., so he would not be a
stranger to them when he is released.

   Moreover, and importantly, contrary to the guardian’s testimony, the
aunt had not decided that she would adopt the children. By terminating
the father’s rights with the requirement of adoption, the court risks
actually upsetting the goal that it intended to achieve of keeping the

                                      7
children in their current placement with the aunt. Thus, because the
evidence did not support a finding that the length of incarceration
negatively impacted the children’s need for permanency, the trial court’s
finding that D.S.’s incarceration amounted to a significant portion of the
children’s minorities as ground for termination was not supported by
substantial and competent evidence.

   In addition, the court did not apply the manifest best interest factors in
accordance with the direction in B.C. that they must be applied with an
appreciation of the restrictions of incarceration.

      In addition, the petitioner must allege, and the trial court
      must find, that termination is in the manifest best interests of
      the child. See §§ 39.802(4)(c), 39.810, Fla. Stat. (2003).
      Termination of the parental rights of a parent who has played
      a supportive and beneficial role in the child's life despite the
      disabilities of incarceration probably would not meet these
      additional statutory and constitutional criteria. Cf. B.W., 498
      So. 2d at 948 (stating that “efforts, or lack thereof,” by
      incarcerated parent “to assume his parental duties through
      communicating with and supporting his children must be
      measured against his limited opportunity to assume those
      duties while imprisoned”).

B.C., 887 So. 2d at 1053 (emphasis added). First, it appears that the court
weighed the availability of a suitable relative placement as supporting
termination, when that factor actually works against termination of
parental rights. As to the father’s inability to support his children, the
court overlooked D.S.’s uncontradicted testimony that he will be eligible
for work release in less than two years, will have a job, and can contribute
to his children’s support while still incarcerated, but will also have the
ability to support them when he is released. The court’s conclusion that
no bond existed between K.S. and D.S. was not supported by competent
substantial evidence. The court relied on the guardian ad litem’s
conclusory statements, but the guardian never observed the interaction
between D.S. and his children, even though she knew they talked often.
It is also inconsistent with the aunt’s testimony, based upon her
observations of the children with D.S., that both children had a bond with
their father, although K.S.’s bond was much less than D.S., Jr.’s. While
the guardian supposed that the children were confused as to who was
“daddy,” no evidence was presented that this was so. Moreover, there was
no evidence that the children would be harmed should they await
reunification with their father. See S.B. v. Dep’t of Children & Families,
132 So. 3d 1243, 1246 (Fla. 1st DCA 2014). No therapist testified that the

                                     8
children were having issues, nor did any expert on child development
testify as to any prognosis for these children. In fact, it appears that they
are happy and well-adjusted and enjoy interacting with their father. In
short, this case fits the description in B.C. where termination would not
meet the additional statutory criteria of manifest best interest, because of
the supportive role that D.S. has continued to play in the lives of D.S., Jr.
and K.S.

    Finally, the Department clearly failed to prove that termination was the
least restrictive means to prevent harm. There was no evidence of harm
to the children, who were being cared for by their aunt. “If DCF ‘fails to
prove that there is significant risk of harm to the current child, or that
there are no measures short of termination that could be used to protect
the child from harm, then termination will not pass constitutional
muster.’” A.H. v. Dep’t of Children & Families, 144 So. 3d 662, 665 (Fla.
1st DCA 2014) (quoting J.B. v. Dep’t of Children & Families, 107 So. 3d
1196, 1202 (Fla. 1st DCA 2013)). In A.H., the Department conceded that
it had not proved that termination was the least restrictive means, where
the children were being taken care of by a non-relative permanent
guardian and there was no evidence that the mother’s contact with the
children posed any harm to them. Id. at 666. The Department should
have made a similar concession in this case, where there was an available
relative caregiver and no proof of any harm caused to the children by the
contact with their father.

   For the foregoing reasons, we affirm the termination of D.S.’s parental
rights to P.S., but we reverse the termination of his parental rights as to
D.S., Jr. and K.S. We remand for further proceedings in accordance with
section 39.811(4), Florida Statutes.

MAY and GERBER, JJ., concur.

                            *        *         *

   Not final until disposition of timely filed motion for rehearing.




                                     9
