        DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

                             B.A., the Mother,
                                Appellant,

                                     v.

 STATE OF FLORIDA, DEPARTMENT OF CHILDREN AND FAMILIES,
                         Appellee.

                              No. 4D20-270

                              [May 27, 2020]

  Appeal from the Circuit Court for the Nineteenth Judicial Circuit, St.
Lucie County; Robert B. Meadows, Judge; L.T. Case No.
562019DP000127.

    Antony P. Ryan, Director, and Paul O’Neil, Assistant Regional Counsel,
Office of Criminal Conflict and Civil Regional Counsel, West Palm Beach,
for appellant.

  Andrew Feigenbaum, Children’s Legal Services, West Palm Beach, for
appellee.

   Craig Robert Lewis, Defending Best Interests Project, Florida Statewide
Guardian Ad Litem Office, Miami Beach, and Thomasina F. Moore,
Statewide Director of Appeals, and Samantha C. Valley, Senior Attorney,
Statewide Guardian Ad Litem Office, Tallahassee, for Guardian Ad Litem
Program.

CIKLIN, J.

   B.A. (“the mother”) appeals a final judgment terminating her parental
rights. We conclude that neither of the two statutory grounds relied upon
for termination of parental rights (“TPR”) was proven by competent,
substantial evidence, and we reverse.

   The trial court’s determination that TPR was proper under section
39.806(1)(c), Florida Statutes (2019), was based on the mother’s history
and findings related to (1) her “pattern of behavior” of completing services
to obtain reunification with her children, (2) her reverting back to alcohol
abuse and domestic violence with the child’s father “once the Department
terminates supervision,” and (3) the fact that “[t]he mother . . . continue[s]
to be in a relationship with [the father] to the detriment of her children.”
At the TPR hearing, the Department established that the mother had
previously and successfully completed a case plan that included
substance abuse treatment. She was reunified with her children in 2015
with Department supervision concluding in 2016. The Department was
permitted to admit records from prior cases to establish some of these
facts, but, importantly, the trial court indicated that it would not consider
any hearsay allegations within the records. The testimonial evidence
established that the mother began consuming alcohol again at the end of
2018, and that the children were removed due to an incident of domestic
violence between the mother and father in May 2019, which incident
occurred while they were both drinking. Even though the mother was not
offered a case plan, she became sober immediately upon the removal of
the children and successfully completed a substance abuse treatment
program. She is currently in an “aftercare” program for substance abuse.

   To terminate parental rights, one of the grounds set forth in section
39.806, Florida Statutes (2019), must be established by clear and
convincing evidence. J.G. v. Dep’t of Children & Families, 22 So. 3d 774,
775 (Fla. 4th DCA 2009). Clear and convincing evidence has been defined
as an “intermediate level of proof [that] entails both a qualitative and
quantitative standard. The evidence must be credible; the memories of the
witnesses must be clear and without confusion; and the sum total of the
evidence must be of sufficient weight to convince the trier of fact without
hesitancy.” In re N.F., 82 So. 3d 1188, 1191 (Fla. 2d DCA 2012) (alteration
in original) (quoting In re Davey, 645 So. 2d 398, 404 (Fla. 1994)).

   “While a trial court’s decision to terminate parental rights must be
based upon clear and convincing evidence, our review is limited to whether
competent substantial evidence supports the trial court’s judgment.” J.G.,
22 So. 3d at 775. “Competent substantial evidence is tantamount to
legally sufficient evidence.” Dusseau v. Metro. Dade Cty. Bd. of Cty.
Comm’rs, 794 So. 2d 1270, 1274 (Fla. 2001). “Sufficiency is a test of
adequacy. Sufficient evidence is ‘such evidence, in character, weight, or
amount, as will legally justify the judicial or official action demanded.’”
Tibbs v. State, 397 So. 2d 1120, 1123 (Fla. 1981) (quoting Black’s Law
Dictionary 1285 (5th ed. 1979)).

   Section 39.806(1)(c) provides that grounds for termination may be
established:

      When the parent or parents engaged in conduct toward the
      child or toward other children that demonstrates that the

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      continuing involvement of the parent or parents in the parent-
      child relationship threatens the life, safety, well-being, or
      physical, mental, or emotional health of the child irrespective
      of the provision of services. Provision of services may be
      evidenced by proof that services were provided through a
      previous plan or offered as a case plan from a child welfare
      agency.

§ 39.806(1)(c), Fla. Stat. (2019). “To terminate the mother’s rights under
[section 39.806(1)(c)], the Department was required to prove that the
children’s ‘life, safety, or health would be threatened by continued
interaction with the parent, regardless of the provision of services’ and that
‘there is no reasonable basis to believe the parent will improve.’” Q.L. v.
Dep’t of Children & Families, 280 So. 3d 107, 114 (Fla. 4th DCA 2019)
(quoting T.O. v. Dep’t of Children & Families, 21 So. 3d 173, 179 (Fla. 4th
DCA 2009)). There must be proof “either that services have been provided
to the parent or that it would be futile to even attempt to provide services
to address the parent’s issues.” C.W. v. Dep’t of Children & Families, 228
So. 3d 725, 725 (Fla. 1st DCA 2017).

   The portion of the TPR order terminating the mother’s rights pursuant
to subsection (1)(c) was based on the trial court’s findings of the mother’s
history of both alcohol abuse and domestic violence. The record does not
support TPR with respect to either of these issues.

    First, we address the mother’s alcoholism. Proof of both elements
outlined in Q.L. is questionable in this case, but the Department clearly
failed to prove that there was no reasonable basis to believe that the
mother would improve. “Typically, this second evidentiary requirement is
established through expert testimony. Where there is no expert testimony
on this issue, . . . reversal may be appropriate because the trial court’s
findings would be speculative.” Q.L., 280 So. 3d at 115.

   Here, as in Q.L., the Department did not call any experts to testify and
it presented no testimony that the mother would not or could not
rehabilitate. On the contrary, the evidence indicated that the mother
previously and successfully completed substance abuse treatment and
then spent years both sober and unsupervised. After the removal, the
mother again entered and successfully completed a substance abuse
program—despite receiving no offer of a case plan. The evidence at the
TPR hearing indicated that she has not had an alcoholic drink since the
incident that led to the latest removal. Moreover, the mother’s testimony
indicated that the substance abuse program she most recently completed
was much more comprehensive than her previous program. In light of the

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mother’s success and her expressed desire to overcome her addiction—
along with the absence of any affirmative evidence that the mother is
unlikely to improve with treatment—we see no competent, substantial
evidence to support a determination that there was no reasonable basis to
believe the mother would improve. 1

    Second, the trial court’s factual findings regarding a history of domestic
violence and that “[t]he mother . . . continue[s] to be in a relationship” with
the father are not supported by the record. On the contrary, the
Department proved only a single instance of domestic violence which
occurred immediately prior to the shelter order. The Department contends
that the case manager’s testimony established a history of domestic
violence. In relevant part, the case manager testified that she had been
assigned to the case for fewer than three months, she was “briefly” made
aware of the family’s history, and that she familiarized herself “with the
file” “to the best of [her] ability,” but that she may not have been able to
view everything due to the age of the case. She further testified that, in
the instant case, the children were removed due to substance abuse and
violence in the home, and that those were the “same reasons” addressed
in prior dependency cases. She explained that there were not “any services
that the Department could offer in this case that [it has] not already offered
in the two prior cases.”




1 We acknowledge that there are many circumstances in which expert testimony
may not be necessary to establish that a parent is not amenable to treatment.
See, e.g., R.K. v. Dep’t of Children & Families, 898 So. 2d 998, 1000-01 (Fla. 5th
DCA 2005) (affirming termination of parental rights where mother had a 15-year
history of drug abuse, used cocaine while pregnant with children, and did well
while in residential drug treatment, but failed to complete multiple treatment
programs, and upon leaving last facility, violated her probation and was
incarcerated); S.J. v. Dep’t of Children & Family Servs., 866 So. 2d 770, 771 (Fla.
4th DCA 2004) (affirming termination of parental rights where mother was twice
unsuccessfully discharged from outpatient substance abuse treatment, refused
inpatient treatment, and was arrested four times while under Department
supervision). However, these cases are vastly distinguishable from the facts at
hand, and “[w]here the record demonstrates a reasonable basis exists to find the
parent’s problems could be improved, parental rights cannot be terminated.”
M.H. v. Dep’t of Children & Families, 866 So. 2d 220, 223 (Fla. 1st DCA 2004)
(finding no evidence to establish a reasonable basis that mother would not
improve where, despite drug addiction and relapses, mother sought treatment
before Department involvement, continued to seek help both through the
Department and on her own, and expressed a “strong desire to overcome her
addiction and parent her children”).

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   Simply stated, the case manager’s testimony was not competent,
substantial evidence of a history of domestic violence. The case manager’s
testimony was expressly equivocal and she lacked personal knowledge of
the history of the case. Furthermore, simply stating that the children were
removed for the “same reasons” as in prior cases provided no substance,
quantity, or detail surrounding any alleged past instance of domestic
violence. We find that her testimony lacked the nature and weight of
evidence required for establishing a past history of domestic violence in
this context.

   Moreover, there was no evidence to support a conclusion that the
parents were in an ongoing relationship. The evidence established just the
opposite: the parents separated following removal, they no longer live
together, and they are no longer romantically involved with one another.

    Accordingly, this court must evaluate whether termination under
section 39.806(1)(c) is proper based on the evidence of one incident of
domestic violence. “Termination under this section is termination based
on prospective abuse or neglect. Essentially, the trial court is asked to
look at the parent’s current . . . condition or past behavior and predict
whether the parent will likely harm the child in the future.” Q.L., 280 So.
3d at 113-14 (emphasis in original). Because the parents were no longer
living together and there was no evidence of any reconciliations following
prior instances of domestic violence or any other evidence indicating a
likelihood of harm to the children based on domestic violence, it cannot be
said that the Department proved that there is likelihood of harm to the
children based on domestic violence.

   Furthermore, the Department failed to offer a case plan following the
single proven incident, and there is nothing in the record to demonstrate
whether or not the mother would improve with the assistance of services.
Thus, any determination that domestic violence services would be futile
was based on raw speculation with little if any evidentiary support.

    The second ground for termination in the order of TPR is based on
section 39.806(1)(l), Florida Statutes (2019), under which termination is
permissible where “[o]n three or more occasions the child or another child
of the parent or parents has been placed in out-of-home care pursuant to
this chapter . . . , and the conditions that led to the child’s out-of-home
placement were caused by the parent or parents.” The evidence was
similarly insufficient to support a TPR under this subsection. The
Department proved that children were removed from the home on three
dates but there was not competent, substantial evidence to establish that


                                    5
the conditions that led to the earlier removals were caused by the mother.
The Department failed to meet its burden.

   In sum, there was not sufficient evidence to support termination of the
mother’s parental rights under either statutory ground. Consequently, we
reverse and remand.

   Reversed and remanded.

KLINGENSMITH, J., and LEVENSON, JEFFREY, Associate Judge, concur.

                           *        *        *

   Not final until disposition of timely filed motion for rehearing.




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