         DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                               FOURTH DISTRICT

                   T.H., the Father, and S.D., the Mother,
                                 Appellants,

                                      v.

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

                      Nos. 4D17-1217 and 4D17-1218

                              [August 30, 2017]

   Consolidated appeals from the Circuit Court for the Seventeenth
Judicial Circuit, Broward County; Alberto Ribas, Jr., Judge; L.T. Case
No. 14-826 CJ-DP.

     Lori D. Shelby, Fort Lauderdale, for appellant T.H., the father.

    Richard F. Joyce of the Law Office of Richard F. Joyce, P.A., Miami,
for appellant S.D., the mother, as to T.D.H.

  Pamela Jo Bondi, Attorney General, Tallahassee, and Carolyn
Schwarz, Assistant Attorney General, Children’s Legal Services, Fort
Lauderdale, for appellee.

     Matthew Charles Wilson, Sanford, for Guardian Ad Litem Program.

CIKLIN, J.

   In these consolidated appeals, T.H. (“the Father”) and S.D. (“the
Mother”) appeal the final judgment terminating their parental rights. The
Father appeals with respect to two children, S.H. and T.D.H.; the Mother
appeals with respect to T.D.H. 1 We affirm as to the termination of the
Father’s rights as to S.H., but we reverse the portions of the judgment
terminating the parents’ rights as to T.D.H.

  The Mother and the Father are the parents of S.H., born in July 2014,
and T.D.H., born in November 2015. Days after her birth, S.H. was

1 The Mother does not raise any error with respect to termination of parental
rights as to her other children, S.H. and E.D.
sheltered based on allegations of domestic violence and drug use. She
was placed in the care of a family friend and the parents were granted
supervised visits.

   About one month later, the Department of Children and Families (“the
Department”) petitioned for an adjudication of dependency. After the
parents failed to appear for the adjudicatory hearing and consents were
entered on their behalf, the Department was unable to locate the Mother
and the Father for many months. Ultimately, in March 2015, the
Department petitioned to terminate the Mother’s and Father’s parental
rights as to S.H. With respect to the Father, the Department alleged only
one ground, abandonment under section 39.806(1)(b), Florida Statutes
(2015).

   In May 2015, the parents were arrested for burglary after an alleged
altercation at the home of S.H.’s caretaker. Meanwhile, a review hearing
was set for December 2015 in the termination proceedings. A few weeks
before the review hearing, the Mother gave birth to T.D.H. Days later,
the Department filed a shelter petition with respect to T.D.H., and the
child was ultimately placed with his paternal grandmother. In November
2015, the Department filed a supplemental petition for termination of
parental rights with respect to T.D.H., alleging a failure to substantially
comply with the case plan under section 39.806(1)(e)1., Florida Statutes.

    After a multi-day adjudicatory hearing, the trial court granted the
petition and supplemental petition, and issued a lengthy judgment which
included findings that the Department met its burden of proof “as to the
allegations in the Petitions to Terminate Parental Rights,” and that
termination was based on “the allegations set forth in the Petitions for
Termination of Parental Rights.”

   The Mother and Father argue that the termination with respect to
T.D.H. constitutes error, as the Department did not plead a valid ground
for termination. The Department and the Guardian Ad Litem (“GAL”)
concede error but argue that unpled grounds were tried by implied
consent and established. We accept the concession of error but reject
the invitation to find that unpled grounds were tried by implied consent.

   As to T.D.H., the Department based its request for termination of
parental rights on section 39.806(1)(e)1., which permits the termination
of parental rights under the following circumstances:

      (e) When a child has been adjudicated dependent, a case
      plan has been filed with the court, and:

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      1. The child continues to be abused, neglected, or
         abandoned by the parent or parents. The failure of the
         parent or parents to substantially comply with the case
         plan for a period of 12 months after an adjudication of the
         child as a dependent child or the child’s placement into
         shelter care, whichever occurs first, constitutes evidence
         of continuing abuse, neglect, or abandonment unless the
         failure to substantially comply with the case plan was due
         to the parent’s lack of financial resources or to the failure
         of the department to make reasonable efforts to reunify
         the parent and child. The 12-month period begins to run
         only after the child’s placement into shelter care or the
         entry of a disposition order placing the custody of the
         child with the department or a person other than the
         parent and the court’s approval of a case plan having the
         goal of reunification with the parent, whichever occurs
         first[.]

    The Department correctly concedes error. With respect to T.D.H.,
there was no adjudication of dependency and no case plan had been filed
with the court. See A.H. v. Dep’t of Children & Family Servs., 915 So. 2d
761, 762 (Fla. 2d DCA 2005) (holding that section 39.806(1)(e) “was not a
valid legal ground for termination” where the child was never adjudicated
dependent, “which is a prerequisite to termination under this provision”);
J.T. v. Dep’t of Children & Family Servs., 819 So. 2d 270, 271-72 (Fla. 2d
DCA 2002) (finding section 39.806(1)(e) applies only “when a parent has
been provided with a case plan with a goal of reunification” and the child
is adjudicated dependent).

    However, the Department, operating under the belief that the
termination can stand based on the unpled grounds of abandonment
under section 39.806(1)(b) and threatened harm to the child irrespective
of services under 39.806(1)(c), 2 requests that we remand for the trial
court to be given the opportunity to make findings as to those unpled
grounds. After undertaking a thorough review of the record, including a
trial stipulation exhibit, the transcript of the adjudicatory hearing, and
the written final judgment, we find that we are not in a position to say

2 The Department sought termination of the Mother’s parental rights as to S.H.
based on section 39.806(1)(b), (1)(c), and (1)(e)1.-2. The Department sought
termination of the Mother’s parental rights as to E.D. based on section
39.806(1)(b), (1)(c), and (1)(e)1. With respect to the Father, the Department
sought termination of parental rights as to S.H. based on section 39.806(1)(b).

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that the parents were on notice that the court could terminate their
parental rights as to T.D.H. based on unpled grounds. Accordingly, and
in light of the concession of error, we reverse the final judgment to the
extent it terminates the parental rights of the Mother and Father as to
T.D.H.

   With respect to S.H., the Father argues that the Department did not
prove abandonment, as the evidence showed that tension between the
child’s caretaker and the parents interfered with their ability to maintain
a relationship with the child. He also argues that he worked diligently on
case plan tasks and that termination was not the least restrictive means
of safeguarding the child or in her manifest best interests. We disagree
on all points.

    Section 39.806(1)(b), Florida Statutes, permits termination in cases of
“[a]bandonment as defined in s. 39.01(1) or when the identity or location
of the parent or parents is unknown and cannot be ascertained by
diligent search within 60 days.” “Abandonment” is defined as follows:

      [A] situation in which the parent . . . of a child . . . has made
      no significant contribution to the child’s care and
      maintenance or has failed to establish or maintain a
      substantial and positive relationship with the child, or both.
      For purposes of this subsection, “establish or maintain a
      substantial and positive relationship” includes, but is not
      limited to, frequent and regular contact with the child
      through frequent and regular visitation or frequent and
      regular communication to or with the child, and the exercise
      of parental rights and responsibilities. Marginal efforts and
      incidental or token visits or communications are not
      sufficient to establish or maintain a substantial and positive
      relationship with a child. . . . The incarceration, repeated
      incarceration, or extended incarceration of a parent . . . may
      support a finding of abandonment.

§ 39.01(1), Fla. Stat. (2015).

   Here, there was evidence that visits between the parents and S.H.
were initially supervised by the caretaker. The Father visited S.H. during
that period, but he was confrontational with the caretaker, resulting in
the Department taking over supervision of any future visits. The Father
did not visit S.H. after the Department took over supervision – the last
time he saw S.H. was in September or October 2014, when she was
about two or three months old. The Father then failed to appear for the

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dependency trial and a consent was entered. But instead of engaging in
the case plan, the Father disappeared. After the Department searched
for him for sixty days without success, a termination petition was filed.
The Father did not appear in court on the termination proceedings until
after he was arrested for the alleged altercation at the caretaker’s home.

    During his incarceration, the Father sent S.H. letters via the child
advocate. But the Father did not show enough interest in S.H. to learn
the most mundane details of her life. He could not name her doctor,
school, teacher, daycare, or favorite toy. The summer after the Father’s
release from jail, S.H. celebrated her birthday; she received no gifts or
correspondence from the Father. Further, the Father failed to provide
any support for S.H., financial or otherwise. The Father works almost
full-time. He testified about some expenses, but it was not apparent that
he was not able to afford even a nominal gift for the child.

    The Father claims that his attempts at bonding with S.H. were
thwarted by her caretaker, but the evidence does not support this
contention. The caretaker welcomed the parents into her home and
encouraged them to visit S.H. It was only after the Father was verbally
abusive toward the caretaker that the Department found it necessary to
take over supervision of the visits. The Father also argues that a lack of
reliable transportation was at the root of his failure to visit S.H. before
his arrest, but the evidence reflects that he did not even attempt to
coordinate visits. He also contends that his completion of case plan
tasks establishes that he did not abandon S.H. But the evidence shows
that he completed case plan tasks only after the termination trial began,
and also that he was not in substantial compliance; after being
successfully discharged from outpatient substance abuse treatment, he
refused to submit to a random drug test. We have no trouble finding
that the Department established abandonment under section
39.806(1)(b).

   We turn now to the Father’s argument that termination of parental
rights was neither the least restrictive means nor in the manifest best
interests of S.H. 3 Aside from proving a statutory ground for termination,
the party seeking to terminate parental rights must also prove that
termination is in the manifest best interests of the child. B.K. v. Dep’t of
Children & Families, 166 So. 3d 866, 873 (Fla. 4th DCA 2015). Further,
“to satisfy constitutional concerns, [the petitioner] also must prove that
termination is the least restrictive means to protect the child from

3 We do not consider this argument with regard to T.D.H., in light of our
reversal of the termination order as to T.D.H.

                                     5
serious harm.” Id. “The state must present clear and convincing
evidence to support each element.” Id.

   Section 39.810, Florida Statutes (2015), sets forth a list of non-
exhaustive factors for a court to consider in determining the manifest
best interests of the child. “[A] manifest best interests decision is not
made to protect the legal rights of the parents; it is made to ensure the
best interests of each child.” K.D. v. Dep’t of Children & Family Servs.,
132 So. 3d 877, 879 (Fla. 2d DCA 2014).

   The trial court here considered these factors and made express
findings. Additionally, the evidence of the lack of a bond between the
Father and S.H., the Father’s lack of interest in details of the child’s life,
and his failure to give her even nominal provisions, combined with the
evidence of the child’s bond to her caretaker and the caretaker’s
willingness to adopt her, supports the trial court’s manifest best interests
finding.

   Turning to the least restrictive means prong of the termination
analysis, “[t]he least restrictive means test . . . is not intended to preserve
the parental bond at the cost of the child’s future. . . . Rather, it simply
requires that those measures short of termination should be utilized if
such measures will permit the safe reestablishment of the parent-child
bond.” B.K., 166 So. 3d at 876 (third alteration in original) (citation
omitted).

   Here, the evidence established that the Father was in denial regarding
his need for services. He rebuffed case plan advocates who sought to
connect him with services and reunite him with S.H. He sought a trial
on the dependency petition yet failed to appear at trial. He then
disappeared for at least sixty days, reappearing only after he was
arrested. He provided no explanation for his disappearance. He waited
until ten months after S.H. was sheltered before he began accepting
referrals for his case plan tasks. This was only after the termination
petition was filed and he was incarcerated. Although he completed his
case plan tasks by the last day of trial in November 2016, he did not
submit to requested random drug tests after he was successfully
discharged from substance abuse treatment. Given this evidence, and
the evidence of a complete lack of bond between the child and the Father,
termination was the least restrictive means of protecting the child.

   With respect to the Father, we affirm the termination as to S.H. With
respect to the Mother and the Father, we reverse the termination as to
T.D.H. The final judgment is otherwise affirmed in all respects.

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  Affirmed in part, reversed in part.

GROSS and DAMOORGIAN, JJ., concur.

                           *            *   *

  Not final until disposition of timely filed motion for rehearing.




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