       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

                            J.C., the mother,
                               Appellant,

                                    v.

          DEPARTMENT OF CHILDREN AND FAMILIES and
                GUARDIAN AD LITEM PROGRAM,
                         Appellees.

                             No. 4D18-2218

                           [February 13, 2019]

   Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Yael Gamm, Judge; L.T. Case No. 2017-4147-CJ-DP.

    Antony P. Ryan, Regional Counsel, and Richard G. Bartmon, Assistant
Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel,
for appellant.

   Ashley B. Moody, Attorney General, Tallahassee, and Carolyn Schwarz,
Assistant Attorney General, Children’s Legal Services, Fort Lauderdale, for
appellee Department of Children and Families.

   Thomasina Moore, Statewide Director of Appeals, Tallahassee, and
Jesse R. Butler of Dickinson & Gibbons, P.A., Florida Statewide Guardian
ad Litem Office, Defending Best Interests Project, Sarasota, for appellee
Guardian ad Litem Program.

WARNER, J.

   Appellant, J.C., appeals the trial court’s final order terminating her
parental rights as to her two children, J.L. and J.W. We agree with
appellant that the trial court erred in terminating her rights based on
section 39.806(1)(b), Florida Statutes (2017), and finding that she
abandoned her children. However, we find that there was competent
substantial evidence to support the trial court’s alternative decision to
terminate the mother’s rights under section 39.806(1)(d)1., Florida
Statutes (2017), because she will be incarcerated for a significant portion
of her children’s minorities, and termination will support the children’s
interests in permanency. Thus, we affirm the final order of termination
under section 39.806(1)(d)1., but we remand for the trial court to strike all
findings of termination under section 39.806(1)(b).

   In 2017, a shelter order was entered for the mother’s two children. J.L.
was seven years old, and J.W. was two. The order states that both of the
children’s fathers were incarcerated for some time, and the mother, along
with the father of J.W., was incarcerated and awaiting trial for federal
charges involving child sex trafficking.

   In late 2017, the mother was found guilty of three federal charges
involving sex trafficking of a minor. She was sentenced to concurrent
sentences of 15.6 years for the first two counts, as well as a concurrent
120-month sentence for the third count. J.W.’s father was sentenced to
25 years for the same charges.

   The Department of Children and Families never petitioned for an
adjudication of dependency. Instead, DCF petitioned for an expedited
termination of the mother’s parental rights. It alleged two statutory
grounds for termination. First, pursuant to section 39.806(1)(b), Florida
Statutes (2017), it alleged abandonment as defined in section 39.01(1), in
that the mother made no significant contribution to the children’s care
and maintenance, or failed to establish or maintain a substantial and
positive relationship with the children.            Second, under section
39.806(1)(d)1., Florida Statutes (2017), the mother was incarcerated, and
her period of incarceration will constitute a significant portion of the
children’s minorities, in light of their ages and their need for a permanent
and stable home. In the same petition, DCF moved to terminate the
parental rights of J.W.’s father, alleging the same two grounds. It also
noted that the legal father of J.L. was unknown, but the mother named a
prospective father of the child.

   In 2018, the trial court held an adjudicatory hearing. The prospective
father of J.L. voluntarily surrendered his parental rights. The appellant
mother appeared by telephone from federal prison and contested the
petition for termination.

    The assigned child advocate testified that the children were removed
from the parents because they were in federal custody, and the children
were placed with the maternal grandfather. The child advocate testified
that the parents were not able to offer the children stable housing or
income because of their incarceration, and the mother will be incarcerated
for fifteen years. The children were doing well in their grandfather’s home,
although J.L. was receiving counseling to cope with the trauma that she
experienced. The children were bonded with their caregiver, with whom

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they had a parent-child relationship, and the caregiver was willing to adopt
them.     The child advocate recommended termination and adoption
because the parents will miss the majority of the children’s minority years,
and termination would help the children achieve permanency. However,
during cross-examination, the child advocate admitted that she has never
spoken to the mother or witnessed the mother interact with the children.
She knew very little about the mother’s relationship with her children, but
she testified that the children had phone contact with the mother.

   The guardian ad litem also recommended termination and adoption.
The children were happy in their placement, and the caregivers were
willing to adopt the children. The parents could not provide for their
children because of their incarceration, and the children would not suffer
harm upon termination. Nevertheless, the GAL did not have any concerns
regarding the mother other than her criminal case. The mother did
communicate with her children over the phone.

   The mother testified that her appeal in her federal criminal case is
pending. She raised her children since they were born. She speaks to her
children about three to four times a week over the phone, and she mails
“math work” to J.L. to help her with her homework. When she was
incarcerated in Miami, her mother would bring her children to visit her
every week. Her son calls her “mommy.” Furthermore, she testified that
her father did not want to adopt the children, but he would do so to prevent
them from being placed with a random family. However, she now is
incarcerated in Tallahassee for fifteen years.

   The court entered an order terminating the parental rights of the
mother and the father based on the above two statutory grounds. The
court found that termination was in the children’s manifest best interests
because they were in a loving home with their maternal grandparents who
intended to adopt them, and the parents were unable to provide for their
children’s basic needs due to their incarceration. The children have a
strong bond with their caregivers, and termination was the least restrictive
means of protecting them from harm. The mother now appeals.

    To terminate a parent’s rights, the State must: 1) prove a statutory
ground for termination under section 39.806; 2) show that termination is
in the child’s manifest best interests; and 3) prove that termination is the
least restrictive means to protect the child from serious harm. B.K. v. Dep’t
of Children & Families, 166 So. 3d 866, 872-73 (Fla. 4th DCA 2015). The
State must present clear and convincing evidence of each element, and an
appellate court will not reverse a final order terminating parental rights
unless it is clearly erroneous or lacking in evidentiary support. Id. at 873.

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   Furthermore, as long as one of the statutory grounds for termination is
supported by competent substantial evidence, this Court will affirm the
termination order. M.D. v. Dep’t of Children & Families, 187 So. 3d 1275,
1277 (Fla. 4th DCA 2016).

   The mother argues that competent substantial evidence did not
support termination under section 39.806(1)(b) for abandonment, and we
agree. A court may terminate parental rights under section 39.806(1)(b),
Florida Statutes (2017), if there is “[a]bandonment as defined in s.
39.01(1).” Under section 39.01(1), Florida Statutes (2017), abandonment
occurs when a parent:

      while being able, 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, legal
      custodian, or caregiver responsible for a child's welfare may
      support a finding of abandonment.

(emphasis added). A finding of abandonment can be made based upon a
parent’s failure to support the child if the parent is able to do so or a
parent’s failure to maintain a substantial and positive relationship with
the child, or both.

    In its termination order, the court noted that the mother called her
children three to four times per week while she was incarcerated, showing
a relationship between the mother and child. Compare with M.D. v. Dep’t
of Children & Families, 187 So. 3d 1275, 1278 (Fla. 4th DCA 2016) (finding
sufficient evidence that the incarcerated father abandoned his child where
he barely communicated with the child). Thus, the court’s finding of
abandonment was based solely on the parent’s incarceration and inability
to support the children. However, there was no evidence that, while being
able, the mother failed to support her children. In fact, there was no
evidence that she had any ability to financially support her children while
she was incarcerated. While incarceration may be a factor to consider in

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determining whether the parent has abandoned the child, incarceration
itself does not constitute abandonment as a matter of law. See In re B.W.,
498 So. 2d 946, 947-48 (Fla. 1986) (noting “indigency resulting in an
inability to provide support does not constitute abandonment,” even when
the parent is incarcerated). Because abandonment was based solely on
the mother’s incarceration and inability to provide for her children, we find
that the court erred by terminating her rights on this ground. See B.F. v.
Dep’t of Children & Families, 237 So. 3d 390, 393 (Fla. 4th DCA 2018)
(holding that there was insufficient evidence that the incarcerated father
abandoned his child where there was minimal evidence that he was able
to significantly contribute to his child’s care, and there was evidence that
the father communicated with the child over the phone).

   We must affirm the termination order, however, as there was competent
substantial evidence to terminate the mother’s parental rights under
section 39.806(1)(d)1., Florida Statutes (2017). Under this subsection, a
court may terminate an incarcerated parent’s parental rights if:

      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[.]

§ 39.806(1)(d)1., Fla. Stat. In D.S. v. Department of Children and Families,
164 So. 3d 29, 34 (Fla. 4th DCA 2015), we explained that “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.” The mother argues
that the trial court considered only the length of her sentence, rather than
whether her incarceration would harm the children’s interests in
permanency. We disagree as the court evaluated both the length and effect
of the incarceration.

   There was competent substantial evidence that the mother’s period of
incarceration would constitute not just a significant portion of her
children’s minorities but all of it. She is expected to be released in fifteen
years. At that time, her eldest child will be in her twenties, and her
youngest child will be just shy of eighteen years old. In its order, the court
considered the children’s relationship with both their mother and their
grandparents, and it found that termination would allow the children to
enter a more stable, permanent family relationship with their

                                      5
grandparents, who intended to adopt them. Under its least restrictive
means analysis, the court noted that the children’s interests in
permanency were “paramount” to the mother’s “desire to wait out” her
criminal appeal. Notably, the court found that the children’s relationships
with their parents and other relatives were likely to continue in their
current placement. The court’s findings and rulings were supported by
competent substantial evidence.

   For the foregoing reasons, we affirm the termination of J.C.’s parental
rights under section 39.806(1)(d)1., but we remand for court to strike all
findings of termination based on section 39.806(1)(b).

CIKLIN and LEVINE, JJ., concur.

                           *         *        *

   Not final until disposition of timely filed motion for rehearing.




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