       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT

                              T.B., the father,
                                 Appellant,

                                     v.

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

                              No. 4D19-3862

                               [July 1, 2020]

  Appeal from the Circuit Court for the Nineteenth Judicial Circuit, St.
Lucie County; Robert B. Meadows, Judge; L.T. Case No. 56-2018-
DP000171.

   Ashley Nicole Minton of Minton Law, P.A., Fort Pierce, for appellant.

  Andrew Feigenbaum, Appellate Counsel, Children’s Legal Services,
West Palm Beach, for appellee, Department of Children and Families.

   Thomasina F. Moore, Statewide Director of Appeals, and Samantha C.
Valley, Senior Attorney, Appellate Division, Florida Statewide Guardian Ad
Litem Office, Tallahassee, for Guardian Ad Litem.

FORST, J.

    One definition of the term Kafkaesque is “having a nightmarishly
complex, bizarre, or illogical quality.” Kafkaesque, Merriam-Webster’s
Online Dict. https://www.merriam-webster.com/dictionary/Kafkaesque>
(last visited June 23, 2020). This is the world of Appellant T.B., the father
of the two young children (born in 2017 and 2018) involved in this
termination of parental rights (“TPR”) case. Appellant’s parental rights to
these children were terminated because, though he complied with
Department of Children and Families’ (“DCF”) case plan and with the
instructions of DCF case workers, he occasionally and (arguably)
unavoidably came into contact with the children’s mother, although mere
contact with the mother outside the presence of the children was not
prohibited by the case plan.
   We conclude that the trial court’s determination that DCF established,
by clear and convincing evidence, the grounds asserted for termination of
Appellant’s parental rights, is not supported by competent substantial
evidence. Thus, we reverse.

                                Background

   Appellant’s travails started shortly after the birth of his second child in
2018. Both children were sheltered amidst allegations of domestic
violence between Appellant and the mother of the children. In August
2018, DCF developed a case plan with the goal of reunification of the
children with both parents. Over the course of the next ten months,
Appellant met nearly all of the benchmarks of the various case plans he
was provided: he completed a batterer’s intervention program and
parenting classes, and he held two jobs and provided a stable home for the
children. There were occasional instances of domestic violence, but in
every instance, it was the mother who was the aggressor, and Appellant
was the victim.

    Following the first judicial review hearing in January 2019, the
following events occurred (and are noted in the trial court’s order and/or
the testimony of witnesses at the November 2019 TPR hearing):

      •   Both Appellant and the mother testified that their romantic
          relationship ended, and the mother moved out of Appellant’s
          home “around” March 2019.
      •   The mother threw a brick through the window of Appellant’s
          home in April 2019. Appellant called the police. The mother was
          subsequently convicted on the charge of criminal mischief.
      •   On two occasions in June 2019, the case manager saw Appellant
          walking with the mother on Orange Avenue (one of the main
          streets in Fort Pierce).      Appellant testified that he has
          occasionally, and unintentionally, run into the mother at a bus
          stop or on a bus route.
      •   In late August 2019, Appellant arrived at his home and found
          that the mother had “gained access illegally to [Appellant’s]
          home.” Appellant contacted the police and asked that the mother
          be removed from the premises. He also contacted the case
          manager to report the incident.
      •   On September 5, 2019, Appellant filed a “Petition for Injunction
          for Protection Against Stalking” against the mother. This petition
          was denied by the court.



                                     -2-
      •   A visitation field support worker testified that, in October 2019,
          while supervising the mother’s visits with the children, she
          witnessed Appellant and the mother communicating via
          “Facetime.”     The worker clarified, however, that Appellant
          interacted only with the children.
      •   Appellant sent the mother a video of one of his visitations.
          Appellant testified that this video had been sent to the children’s
          maternal grandmother (with whom the mother was living).

    In April 2019, DCF filed a petition for TPR against both parents of the
children, and a hearing was convened in November 2019. The mother’s
parental rights were terminated, and her appeal was dismissed for lack of
prosecution. With respect to Appellant, the court found he had completed
domestic violence services, continued to maintain stable income and
housing, and regularly visited and bonded with the children. The trial
court additionally noted that Appellant had taken action to prevent the
domestic violence: “he’s done everything he could to prevent the domestic
violence, including seeking injunction, notify[ing] the police, notify[ing] . .
. his caseworker of the ongoing domestic violence [and t]here has been no
testimony that he has been the aggressor.”

   Appellant acknowledged that the mother’s actions were harmful to the
children and he could not control her actions. He further testified his
relationship with the mother had ended and that he had not had any
unnecessary and voluntary involvement with her since the relationship
ended. He indicated his willingness to consent to a court order requiring
the mother to stay away from him and his home, and he also volunteered
to catch another bus to avoid the mother, if necessary.

   The court nevertheless found that Appellant “voluntarily continu[ed] to
have substantial involvement with the Mother which was not necessitated
by any explained circumstances.” Accordingly, the court determined that
Appellant’s parental rights must be terminated, reasoning:

      If the Father is voluntarily continuing any relationship with
      the Mother despite the provision of services to him and he has
      reason to know the Mother continues to be a danger to the
      Children, then his rights should be terminated pursuant to §
      39.806(l)(c) because he has shown he cannot change his
      behaviors that helped cause the Children’s shelter despite the
      provision of services. If the Father is continuing a relationship
      with the Mother and the 2nd Case Plan requires him to
      discontinue that relationship because Mother continues to be
      a danger to the Children, then his rights should be terminated

                                     -3-
      pursuant to § 39.806(1)(e)2 because he failed to achieve the
      2nd Case Plan’s outcome and is voluntarily engaging in
      conduct - maintaining a relationship with the Mother - which
      endangers the Children in the home. The Court finds the
      Department proved by clear and convincing evidence the
      parental rights of [Appellant] to the Children should be
      terminated pursuant to Sections 39.806(l)(c) and (e)2, Florida
      Statutes.

   On appeal, Appellant asserts the trial court erred in terminating his
parental rights under sections 39.806(1)(c) and 39.806(1)(e)2. and in
finding that termination was in the children’s best interest and was the
least restrictive means to protect the children.

                                  Analysis

    “The standard of review of the final judgment terminating parental
rights is whether the trial court’s finding that there is clear and convincing
evidence to terminate parental rights is supported by competent,
substantial evidence.” C.S. v. Dep’t of Children & Families, 178 So. 3d 937,
940 (Fla. 4th DCA 2015). “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.” J.F. v. Dep’t of Children & Families, 890 So. 2d 434,
439 (Fla. 4th DCA 2004).

   “[W]e look at the evidence presented, not in the light most favorable to
the parents, but in a neutral manner in which we must assess whether
competent substantial evidence supports the trial court’s conclusion . . . .”
D.G. v. Dep’t of Children & Families, 77 So. 3d 201, 207 (Fla. 4th DCA 2011).
“While a trial court’s discretion in child welfare proceedings is very broad,
reversal is required where the evidence is legally insufficient to sustain the
findings of the trial court.” R.S. v. Dep’t of Children & Families, 881 So. 2d
1130, 1132 (Fla. 4th DCA 2004).

Termination under § 39.806(1)(c)

   As noted above, the trial court based the termination on two statutory
grounds. The first is section 39.806(1)(c), Florida Statutes (2019), which
provides that “[g]rounds for termination of parental rights may be
established”

      [w]hen the parent or parents engaged in conduct toward the
      child or toward other children that demonstrates that the

                                     -4-
      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. . . .

§ 39.806(1)(c), Fla. Stat. (2019).

To terminate a parent’s rights under this subpart, three evidentiary
requirements must be met:

      (1) that the child’s life, safety, or health would be threatened
      by continued interaction with the parent, regardless of the
      provision of services; (2) that there is no reasonable basis to
      believe the parent will improve; and (3) that termination is the
      least restrictive means of protecting the child from serious
      harm.

T.O. v. Dep’t of Children & Families, 21 So. 3d 173, 179 (Fla. 4th DCA
2009).

   We have held that termination under subpart 39.806(1)(c) is
termination “based on prospective abuse or neglect.” Q.L. v. Dep’t of
Children & Families, 280 So. 3d 107, 113 (Fla. 4th DCA 2019).
“Essentially, the trial court is asked to look at the parent’s current medical
condition or past behavior and predict whether the parent will likely harm
the child in the future.” Id. at 113-14.

   “[T]he evidence must show a parent’s past conduct or current mental
condition makes the risk of future harm to the child likely.” D.B. v. Dep’t
of Children & Families, 87 So. 3d 1279, 1282 (Fla. 4th DCA 2012)
(emphasis added). The court must determine that “any provision of
services would be futile or that the child would be threatened with harm,
despite any services provided to the parent.” W.L. v. Dep’t of Children &
Families, 172 So. 3d 562, 564 (Fla. 4th DCA 2015) (quoting In re T.H., 979
So. 2d 1075, 1082 (Fla. 2d DCA 2008)).

    “The issue in these types of cases is whether future behavior, which will
adversely affect the child, can be ‘clearly and certainly predicted.’ Or,
stated another way, whether it is ‘likely to happen’ or ‘expected.’” J.F. v.
Dep’t of Children & Families, 890 So. 2d 434, 440 (Fla. 4th DCA 2004)
(internal citations omitted).

  In the instant case, Appellant’s parental rights were terminated
approximately eight months after he ceased living with the mother. There

                                     -5-
is no evidence Appellant invited the mother into his house subsequent to
their March 2019 breakup and, in fact, Appellant called the police when
he found the mother in his home in August 2019. Moreover, Appellant
attempted to enjoin the mother from stalking him and, at the termination
hearing, he expressed a willingness to cooperate in any efforts by DCF to
keep the mother away from the children. Although Appellant was faulted
by the court for having “a relationship” with the mother following the
March breakup, the two were never ordered to discontinue all contact.
They were merely instructed to not be together in the presence of the
children, and there is no evidence that this instruction was disobeyed.

    We are mindful that “a finding that evidence is clear and convincing
enjoys a presumption of correctness and will not be overturned on appeal
unless clearly erroneous or lacking in evidentiary support.” B.K. v. Dep’t
of Children & Families, 166 So. 3d 866, 873 (Fla. 4th DCA 2015) (quoting
J.E. v. Dep’t of Children & Families, 126 So. 3d 424, 427 (Fla. 4th DCA
2013)). However, there is neither competent nor substantial evidence to
support the trial court’s conclusions. There is no evidence that Appellant
was ever the instigator of domestic violence following the sheltering of the
children, let alone that he engaged in domestic violence in their presence.
In fact, when discussing Appellant’s motion to dismiss the TPR petition, 1
the trial court indicated Appellant had done everything he could to prevent
the domestic violence; he was not the aggressor; the mother was no longer
living with Appellant; and there was evidence presented both that
Appellant was interested in enjoining the mother from having contact with
Appellant and the children and that such an injunction might be viable.

   Nonetheless, the trial court relied upon the following to support
termination of Appellant’s parental rights:

      (1) Appellant communicated with the mother via “Facetime” in several
          instances when the latter was visiting with the kids.

   Both parties testified that communication between the parents was not
prohibited, and the DCF caseworker admitted the communications were
more in the vein of Appellant speaking with his children.

      (2) Appellant and the mother were twice seen walking together on
          Orange Avenue in Fort Pierce.



1 The trial court reserved ruling on Appellant’s motion to dismiss and never
rendered a final ruling on this motion.

                                    -6-
   Appellant testified he and the mother were no longer in a “relationship”
at that point and any contact was coincidental, as they both walked on
Orange Avenue to get to the bus stop and to various appointments.
Moreover, the case plans did not include a “no contact” requirement, only
that “[they] cannot be around each other in front of the children.”

      (3) Domestic violence between the parents continued throughout the
          case, even after the children were sheltered.

    There was one instance of domestic violence after the children were
sheltered. In attempting to regain his children, Appellant broke up with
the mother and had her move out of his home. The mother responded by
throwing a brick through Appellant’s window, leading to Appellant calling
the police, and the mother being arrested and criminally charged,
convicted, and, for a time, incarcerated. Later, after the mother gained
illegal entry to Appellant’s house, Appellant again called the police and
case worker and sought an injunction to prevent further incursions. There
is NO evidence that Appellant invited or enabled the hostile actions of the
mother; to the contrary, he reported these actions to the case worker and
to the police, he sought an injunction against the mother, and he
expressed a willingness to do so again.

    Appellant has no discernable criminal or drug abuse record, had
maintained stable housing for the children to live in, was gainfully
employed, was bonded with the children, and had not exhibited anger
management issues since the children were sheltered. Following his
March 2019 breakup with the mother, there is no evidence that Appellant
had anything other than incidental contact with the mother, with no
voluntary contact, incidental or otherwise, witnessed or testified to in the
four months preceding the TPR hearing. Thus, there is no evidence
supporting a finding of an “ongoing domestic violence threat.” The last act
of domestic violence occurred approximately eight months prior to the TPR
hearing and resulted in the mother’s arrest and conviction. Her parental
rights have now been terminated.

    Unlike the parent in T.O., Appellant made conscious and discernable
efforts to separate himself and the children from the other parent,
essentially succeeded in doing so, and demonstrated that he could provide
a safe environment for the children. Contra T.O., 21 So. 3d at 180 (holding
“there is ample evidence that the father will continue to be a risk to all of
the children in the future, and that it is highly unlikely that he will ever
improve”). “When improvement is demonstrated and further improvement
is possible, it is error to terminate parental rights under subpart


                                    -7-
39.806(1)(c).” Q.L., 280 So. 3d at 116 (citing In re J.B., 923 So. 2d 1201,
1207 (Fla. 2d DCA 2006)).

   As noted previously, the sole contact between the parents during the
four months preceding the TPR hearing was the mother’s trespass in
August 2019.      This encounter resulted in Appellant’s calling the
caseworker and the police and seeking a restraining order against the
mother. In determining that Appellant is unable to desist from engaging
in a relationship with the mother, the trial court engages in rank
speculation, unsupported by the record. Parental rights cannot be
terminated based on such speculation. Q.L., 280 So. 3d at 115 (citing S.S.
v. D.L., 944 So. 2d 553, 559 (Fla. 4th DCA 2007) for the proposition that
“non-expert speculation is not a sufficient basis for terminating parent
rights.”).

    The trial court erred in finding that DCF established Appellant’s past
conduct made future harm to the children likely to happen, and it similarly
failed to establish there was no reasonable basis to conclude that past
behaviors will improve. Thus, the termination under § 39.806(1)(c) cannot
stand.

Termination under § 39.806(1)(e)2.

   The trial court’s second statutory basis for termination was section
39.806(1)(e)2., Florida Statutes (2019), which states that grounds for
termination of parental rights may be established:

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

      ....

      2. The parent or parents have materially breached the case
      plan by their action or inaction. Time is of the essence for
      permanency of children in the dependency system. In order
      to prove the parent or parents have materially breached the
      case plan, the court must find by clear and convincing
      evidence that the parent or parents are unlikely or unable to
      substantially comply with the case plan before time to comply
      with the case plan expires.

§ 39.806(1)(e)2.



                                   -8-
   The trial court found that Appellant had completed all tasks set forth
in the case plan. The “material breach” was apparently the several
instances in which Appellant communicated with the mother between
their breakup in March 2019 and the mother’s trespass in August 2019.
From these informal contacts, not prohibited by the case plan, DCF and
the trial court determined that Appellant was “unlikely or unable to
substantially comply with the case plan,” even though he actually had
complied with the case plan. T.B., meet F.K. (Franz Kafka). The trial
court’s TPR under this statutory provision is not supported by any
evidence, let alone competent substantial evidence, as there has been no
breach, let alone a “material breach.”

Termination of Appellant’s Parental Rights was not in the Children’s
Manifest Best Interests and was not the Least Restrictive Means of
Protecting the Children from Serious Harm.

    There was no competent substantial evidence that the manifest best
interests of the children were served by the termination of Appellant’s
parental rights. There was testimony that the children were bonded with
Appellant and that he cared for and provided for the children. Nor was
there competent substantial evidence that the termination of Appellant’s
parental rights was the least restrictive means to protect the children. In
light of the termination of the mother’s parental rights, the least restrictive
means of protecting the children would have been for DCF to assist
Appellant, the victim of domestic violence, in gaining an injunction against
the mother under Chapter 39 (if necessary).

                                 Conclusion

   DCF’s petition for TPR acknowledged that Appellant had “stable income
and housing” and that the two children were “very bonded” with him.
Nonetheless, DCF requested termination of Appellant’s parental rights
because he “continues to prioritize the mother over the children.” That
petition was submitted in April 2019. In the months that followed,
Appellant had minimal contact with the mother for several months and
then severed all contact with her and sought a restraining injunction.
Appellant materially complied with the case plan in every respect, though
he was faulted for not terminating all contact with the mother,
notwithstanding the fact that a prohibition of contact between the two was
not required by any of the case plans.

      [P]arents have a fundamental liberty interest in the care,
      custody, and management of their children. Santosky v.
      Kramer, 455 U.S. 745, 754 (1982). The fundamental liberty

                                     -9-
      interest of natural parents “does not evaporate simply because
      they have not been model parents or have lost temporary
      custody of their child to the State.” Id. at 753[.] To justify
      termination of parental rights, the State has the burden to
      show by clear and convincing evidence that reunification with
      the parent poses “a substantial risk of significant harm” to the
      child, such as abuse, neglect or abandonment. Padgett v.
      Dep’t of Health & Rehabilitative Servs., 577 So. 2d 565, 571
      (Fla. 1991); W.W. v. Dep’t of Children & Families, 811 So.2d
      791, 793 (Fla. 4th DCA 2002).

In re J.B., 923 So. 2d at 1205.

   The State’s Department of Children and Families failed to meet its
burden in this case. Just as no “substantial” relationship between
Appellant and the mother existed past March 2019, roughly eight months
prior to the trial court’s termination order, there was not clear and
convincing evidence of a “substantial” risk of “significant” harm to the
children if they were to be reunited with their father. Contrary to the
holding of the trial court, Appellant demonstrated that he could (and
actually did) “change his behaviors that helped cause the Children’s
shelter.”

   As noted above, DCF failed to prove grounds for termination under
either of the statutory provisions offered as the basis for the petition of
termination of parental rights.     Thus, we reverse and remand for
proceedings consistent with this opinion.

   Reversed and Remanded.

GROSS and GERBER, JJ., concur.

                           *         *         *

   Not final until disposition of timely filed motion for rehearing.




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