       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

                            B.F., the Father,
                               Appellant,

                                    v.

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

                             No. 4D17-2986

                           [January 31, 2018]

  Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Luis Delgado, Judge; L.T. Case No. 50-2015-DP-300266-
XXXX-SB.

  Andrew A. Holness of the Law Offices of Andrew A. Holness, P.A.,
West Palm Beach, for appellant.

  Pamela Jo Bondi, Attorney General, Tallahassee, and Meredith K.
Hall, Children’s Legal Services, Bradenton, for appellee.

  Heather Sayfie, Pro Bono, Hallandale Beach, and David P. Krupski,
Sanford, for Guardian Ad Litem Program.

PER CURIAM.

   B.F. (“the father”) appeals an order terminating his parental rights
and raises several arguments. We affirm the majority of the order, but
we recognize that, as the father argues, the trial court erred in
terminating his parental rights on the ground of abandonment where the
Department of Children and Families (“the Department”) failed to
sufficiently prove that ground. Consequently, we reverse the portion of
the order terminating the father’s parental rights on the ground of
abandonment.

   The child was sheltered at the age of four months and was
adjudicated dependent several months later. He was ultimately placed
with his paternal great-grandmother and great-aunt. The father was
incarcerated at commencement of the dependency proceedings, and
while an exact timeline is not clear, the record reflects he was in and out
of jail for a significant portion of the dependency and termination
proceedings. A case plan was entered requiring the father to provide
proof of child support, stable income, and housing, among other tasks.
The Department eventually petitioned for termination of his parental
rights alleging several grounds, including abandonment.

    At trial, at which point the child was two years old, the Department
presented testimony regarding the father’s support of and interaction
with the child from the case manager and the child’s paternal great-
grandmother, who is one of the child’s custodians. The case manager
testified that she did not facilitate visitation between the father and the
child, but was aware of one visit between them. The father lived in
Broward and Tampa at different times in the proceedings and the child
lived in Miami. The father did not provide proof of child support, stable
income, or housing, but he reported to the case manager that he worked
“underneath the table” and did not have physical paychecks.

    The great-grandmother testified that the father has visited the child
on four occasions, but he did not visit the child on a consistent basis
because he has been in and out of jail. Initially, the child was hesitant to
go to his father and bites him sometimes, but has warmed up to him.
The child loves the father, calls him “Da-Da,” and runs to and hugs the
father when he sees him. Additionally, the father and child have “good
communication” on the phone and the child knows he is his father. The
father did not provide financial support or supplies for the child, with the
exception of an outfit and a pair of shoes, and possibly fast food when he
visited the child.

   Following trial, the court entered an order finding that grounds for
termination existed pursuant to section 39.806(1)(b), Florida Statutes,
because the father had abandoned the child, and pursuant to section
39.806(1)(e), Florida Statutes, because the father failed to substantially
comply with the case plan for a period of time after the child was
adjudicated dependent and the case plan had been filed. 1

1   With respect to this ground, the order provides:

         39.806(1)(e) The child has been adjudicated dependent, a case
         plan has been filed with the court, and:

         (1) The child continue[s] to be abused, neglected, or abandoned by
         the father. The failure of the father to substantially comply with
         the case plan for a period of 12 months after an adjudication of
         the children as dependent children or the children’s placement
         into shelter care, whichever occurs first, constitutes evidence of

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   On appeal, the father argues the Department failed to present
evidence that he had the ability to contribute to the child’s care and
maintenance, and therefore failed to prove abandonment. The father
also asserts that the evidence demonstrates he maintained a relationship
despite his incarceration by communicating with the child on the phone.
We agree.

    Termination of parental rights requires clear and convincing evidence
of a statutory ground for termination set forth in section 39.806, Florida
Statutes. D.S. v. Dep’t of Children & Families, 164 So. 3d 29, 33 (Fla. 4th
DCA 2015). Clear and convincing evidence is 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.” Fla.
Dep’t of Children & Families v. F.L., 880 So. 2d 602, 614 n.7 (Fla. 2004)
(Cantero, J., concurring) (quoting In re Adoption of Baby E.A.W., 658 So.
2d 961, 967 (Fla. 1995)). “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.E. v. Dep’t of Children & Families, 126 So. 3d
424, 427 (Fla. 4th DCA 2013) (citation omitted).

   Abandonment is a ground for termination of parental rights.              §
39.806(1)(b), Fla. Stat.

      “Abandoned” or “abandonment” means a situation in which
      the parent or legal custodian of a child or, in the absence of
      a parent or legal custodian, the caregiver, 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


      continuing abuse, neglect, or abandonment unless the failure to
      substantially comply with the case plan was due to the father’s
      lack of financial resources or to the failure of the Department to
      make reasonable efforts to reunify the father and children, as
      defined in §39.806(1)(e)[1.], Florida Statutes, or

      (2) The child has been in care for any 12 of the last 22 months and
      the parents have not substantially complied with the case plan so
      as to permit reunification under §39.522(2) Florida Statutes.

                                      3
      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.

§ 39.01(1), Fla. Stat. (2016) (emphasis added).

    “The qualifying phrase ‘while being able’ excludes involuntary
abandonment.” T.S. ex rel. D.H. v. Dep’t of Children & Families, 969 So.
2d 494, 496 (Fla. 1st DCA 2007). “Although a parent’s incarceration can
be a factor the court considers for terminating parental rights based on
abandonment, incarceration alone is insufficient. It is also improper to
terminate parental rights if a parent is unable to financially provide for
the child or assume parental obligations due to incarceration.” Id.
(citations omitted). “[T]he parent’s efforts, or lack thereof, to assume
parental duties while incarcerated must be considered in light of the
limited opportunities to assume those duties while in prison.” In re T.H.,
979 So. 2d 1075, 1080 (Fla. 2d DCA 2008).

    The Department did not prove abandonment, as the record does not
reveal competent, substantial evidence that the father was able to
significantly contribute to the child’s care and maintenance or that he
failed to establish and maintain a positive and substantial relationship
with the child. First, the only evidence of the father’s financial ability
was the case manager’s testimony that the father told her he works
under the table. There was no evidence of the amount of income, the
type of work performed, or the duration of employment. Presumably this
employment occurred at some point while he was not incarcerated, but
the case manager did not know how long the father was incarcerated.
Testimony that the father performed undocumented work between stints
in jail is not competent, substantial evidence of ability and does not
establish voluntary abandonment.

    Second, the Department did not prove that the father failed to
establish and maintain a positive relationship with the child; the
evidence as a whole tended to establish the opposite. While he only
visited the child four times in person, the great-grandmother’s testimony

                                    4
established that the father and child communicated well on the phone,
and there was no evidence to contradict this. There was also no evidence
regarding the father’s ability to contact the child while he was
incarcerated. Further, the great-grandmother testified that the child
loves the father and recognizes him as his father. Testimony that the
child was initially standoffish and has bitten the father is not competent,
substantial evidence of the absence of a substantial and positive
relationship, particularly in light of the fact that the child was two years
old at the time of the testimony.

   Consequently, we reverse the portion of the order terminating the
father’s parental rights on the ground of abandonment and remand for
that ground and findings inconsistent with this opinion to be stricken
from the order. However, we affirm the termination of the father’s
parental rights on the remaining ground, as the father’s remaining
arguments are either without merit or are waived.

   Affirmed in part, reversed in part, and remanded with instructions.

MAY and CIKLIN, JJ., concur.
WARNER, J., dissents with opinion.

WARNER, J., dissenting.

   I dissent from that portion of the majority opinion which concludes
that there was no competent substantial evidence to support
abandonment, both as to his ability to contribute and as to his
maintenance of communication to create a positive relationship. To the
contrary, even when the father was out of prison and employed “under
the table,” he failed to make any contribution to the care of his child.
Thus, while he was “able” and making income, he did not use any money
for the support of his child. The Department should not be required to
show the amount of his actual income in order to show abandonment.
Further, as to maintaining contact with the child, the evidence supports
the conclusion that appellant made only marginal efforts to interact with
his child. Section 39.01(1) makes such efforts insufficient:

      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

                                     5
      not sufficient to establish or maintain a substantial
      and positive relationship with a child.

§ 39.01(1), Fla. Stat. (2016) (emphasis added). As there was competent
evidence to show that appellant’s efforts were indeed marginal, the trial
court’s judgment should be sustained.

                          *         *        *

   Not final until disposition of timely filed motion for rehearing.




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