         FIRST DISTRICT COURT OF APPEAL
                STATE OF FLORIDA
                  _____________________________

                          No. 1D19-163
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DEPARTMENT OF CHILDREN AND
FAMILIES and THE GUARDIAN AD
LITEM PROGRAM,

    Appellants,

    v.

K.W., Mother of A.C. and C.S.,
Minor Children,

    Appellee.
                  _____________________________


On appeal from the Circuit Court for Leon County.
Jonathan Sjostrom, Judge.

                          July 10, 2019


PER CURIAM.

     In this appeal, the Department of Children and Families (the
Department) and the Guardian Ad Litem Program (the GAL)
challenge the trial court’s denial of the petition to terminate the
parental rights (TPR) of the mother, K.W. The appellants argue
the trial court’s determination that TPR was not in the manifest
best interests of the children was not supported by competent,
substantial evidence. We agree and reverse.

     In 2017, the Department removed the mother’s two young
children, A.C. and C.S., from her care due to a suspicious burn on
C.S.’s leg. The children were placed with the great-grandmother,
B.B. The mother consented to dependency of the children who
remained in the great-grandmother’s care throughout this case. In
2018, the Department filed a TPR petition as to the mother and
the two fathers. 1

     At the TPR hearing, the evidence supported the trial court’s
finding there was “no way to dispute” the overwhelming evidence
for terminating the mother’s parental rights under section
39.806(1)(e)1., Florida Statutes (2018). However, the trial court
determined TPR was not in the manifest best interests of the
children and denied the petition. The appellants argue that the
trial court incorrectly applied the law regarding manifest best
interests and its denial must be reversed because it was not
supported by competent, substantial evidence. We agree.

     There are three requirements to TPR. First, the Department
must prove one of the statutory grounds under section 39.806,
Florida Statutes. Second, the Department must show that TPR is
in the children’s manifest best interests. Third, TPR must meet
the least restrictive means test. See J.P. v. Fla. Dep’t of Children
& Families, 183 So. 3d 1198, 1203 (Fla. 1st DCA 2016) (quoting
N.L. v. Dep’t of Children & Family Servs., 843 So. 2d 996, 1000
(Fla. 1st DCA 2003)). The Department’s burden of proof is by clear
and convincing evidence. W.W. v. Dep’t of Children & Families,
218 So. 3d 490, 493 (Fla. 1st DCA 2017) (citing A.H. v. Dep’t of
Children & Families, 144 So. 3d 662, 665 (Fla. 1st DCA 2014)). On
appeal, the appellate court looks to whether competent,
substantial evidence supports the trial court’s final judgment, but
the appellate court’s role is not to reweigh the evidence heard by
the trial court. J.P., 183 So. 3d at 1203. Reversal of an order
denying a TPR petition is appropriate where denial is not
supported by competent, substantial evidence and is not in the
children’s best interests. Dep’t of Children & Families v. K.F., 916



    1 At the time of the mother’s TPR hearing, C.S.’s father had
not been properly noticed, so his TPR hearing was continued.
A.C.’s father’s parental rights were terminated by default. This
appeal only addresses termination of the mother’s parental rights.

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So. 2d 948, 949 (Fla. 4th DCA 2005) (citing Dep’t of Children &
Families v. A.D., 904 So. 2d 480, 482 (Fla. 1st DCA 2005)).

     We agree with the trial court that clear and convincing
evidence supported TPR of the mother’s rights under section
39.806(1)(e)1.  However, we disagree with the trial court’s
determination that TPR was not in the children’s manifest best
interests.

     Manifest best interests are addressed in section 39.810,
Florida Statutes (2018), which provides:

    In a hearing on a petition for termination of parental
    rights, the court shall consider the manifest best interests
    of the child. This consideration shall not include a
    comparison between the attributes of the parents and
    those of any persons providing a present or potential
    placement for the child. For the purpose of determining
    the manifest best interests of the child, the court shall
    consider and evaluate all relevant factors[.]

     The statute provides a non-exhaustive list of eleven factors
the trial court should consider. The factors relevant to this appeal
are:

    (1) Any suitable permanent custody arrangement with a
    relative of the child. However, the availability of a
    nonadoptive placement with a relative may not receive
    greater consideration than any other factor weighing on
    the manifest best interest of the child and may not be
    considered as a factor weighing against termination of
    parental rights. If a child has been in a stable or
    preadoptive placement for not less than 6 months, the
    availability of a different placement, including a
    placement with a relative, may not be considered as a
    ground to deny the termination of parental rights.

         ....

    (5) The love, affection, and other emotional ties existing
    between the child and the child's parent or parents,
    siblings, and other relatives, and the degree of harm to

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    the child that would arise from the termination of
    parental rights and duties.

           ....

    (8) The length of time that the child has lived in a stable,
    satisfactory environment and the desirability of
    maintaining continuity.

    The trial court found the remaining eight factors either
supported TPR or were neutral, but found no clear and convincing
evidence to TPR under factors (1), (5), and (8).

     Under factors (1) and (8), the trial court was concerned with
the suitability, longevity, and permanency of the great-
grandmother as a placement for the children. The trial court’s
order emphasized the “great-grandmother” was “frail and
elderly,” which gave the court concern “about the extent to which
this placement is reliable in the long term” given the young age of
the children. We disagree with the trial court’s findings on these
two factors.

     The Department introduced clear and convincing evidence
that the great-grandmother, who was in her sixties, was a suitable,
stable, and desirable placement. The children had been with the
great-grandmother for eighteen months at the time of hearing – a
large portion of their young lives. Several witnesses testified the
children were well cared for with the great-grandmother; she met
all their needs; and, as the trial court recognized, there was a “deep
parental bond.” The great-grandmother testified she was in good
health 2 and was willing to care for the children for the long term.
The great-grandmother also testified she would allow the children
to have continued contact with the mother if her rights were
terminated.

    While it did not say as much, the trial court seems to have
regarded the great-grandmother as an unsuitable permanent
placement for the children due to its observation that she was “frail

    2   The Department later introduced a physician’s report
confirming the great-grandmother was in good health.

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and elderly.” Presumably, the trial court believed the children
could possibly be placed with a different relative. This should not
have been part of the trial court’s decision on TPR as section
39.810(1) provides:

    If a child has been in a stable or preadoptive placement
    for not less than 6 months, the availability of a different
    placement, including a placement with a relative, may
    not be considered as a ground to deny the termination of
    parental rights.

      That section also states that the availability of a nonadoptive
placement with a relative “may not be considered as a factor
weighing against termination of parental rights.” There was no
competent, substantial evidence to support the trial court’s
speculation that the great-grandmother may not be able to care for
the children long term. On the contrary, the evidence showed she
was appropriately caring for the children and believed she could
continue to do so in the long term. The trial court’s observation
that the great-grandmother was “frail and elderly” was also
contrary to the evidence that she was only in her sixties and was
in perfectly good health. The Department put forth clear and
convincing evidence to prove TPR was in the children’s manifest
best interests on these two factors. The trial court’s conclusion to
the contrary should be reversed as it was based on unsupported
factual findings. See In re L.B.W., 863 So. 2d 480 (Fla. 2d DCA
2004) (reversing a TPR order where the trial court found that there
was no suitable placement for the child due to the grandmother’s
“failing health,” which finding was not supported by clear and
convincing evidence).

    The trial court also found against TPR on factor (5), but there
was very little elaboration on its reasoning. The trial court found
the extended family was estranged from the great-grandmother,
but that was not supported by competent, substantial evidence.
The trial court acknowledged this when it found a “significant
amount of estrangement, but it is vague to my knowledge.” The
grandmother did testify that the great-grandmother had, on
occasion, made it difficult for the mother to see the children, but
the great-grandmother testified she would continue to allow
contact after TPR so long as the mother behaved appropriately.

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The testimony did support the trial court’s finding that the
children had relatives out of state, but there was very little
evidence of the nature of their relationship to the children. The
trial court found it did not have “testimony that those relationships
exist.” To the extent the mother wished to show the children had
a bond with extended family that would be strained by TPR, she
failed to introduce any evidence to rebut the evidence suggesting
the young children had a minimal relationship with extended
family. The trial court’s finding of estrangement and its potential
impact on the children was not supported by competent,
substantial evidence. The trial court’s determination that TPR
was not in the children’s manifest best interest on this factor was
based on unsupported factual findings and should be reversed. See
K.F., 916 So. 3d at 950 (reversing trial court’s order that found
grounds for TPR but denied TPR was in children’s manifest best
interest where the trial court’s conclusion was not supported by
competent, substantial evidence and was contrary to the evidence
presented at trial).

     Because the trial court found TPR was not in the children’s
manifest best interests, it did not proceed to the third ground –
least restrictive means. Parents have a fundamental liberty
interest in parenting a child, so TPR must be the “least restrictive
means” of protecting the child from harm. S.M. v. Fla. Dep’t of
Children & Families, 202 So. 3d 769, 772 (Fla. 2016) (citing
Padgett v. Dep’t of Health & Rehab. Servs., 577 So. 3d 565, 571
(Fla. 1991)). The least restrictive means test focuses on what
actions were taken by the State before the TPR petition was filed.
S.M., 202 So. 2d. at 778. Generally, a case plan and services satisfy
the least restrictive means prong. Id. The parental bond and the
existence of another permanency option, such as guardianship, are
not relevant considerations in determining least restrictive means.
Id. at 780. The least restrictive means test does not require the
court to preserve the parent-child bond at the cost of the children’s
future. Id. Rather, it requires that those measures short of
termination be utilized if such measures can permit the safe
reestablishment of the parent-child bond. Id.

    The evidence showed that TPR was the least restrictive
means. There was no doubt that the children could not be
reunified with the mother who the trial court described as having

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difficulty “keeping body and soul together for herself.” While there
was a bond between the children and the mother, testimony
established it was an “anxious bond” due to the mother’s
inconsistency. Testimony also showed the mother’s inconsistency
was detrimental to the children’s wellbeing. The Department’s
witnesses recommended TPR, and the case manager testified TPR
was the least restrictive means. Several witnesses testified that
the children’s need for permanency outweighed any potential harm
from TPR. Despite denying the petition for TPR, the trial court
also recognized the children needed permanency, stating “we may
need to consider an alternative determination in adoption.” There
was no evidence suggesting measures short of TPR were a
possibility in this case. The trial court found grounds for TPR. We
find the Department proved TPR was in the children’s manifest
best interests and was the least restrictive means. Dep’t of
Children & Families. v. B.C., 185 So. 3d 716, 720 (Fla. 1st DCA
2016) (“Where clear and convincing evidence establishes the
grounds for termination and that termination is in the manifest
best interests of the child, the least restrictive means test does not
stand as an impenetrable barrier to achieving what is ultimately
in the child’s best interest.”).

     We recognize the trial court was in a much better position to
evaluate the great-grandmother’s condition and any potential
estrangement.      We also recognize there may have been
circumstances outside the record on appeal that gave the trial
court pause regarding the great-grandmother. However, given the
record before us, the trial court’s findings were unsupported and
contrary to the evidence. As such, we are constrained to reverse
the order denying the TPR petition because the Department met
its burden and the trial court’s conclusion that TPR was not in the
children’s manifest best interests was based on unsupported
factual findings. On remand, we direct the trial court to enter
judgment terminating the mother’s parental rights to A.C. and
C.S. See A.D., 904 So. 2d at 482 (reversing order denying TPR and
remanding for judgment of TPR to be entered); K.F., 916 So. 2d at
950 (reversing an order denying TPR because the court’s manifest
best interest findings were not supported by competent,
substantial evidence and remanding for entry of a TPR order).

    REVERSED and REMANDED.

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WOLF, ROBERTS, and JAY, JJ., concur.



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    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
               _____________________________


Sarah J. Rumph and Laura Battaglia of Children's Legal Services,
Tallahassee, for Appellant Department of Children and Families.

Thomasina F. Moore, Sara Goldfarb, and Richard Paul Gillis of the
Guardian ad Litem Program, Tallahassee, for Appellant the
Guardian ad Litem Program.

Crystal M. Frusciante of Frusciante Law Firm, P.A., Sunrise;
Anne Marie Perine, Assistant Regional Conflict Counsel,
Tallahassee, for Appellee.




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