       Third District Court of Appeal
                               State of Florida

                          Opinion filed August 8, 2018.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                                No. 3D18-46
                         Lower Tribunal No. 15-15090
                             ________________


                              C.R., the Mother,
                                    Appellant,

                                         vs.

   Department of Children and Families and Guardian ad Litem
                           Program,
                                    Appellees.



     An Appeal from the Circuit Court for Miami-Dade County, Maria
Sampedro-Iglesia, Judge.

      Steven Grossbard, for appellant.

      Karla Perkins, for appellee Department of Children & Families; Thomasina
Moore (Tallahassee), Statewide Director of Appeals, for appellee Guardian ad
Litem Program; Vincent F. Vaccarella, P.A., and Craig Robert Lewis (Fort
Lauderdale), Pro Bono, Guardian ad Litem Program Defending Best Interest
Project, for appellee Guardian ad Litem Program.


Before ROTHENBERG, C.J., and SALTER and FERNANDEZ, JJ.
      ROTHENBERG, C.J.

      C.R. (“the Mother”) appeals from an order terminating her parental rights as

to her minor child, D.R.A. (“the Child”). Because the Department of Children and

Families (“the Department”) failed to establish either of the statutory grounds

alleged in its petition, we reverse.

                    FACTS AND PROCEDURAL HISTORY

A. Removal of the Children and Adjudication of Dependency

      In late January 2015, the Mother and her teenage daughter, B.D., engaged in

a physical altercation, which resulted in B.D. being arrested and “Baker Acted.”1

Thereafter, the Department took the Mother’s three children into protective

custody—A.D. (born early 1998), who also had a history of physical altercations

with the Mother; B.D. (born late 1999); and the Child (born early 2008). The

following day, the Department filed a dependency shelter petition alleging that the

Mother’s three children had been abused, abandoned, or neglected, or were in

imminent danger of illness or injury as a result of the abuse, abandonment, or

neglect. Following a shelter review hearing, the trial court entered an order on

January 27, 2015, placing the three children in shelter care.2

      On February 10, 2015, the Department filed a verified dependency petition,

1See § 394.451, Fla. Stat. (2015).
2The Child was initially placed with a non-relative, the Mother’s friend. However,
on June 4, 2015, the Child was removed from the non-relative and placed into
foster care.

                                          2
alleging that the Mother had abused, abandoned, neglected and/or placed the three

minor children at imminent risk of harm based on the Mother engaging in domestic

violence with her two teenage daughters, A.D. and B.D. The Mother consented to

the dependency petition and, on July 24, 2015, the Mother’s three children were

adjudicated dependent. The order adjudicating the children dependent states that

the Mother has mental health issues that, if left untreated, will interfere with her

ability to safely parent her children; the Mother tested positive for illegal drugs on

January 27, 2015; the Mother and B.D. engaged in domestic violence on January

21, 2015, while B.D. was allegedly intoxicated and out of control; and the Child

had excessive absences from school since August 2015.

B.    The Case Plans Filed Prior to the Petition to Terminate the Mother’s
     Parental Rights

       To address the circumstances stated in the dependency order, the

Department issued five case plans between August 18, 2015, and March 14, 2017,

with each stating that the primary permanency goal was reunification.3

Specifically, the case plans required the Mother to complete and/or participate in

the following tasks and/or services: (1) complete a Level of Care Assessment; (2)

submit to a psychological evaluation and receive medication management; (3)

3 The case plans were issued on August 18, 2015, November 5, 2015, April 4,
2016, September 28, 2016, and March 14, 2017. The last three case plans did not
include A.D. because she had reached the age of majority. Other case plans were
filed after the Department filed its petition to terminate the Mother’s parental rights
on May 2, 2017, which stated that the primary permanency goal was now adoption.

                                          3
attend parenting skills classes once a week for fourteen weeks to address the

domestic violence between the Mother and her two teenage daughters, A.D. and

B.D.; (4) attend family therapy; (5) attend individual psychotherapy due to the

Mother being diagnosed with a mental health disorder, during which therapy, the

Mother shall increase coping skills and gain insight; (6) participate in a substance

abuse program and submit to random urinalyses for the duration of the case plan;

and (7) show responsibility for the children’s welfare.

C. The Trial Court’s Orders on Judicial Review/Permanency Review

      The trial court addressed the Mother’s compliance with the case plans and

her progress in four separate Orders on Judicial Review/Permanency Review

(“Orders on Judicial Review”) filed on November 4, 2015, April 4, 2016,

September 28, 2016, and March 20, 2017. The first order issued on November 4,

2015, showed little progress by the Mother except for her submitting to the

psychological evaluation.

      However, in the trial court’s second Order on Judicial Review filed on April

4, 2016, the trial court noted that the Mother had completed the parenting class, the

substance abuse evaluation, and the psychological evaluation. The Mother was

also participating in an outpatient substance abuse program and individual

counseling. Although the case plan in effect at that time stated that the Mother was

to attend family counseling, the trial court’s order made no finding as to family



                                          4
counseling.4    The trial court concluded that the Mother had not “reached

substantial compliance & is in partial compliance due to ongoing services,” but

noted that the Mother was in compliance with the court-ordered visitation.

      The trial Court’s third Order on Judicial Review dated September 28, 2016,

found that the Mother was continuing to make progress.           The Mother had

completed the parenting classes, the substance abuse evaluation, and the

psychological evaluation. She was participating in an outpatient substance abuse

program and individual counseling, she was maintaining adequate housing, and she

had been complying with the court-ordered visitation. Once again, the trial court

concluded that the Mother was in partial compliance but that she had not reached

substantial compliance with the case plan and made no reference to family

counseling. Importantly, however, the order states: “Mother is fully compliant

& the Child [D.R.A.] is transitioning to [the Mother’s care].” (emphasis added).

The case plan goal continued to be reunification, and the trial court entered an

order changing the Mother’s visitation with the Child from supervised visitations

to unsupervised visitations with a minimum of twice a week and for a maximum of

six hours per visit.

      On March 20, 2017, the trial court entered its fourth and final Order on


4 It appears that there was a substantial delay in referring the Mother to family
counseling that was not attributable to the Mother. The Mother and the Child did
not commence family therapy until March 3, 2017.

                                        5
Judicial Review. This order provided that the Mother had completed the parenting

classes, the substance abuse evaluation, and the psychological evaluation; the

Mother was currently participating in outpatient substance abuse program and

individual counseling5; and the Mother was maintaining adequate housing. The

trial court, however, again determined that the Mother had not reached substantial

compliance and was “in partial compliance due to services ongoing.” (emphasis

added).   Notably, the trial court once again made no finding as to family

counseling, although family counseling had commenced approximately two weeks

earlier. The order continued to state that the primary goal was reunification.

D. The Petition for Termination of Parental Rights

      On May 2, 2017, approximately two months after the fifth case plan was

issued, the Department filed a petition to terminate the Mother’s parental rights

based on two statutory grounds,6 sections 39.806(1)(e)1., and 3., Florida Statutes

(2017), which provide as follows:

5 As will be discussed later in this opinion, the evidence presented at trial actually
indicates that the Mother completed the outpatient substance abuse program and
individual counseling in September 2016. However, in May 2017, the Mother
voluntarily agreed to be re-referred to additional individual therapy to address her
past trauma.
6 As B.D. was reunified with the Mother on the same day the Department filed its

petition for termination of parental rights, the petition pertained only to the Child,
D.R.A. Further, the petition for termination of parental rights was filed as to both
the Mother and the Child’s legal father. The Mother informed the Department that
the Child’s legal father had been deported to Guatemala and that his whereabouts
are unknown. The Child’s legal father’s parental rights were terminated via
publication, and the termination of his parental rights are not at issue in this appeal.

                                           6
             (1) Grounds for the termination of parental rights may be
      established under any of the following circumstances:
      ....
             (e) When a child has been adjudicated dependent, a case plan
      has been filed with the court, and:
             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; or
      ....
             3. 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 s. 39.522(2) 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.

E.   The Termination of Parental Rights Hearing and the Final Judgment
     Terminating the Mother’s Parental Rights as to the Child

      The termination of parental rights (“TPR”) hearing was held over a three-

day period commencing in early September 2017, and concluding in late October

2017. In December 2017, the trial court entered its final judgment terminating the

Mother’s parental rights as to the Child, finding that the Department had

established by clear and convincing evidence both statutory grounds.7            The



                                         7
 Mother’s appeal followed.

                                        ANALYSIS

         The Mother contends that the trial court erred by terminating her parental

    rights as to the Child. Because there was no competent, substantial evidence to

    support the trial court’s determination that the Department established either of

    the two statutory grounds alleged in its petition, we agree.

         To terminate parental rights, the Department is required to establish by clear

and convincing evidence the existence of at least one statutory ground for

termination, see § 39.806, Fla. Stat. (2017), and that termination is in the manifest

best interest of the child and is the least restrictive means to protect the child from

serious harm. See B.K. v. Dep’t of Children & Families, 166 So. 3d 866, 873 (Fla.

4th DCA 2015). An appellate court’s review of the final judgment terminating

parental rights “is limited to whether competent, substantial evidence supports the

trial court’s final judgment, and whether the appellate court cannot say that no one

could reasonably find such evidence to be clear and convincing.” 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 (Fla. 1st DCA 2003))

(internal quotation marks omitted); see also T.P. v. Dep’t of Children & Families,


7 The trial court also found that that termination was in the manifest best interest of
the Child and that termination is the least restrictive means to protect the Child
from serious harm.

                                             8
935 So. 2d 621, 624 (Fla. 3d DCA 2006) (“The standard of review for challenges

to the sufficiency of the evidence supporting a termination of parental rights is

whether the trial court’s order is supported by substantial competent evidence.”).

A. The Statutory Grounds

         1. Section 39.806(1)(e)1.

         Section 39.806(1)(e)1. permits the termination of parental rights when a

    child is adjudicated dependent, a case plan has been filed with the trial court, and

    the parent fails “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. . . .” § 39.806(1)(e)1.

    (emphasis added). This statutory provision further states that a parent’s failure to

    substantially comply “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 [D]epartment to

    make reasonable efforts to reunify the parent and child.” § 39.806(1)(e)1. Section

    39.01(78), Florida Statutes (2017)8, provides that “‘substantial compliance’ means

    that the circumstances which caused the creation of the case plan have been

    significantly remedied to the extent that the well-being and safety of the child will

    not be endangered upon the child’s remaining with or being returned to the child’s

8 Effective July 1, 2018, the definition of “substantial compliance” appears in
section 39.01(84), Fla. Stat. (2018).

                                             9
parent.”

      In the instant case, the Child was adjudicated dependent and case plans were

filed with the trial court. However, as will be addressed below, there was no

competent, substantial evidence to support the trial court’s determination that the

Department established by clear and convincing evidence that the Mother failed to

“substantially comply” with the case plan.

      (a) The Case Plan Tasks

      The case plan required the Mother to complete several tasks to address and

remedy the “circumstances which caused the creation of the case plan.” The

record before this Court, including the testimony at the TPR hearing and the

exhibits introduced at the TPR hearing, reflects that the Mother completed the

following assigned tasks:

      1) Complete a Level of Care Assessment

      The Mother completed the Level of Care Assessment on March 15, 2015,

which was prior to the issuance of the initial case plan in August 2015.

    2) Submit to a Psychological Evaluation and Receive Medication
Management

      The Mother submitted to a psychological evaluation on February 3, 2015,

conducted by Dr. Rebecca Harvey, a clinical psychologist. Dr. Harvey’s testimony

at the TPR hearing and her report, which was introduced into evidence, reflect that

the Mother has a history of volatile relationships, mood issues, and mood


                                         10
management issues, which would be consistent with a bipolar anxiety issue. As to

the Mother’s parenting skills, Dr. Harvey concluded that the Mother was

overwhelmed and “bewildered” as to how to manage her daughters’ aggressive

behaviors. During the evaluation, the Mother acknowledged that many of her

childhood experiences, including physical and mental abuse by her father, have

impacted her parenting abilities.

      Based on the evaluation, Dr. Harvey opined that the Mother suffers from a

bipolar disorder, a generalized anxiety disorder, a post-traumatic stress disorder,

and a substance abuse disorder. Dr. Harvey concluded that the Mother was in need

of various services to enable her to provide a safe and healthy environment for her

children.   Dr. Harvey recommended that the Mother participate in individual

therapy to: (1) address her mood issues; (2) address her childhood experiences and

to examine how her childhood impacts her parenting; (3) work on developing

positive coping skills; and (4) address her tendency to relate to her children as

peers. In addition, Dr. Harvey recommended that the Mother continue to regularly

see a psychiatrist and to receive medication management; attend a substance abuse

treatment program; attend parenting classes to learn how to communicate with her

children and cope with her children’s defiant behavior; and participate in family

therapy with her children to learn how to solve problems, de-escalate arguments,

and express thoughts and feelings appropriately. These recommendations were the



                                        11
foundation for the tasks assigned to the Mother in the case plans.9

      The record reflects that the Mother began seeing a psychiatrist, Dr. Priscilla

Borrego, in November 2015. Dr. Borrego diagnosed the Mother as being bipolar

and prescribed several medications. At the TPR hearing, Dr. Borrego testified that

the Mother has been compliant with taking her medications and attending her

appointments. Dr. Borrego also testified that she has seen improvements in the

Mother—the Mother is calmer, has fewer mood swings, speaks less rapidly, is

sleeping better, has a better appetite, and attends her sessions in better spirits.

      3) Attend Parenting Skills Classes

      The Mother commenced parenting classes on August 31, 2015, and

successfully completed the classes on December 21, 2015. Janet Martinez, the

Parenting Facilitator at the Family Resource Center, testified that the Mother

submitted to the Adult-Adolescent Parenting Inventory Assessment (“AAPI-2”)

both pre-services and post-services, and the results of these assessments were

outlined in Ms. Martinez’s final report that was introduced into evidence at the

TPR hearing. Ms. Martinez’s final report states:

      The [AAPI-2] is designed to assess the parenting and child rearing
      attitudes of adults and adolescent parents and pre parent populations.
      Based on the known parenting and child rearing behaviors of abusive
      parents, responses to the inventory provide an index for practicing

9  Dr. Harvey testified that following her assessment of the Mother, she believed
that the Mother’s individual therapy should also include “trauma” therapy, but that
“[l]ooking back on [her] report [she] didn’t exactly use those words.”

                                           12
      behaviors know to be attributable to child abuse and neglect.
      Responses to the AAPI-2 provide an index of risk in five specific
      parenting and child rearing behaviors:

      Construct A- Inappropriate Expectations of Children
      Construct B- Parental Lack of Empathy towards Children’s Needs
      Construct C- Strong Parental Belief in the Use of Corporal
      Punishment
      Construct D- Reversing Parent-Child Family Roles
      Construct E- Oppressing Children’s Power and Independence

      For each parenting construct, the score can range from one to ten, with a

score of one to three indicating high risk, four to seven indicating medium risk, and

eight to ten indicating low risk. Ms. Martinez’s report sets forth the following pre-

classes and post-classes scores for each parenting “construct”: (A) inappropriate

expectations of children:    pre-parenting classes—3 (high risk); post-parenting

classes—9 (low risk); (B) parental lack of empathy towards children’s needs: pre-

parenting classes—2 (high risk); post-parenting classes—8 (low risk); (C) strong

parental belief in use of corporal punishment: pre-parenting classes—5 (medium

risk); post-parenting classes—9 (low risk); (D) reversing parent-child family roles:

pre-parenting classes—3 (high risk); post-parenting classes—5 (medium risk); and

(E) oppressing children’s power and independence:          pre-parenting classes—5

(medium risk); post-parenting classes—9 (low risk). Thus, Ms. Martinez’s report

reflects that the Mother not only completed the parenting classes, but she showed

significant improvement as to each parenting “construct” following the parenting

classes, with four of the five constructs now being in the “low risk” category and


                                         13
one construct being in the “medium risk” category.

         4) Attend Family Therapy

         Although family therapy was a task included in the initial case plan issued in

August 2015, the Mother did not commence family therapy with the Child until

March 3, 2017, only six months before the TPR hearing commenced, and the

family therapy was ongoing at the time of the hearing. It does not appear that the

delay in commencing family therapy was attributable to the Mother.

         Mr. Jeremiah Model, a registered mental health intern at Advance Health

Community Services, described a positive relationship between the Mother and the

Child:

          [The Child] has a lot of affection towards the mom. There is a lot of
         appropriate touch. [What] I mean by appropriate touch, there is
         hugging. There [are] kisses, and she seems pretty happy in my
         opinion. . . . From observations[, the Child] seems to be very elated. .
         . . Like I would ask her questions about the weekend and how it went
         with mom, and she seems pretty happy. And she seems very happy
         when she is leaving with mom after the sessions because they will
         usually have events planned like going out to restaurants and spending
         quality time with each other or going to the pool or going to the beach
         or some sort.

Mr. Model also testified that although the Child is guarded during therapy, the

Mother and the Child have progressed, but are still in need of family therapy. Mr.

Model could not, at that point, recommend reunification because “six months is

not enough for me to gain all the information.” Thus, Mr. Model’s testimony

reflects that the mother had made progress during family therapy, but that family


                                           14
therapy had not been completed, and six months of therapy was not enough for him

to gain the necessary information to make a recommendation. However, based on

the delayed referral to family therapy, the failure of the Mother to complete family

therapy at the time of the hearing was not attributable to her.

      5) Attend Individual Therapy

      The Mother was referred to a combined substance abuse therapy and

individual therapy at Banyan Health Systems.          The therapies commenced in

December 2015, and were completed in September 2016, approximately a year

before the commencement of the TPR hearing.

      Thereafter, in May 2017, the Mother voluntarily agreed to additional

individual therapy at Jessie Trice Community Health Center and began therapy

with Gladys Amador, a mental health counselor. Ms. Amador conducted the initial

screening and assessment of the Mother on June 12, 2017, and the final session

was on August 3, 2017, approximately a month before the TPR hearing

commenced. Ms. Amador testified that she generally conducts twelve sessions of

therapy, but she only had five sessions with the Mother due, in part, to conflicts in

Ms. Amador’s schedule and the Mother’s hospitalization in the month of August.

The focus of the twelve-week therapy period was to address the Mother’s history

of trauma.10 Ms. Amador testified that five sessions is not enough to make

10As stated earlier, Dr. Harvey testified that her report should have provided that
the Mother’s individual therapy should also include “trauma” therapy. Further,

                                          15
significant progress because the five sessions were “really rapport building.”

(emphasis added). However, Ms. Amador noted that during her five sessions with

the Mother, the Mother was very engaged and open to suggestions.

      6) Participate in a Substance Abuse Program and Remain Drug Free

      The Mother participated in an outpatient substance abuse program at Banyan

Health Systems with Lorena Paar, an outpatient substance abuse therapist. Ms.

Paar’s reports, which were introduced into evidence, and her testimony at the TPR

hearing reflect that the Mother commenced the outpatient substance abuse program

in December 2015 and successfully completed the program in September 2016.

While attending the program, the Mother was subject to random drug testing, and

on November 4, 2015, the trial court ordered the Mother to submit to urinalyses

three times per week. The testimony at the TPR hearing reflects that the Mother

had been drug free for nearly two years.

      7) Show Responsibility for the Children’s Welfare

      As to this final task, the case plan indicated that this task would be deemed

completed upon achieving all goals of the case plan.

      b) Substantial Compliance with the Case Plan

      We acknowledge that completion of the tasks in a case plan does not

unlike the past case plans, the September 28, 2016 case plan provided for the first
time that the Mother “should engage in evidence based trauma counseling in
order to deal with past trauma.” (emphasis added).


                                        16
necessarily equate to “substantial compliance” with a case plan. As previously

stated, “substantial compliance” with a case plan “means that the circumstances

which caused the creation of the case plan have been significantly remedied to the

extent that the well-being and safety of the child will not be endangered upon the

child’s remaining with or being returned to the child’s parent.” § 39.01(78). In the

instant case, the order adjudicating the Child and her siblings, A.D. and B.D.,

dependent reflects that the following “circumstances” caused the creation of the

case plans: (a) the Mother’s mental health issues, which if left untreated, will

interfere with her ability to safely parent her children; (b) the Mother tested

positive for drugs; (c) the Mother engaged in domestic violence with B.D.; and (d)

the Child had excessive absences from school.

      The record before this Court indicates that these “circumstances” have been

“significantly remedied.”   First, the Mother’s mental health issues have been

addressed. She is currently under the care of psychiatrist, and the Mother is

attending her appointments and taking her prescribed medications. Moreover, the

psychiatrist testified that she has seen improvements in the Mother. Second, the

Mother is not taking or using drugs. She successfully completed the outpatient

substance abuse program and has tested negative for drugs for almost two years.

Third, as to the Mother engaging in domestic violence with B.D., the record

indicates that this “circumstance” has been “significantly remedied.”       B.D. is



                                        17
currently living with the Mother; B.D. received “wrap around” services, including

therapy; and there have been no physical altercations between the Mother and B.D.

since the Department permitted B.D. to move back into the Mother’s home in May

2017. The record further reflects that A.D. and A.D.’s child are no longer living

with the Mother, and there have been no further incidents of domestic violence

between A.D. and the Mother. In addition, the Mother successfully completed

parenting classes, and her post-classes scores on the AAPI-2 show that the Mother

has significantly improved, with four of the five parenting constructs being at “low

risk” and one being at “medium risk.” Finally, there is no indication in the record

that the Mother would continue to allow the Child to miss so many days of school.

Thus, the record does not contain competent substantial evidence that the Mother

failed to substantially comply with her case plan.

      This Court’s decision in C.G. v. Department of Children & Families, 67 So.

3d 1141, 1142 (Fla. 3d DCA 2011), is factually distinguishable from the facts in

the instant case. In C.G., the minor child’s mother failed to substantially comply

with her case plan, and the trial court entered a final order terminating C.G.’s

parental rights pursuant to section 39.806(1)(e)1. C.G. initially consented to her

child being adjudicated dependent after the court determined that C.G. had mental

health issues. Id. at 1142-43. The child was returned to C.G. for a brief period of

time, but was returned to state custody after C.G. was convicted of prostitution. Id.



                                         18
at 1143. C.G. was assigned five reunifications plans over a two-year period, with

each plan requiring C.G. to maintain a job, secure safe and consistent housing,

undergo mental health evaluations and medication management, attend substance

abuse therapy, and attend parenting classes. Id. at 1144. The evidence presented

at the TPR hearing reflected that C.G. failed to complete the psychotherapy

sessions, the medication management program, and the substance abuse therapy,

and that C.G. refused to follow a court order directing her to enter an inpatient

substance abuse program. Id. Although C.G. completed the assigned parenting

classes, her scores on the post-services test led the case manager to opine that

reunification was not a safe option for the child. Id. On appeal, this Court

affirmed the final order terminating C.G.’s parental rights, concluding as follows:

      [T]he trial court’s finding that clear and convincing evidence
      supported the termination of parental rights was based, in part, on
      competent and substantial evidence contained in the underlying
      dependency records. The state additionally demonstrated, by clear and
      convincing testimonial evidence, that C.G. failed to substantially
      comply with the case plans and made little effort to remedy the
      harmful behavior and circumstances that initially brought her child
      into foster care. We thus agree with the trial court that termination of
      [C.G.’s] parental rights is the least restrictive means of protecting the
      ultimate welfare of the child.

Id. at 1144-45 (internal quotation marks and citation omitted).

      The facts in C.G. could not be more factually disparate from the facts in the

instant case. Unlike C.G., in the instant case, the Mother has completed all tasks

and/or services assigned to her in her case plans. Further, unlike C.G., the Mother


                                         19
in the instant case remedied the circumstances that initially brought her children

into foster care. Basically, the Mother has done everything the Department has

asked her to do—(1) she completed a Level of Care Assessment; (2) she submitted

to a psychological evaluation, and she is compliant with her psychiatric

appointments and taking the medications prescribed by her psychiatrist; (3) she

attended parenting skills classes, and unlike C.G., the Mother’s post-services

scores increased dramatically; (4) she is attending family therapy; (5) she

completed individual therapy, and the Mother voluntarily agreed to additionally

therapy; and (6) she participated in a substance abuse program and has remained

drug-free for almost two years. Additionally, the Mother is employed and is

maintaining suitable housing.

      c) The Mother’s Isolated Statement to the Child

      Despite the Mother’s significant efforts, completion of services, and

tremendous progress, the Department argued and the trial court found that the

Mother had not gained sufficient “insight.”         This determination was based

primarily on a single incident that occurred a couple of days prior to the

commencement of the TPR hearing. During one of the Mother’s unsupervised

visitations, the Mother told the Child that if the trial court terminated her parental

rights and the Child stays with the foster mother, the Mother will move back to

New York, the Child will never see the Mother again, and the Mother will have



                                         20
another girl. Following this statement, the Child became sad and reported this

conversation to the foster mother. The Mother acknowledged during the TPR

hearing that she was aware of the trial court’s order prohibiting her and others from

discussing the case unless the discussion took place in a therapeutic setting.

      We agree with the trial court’s determination that this conversation was

inappropriate. However, this one isolated incident was insufficient to support the

trial court’s finding that the Mother failed to substantially comply with her case

plan, warranting the termination of the Mother’s parental rights. The Mother began

unsupervised visitation with the Child on September 28, 2016, almost a year prior

to the commencement of the TPR hearing.                The Mother’s inappropriate

conversation with the Child was the only inappropriate conversation during the

almost one-year period. Further, the evidence reflects that the Child is bonded to

and loves her Mother. See L.A.G. v. Dep’t of Children & Family Servs., 963 So.

2d 725, 727 (Fla. 3d DCA 2007) (“The only evidence that the mother deviated

from the case plan were two occasions when she had contact with the father and

paternal grandmother. These two incidents are insufficient to support a finding

that the mother failed to substantially comply with her case plan and to terminate

her parental rights.”).

      Accordingly, based on the above analysis, we conclude that there was a lack

of competent, substantial evidence to support the trial court’s finding that the



                                         21
Department established by clear and convincing evidence the statutory ground set

forth in section 39.806(1)(e)1.

         2. Section 39.806(1)(e)3.

         The Department also sought termination pursuant to section 39.806(1)(e)3.,

 which permits the termination of parental rights when a child is adjudicated

 dependent, a case plan has been filed with the trial court, and

         [t]he 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 s. 39.522(2) 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 [D]epartment to make
         reasonable efforts to reunify the parent and child.

(emphasis added).11

         It is undisputed that the Child “has been in care for any 12 of the last 22

months.” However, for the reasons previously stated, we conclude that there was a

lack of competent, substantial evidence to support the trial court’s finding that the

Mother failed to substantially comply with her case plan and that the circumstances

that caused the Child’s out-of-home placement have not been “remedied to the

11   Section 39.522(2), Florida Statutes (2017), provides as follows:
         In cases where the issue before the court is whether a child should be
         reunited with a parent, the court shall review the conditions for return
         and determine whether the circumstances that caused the out-of-home
         placement and issues subsequently identified have been remedied to
         the extent that the return of the child to the home with an in-home
         safety plan prepared or approved by the department will not be
         detrimental to the child’s safety, well-being, and physical, mental, and
         emotional health.

                                           22
extent that the return of the child to the home with an in-home safety plan

prepared or approved by the department will not be detrimental to the child’s

safety, well-being, and physical, mental, and emotional health.”          § 39.522(2)

(emphasis added).     Accordingly, we conclude that the Department failed to

establish by competent substantial evidence the statutory ground set forth in

section 39.806(1)(e)3.

B. Manifest Best Interest of the Child and Least Restrictive Means

      The undisputed record evidence is that the Child remains bonded with the

Mother, and several witnesses supported the reunification of the Mother and the

Child. However, we do not need to address whether the trial court’s findings that

termination was in the manifest best interest of the Child and is the least restrictive

means to protect the Child from serious harm are supported by clear and

convincing evidence because we have concluded that the there was a lack of

competent, substantial evidence to support the trial court’s finding that the

Department established by clear and convincing evidence the statutory grounds set

forth in the petition to terminate the Mother’s parental rights. See B.K. v. Dep’t of

Children & Families, 166 So. 3d 866, 873 (Fla. 4th DCA 2015).

      We do note, however, that despite the Mother’s significant progress, the

child therapist found that Child has “shown little, measureable improvement” since

therapy began, and the Child does not “open up” during therapy as to her



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relationship with her Mother. Although the record is unclear as to why the Child

does not “open up” during therapy, the record reflects that the Child has met with

approximately five different therapists since being removed from the Mother’s

home and she did not receive therapy for at least three months.12

      The constant change of therapists may have contributed to the Child not

opening up during therapy. As one expert testified at the TPR hearing, it takes

approximately five sessions for a therapist to build “rapport” with a patient. Thus,

it is unclear whether the Child’s failure to “open up” about her Mother is

attributable to some sort of past trauma or to the Child not receiving therapy for at

least three months or from the Child being subjected to so many different

therapists since being removed from the Mother’s home. At this point, the

Department should attempt to slowly reunify the Mother and Child and to

coordinate therapy for the Child with the same therapist, if possible.

      Accordingly, we reverse the order terminating the Mother’s parental rights

as to the Child, D.R.A., and remand for further proceedings consistent with this


12 On October 5, 2016, the trial court issued a rule to show cause ordering Family
Resource Center to appear before the trial court to show cause why it should not be
held in indirect civil contempt for failing to comply with the trial court’s order
pertaining to individual therapy for the Child. The rule to show cause reflects that
the trial court ordered therapy for the Child, and although therapy was commenced,
it had ceased, and the Child had not received any therapy for three months, without
any explanation. Following the show cause hearing, the trial court did not hold
Family Resource Center in indirect civil contempt, finding that the Child was now
receiving therapy.

                                         24
opinion.

      Reversed and remanded.




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