DONNA TUCKER WILLIAMS, APPELLANT,
v.
DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, APPELLEE
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Donna Williams challenges the termination of her parental rights to two of her six children based on findings of abandonment and neglect. Although the appellate court agreed the termination was in the children's best interests, it reversed because the trial court failed to establish all required elements by clear and convincing evidence, particularly the essential element that Williams was advised of her right to counsel at the dependency hearing.
The court reversed the termination order because the trial court failed to establish by clear and convincing evidence that Williams was advised of her right to counsel at the dependency hearing—an essential element required by law. Additionally, the court found the substantive grounds for termination (abandonment and neglect) were not proven by competent evidence, as the state relied primarily on inadmissible hearsay reports rather than testimony from witnesses with personal knowledge.
[1] A parent must be advised of their right to counsel at a dependency hearing for termination of parental rights to be sustained on appeal.
[2] Hearsay evidence, especially when compounded, cannot alone constitute clear and convincing evidence to terminate parental rights.
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Join FLexlaw to unlock all legal intelligence“one essential element which must be established by clear and convincing evidence at termination of parental rights hearings to sustain on appeal an order terminating such rights, is proof that the parent was advised of his or her right to counsel at the dependency hearing.”
Establishes the mandatory procedural requirement that failure to prove counsel advisement at the dependency stage is grounds for reversal, even if the termination may be in the children's best interests.
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Join FLexlaw to unlock all legal intelligenceWilliams had six children who were removed from her home and placed in foster care. In January 1988, dependency proceedings were initiated for two of …
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W. SHARP, Judge.
Williams appeals from a final order which terminates her parental rights to the younger two of her six children: Joanna (age 6V2), and Jacob (age 3½). The trial court made findings that Williams was informed of her right to counsel at the dependency hearing, that she substantially failed to complete the performance agreements for reasons not related to lack of financial resources, and that she is unable or undisposed to provide for these children due to her continuing drug addiction, criminal activity, and failure to provide emotional or financial support while the children were in foster care. While we agree with the trial judge that it is manifestly in the best interests of the children that Williams’ parental rights be terminated and that their foster families be permitted to adopt them, we must reverse this case because based on the record before us all of the required elements justifying termination of parental rights were not established by clear and convincing evidence.1 In Belflower v. Department of Health & Rehabilitative Services, 578 So. 2d 827 (Fla. 5th DCA 1991) and Department of Health and Rehabilitative Services v. Zeigler, 587 So. 2d 602 (Fla. 5th DCA 1991), we held that one essential element which must be established by clear and convincing evidence at termination of parental rights hearings to sustain on appeal an order terminating such rights, is proof that the parent was advised of his or her right to counsel at the dependency hearing.2 In this case, both Williams and her friend, Francis Goodrich, who attended the hearings with her, testified that she was not offered counsel rights at the dependency stage. A clerk who works at the juvenile court was called to testify, but she had no recollection about the dependency hearing involving Jacob and Joanna. She could only say that the court usually advises parents of their rights to counsel at dependency hearings.
The record on appeal sheds no light on this issue. The dependency procedure which took place January 25, 1988 and which apparently involved both children, is not included in the record on appeal. The record does show that counsel was appointed for Williams on June 28, 1990, approximately 1½ years after HRS filed Judicial Review Reports in both cases, recommending termination of parental rights. The only mention of advising Williams about her right to counsel appears in a Foster Care Review Checklist, evidently post the dependency hearing stage, in which a social worker indicates she so advised Williams.
Although we reverse on the above stated ground, we further note that appellee failed to prove by competent evidence the substantive grounds alleged in the petitions to terminate parental rights. Both cases are identical. The stated grounds were abandonment and neglect.
However, at the termination proceedings, no witness with any personal knowledge of any conduct by Williams which might constitute neglect (lack of supervision) or abandonment was presented. Instead, appellee relied on reports filed by various HRS employees, commencing November, 1987. But each witness denied any personal knowledge of Williams or her home, and the conditions which led to removal of the six children from her home.
The content of these types of reports is clearly hearsay.3 In some it is compounded to double and triple levels. Alone, they cannot constitute proof by clear and convincing evidence.
We are further troubled by the finding that Williams did not substantially perform her performance agreement, not due to lack of financial resources. The performance agreements in the record are exceedingly long and complex. Williams is a person of limited education (8th grade only), and she testified she did not understand the papers. Although an HRS employee, Brockington, gave them to her, she did not explain them. When Williams first received the papers, she was in jail.
The position of HRS was that Williams had only six months (commencing February 1988) in which to complete the numerous provisions of the performance agreement. What she did after that was not relevant. However, as various HRS employees well knew, Williams was in jail a considerable part of 1988. She was also unemployed and had no practical way to achieve most of the provisions of the performance agreements. Other witnesses, including Williams, testified she subsequently (in 1989 and 1990) completed the HRS required parenting classes and the drug testing and rehabilitation classes, that she is close to obtaining her G.E.D., and that she has obtained and is currently holding a full-time job. At this point, Williams has achieved most of the performance agreement requirements.
Appellee also sought to prove that Williams is not interested in her children because for the last year she ceased to contact them, visit them, or send support gifts or cards to them. However, the witnesses for HRS candidly admitted they were aware that the court had entered an order April 10, 1989 which terminated Williams’ visitation rights, and ordered her to have no further contact with her children.
Prior to that time, she visited with them as often as HRS could or would arrange supervised visits for all six children at once. The guardian ad litem and social worker agreed these visits were not easily managed, but Williams was offered no alternative visitation. She also brought Christmas and birthday gifts to HRS for the children. Apparently not all of the gifts were delivered to the children. This is not a typical picture (which we sometimes see) of a parent who has expressed no interest or concern for his or her children over a substantial period of time.
Accordingly, we reverse the orders terminating Williams’ parental rights to Joanna and Jacob, and we remand for further proceedings consistent with Belflower and Zeigler. See also In the Interest of R.J., L.B., L.J., & T.J., 586 So. 2d 496 (Fla. 1st DCA 1991).
REVERSED and REMANDED.
DAUKSCH and COWART, JJ., concur. . Smith v. Department of Health and Rehabilitative Services, 522 So. 2d 956 (Fla. 1st DCA 1988); Slomowitz v. Walker, 429 So. 2d 797 (Fla. 4th DCA 1983); State v. Graham, 240 So. 2d 486 (Fla. 2d DCA 1970).
. § 39.467(2)(c)l., Fla.Stat. (1989).
. See Rock v. State, 584 So. 2d 1110 (Fla. 1st DCA 1991); Williams v. State, 553 So. 2d 365 (Fla. 5th DCA 1989); L’Homme v. State, 518 So. 2d 408 (Fla. 1st DCA 1988); Camp v. State, 501 So. 2d 81 (Fla. 1st DCA 1987); Town of Belleair v. Taylor, 425 So. 2d 669 (Fla. 2d DCA 1983).
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Kingsley v. Kingsley, 623 So. 2d 780 (Fla. 5th DCA 1993)…137 (Fla. 4th DCA 1989). Thus, a finding that termination is in the manifest best interests of the child is by itself legally insufficient to support a judgment terminating parental rights. Williams v. Department of Health & Rehabilitative Services, 589 So. 2d 359 (Fla. 5th DCA 1991); In re R.N.G., 507 So. 2d 136, 137 (Fla. 1st DCA 1987). The trier of fact must take great care to assure that such evidence does not influence his decision on the threshold issue of abuse, abandonment, or neglect. In the present…
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In re E.F. v. Dep't of Health & Rehabilitative Servs., 639 So. 2d 639 (Fla. 2d DCA 1994)…ase of abandonment. One of her points on appeal merits comment, but not reversal. She maintains that her incarceration is not a basis to terminate parental rights. She relies primarily on Williams v. Department of Health and Rehabilitative Services, 589 So. 2d 359 (Fla. 5th DCA 1991). That case is ' distinguishable. A.D. was not incarcerated on a single occasion. She returned to prison repeatedly. One of the performance agreements given to A.D. was specially designed for an incarcerated parent. A.D. failed to…
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K.M. v. Dept. OF Child. & Families, 795 So. 2d 1129 (Fla. 5th DCA 2001)…litem or legal representative. . Upon remand, the trial court should note that hearsay evidence alone cannot and should not be considered clear and convincing evidence by the trial court. See Williams v. Dep't of Health and Rehabilitative Services, 589 So. 2d 359 (Fla. 5th DCA 1991).…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (11 total)
- Slomowitz v. E.O. Walker and Geneva Walker, 429 So. 2d 797 (Fla. 4th DCA 1983)
- State v. Graham, 240 So. 2d 486 (Fla. 2d DCA 1970)
- Belflower v. Dep't of Health & Rehabilitative Servs., 578 So. 2d 827 (Fla. 5th DCA 1991)
- Rock v. State, 584 So. 2d 1110 (Fla. 1st DCA 1991)
- Mollie B. Smith v. Dep't of Health & Rehabilitative Servs., 522 So. 2d 956 (Fla. 1st DCA 1988)
- USI Fin., Inc. v. Scott, 425 So. 2d 669 (Fla. 2d DCA 1983)
- Williams v. State, 553 So. 2d 365 (Fla. 5th DCA 1989)
- Dep't of Health & Rehabilitative Servs. v. Zeigler, 587 So. 2d 602 (Fla. 5th DCA 1991)
- Camp v. State, 501 So. 2d 81 (Fla. 1st DCA 1987)
- L'Homme v. State, 518 So. 2d 408 (Fla. 1st DCA 1988)