IN THE INTEREST OF D.R., A CHILD, M.A.L., APPELLANT,
v.
DEPARTMENT OF CHILDREN AND FAMILY SERVICES, APPELLEE
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M.A.L. appeals the termination of his parental rights based on failure to comply with a court-ordered case plan. The appellate court affirmed the termination, finding that M.A.L. had the substantial ability to comply with the plan's requirements during periods when he was at liberty, and his failures to comply occurred while he was free rather than solely due to his incarceration.
The trial court properly terminated parental rights because M.A.L. had the substantial ability to comply with the case plan. Although incarceration may excuse non-compliance in some circumstances, M.A.L.'s primary failures to comply occurred during periods when he was at liberty, demonstrating that his non-compliance was not solely attributable to his incarceration.
[1] A parent's failure to comply with a case plan may serve as a basis for termination of parental rights, provided the parent had the substantial ability to comply.
[2] A trial court's finding that a parent failed to comply with a case plan is supported when the record demonstrates non-compliance occurred while the parent was at liberty…
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Join FLexlaw to unlock all legal intelligence“in order to base termination on the failure to comply with a case plan, the parent must have the substantial ability to comply with the agreement”
Establishes the legal standard that M.A.L. must satisfy—whether he had the capacity to comply despite his incarceration claims
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Join FLexlaw to unlock all legal intelligenceM.A.L. committed criminal offenses in 1998 and was placed on probation, with periodic incarcerations for probation violations. His son was adjudicated…
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KELLY, Judge.
M.A.L. appeals from an order terminating his parental rights based on his failure to comply with a case plan. He argues that the trial court erred in terminating his parental rights on this basis because he was incarcerated and did not have the substantial ability to comply. Because the trial court’s finding of failure to comply was primarily based on M.A.L.’s actions while he was at liberty, we affirm.
In support of his argument, M.A.L. cites In re E.L.H., 687 So. 2d 924 (Fla. 2d DCA 1997), which holds that, in order to base termination on the failure to comply with a case plan, the parent must have the substantial ability to comply with the agreement. In E.L.H., this court found that it was improper to terminate the father’s parental rights for failure to complete a case plan where the trial court had found that the father was unable to comply with the case plan while incarcerated. This case is distinguishable. Here, the trial court found that at the time of the hearing M.A.L. was unable to provide for his child’s material needs because he was incarcerated. However, the trial court did not find that M.A.L.’s failure to complete the case plan was due to a lack of financial resources or to his incarceration.
The record shows that M.A.L. committed several criminal offenses in 1998 and was placed on probation. In the following months, he was in and out of jail for violating his probation. MAL.’s son was adjudicated dependent on April 7, 1998. M.A.L. was offered a case plan which required him to maintain contact with the Department of Children and Family Services counselor, set up a visitation schedule to see the child, obtain stable housing and employment, provide financial support for the child, complete a financial affidavit, refrain from illegal drug use, have no new law violations, and comply with all terms of his current probation. M.A.L. signed the case plan on June 28, 1999, and within a month he committed a new offense by possessing a controlled substance. In doing so, he disregarded several substantial provisions of the case plan: he committed a new law violation, he violated his current probation, and he failed to show that he was attempting to correct a drug abuse problem. In addition, although M.A.L. was free on probation for several months and was employed, he did not contribute any amount of money to support his child, he did not complete a financial affidavit, and he failed to establish regular visitation with his child or to maintain contact with the Department. While incarcerated, M.A.L. made no attempt to keep in contact with the Department or the child, who was six years old at the time of the hearing. Thus, the record supports the trial court’s finding that M.A.L. failed to substantially comply with his case plan despite having the ability to do so. Accordingly, we affirm the termination order. Affirmed.
FULMER and DAVIS, JJ., Concur.
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T.C. v. Dep't of Child. & Families, 961 So. 2d 1060 (Fla. 4th DCA 2007)…nd 39.806(l)(e)2. and reject the mother’s claim that the order of termination must be reversed because any breach or failures on her part were occasioned by her incarceration and DCF’s failure to provide her services during such time. Cf In re D.R., 812 So. 2d 447 (Fla. 2d DCA2002).2 Affirmed. SHAHOOD, C.J., and WARNER, J., concur. . While the mother claimed to have gotten drug treatment while incarcerated, she failed [*1063] to provide any documentation to substantiate her claims. . Our holding makes it…
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W.N. v. Dep't of Child. & Fam. Servs., 919 So. 2d 589 (Fla. 3d DCA 2006)…onths even though appropriate services were provided. Such failure of substantial compliance is evidence of abuse and neglect and is also grounds for termination. § 39.806(l)(e), Fla. Stat. (2005); M.A.L. v. [*592] Dep’t of Children & Family Servs., 812 So. 2d 447 (Fla. 2d DCA 2002) (affirming termination of father’s parental rights where he failed to comply with the case plan by committing a new law violation, violating probation, failing to show that he was attempting to correct a drug problem, and failing…
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In the Interest of C.N. v. Dep't of Child. & Fam. Servs. & Guardian Ad Litem Program, 51 So. 3d 1224 (Fla. 2d DCA 2011)…or violations of probation or community control is not novel; but such tasks are not in general use either. Several reported Florida decisions mention the presence of such tasks in a case plan. See, e.g., M.A.L. v. Dep’t of Children & Family Servs., 812 So. 2d 447, 447-48 (Fla. 2d DCA 2002) (noting that the parent’s case plan required him to have no new law violations and to comply with all terms of his probation); B.B. v. Dep’t of Children & Families, 13 So. 3d 183, 185 (Fla. 5th DCA 2009) (affirming termina…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- In the Interest of E.L.H., Jr. v. State, 687 So. 2d 924 (Fla. 2d DCA 1997)