DEPARTMENT OF CHILDREN AND FAMILY SERVICES, APPELLANT,
v.
B.C., THE FATHER, APPELLEE
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The Department of Children and Family Services appealed a trial court's denial of parental rights termination for an incarcerated father. The appellate court held that Florida law permits courts to consider the entire period of a parent's incarceration, not just future incarceration, when determining whether it constitutes a substantial portion of a child's minority.
The entire period of incarceration must be considered, not merely the future portion. Seven years and nine months constitutes a substantial portion of an eighteen-year period of minority, and therefore the trial court erred in denying termination of parental rights.
[1] A parent's incarceration constitutes a substantial portion of a child's minority for purposes of parental rights termination if the entire period of expected incarceratio…
[2] The statutory phrase 'period of time for which the parent is expected to be incarcerated' refers to the total duration of the sentence, including time already served.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“We interpret "period of time for which the parent is expected to be incarcerated" to be the entire period, which in this case would be seven years, nine months.”
Establishes the court's interpretation that the statute requires consideration of the entire incarceration period, not just future incarceration.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceThe father was serving a seven year, nine month sentence with a projected release date of January 2006, when the child would be eight years old. At th…
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KLEIN, J.
A parent’s rights can be terminated, under our statute, if the parent is incarcerated for a period which will constitute a substantial portion of the child’s minority. The question in this case is whether the statute allows the court to consider the entire period of incarceration, or only the period to be served after the petition for termination is filed. We conclude that it is the former and reverse.
The trial court found that the father, who was serving a seven year, nine month sentence, has a projected release date from prison of January 2006, when the child will be eight. When he is released, the father will have been out of prison for only three months of the child’s life. The child does not know that appellee is her father. The trial court terminated the mother’s parental rights, which are not at issue on this appeal, but denied termination as to the father, concluding that his future incarceration is not a substantial portion of the child’s minority. The department appeals.
But for our decision in W.W. v. Department of Children and Families, 811 So. 2d 791, 792 (Fla. 4th DCA 2002), the trial court would have terminated based on section 39.806(l)(d)l, Florida Statutes which provides:
The department ... may petition for the termination of parental rights under any of the following circumstances:
* * *
(d) When the parent of a child is incarcerated in a state or federal correctional institution and ...
1. The period of time for which the parent is expected to be incarcerated will constitute a substantial portion of the period of time before the child will attain the age of 18 years;
We interpret “period of time for which the parent is expected to be incarcerated” to be the entire period, which in this case would be seven years, nine months. Although the trial court concluded that only future incarceration could be considered based on our decision in W.W., our opinion in W.W. makes it clear that we considered the entire period, not merely the future portion.
In W.W., the father’s parental rights had been terminated by the trial court only a few months before he was to be released from prison, after fifty four months of incarceration. At the time of his release, which occurred prior to the issuance of our opinion, the children were four, seven and eight years old. We concluded that the trial judge had erred in interpreting the statute to authorize termination if a parent was incarcerated for a substantial portion of the child’s minority to date. We reversed, holding that the statute required the court to consider the entire minority of the child, eighteen years, and further held that fifty four months, the entire sentence, was not a substantial portion of eighteen years. The trial court accordingly misinterpreted W.W. when it concluded that W.W. permits only the future portion of the sentence could be considered.
The term used in the statute, “substantial” means “considerable in importance, value, degree, amount, or extent.” The American Heritage Dictionary of the English Language 1284 (1981). The expected incarceration in this case, seven years, nine months, is a substantial portion of the eighteen years of minority. Because the trial court indicated it would have terminated on this ground, but for W.W., and because there is substantial competent evidence to support that finding, we reverse and remand for a judgment of termination of parental rights.
We certify direct conflict with In re J.D.C., 819 So. 2d 264 (Fla. 2d DCA 2002) and In re A.W., 816 So. 2d 1261 (Fla. 2d DCA 2002), which construed section 39.806(1)(d) to limit courts to considering only future incarceration.
GUNTHER and GROSS, JJ., concur.
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Citator
Cited By
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B.C. v. Fla. Dep't OF Child. & Families, 887 So. 2d 1046 (Fla. 2004)…years. - The certified conflict issue is whether this provision requires consideration of “the entire period of incarceration, or only the period to be served after the petition for termination is filed.” Dep’t of Children & Family Servs. v. B.C., 884 So. 2d 955, 955 (Fla. 4th DCA 2003). The Fourth District concluded that the entire period is the correct measurement, and certified conflict with two Second District decisions holding that the remaining period of incarceration is the appropriate standard. See…
Authorities Cited
- In the Interest of J.D.C. v. Dep't of Child. & Fam. Servs., 819 So. 2d 264 (Fla. 2d DCA 2002)
- W.W. v. Dep't of Child. & Families, 811 So. 2d 791 (Fla. 4th DCA 2002)
- In the interest of A.W. and J.W. v. Dep't of Child. & Fam. Servs., 816 So. 2d 1261 (Fla. 2d DCA 2002)