IN THE INTEREST OF J.S. AND A.S., CHILDREN. J.S., APPELLANT,
v.
DEPARTMENT OF CHILDREN AND FAMILY SERVICES AND STATEWIDE GUARDIAN AD LITEM OFFICE, APPELLEES

Fla. 2d DCA | 2009-10-02
No. 2D09-404
WALLACE and KHOUZAM, JJ„ Concur.
18 So. 3d 712 Florida District Court of Appeal, Second District (2009) Positive Treatment
Cited by 6 cases

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Synopsis

A mother appealed an order terminating her parental rights and placing her children in permanent guardianship with maternal grandparents. The appellate court reversed, finding competent evidence that the mother was making determined efforts to rehabilitate herself and that the trial court failed to provide specific findings required by statute to justify denying reunification.


Holding

The court reversed and remanded because: (1) DCF failed to present sufficient evidence to support permanent guardianship given the mother's determined rehabilitation efforts; (2) the trial court's order failed to comply with statutory requirements by making only general references to the circumstances of dependency rather than specific findings of fact; and (3) the mother should be given additional time to complete her case plan.


Headnotes

[1] A trial court must explain why reunification is not possible by referring to specific findings of fact made in its order adjudicating the child dependent or by making sep…

[2] A parent's determined efforts to rehabilitate herself, supported by evidence, can outweigh concerns about housing and financial stability when determining reunification.

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Key Quotes

“Because there was competent, substantial evidence that J.S. was making a determined effort to rehabilitate herself, we reverse and remand for reinstatement of J.S.'s case plan.”

Establishes the core holding: the mother's rehabilitation efforts required reversal of the permanent guardianship.

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Facts & Procedural History

In August 2006, DCF filed a dependency petition based on neglect. The mother consented to adjudication in December 2006 and completed an initial case …

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Opinion of the Court
MORRIS, Judge.

MORRIS, Judge.

J.S., the mother, appeals an order placing her children, J.S. and A.S., into a permanent guardianship. Because there was competent, substantial evidence that J.S. was making a determined effort to rehabilitate herself, we reverse and remand for reinstatement of J.S.’s case plan.

I. Facts

In August 2006, the Department of Children and Family Services (DCF) filed a petition for adjudication of dependency based on neglect by both J.S. and the children’s father due to deprivation of necessary food, clothing, shelter, or medical treatment. In December 2006, J.S. consented to an adjudication of dependency and a case plan was initiated. J.S. completed the initial case plan which resulted in the termination of supervision by DCF. However, in April 2008, that supervision was reactivated. At that time, the children were placed with the maternal grand*714parents. Shortly thereafter, a new case plan was initiated with a completion date of April 2009.

In October 2008, DCF filed a motion to place the children into a permanent guardianship and to terminate protective services. DCF alleged that reunification was contrary to the welfare and best interests of the children. DCF also alleged the parents were not fit to care for the children and reunification was not possible “because of the circumstances from which the [cjourt previously based its finding that the children are dependent in the order of adjudication.” Finally, DCF alleged that the parents had not worked their case plan and had not resolved the issues of domestic violence, stable housing, or financial stability.

After a hearing, the trial court granted the motion. In one of two written orders,1 the trial court found, in relevant part:

10. Reasonable efforts were made to prevent! ] or eliminate the need for removal of the children from the home by the Department; however, there is a continued need for out-of-home placement to ensure the children’s health, safety and well being.
11. Reunification with the parents at this time would be contrary to the welfare and not in the best interest of the children. The parents are not fit to care for the children and reunification is not possible because of the circumstances from which the court previously based its finding that the children are dependent in the order of adjudication, and in addition: The parents have not worked their case plan. They have not resolved the issues of domestic violence, stable housing or financial stability.

(Emphasis added.) Specifically regarding J.S., the court found that she was unemployed, lacked stable housing, and was noncompliant with domestic violence and couples counseling. As a result, the trial court terminated protective supervision and ordered that the children were to remain with the maternal grandparents in a permanent guardianship.

II. Analysis

We begin by noting that in its written order, the trial court was required to explain why reunification was not possible by either “referring to specific findings of fact made in its order adjudicating the child[ren] dependent or by making separate findings of fact[.]” § 39.6221(2)(a), Fla. Stat. (2008) (emphasis added). The order on appeal fails to comport with this requirement because it makes only a general reference to “the circumstances from which the court previously based its findings that the children are dependent.”2 The additional reference to the parents’ failure to work the case plan would not be a sufficient ground, by itself, to support the guardianship placement. See C.A. v. Dep’t of Children & Families, 988 So.2d 1247, 1249 (Fla. 4th DCA 2008).

However, the more troublesome issue is that DCF failed to present sufficient evidence to support the permanent guardianship. While there was some testimony at the hearing that J.S. did not yet have stable housing or financial stability, those issues were outweighed by what we have *715determined were J.S.’s determined efforts to rehabilitate herself.

The caseworker testified that J.S. had obtained a domestic violence evaluation and was halfway through her domestic violence classes, was waiting on a background check for a prospective job, was doing a “great job,” and was “getting the help that she needs.” The maternal grandfather testified that J.S. was “doing good,” that she called the children every night while she was away at treatment, and that he would like to see J.S. be allowed to finish her case plan or, at the very least, have unsupervised visitation. Additionally, there was testimony from both the caseworker and the maternal grandfather that the children were “doing fine” and were “thriving” in their placement "with the maternal grandparents.

Such testimony weighs against a permanent guardianship placement because it not only indicates that J.S. was making determined efforts to rehabilitate herself but it also indicates that the children were in a secure and adequate placement. In similar circumstances, we have previously refused to interfere with a parent’s fundamental right to have the custody and companionship of her children. See B.B v. Dep’t of Children & Families, 793 So.2d 988, 989 (Fla. 2d DCA 2001) (holding that DCF acted prematurely in seeking termination of parental rights where mother was “making a determined effort to rehabilitate herself’ and children were “well cared for and secure”). We see no need to rush to judgment under the facts of this case, and therefore, we reverse and remand for reinstatement of the most recent case plan. See J.H. v. Dep’t of Children & Family Servs., 865 So.2d 634, 636 (Fla. 2d DCA 2004); C.A., 988 So.2d at 1249. As the time has already passed for completion of the case plan, the trial court should, on remand, give J.S. additional time in which to complete her ease plan. See C.A., 988 So.2d at 1249. If at some point in the future J.S. becomes noncompliant with her case plan and there is evidence that reunification would be a detriment to the children’s safety, well-being, and physical, mental, and emotional health, the trial court could again place the children into permanent guardianships. See J.H., 865 So.2d at 636. The trial court would then be required to comply with the dictates of section 39.6221(2)(a) and either refer to specific findings of fact from the adjudication of dependency or make separate findings of fact to support its ruling.

Reversed and remanded.

WALLACE and KHOUZAM, JJ„ Concur.


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