G.H., SR., FATHER OF P.G.H., A MINOR CHILD, APPELLANT,
v.
DEPARTMENT OF CHILDREN AND FAMILIES, APPELLEE

Fla. 1st DCA | 2014-06-30
No. 1D13-5334
PADOVANO and MARSTILLER, JJ., concur.
145 So. 3d 884 Florida District Court of Appeal, First District (2014) Positive Treatment
Cited by 3 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.


Holding

The court held that the Department failed to establish by clear and convincing evidence that termination of parental rights was the least restrictive means of protecting the child.


Headnotes

[1] The Department bears the burden to prove by clear and convincing evidence that termination of parental rights is the least restrictive means of protecting a child from se…

[2] Termination of parental rights implicates a fundamental liberty interest protected by federal and state constitutions, requiring the state to proceed in a narrowly tailor…

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

Facts & Procedural History

A father's parental rights were sought to be terminated after his child was allegedly abused by her brother, who had previously been returned to the m…

The full statement of facts, procedural history, and disposition for this case are member content.

Join FLexlaw to unlock all legal intelligence

© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.


Opinion of the Court
VAN NORTWICK, J.

VAN NORTWICK, J.

G.H., Sr., the natural father of P.G.H., challenges the termination of his parental rights over this child. We reverse because the Department failed to establish that termination was the least restrictive means of protecting the child.

The child P.G.H. was sexually abused by her older brother in 2011, and the brother, who was adjudicated delinquent, was removed from the family home. Appellant was not living in the family home at the time of the abuse. In March 2013, the brother was returned to the mother’s home by Families First Network, an agent of the Department. The child P.G.H. claimed that her brother again abused her after he climbed through her bedroom by use of a ladder; this abuse occurred approximately a week after the brother returned. He was again charged but was acquitted of the second charge. Upon notice of the second incident of abuse, the Department of Children and Families petitioned to terminate the parental rights of appellant and the natural mother, who is not a party to this appeal. As to the appellant, the Department sought termination on the ground that he had “engaged in conduct towards the child that demonstrates that the continuing involvement of the parents in the parent-child relationship threatens the life, safety, well being [sic] or physical, mental or emotional health of the child.... ” The statutory authority for this ground is section 39.806(l)(c), Florida Statutes (2013).

It is well-established that the Department has the burden to prove by clear and convincing evidence that termination of a parent’s rights is the least restrictive means of protecting the child from serious harm. See Padgett v. Dep’t of Health & Rehabilitative Servs., 577 So.2d 565, 571 (Fla.1991). The “[l]east restrictive means” analysis embodies due-process concerns. *886Before depriving someone of a fundamental right, such as the right to parent, the State must demonstrate a compelling interest and that this interest is furthered through the least intrusive and restrictive means. See N. Fla. Women’s Health & Counseling Servs., Inc. v. State, 866 So.2d 612, 625 n. 16 (Fla.2003); In re T.W., 551 So.2d 1186, 1193 (Fla.1989); A.W. v. Deft of Children & Families, 969 So.2d 496, 504 (Fla. 1st DCA 2007).

Below, the trial court found that “[t]his child clearly has a strong emotional bond with her parents. The Court has no doubt that it will be traumatic for her to be separated from her parents permanently.” The trial court concluded, though, that the harm suffered by the separation would be less than what would occur if the child was returned to them. This conclusion is without support in the record. The child’s therapist testified that it was not in the child’s best interests to have no future exposure to her parents. It was the agent of the Department which placed the brother back in the family home; it was not explained why removal of the brother from the family home will not protect the child victim.

Further, the current guardian of P.G.H., an aunt, indicated a preference for a permanent guardianship rather than adoption. The trial court noted this preference in the final order. While ordering termination of parental rights and the cessation of parental visitation, except for “a visit to enable the parents and child to say goodbye to each other,” the trial court also stated, incongruously, that “it is not necessarily true that [P.G.H.] needs to be completely estranged from her parents in order for it to be in the manifest best interest to have parental rights terminated” so that under “appropriate supervision, the parents may not be harmful to [P.G.H.] simply by maintaining a relationship.” Given such a finding, there is nothing in the record indicating that a guardianship as suggested by the aunt would not protect the child, as it has since her removal from the family home.

The termination of parental rights involves a fundamental liberty interest, protected by the federal and state constitutions. Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982); Padgett v. Deft of Health & Rehabilitative Servs. Given this fundamental liberty interest, the Department is obliged to “proceed in a narrowly tailored manner.” N.S. & D.R. v. Dep't of Children & Families, 36 So.3d 776, 778 (Fla. 3d DCA 2010); D.M. v. Dep't of Children & Families, 79 So.3d 136, 139 (Fla. 3d DCA 2012). Terminating appellant’s parental rights under the facts presented below was not a narrowly tailored remedy and was not the least restrictive means of protecting the child.

Accordingly, the order terminating the parental rights of the appellant is REVERSED and REMANDED for further proceedings as authorized by section 39.811, Florida Statutes.

PADOVANO and MARSTILLER, JJ., concur.


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Cited By

  • C.D. v. Fla. Dep't of Child. & Families, 164 So. 3d 40 (Fla. 1st DCA 2015)
    …ld from serious harm, not, as the trial court erroneously found, the least restrictive means of achieving permanency. In seeking to achieve this goal, DCF is “obliged to ‘proceed in a narrowly tailored manner.’” G.H. v. Dep’t of Children & Families, 145 So. 3d 884, 886 (Fla. 1st DCA 2014) (quoting N.S. & D.R. v. Dep’t of Children & Families, 36 So. 3d 776, 778 (Fla. 3d DCA 2010)). The Mother contends that the TPR order does not pass the least restrictive means test. She asserts that DCF argued, and the court…
  • State v. B.C., 185 So. 3d 716 (Fla. 1st DCA 2016)
    …contact between child and parent automatically forestalls termination. We conclude that the three cases can be harmonized to avoid the harsh results that this case and others represent. We turn first to G.H. v. Department of Children and Families, 145 So. 3d 884 (Fla. 1st DCA 2014), which" involved a child who was sexually abused by an older sibling, their father not living in the home at the time. Id. at 885. The older sibling, who was adjudicated delinquent, was later returned to the home and the abuse wa…
  • State v. T.S., 155 So. 3d 476 (Fla. 1st DCA 2015)
    …is necessary to determine whether termination is appropriate under the correct legal factors. We note that the trial court relied on A.H. v. Dep’t of Children & Families, 144 So. 3d 662 (Fla. 1st DCA 2014), and G.H. v. Dep’t of Children & Families, 145 So. 3d 884 (Fla. 1st DCA 2014). In both cases, this Court held that measures short of termination were available and that termination was not the least restrictive means to protect the child from harm. Neither case requires the outcome reached below. In A.H.,…

Authorities Cited

Full citator, related cases, and AI research tools

Open in FLexlaw