N.B., THE MOTHER, APPELLANT,
v.
FLORIDA DEPARTMENT OF CHILDREN AND FAMILIES, ET AL., APPELLEES

Fla. 3d DCA | 2016-01-13
No. 3D15-2094
Before ROTHENBERG, LAGOA, and FERNANDEZ, JJ.
183 So. 3d 1186 Florida District Court of Appeal, Third District (2016) Positive Treatment
Cited by 6 cases

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Holding

The court held that the termination of parental rights was supported by substantial, competent evidence and that the challenged statute was constitutional.


Headnotes

[1] Termination of parental rights requires proof by clear and convincing evidence of a statutory ground, that termination is in the child's best interest, and that terminati…

[2] A statute authorizing termination of parental rights based on multiple out-of-home placements is constitutional when the grounds are established by clear and convincing e…

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Facts & Procedural History

The mother appealed an order terminating her parental rights to two children. She argued that the statute allowing termination based on multiple out-o…

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Opinion of the Court
ROTHENBERG, J.

ROTHENBERG, J.

N.B., the mother, appeals an order terminating her parental rights to two of her children, Ch.B, and S.B. We affirm the order under review because the record contains substantial, competent evidence that the Florida Department of Children and Families (“Department”) established by clear and convincing evidence that statutory grounds for termination exist, specif-, ically sections. 39.806(l)(e)(l) and 39.806(l)(i), Florida Statutes (2014); termination is in the manifest best interest of the children, see § 39.810, Fla. Stat. (2014); and termination is- the least restrictive means of protecting the children from harm. See R.L. v. Dep’t of Children & Families, 63 So.3d 920, 921-22 (Fla. 5th DCA 2011) (holding that to terminate par rental rights, the. State must demonstrate by clear and convincing evidence “(1) the existence of one of the statutory grounds set forth in Chapter 39; (2) that termination is in the best interest of the child; and (3) that termination is the least restrictive means of protecting the child from harm”); T.P. v. Dep’t of Children & Family Servs., 935 So.2d 621, 624 (Fla. 3d DCA 2006) (“The standard of review for challenges to the sufficiency of the evidence supporting a termination of parental rights is whether the trial court’s order is supported by substantial competent evidence.”)

Although we have determined that the record contains competent, substantial evidence to support the termination of the Mother’s parental rights under sections 39:806(l)(e)(l) and 39.806(l)(i), either of which standing alone would be sufficient to terminate the Mother’s parental rights, we address the Mother’s contention raised for the first time on appeal that section 39.806(1)(Z) is facially unconstitutional. A.J. v. K.A.O., 951 So.2d 30, 32 (Fla. 5th DCA 2007) (“[F]aeial constitutional attacks and attacks involving fundamental liberty interest, such as parental rights, may be raised for the first time on appeal.”).

Section 39.806(1)(Z) authorizes the filing of a petition for termination of parental rights when “[o]n three or more occasions the child or another child of the parent or *1188parents has been placed in out-of-home care pursuant to this chapter, and the conditions that led to the child’s out-of-home placement'were caused by the parent or parents.” The Mother argues that section 39.806(1)© is unconstitutional because it permits the termination of parental rights based on a standard of proof that is less than “clear and convincing evidence,” in violation of the United States Supreme Court’s decision in Santosky v. Kramer, 466 U.S. 745, 747-48, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982). In Santosky, the United States Supreme Court held that a New York statute which prescribed a “fair preponderance of the evidence” standard in a proceeding to terminate parental rights denied the parents’ rights to procedural due process, and that before a state may terminate parental rights, the state must support its allegations by at least clear and convincing evidence. Specifically, the Mother argues that the statutory ground was established by a lesser standard, such as probable cause or preponderance of the evidence, because the individual out-of-home placements were based on either probable cause or a preponderance of the evidence, and therefore, the termination of the parental rights was also based on the lower standards, not clear and convincing evidence. We disagree.

First, we note that contrary to the Mother’s assertion, the statutory ground — three or more out-of-home care placements — was established by clear and convincing evidence, not by a lesser standard. Nonetheless, we briefly address the facial constitutionality of section 39.806(l)(i). When a statute impinges on a fundamental liberty interest, such as parenting ones child, we must analyze the constitutionality of the statute under a strict scrutiny standard. Fla. Dep’t of Children & Families v. F.L., 880 So.2d 602, 607 (Fla.2004). “To withstand strict scrutiny, a law must be necessary to promote a compelling governmental interest and must be narrowly tailored to advance that interest.” State v. J.P., 907 So.2d 1101, 1109 (Fla.2004).

The Mother does not dispute that the State of Florida has a compelling interest in protecting the physical and psychological well-being of children, but asserts that the statute is not narrowly tailored to advance that interest through the least intrusive means. We disagree.

In addressing section 39.806(1)©, Chief Judge Hawkes recognized in K.J. ex rel. A.J. v. Department of Children & Families, 33 So.3d 88, 90 (Fla. 1st DCA 2010) (concurring), the following:

Here, the Legislature concluded it is harmful for children to be removed from the same home numerous times; therefore, prior instances of out-of-home placement can be relied on in establishing grounds for the termination of parental rights.... Like other statutory provisions recognizing the danger posed by repetitive bad behavior, section 39.806(l)(i) was designed to protect children when parents continually engage in conduct warranting out-of-home placement. Not only have these parents proven they are incapable of improving their behavior, but they have created a situation of instability and uncertainty for their children by causing a need for them to be repeatedly uprooted. Consequently, there is nothing improper, retroactive, or violative of any of Appellant’s rights in the Legislature’s decision to authorize the courts to consider additional factors when making termination of parental rights decisions.

Moreover, - the Legislature has inserted other safeguards into Chapter 39. As stated above, not only must the State establish at least one statutory ground by *1189clear and convincing evidence, it must also establish by clear and convincing evidence that termination is in the manifest best interest of the children and that termination is the least restrictive means of protecting the children from harm. See R.L. 63 So.3d at 921-22. Thus, we reject N.B.’s facial constitutional challenge to section 39.806(1)(Z).

Affirmed.


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  • E.A. v. Dep't of Child. & Families, 46 Fla. L. Weekly D1807 (Fla. 4th DCA 2021)
    …da Statutes 4 (2019) “When a statute impinges on a fundamental liberty interest, such as parenting ones [sic] child, we must analyze the constitutionality of the statute under a strict scrutiny standard.” N.B. v. Dep’t of Child. & Fams., 183 So. 3d 1186, 1188 (Fla. 3d DCA 2016). To withstand strict scrutiny, “the statute must serve a compelling state interest through the least intrusive means possible.” Fla. Dep’t of Child. & Fams. v. F.L., 880 So. 2d 602, 607 (Fla. 2004). Moreover, “[t]o suc…
    1 / 2
  • S.M.O. v. Dep't of Child. & Families, 357 So. 3d 773 (Fla. 3d DCA 2023)
    …of a statute and the unconstitutionality of the application of the statute to the facts of a particular case. The former may be raised for the first time on appeal; the latter must first have been raised at the trial level.”). ---PAGE 11--- Fams., 183 So. 3d 1186, 1188 (Fla. 3d DCA 2016) (quoting State v. J.P., 907 So. 2d 1101, 1109 (Fla. 2004)). It is undisputed that the statute serves a compelling government interest by protecting children. As for being narrowly tailored, we note that § 39.806(1) lists…
  • A.R. v. Dep't of Child. & Families, 46 Fla. L. Weekly D2609 (Fla. 4th DCA 2022)
    …e final judgment of termination of the Mother’s parental rights under section 39.806(1)(l), Florida Statutes (2020). See K.A. v. Dep’t of Child. & Fams., 46 Fla. L. Weekly D2609 (Fla. 4th DCA Dec. 8, 2021); N.B. v. Fla. Dep’t of Child. & Fams., 183 So. 3d 1186 (Fla. 3d DCA 2016). 2 As we did in K.A., we once again certify the following question to the supreme court concerning the constitutionality of section 39.806(1)(l): DOES THE 2008 ADDITION OF SUBPARAGRAPH (l) TO SECTION 39.806(1), FLORID…

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