P.R., FATHER OF M.C., A.C. AND A.C., CHILDREN

v.

DEPARTMENT OF CHILDREN AND FAMILIES

Fla. 5th DCA | 2018-11-16

No. 18-2467

Shea, J., Torpy, J., Berger, J., Grosshans, J.

260 So. 3d 376 Florida District Court of Appeal, Fifth District (2018)

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Holding

Parental rights termination is affirmed for all three children on alternative statutory grounds, but the abandonment finding as to M.C. and A.C. is reversed because eight of fourteen visitations and up to eleven phone calls over six months, with provision of small gifts, does not constitute abandonment under Florida law.

Headnotes

[1] Abandonment under Florida law requires more than sporadic visitation gaps; a parent who attends approximately 57% of scheduled visitations and maintains periodic phone co…

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Key Quotes

“a situation in which the parent . . . , while being able, has made no significant contribution to the child's care and maintenance or has failed to establish or maintain a substantial and positive relationship with the child, or both.”
Definition of abandonment under section 39.01(1), Florida Statutes (2017)

Facts & Procedural History

P.R. attended eight of fourteen visitation appointments with his three children over a six-month period and spoke with them by phone up to eleven time…

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Topics

Abandonment Termination Of Parental Rights Competent Substantial Evidence

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Opinion of the Court

Grosshans

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FIFTH DISTRICT

NOT FINAL UNTIL TIME EXPIRES TO

FILE MOTION FOR REHEARING AND

DISPOSITION THEREOF IF FILED

P.R., FATHER OF M.C., A.C. AND A.C., CHILDREN, Appellant, v. Case No. 5D18-2467 DEPARTMENT OF CHILDREN AND FAMILIES, Appellee. ___________________________________/ Opinion filed November 16, 2018 Appeal from the Circuit Court for Orange County, Timothy R. Shea, Judge. Samuel T. Lea, of Law Office of Samuel T. Lea, Orlando, for Appellant. Kelley Schaeffer, of Children's Legal Services, Bradenton, and Ward L. Metzger, of Department of Children and Families, Jacksonville, for Appellee. Nicholas A. Shannin, of Shannin Law Firm, P.A., Orlando, for Guardian ad Litem Program.

PER CURIAM.

P.R., father of M.C., A.C., and A.C. (B.A.C.),1 appeals the trial court’s order terminating his parental rights. As to B.A.C., we affirm the final judgment terminating P.R.'s parental rights because the grounds for termination based on sections 1 We use B.A.C. here to distinguish between the two children with the same initials. B.A.C. refers to the child born earlier this year.

2 We note that P.R. was found indigent by the trial court, and there was no testimony at trial concerning P.R.'s financial resources beyond his monthly rent payment.

Footnotes

2 39.806(1)(c), 39.806(1)(j), and 39.806(1)(k), Florida Statutes (2017), were supported by competent, substantial evidence. We also affirm the final judgment terminating P.R.'s parental rights as to M.C. and A.C. because the grounds for termination based on sections 39.806(1)(e)1., 39.806(1)(e)3., and 39.806(1)(j) were supported by competent, substantial evidence. However, we conclude that the trial court's finding of abandonment as to M.C. and A.C. based on section 39.806(1)(b) was not supported by competent, substantial evidence. Section 39.806(1)(b) permits termination of parental rights based on abandonment, which is defined in section 39.01(1), Florida Statutes (2017), as "a situation in which the parent . . . , while being able, has made no significant contribution to the child's care and maintenance or has failed to establish or maintain a substantial and positive relationship with the child, or both." P.R. attended eight out of fourteen visitation appointments and talked to the children on the phone up to eleven times in the six-month period that was discussed at trial. During those visits he provided the children with small toys and pocket money.2 While section 39.01(1) provides that "marginal efforts" and "incidental or token visits" will not prevent a finding of abandonment, the gaps in visitation in this case caused by P.R.'s six missed visits were not sufficient to constitute abandonment. See C.B. v. Dep't of Child. & Fams., 199 So. 3d 528, 528-29 (Fla. 5th DCA 2016) (citing J.L. v. Dep't of Child. & Fams., 143 So. 3d 1158, 1158 (Fla. 5th DCA 2014)); S.L. v. Dep't of Child. & Fams., 120 So. 3d 75, 77 (Fla. 4th DCA 2013); T.G. v. Dep't of Child. & Fams., 8 So. 3d 1198, 1199 (Fla. 4th DCA 2009); see also A.S. v. Dep't of Child. & Fams., 162 So. 3d 335, 339 (Fla. 4th DCA 2015) (citing § 39.01(1), Fla. Stat.

3 (2014)). The only testimony concerning P.R.'s relationship with M.C. and A.C. did not state that the relationship was no longer substantial and positive. Accordingly, we affirm the termination of P.R.'s parental rights, but we remand for modification of the final judgment to remove the finding of abandonment. AFFIRMED and REMANDED. TORPY, BERGER and GROSSHANS, JJ., concur.

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Citator

Authorities Cited

T.G. v. Dep't of Child. & Families, 8 So. 3d 1198 (Fla. 4th DCA 2009)
S.L. v. Dep't of Child. & Families, 120 So. 3d 75 (Fla. 4th DCA 2013)
A.S. v. Dep't OF Child. & Families, 162 So. 3d 335 (Fla. 4th DCA 2015)
J.L. v. Dep't of Child. & Families, 143 So. 3d 1158 (Fla. 5th DCA 2014)
Mathieu Joseph v. Bank OF NEW York Mellon, 143 So. 3d 1158 (Fla. 1st DCA 2014)
C.B. v. Dep't of Child. & Families, 199 So. 3d 528 (Fla. 5th DCA 2016)
Nationstar Mortg., LLC v. Pardo, 199 So. 3d 528 (Fla. 3d DCA 2016)

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P.R., FATHER OF M.C., A.C. AND A.C., CHILDREN v. DEPARTMENT OF CHILDREN AND FAMILIES