K.M., THE MOTHER

v.

K.B., THE FATHER

Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Kirk C. Volker, Judge; L.T. Case No. 50-2022-DP-000346- XXXX-MB.

Angela E. Gerlach of Gerlach Law, PLLC, Fort Lauderdale, for appellant. Jessica L. Underwood and Robin Bresky of Schwartz Sladkus Reich Greenberg Atlas LLP, Boca Raton, for appellee. DAMOORGIAN, J.

K.M. (“the mother”) appeals the trial court’s order dismissing her private petition for termination of parental rights against K.B. (“the father”). The mother’s petition was based on section 39.806(1)(d), Florida Statutes (2023), which allows termination of parental rights under certain conditions when the parent is incarcerated. In dismissing the petition, the trial court concluded the father’s placement on home confinement did not constitute “incarceration.” We affirm the dismissal order in all respects and write only to address why we reject the mother’s argument that home confinement constitutes incarceration for purposes of termination of parental rights proceedings.

By way of background, the father was convicted on federal healthcare fraud charges and sentenced to 72 months in federal prison. The mother filed a private petition to terminate the father’s parental rights based on his incarceration. While the petition was pending, the father was released from federal prison and placed on federal home confinement for the remainder of his sentence. The mother thereafter filed a motion asking the trial court to determine whether the father’s placement on home

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confinement qualified as “incarceration” for purposes of section 39.806(1)(d).

At the ensuing hearing, the father testified as to his home confinement terms. In relevant part, the father testified that, while on home confinement, he is permitted, with prior approval, to do the following: take the child to and from school and the mother’s house; take the child to doctor appointments and extracurricular activities; have the child over to his home; and go to the grocery store. The father also testified that he was permitted to take the child to the hospital in an emergency without first seeking prior approval. Based on this testimony, the father argued he was completely available to parent the child and therefore was not “incarcerated” within the meaning of section 39.806(1)(d). Following the hearing, the trial court concluded the father was not “incarcerated” as it relates to section 39.806(1)(d) and dismissed the mother’s petition. In so doing, the court referenced the father’s otherwise unrebutted testimony and concluded the home confinement terms permitted the father to “act as a parent for the child.”

On appeal, the mother argues the father’s placement on home confinement as part of his federal prison sentence constitutes incarceration for purposes of section 39.806(1)(d). In support thereof, the mother relies on Black’s Law Dictionary which broadly defines incarceration as “[t]he act or process of confining someone.” Incarceration, BLACK’S LAW DICTIONARY (11th ed. 2019). Based on this definition, the mother argues the father is “incarcerated” as he is confined to his home.

The father counters that, in looking at the plain and ordinary meaning of “incarceration” and section 39.806(1)(d)’s legislative intent, his placement on home confinement does not constitute “incarceration.” The father further argues that several district courts, including this court, have clearly held that house arrest or home confinement is not equivalent to incarceration.

Sections 39.806(1)(d)1. and 3. state that termination of parental rights is appropriate when the parent is incarcerated and either:

1. The period of time for which the parent is expected to be incarcerated will constitute a significant portion of the child’s minority. When determining whether the period of time is significant, the court shall consider the child’s age and the child’s need for a permanent and stable home. The period of time begins on the date that the parent enters into incarceration;