FIRST DISTRICT COURT OF APPEAL

STATE OF FLORIDA

_____________________________

No. 1D21-29

_____________________________

B.V., Father of E.E.V., A Minor 

Child,

Appellant,

v.

DEPARTMENT OF CHILDREN AND 

FAMILIES,

Appellee.

_____________________________

On appeal from the Circuit Court for Clay County.

Steven B. Whittington, Judge.

September 17, 2021

M.K. THOMAS, J.

B.V. appeals from a final order terminating his parental 

rights pursuant to section 39.806(1)(c), Florida Statutes. B.V. 

raises three issues on appeal: (1) the trial court’s finding that 

Appellant engaged in conduct towards the child that demonstrated 

his continuing involvement would threaten his life, safety, wellbeing or physical, mental, or emotional health, irrespective of the 

provision of services, is not supported by competent, substantial 

evidence; (2) the trial court erred in finding termination was in the 

child’s best interest; and (3) the trial court erred in finding 

termination was the least restrictive means of protecting the child 

from harm. Finding no error, we affirm the final order. However,
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given B.V. was deported and participated in a case plan following 

his deportation, we write to explain how the trial court’s finding

that termination was appropriate under section 39.806(1)(c) is 

supported by competent, substantial evidence.

Facts

The child, born February 26, 2018, was taken into custody by 

the Department on July 18, 2018, and placed with a foster family. 

The Department became involved after it received reports of 

abuse. The shelter petition stated that B.V.’s address was 

unknown and the child was residing with its mother. The mother, 

who is married to B.V., apparently had issues with substance 

abuse, and there were reports of violence in the home, including 

an altercation involving B.V. Shortly after the child was sheltered, 

B.V. was deported to El Salvador. B.V. was granted supervised 

visitation of three, ninety-minute visits per week.

Although the mother did not complete her case plan tasks and 

subsequently surrendered her parental rights, B.V. engaged in 

services in El Salvador, such as completing a parenting class and 

anger management. Initially, B.V. indicated that he did not wish 

to be reunited with the child in El Salvador, but instead, he was 

attempting to return to the United States.

In May 2019, the Department indicated that it recommended 

an amendment to the case plan goal to adoption. At a hearing the 

following month, B.V. expressed for the first time a desire to have 

the child sent to him in El Salvador.

Thereafter, an international home study was completed on the 

father’s residence in El Salvador, which was not approved. During 

the home study, B.V. again indicated that although he wished to 

be reunited with his son, he did not want his son in El Salvador 

due to the conditions there. B.V. reported working in the fields and 

operating a truck three days per week with a monthly income of 

$160.00. His house is made of mixed materials (sheet, cement, 

wood, plastic). It does not have a shower, and the toilet is compost 

and located outside. Bathing is done outdoors. There is no drinking 

water system. It was also noted that there is no health center in 

the community, but a health care worker visits the community 

once a week. If there is a medical emergency, a resident must leave 
3

the community and travel to San Salvador. The area was described 

as a high-risk community due to the presence of gangs in the area. 

It was determined that the house was not adequate for the child 

due in part to the lack of medical care and the child suffering from 

asthma.

On June 30, 2020, the Department filed a petition seeking to 

terminate B.V.’s parental rights pursuant to section 39.806(1)(c), 

claiming the child was at risk of future harm irrespective of the 

provision of services. The Guardian ad Litem filed a report opining 

that termination of parental rights was in the child’s manifest best 

interest. Prior to the hearing on the termination petition, the 

parties stipulated that “[i]t is unknown if or when [B.V.] will be 

able to return to the United States to care for his Minor Child.”

The evidence showed B.V. was likely deported because his 

visa had expired. The child was months old when sheltered and 

almost three at the time of the hearing. During that time, B.V. 

would participate in video visitation two days a week for fifteen 

minutes each. B.V. speaks Spanish, and the child was either too 

young to communicate or unable to understand Spanish as his 

foster family speaks English. The child’s three older siblings were 

placed with the same foster family and were subsequently adopted. 

The child had bonded with his siblings and views his foster parents 

as parental figures. The child does not identify B.V. as his father. 

The foster parents and the Guardian ad Litem all agreed that it 

would be detrimental to the child at this point to remove him from 

the foster home. The Guardian ad Litem believed termination of 

B.V.’s parental rights was in the child’s best interest given the 

amount of time the child was in foster case and the need for 

permanency. The foster parents indicated their desire to adopt the 

child.

B.V. expressed that he hoped to return to the United States 

and be reunited with the child here. The Department believed that 

upon his return, B.V. intended to live with the mother, as would 

be required by his visa, which the Department found concerning 

because the mother’s parental rights had been terminated, and the 

child could not safely be placed in a home in which she resides. For 

his part, B.V. claimed he planned to separate from the mother 

upon his return; however, he acknowledged that his resident visa 
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application is based on his marriage to the mother, and he had not 

informed Immigration of his plan to separate. According to B.V., 

he is awaiting an appointment for an interview at the Embassy.

The trial court found by clear and convincing evidence that 

termination of B.V.’s parental rights was appropriate under 

section 39.806(1)(c), that termination was in the manifest best 

interest of the child, and that termination was the least restrictive 

means of protecting the child from harm. 

Analysis

Section 39.806(1)(c) provides that termination of parental 

rights may be established under the following circumstance:

When the parent or parents engaged in conduct toward 

the child or toward other children that demonstrate that 

the continuing involvement of the parent or parents in 

the parent-child relationship threatens the life, safety, 

well-being, or physical, mental, or emotional health of the 

child irrespective of the provision of services.

To terminate parental rights under this section, the trial court 

must find: (1) the child’s life, safety, or health would be threatened 

by continued interaction with the parent, regardless of the 

provision of services; (2) there is no reasonable basis to believe the 

parent will improve; and (3) termination is the least restrictive 

means of protecting the child from harm. M.H. v. Dep’t of Children 

& Families, 866 So. 2d 220, 222–23 (Fla. 1st DCA 2004).

In terminating B.V.’s parental rights, the trial court noted the 

unique circumstances presented by this case. In support of its 

decision, the trial court stated:

Generally, under a subsection 39.806(1)(c) case, it is 

alleged that a parent has engaged in past behavior, such 

as drug or alcohol abuse or domestic violence, and that 

such behavior is likely to continue in the future despite 

the provision of services. That is not the case here. 

Instead, the past behavior was Father’s deportation and 

his subsequent complete inability to parent the child. In 

the two-and-a-half years since being deported, Father has 
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been unable to remedy this circumstance. As a result, 

[the child] has been raised and cared for in foster care. 

During the time that is often regarded as the most 

formative of a child’s life, [the child] has completely 

bonded with the [foster] family. [The child] naturally 

views [the foster parents] as his father and mother.

The trial court further opined that the child regarded the other 

children in the home as his siblings and would be devastated if he 

were removed from the foster home. The trial court did not find 

B.V.’s testimony that he has a “very good” relationship with the 

child to be credible. Rather, the trial court concluded that the 

“[f]ather has no relationship with” the child. Ultimately, the trial 

court held that delaying permanency any longer would cause harm 

to the child, stating, “[t]o allow [the child] to continue for some 

indefinite time into the future would only cause [the child] to face 

greater harm than he would suffer now if reunification occurred.”

Competent, substantial evidence supports the trial court’s 

findings. There is no debate B.V. was deported to El Salvador when 

the child was only several months old, and the child has lived with 

his foster parents most of his life. Both the foster mother and 

Guardian ad Litem testified as to the lack of communication and 

relationship between the child and B.V. Except for B.V., everyone 

agreed that removing the child from the foster home at this point 

would be detrimental to the child.

Regardless, B.V. essentially argues that his deportation does 

not constitute past behavior that threatens the child, and there is 

no basis to support the conclusion that B.V.’s situation will not 

improve. There is no case law in Florida addressing termination of 

parental rights where the parent was deported but complied with 

a case plan. We find persuasive several Texas cases in which the

trial courts likened deportation to incarceration, given that in both 

circumstances, the parent cannot reside with the child, is not in 

the child’s daily life, and is in many ways unable to parent the 

child. See In re E.N.C., 384 S.W. 3d 796 (Tex. 2012) (noting that 

deportation is like incarceration in that the parent is no longer 

available to reside with their child in their home in the United 

States); Interest of H.J.Y.S., 2019 WL 8071614 (Tex. Ct. App. 2019)

(noting that deportation is like incarceration as both are a 
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consequence of an action, and in both cases, a parent is absent from 

the child’s daily life and is unable to provide support).

Florida law specifically addresses termination of an 

incarcerated parent’s rights. Pursuant to section 39.806(1)(d)3., 

Florida Statutes, an incarcerated parent’s parental rights may be 

terminated if, among other things, the court determines by clear 

and convincing evidence that continuing the parental relationship 

with the parent would be harmful to the child and, for this reason, 

that termination of parental rights of the incarcerated parent is in 

the best interest of the child. When determining harm, the court 

considers the age of the child; the relationship between the child 

and the parent; the nature of the parent’s current and past 

provisions for the child’s developmental, cognitive, psychological, 

and physical needs; the parent’s history of criminal behavior, 

which may include the frequency of incarceration and the 

unavailability of the parent to the child due to incarceration; and 

any other factor the court deems relevant. Id.

While incarceration is a factor the court may consider in 

deciding whether to terminate parental rights, incarceration alone 

is insufficient grounds to terminate parental rights. See In re T.B., 

819 So. 2d 270, 272 (Fla. 2d DCA 2002). We find this rule should 

also apply to deportation. Thus, deportation alone cannot be a 

ground for termination of parental rights. See In re E.N.C., 384 

S.W. 3d at 805; Interest of H.J.Y.S., 2019 WL 8071614 at 5.

In Department of Children and Families v. J.S., 183 So. 3d 

1177, 1185–86 (Fla. 4th DCA 2016), the court held that an 

incarcerated father’s continued parental relationship with his 

child would be contrary to the child’s best interest, providing a 

basis for termination of the father’s parental rights, where the 

father had no relationship with the child, did not provide for the 

child’s needs in any way except for the involuntary distribution of 

his Social Security benefits, was incarcerated for committing 

armed burglaries and felony assault, and would not be available to 

parent the child for several years due to his incarceration.

Similarly, in D.S. v. Department of Children and Families, 164 

So. 3d 29, 30 (Fla. 4th DCA 2015), the court affirmed termination 

of parental rights after it was determined the incarcerated parent 
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did not have a relationship with the child. The court opined as 

follows:

As to P.S., the state proved by clear and convincing 

evidence that the child is thriving in his foster family’s 

care and does not wish to see his father. The father has 

not been able to maintain much contact with P.S. Thus, 

the father’s incarceration has been significant in that 

P.S., at a young age, has become bonded with the foster 

family to the exclusion of D.S. The foster parents wish to 

adopt P.S. To deprive him of this continuing relationship 

with his foster parents would prevent him from achieving 

a permanent and stable home. Thus, the court’s 

conclusion that the state proved a ground for termination 

is supported by competent, substantial evidence. 

Moreover, for these same reasons, we conclude that 

termination was both in the manifest best interest and 

the least strictive means to prevent harm to P.S.

Id. at 34–35.

Adopting the reasoning of our colleagues in the Fourth 

District, we note that termination here is not based solely on B.V.’s 

deportation, but rather the effects of that deportation, such as the 

continued absence on the child and B.V’s inability to parent.

Additionally, subsection 39.806(1)(d) allows for termination of an 

incarcerated parent’s rights where continuing a parental 

relationship would be harmful to the child. This is similar to the 

standard set forth in subsection (1)(c), which is at issue in the 

instant case. Subsection (d) provides factors to be considered when 

determining harm to the child. When considering those factors 

here, termination is appropriate. The child was only months old 

when B.V. was deported and he was placed into foster care. He is 

now three years old. The child has no relationship with B.V. and 

does not identify him as a parent. The child and B.V. do not speak 

the same language. There is no evidence B.V. has ever provided for 

the child’s emotional or physical needs. Evidence supports that the 

child would be devastated if he were now removed from the foster 

parent’s home. Additionally, although B.V. testified that he is 

attempting to return to the United States, he stipulated that he 

does not know if or when that will occur. Further complicating his 
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reentry to the United States, B.V. testified that his resident visa 

application is based on his marriage to the mother. However, B.V. 

plans on separating from the mother upon his return, which could 

put his visa at risk. If he does not separate from the mother, the 

child cannot be returned to his care given the mother’s issues and 

termination of her parental rights. There are no services the 

Department could provide which would assist the father in 

rectifying his immigration issues or the problems that arise from 

the same.

In many ways, this case is similar to J.S. and D.S. in which 

the court found termination of parental rights was appropriate. In 

those cases, as is the case here, there is a complete lack of 

relationship between the child and B.V., and B.V. does not have 

the ability to care for the child. Additionally, the child has formed 

a strong bond with his foster parents who desire to adopt him.

Conclusion

It is clear that B.V.’s deportation and subsequent inability to 

return to the United States or parent the child in any meaningful 

way “threatens the . . . mental, or emotional health of the child 

irrespective of the provision of services.” § 39.806(1)(c), Fla. Stat. 

Thus, we find that the trial court did not err in holding that the 

Department proved termination under section 39.806(1)(c) was 

appropriate. Additionally, as found by the trial court, to delay 

permanency any further would only cause further harm to the 

child, which is contrary to the purpose of the chapter. See § 

39.001(1)(h), Fla. Stat. (A purpose of this chapter is “[t]o ensure 

that permanent placement with the biological or adoptive family 

is achieved as soon as possible for every child in foster care and 

that no child remains in foster care longer than a year.”); S.M. v. 

Fla. Dep’t of Children & Families, 202 So. 3d 769, 782–83 (Fla. 

2016) (explaining that there “is a strong policy incentive in 

achieving permanency for children in care as quickly as possible” 

and that lack of permanency causes harm to a child). Accordingly, 

we affirm the final order terminating B.V.’s parental rights.

AFFIRMED.

ROBERTS, J., concurs; B.L. THOMAS, J., concurs in result only.
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_____________________________

Not final until disposition of any timely and 

authorized motion under Fla. R. App. P. 9.330 or 

9.331.

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Michael A. Tupper, Tupper Law, P.A., Jacksonville, for Appellant.

Ward L. Metzger, Department of Children and Families, 

Jacksonville; Thomasina F. Moore and Laura J. Lee, Statewide 

Guardian ad Litem, Tallahassee, for Appellee.