DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

K.M., the mother,

Appellant, 

v. 

K.B., the father,

Appellee. 

No. 4D2023-2158 

[March 13, 2024] 

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 
2

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;
3 

. . . . 

3. The court determines by clear and convincing evidence 

that continuing the parental relationship with the 

incarcerated parent would be harmful to the child and, for this 

reason, that termination of the parental rights of the 

incarcerated parent is in the best interest of the child. When 

determining harm, the court shall consider the following 

factors: 

a. The age of the child. 

b. The relationship between the child and the parent. 

c. The nature of the parent’s current and past provision 

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

physical needs. 

d. 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. 

e. Any other factor the court deems relevant. 

§ 39.806(1)(d)1., 3., Fla. Stat. (2023). 

Although section 39.806 does not define “incarceration,” we have 

previously defined “incarceration” as being confined in a “governmental 

institution” and held that house arrest is not equivalent to “incarceration”: 

[I]ncarceration has been defined [as] confinement in a 

governmental institution such that a defendant’s liberty is 

circumscribed to the functional equivalent of custody in the 

county jail. A house arrest program in which the defendant 

wears an electronic bracelet used for monitoring his

whereabouts, and checks with a supervisor daily by telephone 

and weekly in person, imposes restraints on the defendant’s 

liberty prior to trial, but the conditions do not impose on the 

defendant restraints which are so onerous as to be equivalent 

to incarceration in the county jail or the forensic ward of a 

mental hospital. 
4 

Licata v. State, 788 So. 2d 1063, 1063–64 (Fla. 4th DCA 2001) (quoting 

McCarthy v. State, 689 So. 2d 1095, 1096 (Fla. 5th DCA 1997)). 

While Licata involved the issue of pre-trial house arrest, we hold the 

definition of “incarceration” espoused in that case applies equally to a 

home confinement sentence. We further hold that when a parent is placed 

on home confinement with terms which enable the parent to be involved 

in the child’s care and well-being, the parent is not “incarcerated” under 

section 39.806(1)(d). Such a holding is consistent with section

39.806(1)(d)’s purpose of protecting the child’s need for a permanent and 

stable home. 

Accordingly, as the trial court in this case expressly found that the 

terms of the father’s home confinement permitted the father to act as a 

parent to the child, we affirm the court’s dismissal of the mother’s petition.

Affirmed. 

CIKLIN and GERBER, JJ., concur. 

* * * 

Not final until disposition of timely filed motion for rehearing.