DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

D.S., the Father,

Appellant,

v.

DEPARTMENT OF CHILDREN AND FAMILIES,

Appellee.

No. 4D14-3144

[April 22, 2015]

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, 

Broward County; Hope Bristol, Judge; L.T. Case No. 2012-3813 CJDP.

Antony P. Ryan, Regional Counsel, and Paulina Forrest, Assistant 

Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel, 

West Palm Beach, for appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Carolyn Schwarz, 

Assistant Attorney General, Fort Lauderdale, for appellee Department of 

Children and Families.

Patricia Murphy Propheter, Sanford, for appellee Guardian ad Litem 

Program.

WARNER, J.

D.S., an incarcerated parent, appeals the termination of his parental 

rights as to his three children. The trial court terminated his rights based 

upon his incarceration. Because we conclude that competent substantial 

evidence does not support the termination as to two of the children, nor is 

termination in the children’s manifest best interest nor the least restrictive 

means to prevent harm to the children, we reverse. We affirm the 

termination as to one of the children, who does not reside with the other 

two and who has not maintained a continuing relationship with D.S.

D.S., the father, has three children: D.S., Jr. (born 2006), P.S. (born 

2008), and K.S. (born 2011). The children were sheltered on May 30, 2012, 

due to the mother’s substance abuse and medical neglect. The mother 
2

was found with drugs, and K.S., the youngest child, was found to be 

medically neglected, requiring hospitalization.

A month before the children were removed from the mother, D.S. was 

arrested and jailed on charges of robbery, aggravated assault, and other 

related charges. Despite this arrest, both parents were offered a 

reunification plan which went into effect on October 4, 2012. The plan 

required D.S. to comply with the conditions of his incarceration. D.S. was 

sentenced to six years of incarceration in January 2013, with an 

anticipated maximum release date of February 2018.

After their removal from the mother, two of the children, D.S., Jr. and 

K.S., the oldest and youngest child, were taken in by D.S.’s sister, the 

paternal aunt. The third child, P.S., was put in the custody of the 

Department and placed in non-relative foster care. At a judicial review in 

February 2013, the court adopted the goal of reunification. However, when 

the mother failed several drug tests, the Department filed a petition to 

terminate both parents’ rights in July 2013, alleging D.S.’s incarceration 

for “a significant portion of the child[ren]’s minority,” as the sole ground 

for termination of D.S.’s rights. In that petition, the Department noted 

that the paternal aunt had custody of D.S., Jr. and K.S. and provided a 

suitable permanent custody arrangement. P.S. was in foster care with 

another family. At the time of the filing of the petition for termination, 

D.S., Jr., was seven, P.S. was four, and K.S. was two.

At the hearing on termination, D.S. testified that he did not know that 

the mother was using illegal drugs at the time the children were placed in 

a shelter. Although he was incarcerated, his early release date is May 

2017, with a maximum date of February 2018, with probation to follow.

D.S. has maintained consistent contact with his two children who 

reside with his sister. He writes them letters almost every week and visits 

with them by phone two to three times a week. They have good 

conversations, and the boys tell him they love him. Although K.S. was 

only a year old when D.S. was incarcerated, K.S. has warmed up to D.S. 

through visits to prison (which are contact visits) and the telephone calls. 

The aunt has brought the children four or five times to visit D.S. in prison. 

He has only been able to speak with the third child, P.S., twice due to his 

foster-care placement, but he still attempts to call every time he has

telephone visitation with the other siblings.

He was glad that his sister was taking care of D.S. and K.S. He testified 

that “she has no problem taking care of them until I’m released.” The aunt 

was doing it for his children, not him, because their parents had left them 
3

when they were children. D.S. also noted that his father later came back 

and took him, for which D.S. was glad, comparing this to his own 

children’s situation.

Before he was incarcerated D.S. was employed laying tile, and his 

brother has offered him a job when he gets out doing the same work. When 

he goes on work release eighteen months prior to his release from prison, 

he will be able to provide support for his children and accumulate money 

for housing.

The Guardian ad Litem assigned to the children visits them at least 

once a month. She has never observed the children interacting with the 

father on the phone or in person. When she has visited with the children, 

they do not ask her for either their mother or their father, nor do they tell 

her that they want to go home to their parents. P.S. looks to his caretakers 

as his parents, calling them “mommy” and “daddy” generally. D.S., Jr. 

and K.S. are also happy with their aunt and her family. They have bonded 

with them. She felt it important to continue their current placement. 

When asked if the case “should remain open” until the father was released 

from incarceration and could be reunified with the children, the guardian 

simply said “that would not enable any kind of permanency for the kids, 

and they’re young and they need permanency now, not in four years from 

now.” The guardian also testified that both the foster parents of P.S. and 

the aunt wish to adopt the children.

Both D.S., Jr. and P.S. are in therapy. Interestingly, the guardian 

testified that the reason D.S., Jr. continued in therapy was for the 

therapist to work with D.S., Jr. “so that [he] can place himself in that 

family and feel comfortable and good about it and continue on with it.” 

This appears inconsistent with the guardian’s testimony that D.S., Jr. was 

bonded with his aunt and uncle. Moreover, D.S., Jr. talked about his 

father with the guardian and even showed her a picture that he had taken 

when he visited his father in prison, also contradicting her earlier 

testimony that the children never talked about their father.

P.S. has difficulty in sharing and is in therapy for that issue as well as 

aggressiveness. This is one reason why his foster home is good for him, 

the guardian opined, because he is the only child in the home, and the 

caregivers can address these issues continually. P.S. has stated that he 

does not want to visit D.S. in prison.

The Department’s termination of parental rights specialist testified that 

all three children know that D.S. is their father, even though they also look 

to their caretakers as parental figures. When asked what risk the children 
4

would face if the father’s rights were not terminated and he was given a 

chance to get housing and income once he was released from prison, the 

specialist simply said “these children will be at a standstill,” and, they need 

permanency. Despite this, she admitted that when he would be released 

from prison, all the children would have “a good way before they turn 

eighteen . . . [a] good amount of time.”

Last, the paternal aunt who has custody of D.S., Jr. and K.S. testified 

that her brother maintains continuous contact with the two children 

through multiple phone calls each week as well as sending cards and 

letters. She has taken the children four or five times to see their father in 

prison. He tries to keep up with their progress. The children are very 

excited when their father calls, although at K.S.’s young age he generally 

wants to play and does not really understand talking on the phone. Both 

children address their father as “daddy,” even though K.S. may not have 

a complete understanding of that. Nevertheless, both children have a bond 

with their father - D.S., Jr., more so than K.S. She did not believe that the 

children would be harmed in any way if the father were allowed to continue 

his relationship with his children.

She testified that she would be willing to keep the children under 

permanent guardianship. But when questioned by the Department’s 

attorney, she explained that she needed to speak to her husband and her 

own children about it. As to adoption, she again was not certain, because 

it was a long-term commitment and she would have to “sit down and really 

talk about moving forward.” Thus, she contradicted the Guardian’s 

testimony that she was willing to adopt.

The trial court ultimately entered a judgment terminating both parents’ 

rights to the children and giving custody to the Department for the 

purposes of adoption. As to the father, the court found the children were 

in permanent stable homes with their caregivers. P.S. has little contact 

with D.S. and did not wish to visit him. The court found that K.S. has no 

bond with D.S., although D.S., Jr. does have a strong bond with him. 

Incorrectly, the court found that D.S., Jr. had only two visits with the 

father during the years the children had been in care. While never 

specifically finding that the period of D.S.’s incarceration constituted a 

significant period, the court found that the evidence showed that the 

children should not have to wait another three years for their father to be 

released from prison.

The court also made findings on the factors required in section 

39.810(1)-(11), Florida Statutes, including: (1) there was a suitable 

permanent custody arrangement with the aunt for D.S., Jr. and K.S. but 
5

not for P.S.; (2) the father does not have the ability to provide for the 

children while incarcerated; (3) the father is not in a position to take the 

children now; (4) only D.S., Jr. has a slight bond with his father but there 

would be no harm in severing that bond, as the risk of returning him to 

his parents is greater; (5) the children are suitable for adoption, and the 

paternal aunt is “willing to consider” adoption, while the foster parents of 

P.S. want to adopt him; (6) the children have formed a bond with their 

caregivers, and keeping them in their current placement is desirable; and 

(7) the guardian recommends adoption.

The court found that termination of the father’s rights was also the least 

restrictive means to protect the children. In explaining that finding, the 

court found that K.S. had no idea who his father was (contrary to the 

testimony of the aunt who said that K.S. did have some understanding 

that D.S. was his father). The court found P.S. has not shown any interest 

in having a relationship with D.S. D.S., Jr. did show a bond with his 

father, but the court found he was in need of permanency and should not 

have to wait for three more years until his father is released from custody. 

The court thus terminated the rights to the children and ordered all three 

children to be committed to the Department for purposes of securing their 

adoption. From this final judgment, the father appeals.

Termination of parental rights by the state requires clear and 

convincing evidence of: (1) a statutory ground for termination set forth in 

section 39.806, Florida Statutes; (2) that termination is in the manifest 

best interest of the child pursuant to section 39.810; and (3) that 

termination is the least restrictive means of protecting the child from 

harm. See Padgett v. Dep’t of Health & Rehab. Servs., 577 So. 2d 565, 570-

71 (Fla. 1991). A finding of least restrictive means is required because 

“parental rights constitute a fundamental liberty interest.” Id. at 571. 

Further, the determinations must be individualized to each child. In re 

K.A., 880 So. 2d 705, 710 (Fla. 2d DCA 2004) (“[T]he trial court must 

individually determine whether the termination of parental rights to each 

child is permitted by the statute, is the least restrictive means to protect 

that child, and is in that child’s manifest best interests.”); accord, S.L. v. 

Dep’t of Children & Families, 82 So. 3d 203, 204 (Fla. 4th DCA 2012).

The Department filed its petition to terminate D.S.’s parental rights to 

all three of his children, alleging as grounds for termination his 

incarceration for a significant period of the children’s lives. Section 

39.806(1)(d), Florida Statutes (2013), provides:

(1) Grounds for the termination of parental rights may be 

established under any of the following circumstances: 
6

* * *

(d) When the parent of a child 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.

The prior version of this statute permitted termination of parental rights 

when a parent was incarcerated for a period constituting “a substantial 

portion of the period of time before the child will attain the age of 18 

years.”1 § 39.806(1)(d)1., Fla. Stat. (2011). In B.C. v. Florida Department 

of Children and Families, 887 So. 2d 1046 (Fla. 2004), the supreme court 

interpreted this to mean the time of incarceration remaining when the 

petition for termination was filed, not the entire length of incarceration. 

But the court also noted that termination also must be in the manifest 

best interest of the child and the least restrictive means of protecting the 

child from harm. The court concluded that “termination cannot rest 

exclusively on the length of incarceration. The actual effect of 

incarceration on the parent-child relationship must also be considered in 

light of the additional statutory and constitutional requirements.” Id. at 

1054.

The amended statute appears to incorporate the concepts of B.C. that 

incarceration must be more than a quantitative analysis. Thus, the court 

must look both at the length of the incarceration as well as its effect on 

the child’s need for permanency. In other words, the statute requires both 

a quantitative and qualitative dimension to the inquiry. In addition, 

however, the state must still prove that termination is in the manifest best 

interest of the child and the least restrictive means of protecting the child 

from harm.

1 D.S. did not raise the issue of whether application of the amended statute would 

be an unconstitutional retroactive application of the statute, because D.S. was 

incarcerated prior to its effective date. We have concluded, however, that in this 

case the result should be the same regardless of which version of the statute is 

applied.
7

In percentage terms, the father’s incarceration amounts to 

approximately 27% to 33% of the children’s minorities, figures which B.C. 

would conclude does not constitute a “substantial” portion of the 

children’s minorities. See B.C., 887 So. 2d at 1054-55. Therefore, to be 

significant it must affect the children’s need for permanency.

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 least restrictive 

means to prevent harm to P.S.

As to D.S., Jr. and K.S., the state has not proved this ground for 

termination. The children reside in a stable home with D.S.’s sister, their 

aunt. They are not in the custody of the Department or in foster care but 

in the care of a relative. Thus, to leave them in this placement would not 

allow them to languish in foster care. D.S. has maintained as close a 

relationship as his incarceration has allowed him to maintain with the 

children, and D.S., Jr., in particular. While the children are bonded to the 

aunt and uncle, they still know that D.S. is their father and have regular 

interaction with him, including regular phone calls, letters, and visits. 

When D.S. is released from prison, D.S., Jr. will be eleven and K.S. will be 

six. Because they are with relatives, they will still be in contact with their 

present caregivers even when D.S. is reunited with the children.

Other than the guardian ad litem and termination specialist simply 

stating that the children need permanency, there was no evidence of any 

harm that would occur to the children if they had to wait to be reunited 

with their father. They have not exhibited any signs of conflict or 

confusion. They have not been passed around from foster home to foster 

home. They have continued interaction with D.S., so he would not be a 

stranger to them when he is released.

Moreover, and importantly, contrary to the guardian’s testimony, the 

aunt had not decided that she would adopt the children. By terminating 

the father’s rights with the requirement of adoption, the court risks 

actually upsetting the goal that it intended to achieve of keeping the 
8

children in their current placement with the aunt. Thus, because the 

evidence did not support a finding that the length of incarceration 

negatively impacted the children’s need for permanency, the trial court’s 

finding that D.S.’s incarceration amounted to a significant portion of the 

children’s minorities as ground for termination was not supported by 

substantial and competent evidence.

In addition, the court did not apply the manifest best interest factors in 

accordance with the direction in B.C. that they must be applied with an 

appreciation of the restrictions of incarceration.

In addition, the petitioner must allege, and the trial court 

must find, that termination is in the manifest best interests of 

the child. See §§ 39.802(4)(c), 39.810, Fla. Stat. (2003).

Termination of the parental rights of a parent who has played 

a supportive and beneficial role in the child's life despite the 

disabilities of incarceration probably would not meet these 

additional statutory and constitutional criteria. Cf. B.W., 498 

So. 2d at 948 (stating that “efforts, or lack thereof,” by 

incarcerated parent “to assume his parental duties through 

communicating with and supporting his children must be 

measured against his limited opportunity to assume those 

duties while imprisoned”).

B.C., 887 So. 2d at 1053 (emphasis added). First, it appears that the court 

weighed the availability of a suitable relative placement as supporting 

termination, when that factor actually works against termination of 

parental rights. As to the father’s inability to support his children, the 

court overlooked D.S.’s uncontradicted testimony that he will be eligible 

for work release in less than two years, will have a job, and can contribute 

to his children’s support while still incarcerated, but will also have the 

ability to support them when he is released. The court’s conclusion that 

no bond existed between K.S. and D.S. was not supported by competent 

substantial evidence. The court relied on the guardian ad litem’s 

conclusory statements, but the guardian never observed the interaction 

between D.S. and his children, even though she knew they talked often. 

It is also inconsistent with the aunt’s testimony, based upon her 

observations of the children with D.S., that both children had a bond with 

their father, although K.S.’s bond was much less than D.S., Jr.’s. While 

the guardian supposed that the children were confused as to who was 

“daddy,” no evidence was presented that this was so. Moreover, there was 

no evidence that the children would be harmed should they await 

reunification with their father. See S.B. v. Dep’t of Children & Families,

132 So. 3d 1243, 1246 (Fla. 1st DCA 2014). No therapist testified that the 
9

children were having issues, nor did any expert on child development 

testify as to any prognosis for these children. In fact, it appears that they 

are happy and well-adjusted and enjoy interacting with their father. In 

short, this case fits the description in B.C. where termination would not 

meet the additional statutory criteria of manifest best interest, because of 

the supportive role that D.S. has continued to play in the lives of D.S., Jr. 

and K.S.

Finally, the Department clearly failed to prove that termination was the 

least restrictive means to prevent harm. There was no evidence of harm 

to the children, who were being cared for by their aunt. “If DCF ‘fails to 

prove that there is significant risk of harm to the current child, or that 

there are no measures short of termination that could be used to protect 

the child from harm, then termination will not pass constitutional 

muster.’” A.H. v. Dep’t of Children & Families, 144 So. 3d 662, 665 (Fla. 

1st DCA 2014) (quoting J.B. v. Dep’t of Children & Families, 107 So. 3d 

1196, 1202 (Fla. 1st DCA 2013)). In A.H., the Department conceded that 

it had not proved that termination was the least restrictive means, where 

the children were being taken care of by a non-relative permanent 

guardian and there was no evidence that the mother’s contact with the 

children posed any harm to them. Id. at 666. The Department should 

have made a similar concession in this case, where there was an available 

relative caregiver and no proof of any harm caused to the children by the 

contact with their father.

For the foregoing reasons, we affirm the termination of D.S.’s parental 

rights to P.S., but we reverse the termination of his parental rights as to 

D.S., Jr. and K.S. We remand for further proceedings in accordance with 

section 39.811(4), Florida Statutes.

MAY and GERBER, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.