FIRST DISTRICT COURT OF APPEAL

STATE OF FLORIDA

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No. 1D2023-0129 

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J.M., mother of K.M. and A.M.,

minor children, 

Appellant,

v.

DEPARTMENT OF CHILDREN AND 

FAMILIES,

Appellee.

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On appeal from the Circuit Court for Columbia County.

Leandra G. Johnson, Judge.

November 27, 2023

TANENBAUM, J.

A mother appeals a final order terminating her rights to be a 

parent to her two children, K.M. and A.M. (“TPR”). She couches 

her appeal in terms of evidentiary sufficiency. The thrust of her 

argument for reversal, however, is that the trial court essentially 

engaged in what she characterizes as improper “victim shaming.” 

She contends that the termination came as a direct consequence of 

her having contact with the abusive father in the presence of their

children after being ordered by the trial court not to, but that she 

was not warned of this consequence. The trial court, however, did 

not consider the department’s petition in a vacuum. In fact, it had 

available to it several years of experience with the two parents as 
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they tried to progress through a case plan. Despite her completion 

of the case plan and reunification with her children based on her 

apparent development of protective capacities, there was sufficient 

evidence before the trial court to support its determination that 

she continued to pose a danger to her children. It was for that 

reason the trial court terminated her parental rights. We reject her 

argument and affirm.*

To place the TPR in context, we must go back to 2019, when

the underlying proceeding began upon the department’s filing of a 

shelter petition. The premise of the petition was the children’s

repeated exposure to a swirling combination of domestic violence, 

mental health issues, and substance abuse while living with both 

their parents in a camper. It all came to a head one night when the 

children were present for a physical altercation between the 

parents—just the latest in a series of domestic violence incidents 

requiring police intervention. On that night after the police 

responded, the father threatened self-harm and was committed 

under the Baker Act.

The children’s shelter and dependency adjudication rested on 

the readily apparent volatile relationship between the couple. The

father struggled with substance abuse, previously had been 

committed under the Baker Act, and tended to have frequent, 

* The mother also contends that termination under the 

circumstances was not the “least restrictive means of protecting 

the children from harm,” under the circumstances. She 

misunderstands how that query works. See P.B. v. Fla. Dep’t of 

Child. & Fams., 335 So. 3d 804, 807–08 (Fla. 1st DCA 2022)

(explaining that “‘[l]east restrictive means’ refers specifically to 

‘what actions were taken by the State before filing the petition to 

terminate the parent’s rights,’” and “is a retrospective query that 

considers what DCF already did to salvage safely the parent-child 

relationship prior to its filing of the TPR petition” (quoting S.M. v. 

Fla. Dep’t of Child. & Fams., 202 So. 3d 769, 778 (Fla. 2016))). 

Because the department already had provided a case plan, which 

the mother completed, and reunification had been achieved once, 

we can find no due-process deficiency in this respect. See Padgett 

v. Dep’t of Health & Rehab. Servs., 577 So. 2d 565, 571 (Fla. 1991).
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unpredictable, violent outbursts while the children were present. 

The mother, meanwhile, showed an inability to control him or 

protect the kids from that exposure. She also struggled with 

mental health issues of her own, herself having been committed 

under the Baker Act following an incident in the back of a police 

cruiser where she repeatedly beat her head on the partition until 

she drew blood. It seemed that the mother’s mental health issues 

were exacerbated by the father’s behavior. 

To address these issues, the department provided both 

parents with a case plan, recommending reunification as the 

ultimate goal. Issues to be addressed for the mother included 

learning how to control her mental health, developing plans to 

provide for the children’s safety, and keeping the home safe from 

abuse, neglect, and domestic violence. By October 2020, the mother 

had not reached substantial compliance with the case plan, and 

the department recommended that the case plan be changed to add

adoption as a goal. Instead, the case plan was extended. Eight 

months later, in June 2021, the department filed its first TPR 

petition. Though a hearing date was set, DCF withdrew its petition 

prior to the hearing. 

Things turned around for a bit after the father began 

addressing his substance abuse. Eventually, the family care 

counselor assigned to the case concluded that both parents had 

“enhanced their protective capacities.” That improvement 

convinced the counselor that both parents had “changed their 

behavior” and should be reunified with the children. Both parents 

were reunified with the children in February 2022. In the initial 

weeks after reunification, the children and parents were adjusting 

well and there were no reportable issues. Subsequent visits, 

however, revealed that the father had relapsed into substance 

abuse. This use resulted in the counselor and the mother 

implementing further safety plans to protect the children. The 

father decided to move out of the camper to protect the kids from 

his continued drug use. His move did not last long, and he shortly 

moved back into the home. Verbal and physical altercations 

resumed between the parents.

Concerned for the safety of the children, the mother sought 

and obtained a domestic-violence injunction against the father. 
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The trial court, of course, was aware of the family history and 

specifically directed the mother not to have contact with the 

father—meaning she could not be the one supervising the 

children’s visits with the father under the ongoing effort at 

reunification. Shortly thereafter, though, the mother was caught 

bringing the children to the father and being with him in the kids’ 

presence. The mother later testified about this as follows:

Q Okay. And do you recall that the judge specifically said 

no interaction between the two of you?

A I do. I do.

Q Don’t contact him. He doesn’t contact you. You recall 

all of that?

A I do. 

* * *

It wasn’t, other than the fact that no matter what 

happens between us, he’s always going to be their father. 

And I feel that if I could provide just a little bit of 

administrative, you know, the secretarial duties to help 

get him somewhere when he's finally, after 30 years, 

asking for help, my kids deserve that. 

The department filed a second TPR petition, and after an 

evidentiary hearing, the trial court rendered the TPR order that is 

on review now. Contrary to the mother’s characterization, the 

order was not to shame her or punish her for disobeying a direct 

order from the court. Instead, the trial court found that despite the 

mother having appeared to develop an ability to recognize the cycle 

of abuse, power, and control and to articulate a plan of action in 

response to future violent acts—sufficiently, in fact, to justify 

reunification—after obtaining the then-recent domestic violence 

injunction, she still “chose to place [the children] at risk of 

exposure to domestic violence.” The trial court also noted that the 

mother then sought to keep it from finding out that she had had 

contact with the father in the presence of the kids. The trial court 

determined that the mother “continued [to exhibit] impulsive 

behaviors that are significantly likely to expose these children to 
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domestic violence.” It concluded that the circumstances that 

prompted the shelter and dependency in the first place, as it 

turned out, had “not been remedied” after all, despite all the 

services provided.

There was testimony to support this determination. The 

counselor who had been working with the mother and originally 

recommended reunification, explained as follows:

[The mother], you know, we had had the conversations 

that [the father] was going to make [her] choose either 

him or the children, that, you know, because of his 

behaviors, there was no way that they could continue 

together in a relationship and have the children together, 

because it was just a chaotic, unsafe environment when 

they were together. 

* * *

On 6/21 is when [the mother] got the injunction, and I 

actually sat with [her] and the kids at the park all day 

that day while she was waiting on the injunction. And 

had the conversation with her that, you know, she made 

the decision and felt that it was significant enough to get 

and seek an injunction for safety against him, that there 

was no going back now; that she could not have contact 

with him and keep her children; that she had to choose to 

either protect herself and the children or help [the 

father]. And she understood at that point that she had to 

make the decision for her and her children to, to be away 

from [the father] until he figured out, himself, how to get 

help on his own, and clear himself up from the substances 

and the violence. And she told me that day that she was 

just tired of the kids hearing him call her derogatory 

terms, yelling, them cussing and yelling at each other. 

And I told her, I said, You’re absolutely right, you know, 

the kids should not be subject-subjected to that. And now 

you've made this step and you know what the 

consequences are. You know, you guys cannot keep them 

safe together. 
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The counselor explained her recommendation for 

termination from there, as follows:

So my recommendation on that was I felt that neither one 

of the parents was going to recognize how toxic their 

relationship was together and, and follow — I mean, 

because now we even have a blatant court order that says 

they are not to have contact and they're still having 

contact. So, you know, that they could make those 

decisions on their own to stay away from each other for 

the protection of the kids, I did not feel they would be able 

to do, because even a court order, you know, somebody 

else telling them you are not allowed to be together, they 

were still violating that, despite the injunction. 

The trial court determined that there was clear and 

convincing evidence establishing both the statutory grounds for 

termination alleged in the petition, but we need only focus on one. 

See § 39.802(4)(a), Fla. Stat. (“A petition for termination of 

parental rights filed under this chapter must contain facts 

supporting the following allegations: That at least one of the 

grounds listed in s. 39.806 has been met.”). The trial court 

determined that there was clear and convincing evidence to 

support termination pursuant to section 39.806(1)(c), Florida 

Statutes, which provides for termination when “the parent or 

parents engaged in conduct toward the child or toward other 

children that demonstrates 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.” The trial court 

supported its conclusion by finding that the conditions that had led 

to the creation of the placement and case plan had not been 

rectified, and that due to the mother’s continued behavior, any 

return to the home would be detrimental to the children. There 

was ample evidence to support this determination, and we are not 

here to second-guess the trial court’s assessment of all the history 

and circumstances that led the mother to that point in the 

proceeding.

Before closing, we offer one remark on the mother’s argument 

that she was not sufficiently warned of the consequences of her 
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disobeying the trial court’s directive to avoid contact with the 

father in front of the children. Her argument treats the TPR as if 

it is a punishment for her conduct. That is not what these 

proceedings are about. The focus of chapter 39 (inclusive of both 

dependency and TPR proceedings) is not the best interests of the 

parent or the correction of a parent’s bad behavior. From beginning 

to end, proceedings under chapter 39 are centered on the 

protection and welfare of the child, balanced against the right of a 

parent to be a parent to that child. See § 39.001(1), Fla. Stat. 

(enumerating the purposes of the chapter, all of which focus on the 

“care, safety, and protection of children” and to prevent 

abandonment, abuse, and neglect); cf. Noeling v. State, 87 So. 2d 

593, 598 (Fla. 1956) (“We cannot overlook the fact that although 

the welfare of the juvenile is the guiding star that leads the Judge 

to his conclusion, nevertheless, the natural right of a parent is not 

to be lightly regarded.”); In re Camm, 294 So. 2d 318, 320 (Fla. 

1974) (“While Florida courts have recognized the ‘God-given right’ 

of parents to the care, custody and companionship of their 

children, it has been held repeatedly that the right is not absolute 

but is subject to the overriding principle that it is the ultimate 

welfare or best interest of the child which must prevail.”).

The trial court’s evidence-supported TPR findings were 

commensurate with this focus on the children’s well-being, and 

they must be considered in the context of the historical mosaic for 

this family demonstrated by the entire record of this multi-year 

proceeding. We find no legal error in the trial court’s TPR based, 

at a minimum, on the ground stated in section 39.806(1)(c). The

mother does not challenge the trial court’s findings supporting its 

conclusion that TPR is in the manifest best interests of the 

children, so we do not review the sufficiency of that determination. 

See §§ 39.802(4)(c), 39.810, Fla. Stat. As we stated in the margin 

at the beginning, least-restrictive means is not at issue either, 

because a case plan previously had been provided. The mother 

otherwise had notice and an opportunity to be heard, so she has 

been afforded the process constitutionally due her.

AFFIRMED.

BILBREY and NORDBY, JJ., concur.
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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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Valarie Linnen, Jacksonville, for Appellant.

Carolyn Schwarz, Children’s Legal Services, Fort Lauderdale, for 

Appellee Department Children and Families. 

Sara Goldfarb and Lucy Wiggins Hoover, Tallahassee, for Appellee 

Guardian Ad Litem.