DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

B.K., The Father,

Appellant,

v.

DEPARTMENT OF CHILDREN AND FAMILIES,

Appellee.

No. 4D14-3222

[April 15, 2015]

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, 

Broward County; Hope Bristol, Judge; L.T. Case No. 2008-009868 CJ DP.

Lori D. Shelby, Fort Lauderdale, 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.

A father appeals the trial court’s final judgment terminating his 

parental rights as to his daughter. He claims that his incarceration, upon 

which termination was based, was not for a significant portion of the 

child’s life, so as to warrant termination. Moreover, he argues termination 

was not the least restrictive means of preventing harm to the child. 

Concluding that the trial court’s rulings were supported by competent 

substantial evidence, we affirm the final judgment.

B.K.’s daughter, S.C., was born in October 2008. She was sheltered 

about a week later, after her mother tested positive for drugs and a 

sexually transmitted disease, which the mother imparted to S.C. The 

mother identified B.K. as the father. The Department of Children and 

Families stepped in, and, after a paternity test confirmed B.K.’s 

fatherhood, both parents consented to the dependency.
2

While the child was in foster care, the father kept in touch with the 

foster parents and arranged two supervised visits with S.C. His interaction 

with his child during those visits was appropriate. Unfortunately, in 

March of 2009, he was convicted of several drug-related crimes, which he 

committed before S.C.’s birth. He was sentenced to consecutive five-year 

terms of imprisonment. His projected release date is in early 2017.

S.C. remained in foster care until 2010, when the dependency case was 

closed and the mother regained custody of S.C. As to B.K., the order of 

permanency stated only that visitation between S.C. and B.K. should 

continue to be supervised. Other than that, the order provided for a 

permanency goal of reunification with the mother.

While S.C. was in foster care, B.K. wrote to her foster parents from 

prison in order to keep in touch with the child. After S.C. was reunited 

with her mother, B.K. wrote to S.C. and the mother, but the mother did 

not make any contact with him. B.K. happened to be housed at the same 

prison as the mother’s brother, so he was able to continue to keep up with 

S.C.’s life, and he sent her letters and birthday cards.

Between 2009 and 2013, the mother gave birth to two little boys by 

different fathers. In June 2013, the Department sheltered all three 

children, due to the mother’s substance abuse and domestic violence in 

the home. B.K. again became part of those proceedings. B.K. wrote to the 

court in August 2013, stating:

I plan to be a full time father for my daughter upon my release 

and I am making the necessary preparations while imprisoned. 

I should be in work release in 18 months. At that point I would 

like supervised visits with my daughter. . . . If possible can the 

court please send me pictures of my daughter. . . . When I was 

released on bond in early 2009 I was participating in family 

dependency court, taking parenting classes, and providing ua 

[sic] samples. . . . Unfortunately I lost trial [sic] and was 

sentenced to 10 years. My daughter is all I have, I beg the courts 

to let me be a part of her life.

Nevertheless, the Department filed a petition to terminate the parental 

rights (“TPR”) to S.C. of both the mother and B.K. Regarding B.K., the only 

ground alleged for termination of parental rights was under section 

39.806(1)(d)1, Florida Statutes: that B.K. was expected to be incarcerated 

for a significant portion of S.C.’s minority. S.C. was placed with the same 

foster family as her half-brothers in September 2013.
3

The court held the final hearing on termination in July 2014. Halfway 

through the proceedings, the mother consented to termination of her 

rights to all three children. B.K., however, contested termination. The 

Department placed into evidence B.K.’s judgment and sentence of ten 

years. The Department called the children’s guardian ad litem (“GAL”) who 

testified that she had met with the children about ten times, and they were 

all happy and well-adjusted. She had not met B.K., except in court, 

because of his incarceration. She knew of at least one phone call that B.K. 

had with S.C. in 2014 which went well. And she knew that he had written 

many letters to S.C. as well as to the foster parents. She did not know of 

any bond between S.C. and B.K., but she had never asked S.C. whether 

she wanted to have a relationship with her father. She opined the children 

had formed a significant relationship with the parental substitutes, and it 

was desirable to maintain continuity of this placement.

The GAL noted that S.C. was seeing a therapist weekly. The therapist 

felt S.C. was old enough to express a preference regarding placement, but 

S.C. “did not want to decide. She didn’t want that on her shoulders.” The 

therapist did not testify. The GAL opined that neither the children’s 

mother nor their fathers had the capacity to care for the children to the 

extent that the children’s health, safety and well-being would not be in 

danger if the children were returned to their parents’ care. She further 

testified that the children would not suffer any harm if a TPR was entered.

The children did not have any emotional or behavioral problems that 

would be a barrier to adoption or prolonged foster care. The GAL testified 

the foster family was willing to adopt, and this would be a fast way to 

achieve permanency for the children. The GAL opined that future contact 

with either parent should be at the discretion of the adoptive family, but 

she believed they would be open to it as long as it was appropriate for the 

children.

The children’s foster mother testified she had been the foster mother 

for S.C. since the end of September 2013, when S.C. joined her halfbrothers who had been living with the foster family since June. All three 

children had been living together, and they had become “super, super, 

super close . . . as close as any brother and sisters.” The entire foster 

family had bonded with the children and were willing to adopt all three.

The foster parents had not received any financial support for S.C. from 

her father, B.K. While B.K. had not provided financial support, B.K. had 

been in communication with both S.C. and the foster mother. The foster 

mother described letters B.K. had sent S.C.: “They’re pictures. So it’s 

hearts and he traced his hand once and writes her name and a Hello Kitty 
4

picture. So she hangs them on her walls.” The foster mother described 

S.C.’s reaction to the letters from her father:

[S]he saw her dad’s hand and she was like “wow”. She put 

up her hand to it and, you know, it’s a maze [sic] and there is 

you know, like wow. And she likes Hello Kitty and she likes 

seeing her name.

I mean, anybody who gets a letter is like, you know? 

Everybody loves mail. So she was happy to receive the art.

B.K. had also written to the foster mother to thank her for taking care of 

S.C., and to tell her he was interested in calling.

The Department took a considerable period of time to arrange a phone 

call between B.K. and S.C. Finally, in March 2014, B.K. was able to speak 

with his daughter. The foster mother observed the call. Beforehand, the 

foster mother told S.C. that her dad would be calling, and S.C. “was excited 

because she had received letters from him.” Although the foster mother 

did not think that S.C. really knew who B.K. was, the call was pleasant. 

S.C. sang songs to her father and recited the alphabet. He told her he 

loved her, and she said she loved him. The foster mother opined that S.C. 

was happy during the phone call, but stated, “Any time she gets to talk on 

the phone she’s happy with whoever’s she [sic] talks to.” B.K. had tried to 

call S.C. one other time, but S.C. was taking a nap and the foster mother 

did not wake her up. She noted B.K. had indicated that he would try to 

call again, and she may have missed the call.

After the phone call and letters, S.C. never asked the foster mother 

questions about B.K. The foster mother believed S.C. did not know who 

she was talking to on the phone because of an incident described by the 

GAL, where S.C. “thought that those pictures on her wall were [from her 

half-brother’s father]. She assumed that [her brother’s father] was the 

person that she, you know, had talked to and had written her those 

letters.”

The foster mother opined that continued visitation with the mother 

would be “very beneficial for” the children because “[t]hey love her. She 

loves them.” Regarding visitation with the fathers, however, the foster 

mother was “not as interested” because she “just [didn’t] feel the need.” 

She explained, “The children are happy. The[y] don’t have a relationship 

with the fathers. There’s nothing - - There’s nothing there. So - - So to 

start something I’m not as - - not as eager.” But if S.C. wanted to contact 

her father, the foster mother testified she would allow that.
5

The Department presented no other witnesses, other than a TPR

advocate who testified that no possible relative placements had been 

found. The only other evidence it offered were multiple letters that B.K. 

had written to S.C. during the past year.

The child advocate assigned to the case between March 2013 and 

January 2014, just after the children were sheltered in 2013, testified on 

B.K.’s behalf. She testified that B.K. had spoken to her multiple times 

during court proceedings, inquiring about how S.C. was doing, how he 

could get letters and pictures to her, and if he could have a case plan. 

When the TPR proceedings started, B.K. would call her and wrote her a 

three-page letter about S.C. and his case plan tasks. She helped to 

arrange the telephone calls between B.K. and S.C. B.K. was supposed to 

have his initial telephone visit in 2013, even though it didn’t occur until 

2014 because of miscommunication by the Department. B.K. often 

expressed to her that he loved S.C. and that he would be willing to 

complete a case plan to obtain custody of S.C. The testimony of the 

current child advocate, also called by B.K., likewise supported the fact that 

B.K. continually asked about the child and wanted to be a part of her life.

The child advocate assigned to the case between October 2008 and 

September 2010 also testified. Prior to being incarcerated in March 2009, 

B.K. contacted her five or six times. After his incarceration, he wrote her 

letters once or twice. She supervised two visits between B.K. and S.C. in 

January and February of 2009, when S.C. was several months old. B.K. 

brought clothing for S.C. to one of the visits. S.C. was too young for her 

to determine whether S.C. was developing a bond with B.K. She did not 

remember B.K. ever being scheduled for a visit and not showing up.

B.K. testified he would be released from prison sometime near the 

beginning of 2017, depending on gain time. He believed he was currently 

eligible for work release but that it was on hold due to the pending TPR 

case; he had been held in the Broward County Jail since August 2013 to 

attend TPR hearings, and so he was not earning gain time.

He planned to get back into S.C.’s life by completing a case plan, such 

as by taking parenting classes, finding employment, and maintaining 

appropriate housing. He testified he could not do those things while 

incarcerated, but opined, “[O]nce I get to work release, you know, I have a 

trade, I install hurricane impact windows and doors. I ran my own 

business. I - - I made excellent money, you know. I’m just locked up at 

the time. So I know it looks really bad.” Nevertheless, he had no doubts 

or fears about being able to make a living in that way, due to his previous 

experience and contacts in that business.
6

He testified it had been “very difficult” to be in S.C.’s life while he was 

incarcerated, but he tried to maintain contact with all of her foster parents 

and the mother. When he was first incarcerated in 2009, he was 

corresponding with S.C.’s then foster parents “bi-weekly. They would send 

me pictures of her and they were writing me letters of encouragement and 

things like that.”

He explained why he thought that it was not in S.C.’s best interest for 

his parental rights to be terminated:

Well, first of all I’m her father. And I heard testimony today 

about how well she’s doing in her foster parent’s home and 

those foster parents didn’t know her.

When they met her she was four. They never, you know, 

talked to her or knew anything about her but in a short period 

of time they demonstrated how much that she loves them and 

how she became part of their household.

But me as their father, you know, at least I’ve changed her 

before and I fed her, you know, and to think I can’t build that 

same bond that they did, you know, I don’t understand that 

being I’m her father and at least I have some kind of, you 

know, I know her a lot more than they do. . . .

So she’s looking for her daddy. She wants to know who’s 

drawing all these pictures and who’s she talking to? She 

wants to know. . . .

He showed the trial court pictures that S.C. had drawn and sent to 

him in prison—an Easter card and a Father’s Day card.

B.K. admitted that a bond existed between the foster parents and S.C., 

but still maintained that he should be involved in his child’s life and that 

she needed to know her own father. When the Department asked whether 

B.K. believed S.C. should be reunified with him when he was no longer 

incarcerated in 2017, he responded:

No, that’s not my testimony. My testimony is as her father 

I think it is very important for me to be a part of her life. She

has -- Now she has three other siblings. All of them need to 

be under one roof. All four of them need to be under one roof.

. . . 

What I’m saying is I think I should be allowed to be in my 

daughter’s life. I think I should be allowed to visit her. I 

should be allowed to go to her soccer games, to go to her 
7

birthday’s parties [sic]. She should be allowed to call me on 

the phone anytime she wants to.

Now if the Department wants me to jump through hoops to 

take drug tests and things like that, I have no problem with 

that. They want me to get back in family dependency court, I 

have absolutely no problem with that. They want me to make 

a certain amount of money, I don’t have a problem with that.

He then clarified:

I want to be -- I want to be reunified with my daughter but 

at the pace that it doesn’t disrupt what she has going on with 

the foster parents.

It doesn’t disrupt what she has going on with her brother’s 

[sic] and everything. I want it to be a smooth transition.

I don’t want to just come in here and say, “Come on baby, 

you’re coming with me.” I wouldn’t do that to her. I know she 

has a bond with [her foster] sisters and with her brothers. I 

know she has a bond with her foster parents. That’s not what 

I’m here to do.

Despite B.K.’s earnest entreaties, the trial court terminated his parental 

rights to S.C. It found that he would be incarcerated for a significant 

portion of her minority, and that B.K. did not have a bond with her. The 

court found S.C. didn’t really know him at all, nor was there anything but 

speculation that B.K. could develop a relationship with his daughter. The 

child was happy in her foster home and with her siblings, and “[t]o remove 

her from them in the hopes that there can possibly be a reunification with 

[B.K.] some years down the road would cause her much emotional pain.” 

The court found:

There is little to no evidence to support the re-establishment of 

the parent/child relationship between [B.K.] and [S.C.] as there 

hasn’t even been an initial establishment of a relationship 

between them. The termination of his parental rights and 

duties to [S.C.] is the least restrictive means of protecting her 

from harm. She has not seen her father since she was months 

old [sic] and she does not know who he is.

The court then reviewed the factors in section 39.810(1)-(11), Florida 

Statutes, regarding the manifest best interests of the child. The court 

found there was no suitable custody arrangement with a relative of the 

minor children. B.K. had not provided any support for S.C. and would 

remain incarcerated until 2017. S.C. had “no bond with her father, [B.K.]. 
8

She does not know who he is. She understands the concept that ‘her 

father’ has sent her letters, but she does not know who that is. She 

believed it to be [the father of her half-sibling] when she [sic] was on a visit 

with [her half-sibling].” The court found the children had bonded with the 

foster parents, it would be detrimental to remove them, and S.C. would 

suffer no harm if B.K.’s parental rights were terminated. B.K. timely 

appeals the final judgment terminating his parental rights.

B.K. makes three arguments seeking to reverse the final judgment 

terminating his rights. First, he claims that the Department failed to prove 

that he has been incarcerated for a significant portion of the child’s 

minority. Second, he argues that termination of parental rights is not in 

the manifest best interest of the child because the father has parented as 

well as he can from prison, and the child is developing a bond with him. 

Third, he maintains that terminating his parental rights is not the least 

restrictive means of protecting the child from harm. We address each 

argument.

A parent has a fundamental liberty interest in the care, custody and 

companionship of his child. See Padgett v. Dep’t of Health Rehab. Servs.,

577 So. 2d 565, 570 (Fla. 1991). The only limitation on this right is “the 

ultimate welfare of the child itself[.]” Id. (quoting State ex rel. Sparks v. 

Reeves, 97 So. 2d 18, 20 (Fla. 1957)). Thus, to terminate a parent’s rights 

in his or her child, the state must first meet the statutory requirements to 

prove a statutory ground for termination and prove that termination is in 

the manifest best interest of the child. See §§ 39.806, 39.810, Fla. Stat.

(2012). Then, to satisfy constitutional concerns, it also must prove that 

termination is the least restrictive means to protect the child from serious 

harm. See Padgett, 577 So. 2d at 571. The state must present clear and 

convincing evidence to support each element. “Appellate courts review 

orders terminating parental rights using a ‘highly deferential’ standard of 

review: ‘[t]hat is, ‘a finding that evidence is clear and convincing enjoys a 

presumption of correctness and will not be overturned on appeal unless 

clearly erroneous or lacking in evidentiary support.’” J.E. v. Dep’t of 

Children & Families, 126 So. 3d 424, 427 (Fla. 4th DCA 2013) (quoting 

D.P. v. Dep’t of Children & Family Servs., 930 So. 2d 798, 801 (Fla. 3d DCA 

2006)).

Whether B.K. will be incarcerated for a significant portion 

of the child’s minority

Measured from the time he was first incarcerated, when B.K. is 

scheduled for release he will have been in prison for nearly eight and a half 

years of S.C.’s life. The Department petitioned for termination of B.K.’s 
9

parental rights based solely on his incarceration for a significant portion 

of S.C.’s minority, in accordance with section 39.806(1)(d)1, Florida 

Statutes. That statute provides as a ground for termination:

(d) When the parent of a child is incarcerated and . . .

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[.]

Before July 1, 2012, when the foregoing section became law, section 

39.806(1)(d)1., Florida Statutes (2011), provided as a ground for 

termination of parental rights when “[t]he period of time for which the 

parent is expected to be incarcerated will constitute a substantial portion 

of the period of time before the child will attain the age of 18 years[.]” § 

39.806(1)(d)1., Fla. Stat. (2011) (emphasis added).

1 The supreme court 

1 Both parties have proceeded upon the assumption that the 2012 amendments 

to section 39.806(1)(d) apply to this case, although B.K. was incarcerated before

their enactment. Whether this constitutes a retroactive application of the statute 

was not raised in the trial court or otherwise considered until this court requested 

supplemental briefing. After reviewing the issue, we conclude that it was not 

preserved, as it would amount to an unconstitutional application of a facially 

valid statute which must be preserved by raising the issue in the trial court. See 

B.C. v. Dep’t of Children & Families, 864 So. 2d 486, 491 (Fla. 5th DCA 2004). 

Even if it had been raised, we conclude that it is not an unconstitutional 

retroactive application, as a parent’s incarceration was a ground for termination 

of parental rights when B.K. was originally incarcerated. The statutory changes 

to the length of incarceration necessary to terminate rights, as well as the explicit 

listing of various factors impacting the incarcerated parent-child relationship, are 

remedial in nature, as they were adopted to protect the child, not punish the 

parent further. See, e.g., In re A.V., 113 S.W.3d 355, 360-61 (Tex. 2003) (allowing 

retroactive application of TPR provision based on incarceration, reasoning the 

state was “not pursuing a retributive or punitive aim, but a ‘purely remedial 

function: the protection of minors’”). Parental rights are not absolute and may 

be subsumed to the interests of the children. See, e.g., D.G. v. Dep’t Children & 

Families, 77 So. 3d 201, 210 (Fla. 4th DCA 2011); see also In re M.A.L., 148 P.3d 

606, 612 (Mont. 2006) (allowing retroactive application of TPR provision, noting 

that in a TPR proceeding “the best interests of the child are of paramount concern

and take precedence over the rights of the parent”); In re Marino S., 795 N.E.2d 

21, 26-27 (N.Y. 2003) (provision that reasonable efforts to reunite family were not 

required for TPR, in cases of severe abuse, could be applied retroactively because 
10

interpreted this provision in B.C. v. Florida Department of Children and 

Families, 887 So. 2d 1046 (Fla. 2004). It concluded that the statute 

required consideration of only the period of incarceration to be served after 

the petition for termination is filed. Id. at 1047.

The court in B.C. emphasized that section 39.806(1)(d)1., “must be read 

in light of Padgett’s requirement . . . that ‘the state must show by clear 

and convincing evidence that reunification with the parent poses a 

substantial risk of significant harm to the child,’ and that ‘termination of 

parental rights is the least restrictive means of protecting the child from 

harm.’” Id. at 1053 (quoting Padgett, 577 So. 2d at 571, and Fla. Dep’t of 

Children & Families v. F.L., 880 So. 2d 602, 608 (Fla. 2004)). It held, 

“[T]ermination 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. 887 So. 2d at 1054.

In analyzing the facts at issue in B.C., the court noted that the four 

years remaining on the father’s sentence at the time the TPR petition was 

filed, did not constitute a substantial portion of the remaining fourteenyear minority of the child; the court noted this amounted to only 28.6% of 

the remaining minority. Id. Courts following B.C. appeared to take largely 

a numerical approach to determining whether the time of incarceration 

was “substantial.” See, e.g., W.W. v. Dep’t of Children & Families, 811 So. 

2d 791, 792 (Fla. 4th DCA 2002) (where appellant’s incarceration was to 

end within several months after entry of TPR judgment, and appellant 

would have served “[f]ifty-four months . . . after the birth of the first child,” 

who was then eight years old, the father had not been incarcerated for a 

“substantial portion” of his children’s minority).

The 2012 statutory amendment changed the calculation of 

incarceration time. It now measures the length of incarceration from the 

date of incarceration, not the date the petition for termination is filed. It 

also provides explicit statutory provision for the court to consider the 

child’s age and need for a permanent and stable home, something 

expressed in B.C. in its admonition that termination should be based upon 

the actual effect of incarceration on the parent-child relationship.

Although we are unsure whether there is a difference between a 

“significant” period of time and a “substantial” period of time,2 in this case 

it did not impair vested rights and was remedial).

2 Dictionaries and thesauruses frequently use the words to define each other.

See, e.g., Roget’s II: The New Thesaurus 904, 975 (3d ed. 1995).
11

B.K. will have been incarcerated for nearly fifty percent of S.C.’s life when 

B.K. is released from prison. Further, at the time of trial the child was 

nearly six years old. She had been in foster care for the first year and a 

half of her life, then with her mother for about two years. When the 

Department removed her again, she was with one foster family for three 

months, and then placed with her siblings with her current foster family 

for the ten months preceding the final hearing. The length of S.C.’s current 

placement, her young age, and the fact that B.K. could not take custody 

of S.C. for several years at a minimum, would weigh in favor of termination

given “the actual effect of incarceration on the parent-child relationship.”

B.C., 887 So. 2d at 1054. Thus, there is competent, substantial evidence 

to support the trial court’s finding that B.K. will be incarcerated for a 

significant portion of S.C.’s minority.

Whether termination is in the manifest best interest of the child

Next, the trial court must find that termination is in the manifest best 

interests of the child. In making this determination, section 39.810, 

Florida Statutes, sets forth a list of non-exclusive relevant factors, which 

the trial court took into account:

(1) Any suitable permanent custody arrangement with a 

relative of the child. . . .

(2) The ability and disposition of the parent or parents to 

provide the child with food, clothing, medical care or other 

remedial care recognized and permitted under state law 

instead of medical care, and other material needs of the child.

(3) The capacity of the parent or parents to care for the child 

to the extent that the child’s safety, well-being, and physical, 

mental, and emotional health will not be endangered upon the 

child’s return home.

(4) The present mental and physical health needs of the child 

and such future needs of the child to the extent that such 

future needs can be ascertained based on the present 

condition of the child.

(5) The love, affection, and other emotional ties existing 

between the child and the child’s parent or parents, siblings, 

and other relatives, and the degree of harm to the child that 

would arise from the termination of parental rights and duties.
12

(6) The likelihood of an older child remaining in long-term 

foster care upon termination of parental rights, due to 

emotional or behavioral problems or any special needs of the 

child.

(7) The child’s ability to form a significant relationship with a 

parental substitute and the likelihood that the child will enter 

into a more stable and permanent family relationship as a 

result of permanent termination of parental rights and duties.

(8) The length of time that the child has lived in a stable, 

satisfactory environment and the desirability of maintaining 

continuity.

(9) The depth of the relationship existing between the child 

and the present custodian.

(10) The reasonable preferences and wishes of the child, if the 

court deems the child to be of sufficient intelligence, 

understanding, and experience to express a preference.

(11) The recommendations for the child provided by the child’s 

guardian ad litem or legal representative.

As noted previously, the trial court found that no suitable relative 

placements existed. B.K.’s incarceration prevented him from taking care 

of the child and providing for her needs. She had no bond with B.K., since 

he had been incarcerated just five months after her birth. While S.C. 

enjoyed receiving cards and letters from B.K., she did not know who he 

was. S.C. was doing very well in her present placement, which included 

her siblings, and it was desirable to maintain that stability and connection 

with her brothers. She had bonded with her foster parents, who wished 

to adopt all three children, and she was not age appropriate to continue in 

long-term foster care. Although the trial court based its finding in part on 

the fact that B.K. did not have the capacity to care for S.C. on the 

uncompleted case plans from the dependency,3 the main basis for this 

finding was his continued incarceration until 2017.

3 The trial court did err in excluding B.K.’s testimony about his attempts in prison 

to complete case plan tasks, but we do not deem that to be reversible in this case, 

as the reason for termination was his continued incarceration.
13

B.K.’s argument that it is not in S.C.’s best interest to terminate his 

rights is largely based upon his attempts to maintain contact with his 

daughter. As admirable as they are, they do not trump the need to 

establish permanency and stability in S.C.’s life. S.C. is in a stable home 

with her brothers with a family wanting to adopt all three children. B.K. 

agrees that she should not be removed from this relationship. If B.K.’s 

rights are not terminated, however, S.C. would remain in long-term foster 

care, and there is no guarantee that the present caregivers would continue 

in that role. B.K. earnestly wants to be a part of his child’s life when he is 

released from prison, but even he admits that he would not be able, nor 

would it be desirable, to reunite with his daughter immediately. Therefore, 

she would continue in foster care. The trial court found that it was in 

S.C.’s manifest best interest to continue with a family that had bonded 

with her and where she is happy and secure. We conclude that the trial 

court’s ruling was supported by competent substantial evidence.

Whether termination is the least restrictive means of protecting 

the child from serious harm

Finally, the Department must show by clear and convincing evidence 

that termination is the least restrictive means to prevent serious harm to 

the child. See Padgett, 577 So. 2d at 571. “The least restrictive means 

test in the context of the termination of a parent’s parental rights is not 

intended to preserve the parental bond at the cost of the child’s future. 

. . . Rather, it simply requires that those measures short of termination 

should be utilized if such measures will permit the safe reestablishment of 

the parent-child bond.” L.B. v. Dep’t of Children & Families, 835 So. 2d 

1189, 1195-96 (Fla. 1st DCA 2002).

In B.C., the supreme court noted: “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” the 

requirements that termination is the least restrictive means of protecting 

the child and is in the child’s manifest best interest. 887 So. 2d at 1053. 

The B.C. court cited to In Interest of B.W., 498 So. 2d 946 (Fla. 1986), 

where the supreme court noted:

[S]ince, as a practical matter, an incarcerated parent is unable 

to assume all parental duties, his failure to ‘evince a settled 

purpose’ to assume all duties cannot support a finding of 

abandonment. . . . [H]is efforts, or lack thereof, to assume his 

parental duties through communicating with and supporting 
14

his children must be measured against his limited 

opportunity to assume those duties while imprisoned.

B.W., 498 So. 2d at 948. In a concurring opinion in B.C., Justice Pariente 

noted “the public policy favoring a continuing relationship between 

imprisoned parents and their children,” in part “as a tool to combat 

recidivism.” 887 So. 2d at 1056. She opined that termination of parental 

rights should “occur only when continuing the parent-child relationship 

would pose a substantial risk of significant harm to the child and when 

absolutely necessary for the manifest best interests of the child.” Id. at 

1057.

In the present case, the trial court found termination of parental rights 

was the least restrictive means of protecting S.C. from harm because “[s]he 

has not seen her father since she was months old and she does not know 

who he is.” In other words, there was no parental/child bond to reestablish. Although the father tried to the best of his ability to 

communicate with his child, he was incarcerated and has not been able to 

see her for six years. He has spoken to her only once. If termination were 

denied, then the child would be faced with continued foster care.

As noted in In re K.W., 891 So. 2d 1068 (Fla. 2d DCA 2004), even where 

there might be long-term relative care available (which in this case there 

is not):

While the court is required to consider the least restrictive 

means, the least restrictive means test is not intended ‘to 

preserve a parental bond at the cost of a child’s future.’ Dep’t 

of Children & Families v. B.B., 824 So. 2d 1000, 1009 (Fla. 5th 

DCA 2002). Since there is little or no bond to protect and 

there was never a parent-child relationship to reestablish, 

long-term relative placement was not in the best interest of 

the child and was not required by the “least restrictive means” 

test.

Id. at 1070. Similarly, in J.C. v. K.K., 64 So. 3d 157 (Fla. 4th DCA 2011), 

we noted, “The child’s interests are paramount over the father’s desire to 

now parent his child, where the child would have to remain in foster care 

for a substantial period of time to effectuate a reunion without harming 

the child further.” Id. at 164.

In both of the foregoing cases, the fathers were given case plans which 

they failed to complete, and that was the ground for termination. In this 

case, B.K. was prevented from completing a case plan or from participating 
15

more in his child’s life due to his incarceration. Nevertheless, if the focus 

is on the child, and not the parent, where the child has bonded with her 

caregivers and no other permanent custody arrangement is available, 

termination of parental rights is the least restrictive means of protecting 

the child from the harm of continued instability in her life.4

We do not think our holding is inconsistent with the statements in B.C. 

that termination of parental rights generally will not meet the least 

restrictive means test where the incarcerated parent has “played a 

supportive and beneficial role” in the child’s life. If the mere sending of 

cards and letters to a child constitutes the performance of such a role, 

then it would be difficult indeed to terminate the rights of any parent 

incarcerated for a lengthy period of time, regardless of the child’s lack of a 

real relationship with her parent. This could leave the child without any 

permanency at all, which would not be in her best interest.

It is difficult to read the testimony of this father who wants to be a 

parent to his child, or at least be involved in her life, and not to allow him 

to have that opportunity. The statutory framework for termination gives 

few options. See § 39.811, Fla. Stat. (2013). Pursuant to section 

39.811(7)(b), Florida Statutes (2013), the court has the authority to make 

orders allowing continued contact with the parents if it is in the child’s 

best interest. Here, the child does know she has a father who loves her 

and corresponds with her. While we affirm the termination of parental 

rights, we remand for the trial court to consider whether such an order 

may be appropriate in this case.

Based upon the highly deferential standard of review applied to these 

cases, we affirm the final judgment.

CIKLIN and GERBER, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.

4 No party asked the court to consider a permanent guardianship, nor was there 

any proof that the present foster parents would consider one instead of adoption.

See, e.g., State v. T.S., 155 So. 3d 476 (Fla. 1st DCA 2015).