FIRST DISTRICT COURT OF APPEAL

STATE OF FLORIDA

_____________________________

No. 1D18-4552

_____________________________

C.G. and C.G.,

Appellants,

v.

R.C.,

Appellee.

_____________________________

On appeal from the Circuit Court for Union County.

David P. Kreider, Judge.

September 12, 2019

JAY, J.

Appellants C.G. and C.G. filed a petition to terminate the 

parental rights of Appellee R.C. to the minor child, R.—Appellee’s 

son by C.G.—pending adoption of R. by C.G.’s husband. Appellee, 

who is incarcerated, refused to give his consent to the adoption.

Therefore, Appellants set out to prove by clear and convincing 

evidence that Appellee had abandoned R. by being incarcerated 

during a significant period of R.’s minority. Following a hearing, 

the trial court entered its Order Denying Petition to Terminate 

Parental Rights and Petition for Adoption, in which, through its 

interpretation of the relevant statute, denied Appellants’ petition. 

We agree with Appellants that the trial court misconstrued the 

relevant statutory provisions and reverse the final order.
2

I.

Appellee was incarcerated on drug trafficking charges in 

January 2010, less than a month before R.’s fifth birthday. His 

tentative release date is March 17, 2023. R. will be eighteen at the 

time of release. Prior to Appellee’s incarceration, he had physical 

custody of R. and his daughter—R.’s biological older sister—since 

R. was six months old. When R. was four, however, his sister went 

missing while Appellee was working. Tragically, the sister has 

never been found.

Appellants, who had gone through an on-again, off-again 

relationship for approximately eleven years, ultimately married in 

December 2014. After Appellee was arrested on drug trafficking

charges and incarcerated in 2010, the mother, C.G., sought and 

obtained custody of R. She testified that her son was “a broken 

little boy” when she gained custody of him—abusing animals and 

urinating on the floor. She described him as being “real quiet, just

. . . like empty.” As a result, the trial court ordered counseling for 

R. with Dr. Christy Monaghan, who saw him once a week for a 

little over a year.

According to C.G., R. knew his father was in prison, but to her

knowledge, did not know why he was in prison until she later told 

him he had been incarcerated for drugs. Until 2013, once or twice 

a month, R. would be taken to the prison to visit Appellee by his 

paternal grandmother and great-grandmother. But C.G. testified 

that when R. returned home from the visits, he would be angry and 

“act out.” Appellee sent cards to R. at Christmas and on his 

birthday, but C.G. left it up to R. whether to respond to Appellee; 

he chose not to. 

C.G. admitted that the Department of Children and Families 

removed R. from her custody in 2013 when a dependency case was 

opened. In 2015, R. was reunited with his mother, but Appellee 

was denied visitation rights. R. also resumed counseling through 

the Department due to what his mother claimed were “really bad 

anger outbursts.” To her knowledge, R. made it clear to the 

counselor that he did not want to have anything to do with 

Appellee. C.G. announced she had been “sober” since the end of 

2013. At the time of the hearing, C.G. testified that R. was in the 

eighth grade, was doing well, was happy, and laughed. She stated 
3

that her husband, C.G., functioned as a “dad” for R., and expressed 

her belief that the two had “bonded.”

For his part, Appellee testified that when he was first 

incarcerated, his mother and grandmother would bring R. to visit 

him in prison once or twice a month, testimony that was confirmed 

by both women. During these visits, Appellee’s mother would 

present R. with clothes and other gifts because Appellee had no 

independent source of income to purchase such items. Appellee

“absolutely” believed he had formed a bond with his son. He did 

not want his parental rights to R. terminated, because he loved 

him. He agreed with counsel that he had done everything in his 

power to remain in R.’s life while incarcerated and testified that 

he would not be a danger to his son. He admitted that he had not 

been in favor of the counseling R. received after his sister 

disappeared, and insisted R. never exhibited any behavioral 

problems while he was living with him. In a turnabout, however,

Appellee later conceded his son had been traumatized and had 

possibly needed counseling over the past years.

II.

The trial court’s decision to deny Appellants’ petition to 

terminate Appellee’s parental rights to R. pending their petition 

for stepparent adoption, was predicated on a complex, interlocking 

interpretation of the factors in section 63.089, Florida Statutes 

(2017). Those factors placed on Appellants multiple, overlapping

burdens to prove by clear and convincing evidence not only that 

Appellee’s period of incarceration was for a significant period of 

R.’s minority, but also that Appellee had, in general, “abandoned”

R., as that term is defined in section 63.032, Florida Statutes, and

further, that Appellee had abandoned R. according to the elements 

set forth in section 63.089(4)(a)1.-4., Florida Statutes.

A.

The order on review presents a pure question of law and 

statutory interpretation. Therefore, our review is de novo.

Townsend v. R.J. Reynolds, 192 So. 3d 1223, 1225 (Fla. 2016) 

(citing Daniels v. Fla. Dep’t of Health, 898 So. 2d 61, 64 (Fla. 2005)).

Our analysis must begin with “the actual language used in the 

statute.” Id. at 1228 (citing Joshua v. City of Gainesville, 768 So.
4

2d 432, 435 (Fla. 2000)); accord Lopez v. Hall, 233 So. 3d 451, 453 

(Fla. 2018) (citing Holly v. Auld, 450 So. 2d 217, 219 (Fla. 1984)).

It is beyond dispute that “‘[w]here the statute’s language is clear 

or unambiguous, courts need not employ principles of statutory 

construction to determine and effectuate legislative intent.’” Id.

(quoting Trinidad v. Fla. Peninsula Ins. Co., 121 So. 3d 433, 439 

(Fla. 2013) (citing Fla. Dep’t of Children & Family Servs. v. P.E., 

14 So. 3d 228, 234 (Fla. 2009))). “Instead, when clear and 

unambiguous, ‘the statute’s plain and ordinary meaning must 

control . . . .’” Id. (quoting Daniels, 898 So. 2d at 64–65); see also In 

re Adoption of Baby E.A.W., 658 So. 2d 961, 966 (Fla. 1995).

Only when the language of the statute is ambiguous does a 

court turn to the rules of statutory interpretation and construction. 

Anderson v. State, 87 So. 3d 774, 777 (Fla. 2012). One such rule of 

construction mentioned in Anderson is the doctrine of in pari 

materia, which “requires courts to construe statutes that relate to 

the same subject matter together to harmonize those statutes and 

give effect to legislative intent.” Id. Anderson went on to observe 

that similar to the doctrine of in pari materia is the principle that 

a statute “be read as a consistent whole,” according “meaning and 

harmony to all of its parts, with effect given to every clause and 

related provision.” Id. (citing Larimore v. State, 2 So. 3d 101, 106 

(Fla. 2008)). Although the trial court in the present case did not 

expressly cite to these two rules of construction, the tenor of its 

analysis suggests that it effectively employed them. It is our view, 

however, that the court needlessly went beyond the plain meaning

of the statute.

The language of section 63.089(4) is clear and unambiguous.

Unpacked, it provides a cascade of independent factors for the trial 

court to evaluate in determining the issue of abandonment. To

begin with, section 63.089(3), Florida Statutes, provides in 

relevant part:

Grounds for terminating parental rights 

pending adoption.--The court may enter a judgment 

terminating parental rights pending adoption if the court 

determines by clear and convincing evidence, supported 

by written findings of fact, that each person whose 

consent to adoption is required under s. 63.062:
5

. . . .

(e) Has been properly served notice of the proceeding 

in accordance with the requirements of this chapter and 

has been determined under subsection (4) to have 

abandoned the minor; . . .

(Emphasis added.) 

Section 63.089(4), Florida Statutes, adds:

Finding of abandonment.--A finding of 

abandonment resulting in a termination of parental 

rights must be based upon clear and convincing evidence 

that a parent or person having legal custody has 

abandoned the child in accordance with the definition 

contained in s. 63.032. A finding of abandonment may 

also be based upon emotional abuse or a refusal to provide 

reasonable financial support, when able, to a birth 

mother during her pregnancy or on whether the person 

alleged to have abandoned the child, while being able, 

failed to establish contact with the child or accept 

responsibility for the child’s welfare.

Section 63.032(1), Florida Statutes, defines “abandoned” to 

mean

a situation in which the parent or person having legal 

custody of a child, while being able, makes little or no 

provision for the child’s support or makes little or no 

effort to communicate with the child, which situation is 

sufficient to evince an intent to reject parental 

responsibilities. If, in the opinion of the court, the efforts 

of such parent or person having legal custody of the child 

to support and communicate with the child are only 

marginal efforts that do not evince a settled purpose to 

assume all parental duties, the court may declare the 

child to be abandoned. In making this decision, the court 

may consider the conduct of a father towards the child’s 

mother during her pregnancy.
6

Having referenced abandonment as defined in section 

63.032(1), section 63.089(4) continues: 

(a) In making a determination of abandonment at a 

hearing for termination of parental rights under this 

chapter, the court shall consider, among other relevant 

factors not inconsistent with this section:

1. Whether the actions alleged to constitute 

abandonment demonstrate a willful disregard for the 

safety or welfare of the child or the unborn child;

2. Whether the person alleged to have abandoned the 

child, while being able, failed to provide financial 

support;

3. Whether the person alleged to have abandoned the 

child, while being able, failed to pay for medical 

treatment; and

4. Whether the amount of support provided or 

medical expenses paid was appropriate, taking into 

consideration the needs of the child and relative means 

and resources available to the person alleged to have 

abandoned the child.

Subsection (4)(a) requires no parsing. According to its terms, the 

trial court will make a finding of abandonment as defined in 

section 63.032(1) and, in doing so, consider the four factors in 

subparagraphs 1.-4.

But, section 63.089(4)(b), Florida Statutes, contemplates a

distinctly different scenario, as is evident in its opening sentence:

The child has been abandoned when the parent of a 

child is incarcerated on or after October 1, 2001, in a 

federal, state, or county correctional institution and:

1. The period of time for which the parent has been 

or is expected to be incarcerated will constitute a 

significant portion of the child’s minority. In determining 

whether the period of time is significant, the court shall 
7

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; . . . .

(Emphasis added.) The emphasized language of this paragraph is 

unassailably definitional. It expresses the essential nature of 

“abandonment” in the context of an incarcerated parent who will 

remain so for a “significant portion of the child’s minority.” § 

63.089(4)(b)1., Fla. Stat. In addition, paragraph (b) dictates that, 

in determining whether the period of incarceration is “significant,”

the court “shall consider the child’s age and the child’s need for a 

permanent and stable home.” Id. By its clear terms, subsection

(4)(b) is an independent, alternative means of establishing 

abandonment.

In the instant case, however, the trial court applied the factors 

in section 63.089(4) linearly, beginning with the introductory 

reference to the definition of abandonment in section 63.032, then 

proceeding downward to the salient considerations in subsections

(4)(a) and (4)(b). The result was a legal analysis that eviscerated 

the legislative concept of abandonment through incarceration. The 

significance of this misplaced examination is evidenced by the way 

in which the court evaluated the facts under section 63.089(4)(b)1.:

The Father was incarcerated in January 2010. The 

[F]ather’s tentative release date is March 20, 2023, which 

is after the child reaches the age of 18. The period of 

incarceration will be 13 years. The child is currently 13 

years old. . . . While few people could argue 13 out of 18 

years is not a significant period of time, the child has not 

also been abandoned by the [F]ather as required by 

section 63.089(4) and defined in section 63.032, Fla. Stat.

Therefore, the ground for termination listed in section 

63.089(4)(b), Fla. Stat. has not been met.

There is no foundation in section 63.089(4) to support the 

emphasized language in the above-quoted paragraph. Put another 

way, there is no suggestion in the statutory language that 

abandonment in the context of section 63.089(4)(b) is contingent 

on any other definition of abandonment that precedes it in the 

statute. Lending credence to this notion that section 63.089(4)(b) 

offers up separate reasons for finding abandonment is the fact that 
8

it proposes three distinct disjunctive scenarios of parental 

incarceration that would constitute abandonment. See § 

63.089(4)(b)1.-3, Fla. Stat. Unquestionably, by its plain terms, 

section 63.089(4)(b) is to be read separate and apart from section 

63.089(4) and (4)(a).

Moreover, the trial court’s misapprehension that the 

definition of “abandoned” in section 63.032(1) overlays all of 

section 63.089(4) led it to accord undue importance to the Second 

District’s opinion in In re B.W.G., 198 So. 3d 1025, 1027 (Fla. 2d 

DCA 2016), and that decision’s emphasis on the parent’s conduct 

as manifesting a settled purpose to permanently forgo all parental 

rights—behavior evincing a complete relinquishment of 

responsibility. But B.W.G. did not involve an incarcerated parent.

The analysis in that case proceeded under sections 63.032 and 

63.089(4)(a). 

However, and as noted by the trial court below, the Second 

District in B.W.G. further observed that “incarceration alone does 

not constitute abandonment as a matter of law,” citing to T.H. v. 

Dep’t of Children & Family Servs., 979 So. 2d 1075, 1080 (Fla. 2d 

DCA 2008), J.T. v. Dep’t of Children & Family Servs., 819 So. 2d 

270, 272 (Fla. 2d DCA 2002), and, lastly, R.R. v. M.M., 143 So. 3d 

449, 450 (Fla. 2d DCA 2014). That observation is sound, and 

section 63.089(4)(b) reflects its wisdom by predicating 

abandonment under that subsection not on incarceration alone, 

but on a period of incarceration that will constitute “a significant 

portion of the child’s minority” and requiring the court to consider 

“the child’s age and the child’s need for a permanent and stable 

home.” Moreover, T.H., J.T., and R.R. involved different facts and 

proceeded under chapter 39.

The trial court acknowledged the Fifth District’s observation 

in M.S.B. v. R.B., 93 So. 3d 532 (Fla. 5th DCA 2012) (Mem.), that 

“[s]ection 63.089(4)(b), Florida Statutes (2011), provides that 

where a parent is or will be incarcerated for a significant period of 

a child’s minority, the child is deemed to have been abandoned.”

Id. at 532 n.1. (emphasis added). The trial court concluded, 

however, that “[i]f incarceration for a significant period of the 

child’s minority should, by itself, constitute grounds for 

termination of parental rights absent a finding that the parent also 
9

did not abandon the child according to the definition of section 

63.032(1), the legislature should amend the statutes to reflect 

this.” That conclusion is not consistent with the statute, since the

unambiguous language of section 63.089(4)(b) provides that “[t]he 

child has been abandoned when” the parent will be incarcerated 

for a significant period of the child’s minority. (Emphasis added.) 

The Fifth District in M.S.B. got it right.

Appellee defends the trial court’s reliance on the introductory 

language of section 63.089(4) by analogizing it to the statutory

analysis employed in Hilton v. State, 961 So. 2d 284 (Fla. 2007). In 

Hilton, the Florida Supreme Court declared: “It is a question of 

statutory interpretation as to whether section 316.610 of the 

Florida Statutes permits a [traffic] stop for a cracked windshield 

on the basis that the crack renders the windshield ‘not in proper 

adjustment or repair,’ even if the crack does not otherwise render 

the vehicle unsafe.” Id. at 288. To resolve the question presented,

the supreme court was asked to interpret two independent 

statutes. First, it considered section 316.610, Florida Statutes, 

which addresses the safety of vehicles and provides that a vehicle 

is unsafe when it (1) is “in such unsafe condition” as to be 

dangerous; (2) “does not contain those parts or is not at all times 

equipped with such lamps and other equipment in proper condition 

and adjustment as required” in chapter 316; or (3) is “equipped in 

any manner in violation” of chapter 316. Id. In the event that any 

of the foregoing violations is observed by law enforcement, the law 

enforcement officer is authorized to stop the vehicle and inspect it. 

Because the officer in Hilton performed a traffic stop based on a 

cracked windshield, the supreme court by necessity had to turn to 

section 316.2952, Florida Statutes, which “enumerates the specific 

windshield requirements for Florida vehicles.” Id. at 289. To 

understand how the two statutes applied to the facts before it, the 

supreme court turned to “the introductory paragraph of 316.610” 

and focused on that portion providing “that it is a violation for a 

vehicle to be driven ‘which does not contain those parts or is not at 

all times equipped with such lamps and other equipment in proper 

condition and adjustment as required in this chapter.’” Id.

(emphasis in original). 

But it went on to observe that the section governing 

windshields in chapter 316—section 316.2952—“requires only: (1) 
10

that a vehicle have a windshield in a fixed and upright position 

that is equipped with safety glazing; (2) that the windshield be 

equipped with a driver-controlled device for cleaning moisture 

from the windshield; and (3) that windshield wipers be maintained 

in good working order. See § 316.2952, Fla. Stat. (2001).” Id. In 

giving effect to the operative language in both statutes, the 

supreme court reasoned that

any other problems with windshields, such as chips, 

dings, or cracks, are not within section 316.2952 and do 

not constitute a traffic violation under that statute. To 

conclude that any defect or damage renders a vehicle’s 

equipment “not in proper adjustment or repair,” and, 

therefore, subject to stop and inspection by law 

enforcement officers pursuant to section 316.610(1), 

would ignore the language in the introductory paragraph

of the statute which provides that it is a violation for a 

vehicle not to have equipment that is in proper condition 

or adjustment “as required in this chapter.”

Id. at 289-90 (emphasis added). In short, the introductory 

language in section 316.610 was necessary to generally define the 

violation, but required the supreme court to independently 

reference section 316.2952 to determine the statutory

requirements for windshields in order to find if a violation had in 

fact occurred.

In this case, Appellee seizes on the supreme court’s reliance 

in Hilton on the “introductory language” of section 316.610, and 

urges that the “introductory language” of section 63.089(4) be 

given the same gloss. However, the statutory analysis employed in 

Hilton is unsuitable for understanding how section 63.089(4)

operates for the simple reason that, at issue here, is a 

comprehensive statutory formula for determining if a child has 

been abandoned by a parent, not a singular statute setting forth 

guidelines for vehicular safety that requires the factfinder to 

search chapter 316 for the discrete vehicular equipment 

requirements. That process requires reading different statutory 

sections in pari materia. But the introductory language of section 

63.089(4) does not require going outside the statutory criteria 

apart from the reference to section 63.032. It does not alter the fact 
11

that section 63.089(4)(b) provides an alternative ground for a 

finding of abandonment. To apply Hilton chapter and verse here 

would be to ignore the clear and unambiguous language of section 

63.089(4). 

Accordingly, the trial court erred as a matter of law in 

concluding that the ground for termination listed in section 

63.089(4)(b) had not been met because Appellants failed to prove 

by clear and convincing evidence that Appellee abandoned R. as 

that term is defined in section 63.032(1) and section 63.089(4)(a).

As a result, the cause must be remanded for the court to reconsider 

Appellants’ petition under the correct interpretation of the statute.

B.

Moreover, due to evidentiary errors committed by the trial 

court, a new hearing is required on remand. Specifically, the trial 

court erred in ruling that Appellants could not present the 

testimony of Detective Piscitello because it was not relevant, and 

in denying Appellants’ “Motion to Review Dependency File in 

Baker County.”

Appellants proffered the testimony of Detective Piscitello, 

which revealed that he would be testifying to the events 

surrounding the disappearance of Appellee and C.G.’s young 

daughter, Haleigh, while she and R. were in Appellee’s custody. 

Detective Piscitello would have testified that Appellee left his 

children in the care of his then seventeen-year-old girlfriend—who 

had a known drug abuse issue—while Appellee worked the night 

shift at his job. Detective Piscitello stated that when he arrived at 

the scene in the early morning hours of February 10, 2009,

Appellee was agitated, had an injury to his hand from punching a 

door, and seemed intoxicated and emotional. The investigation 

was still active at the time of the hearing and no one had been 

charged with Haleigh’s disappearance. The relevance of the 

proffered testimony is undeniable. Appellee’s judgment in leaving 

his two young children in the care of a drug-addicted teenager 

highlights the issue of R.’s need for a stable and permanent home. 
12

On remand, the trial court should permit Detective Piscitello to 

testify.∗

Lastly, in denying Appellants’ motion to review the Baker 

County dependency file, the trial court ruled that the mother could 

inspect the file in her capacity as the child’s parent. However, it 

held that the mother’s attorney was her attorney “in the context of 

the adoption case, not the dependency case,” and “[i]t would not be 

appropriate to grant [counsel] access to the dependency file 

because [counsel] did not act as [the mother’s] attorney in the 

dependency case.”

Section 39.0132(3), Florida Statutes, is the operative statute, 

but nothing in the statute limits which attorney of the parent has 

access to the dependency file. Moreover, it is conceivable that once 

the mother was given access to the dependency file, she would 

simply turn the information over to her present counsel. Appellee 

defends the court’s decision on the basis of the language in section 

39.0132(3) subjecting the right to access the records to “the 

provisions of section 63.162 . . . .” Section 63.162(2), Florida 

Statutes, states in pertinent part: 

In the case of an adoption not handled by the department 

or a child-placing agency licensed by the department, the 

department must be given notice of hearing and be 

permitted to present to the court a report on the 

 ∗ However, as to the propriety of the trial court’s exclusion of 

Pam Dudek—a classification-sentence specialist at Appellee’s 

prison—we hold that the issue was not preserved for our review. 

Appellants did not proffer or attempt to proffer her testimony. 

Instead, they afforded the trial court only a snapshot of what she 

might have said. “We cannot consider the admissibility of excluded 

testimony which is not present in the record.” Savell v. State, No. 

1D19-0136, 2019 WL 3783381, *1 (Fla. 1st DCA Aug. 13, 2019); see 

also Cardenas v. State, 816 So. 2d 724, 725 (Fla. 1st DCA 2002) 

(holding “[a] proffer of excluded testimony is necessary to preserve 

a claim that the testimony was erroneously excluded,” (citing

Lucas v. State, 568 So. 2d 18, 22 (Fla. 1990))). 
13

advisability of disclosing or not disclosing information 

pertaining to the adoption.

(Emphasis added.) As Appellants point out, they were not seeking 

information pertaining to an adoption, but information from the 

recent dependency proceedings relevant to proving grounds for the 

termination of Appellee’s parental rights. Consequently, we hold 

that the trial court erred in denying the Appellants’ motion for 

counsel to obtain the records.

III.

In conclusion, the trial court’s misinterpretation of the 

provisions of section 63.089(4) and its erroneous evidentiary 

rulings warrant reversal and remand for a new hearing.

REVERSED and REMANDED for further proceedings consistent 

with this opinion.

WOLF and ROBERTS, JJ., concur.

_____________________________

Not final until disposition of any timely and 

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

9.331.

_____________________________

William S. Graessle and Jonathan W. Graessle of William S. 

Graessle, P.A., Jacksonville, and Carol A. Caldwell, St. Augustine,

for Appellants.

David Maldonado of The Maldonado Law Firm, P.A., Lakeland, for 

Appellee.