Third District Court of Appeal

State of Florida 

Opinion filed August 7, 2024.

Not final until disposition of timely filed motion for rehearing.

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No. 3D23-2245

Lower Tribunal No. 19-15361

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Department of Children and Families, et al.,

Appellants/Cross-Appellees,

vs.

L.W., the Mother,

Appellee/Cross-Appellant.

An Appeal from the Circuit Court for Miami-Dade County, Scott M. 

Bernstein, Judge.

Karla Perkins, for appellant/cross-appellee the Department of Children 

& Families; Sara Elizabeth Goldfarb, Statewide Director of Appeals, and 

Laura J. Lee, Assistant Director of Appeals (Tallahassee), for 

appellant/cross-appellee the Statewide Guardian ad Litem Office.

Eugene F. Zenobi, Criminal Conflict and Civil Regional Counsel, Third 

Region, and Kevin Coyle Colbert, Assistant Regional Counsel, for 

appellee/cross-appellant.

Before EMAS, GORDO and LOBREE, JJ.
2

LOBREE, J.

Florida Department of Children and Families (the “Department”) and 

the Statewide Guardian ad Litem Office (“GAL”) appeal, and L.W. (the 

“Mother”), cross-appeals from the Final Judgment Denying Termination of 

the Mother’s Parental Rights and Disposition (“final judgment”), rendered on 

November 21, 2023. We reverse and remand for entry of a final judgment 

terminating the Mother’s parental rights.

BACKGROUND

The Mother’s history with the Department dates back to August 2019. 

The Department petitioned to have A.W., who was born in November 2018,

adjudicated dependent as to the Mother when the Mother, who was 

homeless at the time, was found intoxicated wandering the streets with A.W., 

who was then eight months old. The Mother received services pursuant to 

several case plans, including treatments at both inpatient and outpatient 

substance abuse programs. While the dependency action was pending, the 

Mother gave birth to A.W.Z. in late August 2022, but A.W.Z. was never 

adjudicated dependent. Despite the Mother relapsing several times, the 

Mother was eventually reunified with A.W. in November 2022, when the trial 

court entered an order terminating protective supervision.

On March 27, 2023, law enforcement found the Mother extremely 
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intoxicated at a laundromat while alone with A.W., resulting in the Mother

being Baker Acted. Based on this incident, on April 17, 2023, the 

Department filed an Expedited Petition for Termination of Parental Rights 

(“expedited petition”), which is the subject of this appeal, seeking to terminate

the Mother’s parental rights as to both A.W.1 and A.W.Z.2In the expedited 

petition, the Department asserted two statutory grounds for termination of 

her parental rights, (1) section 39.806(1)(c), Florida Statutes (2022) 

(irrespective of the provision of services), and (2) section 39.806(1)(j), 

Florida Statutes (2022) (chronic substance abuse), and alleged that 

termination is in the manifest best interest of the children and the least 

restrictive means to protect the children from harm.

The trial court heard testimony from the Mother, the maternal 

grandmother, A.W.Z.’s father, the Mother’s substance abuse counselors, the 

children’s guardian ad litem, and others. Following the hearing, the trial court 

entered the final judgment, denying termination of the Mother’s parental 

rights. In doing so, the trial court found by clear and convincing evidence 

that (1) the Department established the two statutory grounds; (2) “it is in the 

1 The petition also sought termination of A.W.’s father’s parental rights based 

on abandonment. His parental rights were terminated in August 2023. He 

did not appeal the termination of his parental rights.

2 This petition did not seek termination of A.W.Z.’s father’s parental rights.
4

manifest best interest of the children that they are never placed in the 

mother’s custody,” and there are suitable permanent custody arrangements 

with relatives—A.W. with her maternal grandmother and then with her 

maternal aunt, and A.W.Z. with her father; and (3) the Department failed to 

establish that terminating the Mother’s parental rights is the least restrictive 

means of protecting the children from harm. (emphasis added).

The introductory paragraph of the final judgment denying termination 

of the Mother’s parental rights provides as follows:

[The Mother] is a chronic alcoholic and substance abuser. She 

participated in at least six in-patient substance abuse programs 

and multiple out-patient programs. Despite all these programs, 

she failed to maintain her sobriety. She is not capable of raising 

her children; she likely never will. The defense argued that this 

case is merely about a single relapse. Nothing could be further 

from the truth. The [M]other has a 20-year history of relapses, 

lies, and manipulations, which continue to this day.

(emphasis added).

In addressing the statutory ground set forth in section 39.806(1)(c), the 

trial court made detailed findings pertaining to the Mother’s twenty-year 

substance abuse history; the six inpatient treatment programs she attended, 

with the first one dating back to 2007, and the numerous outpatient programs 

attended by the Mother; and the history of the Mother’s relapses, including 

relapses that occurred within days of the Mother being reunified with A.W. in 

November 2022.
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As to the post-reunification incidents, the trial court found that on two 

separate occasions, A.W.Z.’s father found the Mother either incoherent or 

unresponsive while the children were in her sole care, and in one of those 

incidents, A.W.Z. was in a swing and was not wearing a diaper. A third 

incident occurred while A.W.Z.’s father was at home with the Mother. She 

began to convulse, despite seeming to be awake, and she could not answer 

questions. He found Benadryl next to the Mother and small bottles of alcohol 

behind the bed. The fourth incident occurred on March 27, 2023, when the 

Mother drove with the children in her vehicle while intoxicated. The vehicle 

showed signs of damage that were not present prior to that date. Later that 

day, law enforcement found the Mother intoxicated at a laundromat with 

A.W., and the Mother was Baker Acted. In addition, the trial court 

acknowledged that following this fourth incident, the Mother entered an 

inpatient treatment program. However, the Mother was unsuccessfully 

discharged because she failed to comply with the program requirements and 

the facility’s rules.

Based on these facts, the trial court found “by clear and convincing 

evidence that the [M]other has engaged in conduct toward the children that 

demonstrates that the continuing involvement of the [Mother] in the parentchild relationship threatens the life, safety, well-being, or physical, mental, or 
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emotional health of the children irrespective of the provision of services. § 

39.806(1)(c), Fla. Stat. (2022).” (emphasis added). The trial court also found 

that “[n]ot only has the [M]other been dishonest with the Court, she was also 

dishonest with her substance abuse counselors” by hiding her substance 

abuse from her counselors. Finally, as to this ground, the trial court found: 

“There is no reasonable basis to believe the [M]other will ever rehabilitate 

herself, despite the provision of services.” (emphasis added).

Next, the trial court addressed the statutory ground under section 

39.806(1)(j). The trial court found that “by clear and convincing evidence 

that the [M]other has a history of extensive, abusive, and chronic use of 

alcohol or controlled substances which render her incapable of caring for the 

children and has refused or failed to complete available treatment for such 

use during the 3-year period immediately preceding the filing of the petition 

for the termination of parental rights. § 39.806(1)(j), Fla. Stat. (2022).” 

(emphasis added). The trial court noted that the Mother participated in 

several inpatient and outpatient treatment programs in the last three years. 

However, during the programs she was not committed to her recovery; “[s]he 

manipulates, lies and breaks the rules”; and she failed to maintain sobriety.

As to the “manifest best interests” prong of the termination of parental 

rights test, the trial court found that by clear and convincing evidence, “it is 
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in the manifest best interest of the children that they are never placed in the 

Mother’s custody.” (emphasis added). In making this determination, the trial 

court addressed the factors set forth in section 39.810, Florida Statutes

(2022). The trial court acknowledged that the Mother has a bond with the 

children, and that “[t]here may be some degree of harm to the children if the 

[M]other’s parental rights are terminated.” See § 39.810(5), Fla. Stat.

However, the children also have significant bonds with their current 

caregivers, and A.W. has a growing bond with her maternal aunt.

Finally, the trial court addressed the third prong of termination of 

parental rights test—“least restrictive means.” The trial court found that, 

even though the Department established the grounds for termination by clear 

and convincing evidence, the Department did not prove that termination of 

the Mother’s parental rights is the least restrictive means of protecting the 

children from harm. In making this determination, the trial court rejected the 

Mother’s expert’s testimony that the Mother is amenable to treatment; found 

that provision of additional services to the Mother is futile; and determined 

that the Department proved that there is no reasonable basis to believe that 

the Mother will improve.

The trial court then fashioned its own arrangement to provide for the

“least restrictive means” of protecting the children from harm. The trial court 
8

recommended that A.W.Z.’s father file “a petition in the Family Division

pursuant to Chapters 742 and 51, Florida Statutes, seeking sole parental 

responsibility and 100% timesharing, and request only supervised 

timesharing for the [M]other by an outside provider.” Similarly, as to A.W., 

the trial court recommended that A.W.’s maternal aunt “file a petition in the 

Family Division pursuant to Chapter 751, Florida Statutes, seeking custody 

by an extended family member which would provide her sole parental 

responsibility and 100% timesharing, and request only supervised 

timesharing for the [M]other by an outside provider.” The trial court noted 

that these “arrangement[s] could ensure the safety of the child[ren], who 

would never be left alone with the [M]other, but would still allow the child[ren] 

to still have some contact with the [M]other. This is a less restrictive means 

of protecting the child, short of termination of the [M]other’s parental rights.”

Based on the above, the trial court denied the petition for termination 

of the Mother’s parental rights; adjudicated the children dependent; 

committed A.W. to the custody of the Department pending the aunt’s petition 

for custody pursuant to Chapter 751, Florida Statutes; and committed A.W.Z. 

to the custody of the Department pending her father’s petition for custody 

pursuant to Chapters 742 and 61, Florida Statutes. The trial court denied 

the Department’s motion for rehearing. The Department’s and GAL’s 
9

appeal, and the Mother’s cross-appeal, followed.

STANDARD OF REVIEW

In termination of parental right cases, appellate courts “afford great 

deference to the trial court’s findings of fact and review the record to 

determine whether the trial court’s order is supported by competent, 

substantial evidence.” A.P. v. Dep’t of Child. & Fams., 49 Fla. L. Weekly 

D1137, 2024 WL 2743709, at *1 (Fla. 3d DCA May 29, 2024). “While the 

trial court must find that the evidence is clear and convincing, [an appellate 

court’s] review is limited to whether competent, substantial evidence 

supports the trial court’s final judgment, and whether the appellate court 

‘cannot say that no one could reasonably find such evidence to be clear and 

convincing.’” J.P. v. Fla. Dep’t of Child. & Fams., 183 So. 3d 1198, 1203 

(Fla. 1st DCA 2016) (quoting N.L. v. Dep’t of Child. & Fam. Servs., 843 So. 

2d 996, 1000 (Fla. 1st DCA 2003)). “However, an appellate court is not 

required to defer to the trial court where there is no theory or principle of law 

that would support the trial court’s conclusions of law concerning its least 

restrictive means findings.” Guardian ad Litem Program v. Dep’t of Child. & 

Fams., 207 So. 3d 1000, 1003 (Fla. 5th DCA 2016) (quoting Statewide 

Guardian ad Litem Program v. A.A., 171 So. 3d 174, 177 (Fla. 5th DCA 

2015)). “[A] finding that evidence is clear and convincing enjoys a 
10

presumption of correctness and will not be overturned on appeal unless 

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

Fams., 126 So. 3d 424, 427 (Fla. 4th DCA 2013) (quoting D.P. v. Dep’t of 

Child. & Fam. Servs., 930 So. 2d 798, 801 (Fla. 3d DCA 2006)). “An 

appellate court may reverse the trial court’s order denying a petition to 

terminate parental rights when the denial is not supported by competent[,] 

substantial evidence and is not in the best interests of the children.” In re 

E.R., 49 So. 3d 846, 851 (Fla. 2d DCA 2010) (quoting H.D. v. J.L.D., 16 So. 

3d 334, 335 (Fla. 4th DCA 2009)).

ANALYSIS

Before a court can terminate parental rights, it must find that the 

Department established the following by clear and convincing evidence: “(1) 

the existence of at least one statutory ground for terminating parental rights 

set forth in section 39.806(1); (2) termination is in the manifest best interest 

of the child; and (3) termination is the least restrictive means to protect the 

child from serious harm.” D.M. v. Dep’t of Child. & Fams., 315 So. 3d 90, 93 

(Fla. 3d DCA 2020) (quoting L.Q. v. Dep’t of Child. & Fams., 282 So. 3d 958, 

962 (Fla. 3d DCA 2019)).

I. Statutory Grounds

The Mother challenges on cross-appeal the trial court’s finding that the 
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Department established by clear and convincing evidence the statutory 

grounds set forth in section 39.806(1)(c) and (1)(j). We affirm this 

determination as it is supported by competent, substantial evidence in the 

record. In doing so, we address only one issue raised by the Mother relating 

to section 39.806(1)(c), as the remaining arguments as to the statutory 

grounds do not merit discussion.

The Mother asserts the trial court erred by rejecting her expert’s 

unrebutted testimony that there was a reasonable basis to conclude that the 

Mother would benefit from additional services, without providing a rational 

basis for rejecting her expert’s testimony. This argument is not supported by 

the record.

To terminate the Mother’s parental rights under section 39.806(1)(c), 

the Department was required “to prove, and the trial court must find, by clear 

and convincing evidence, that 1) the parent’s continued involvement 

threatens the life, safety, well-being, or physical, mental, or emotional health 

of the child, irrespective of services, and 2) there is no reasonable basis to 

believe the parent will improve.” A.P., 49 Fla. L. Weekly D1137, 2024 WL 

2743709, at *2 (cleaned up). “Termination under this section is termination 

based on prospective abuse or neglect. Essentially, the trial court is asked 

to look at the parent’s current medical condition or past behavior and predict 
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whether the parent will likely harm the child in the future.” Q.L. v. Dep’t of 

Child. & Fams., 280 So. 3d 107, 113–14 (Fla. 4th DCA 2019).

Here, the Mother’s expert, a board-certified family physician and 

addiction specialist, testified that, in his opinion, a relapse does not mean it 

is futile for a patient to engage in treatment, and testified that the Mother was 

amenable to services. On cross-examination, however, the Mother’s expert

acknowledged that in his report, he stated that the Mother maintained 

sobriety for two years and relapsed only once in March 2023. He testified 

that he knew the Mother actually relapsed five or six times but decided to 

exclude these other relapses because he did not have the details 

surrounding them. He further acknowledged that he did not know that the 

children were in the Mother’s care when she had those relapses, or that the 

Mother had driven with the children in the car while intoxicated, left them 

unsupervised while intoxicated, and left A.W.Z. without clothing while 

intoxicated. The Mother’s expert was then asked what is the likelihood that 

the Mother will refrain from relapsing given her history, and he testified as 

follows: 

A. . . . The likelihood of relapse is less and less when she is being 

treated properly. And is compliant with her disease as it 

presents.
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She had[3] a severe alcohol disorder. She needs more intense 

treatment like intensive care and stationary care in a hospital. 

She needs to be in intensive care.

Q. And it is your opinion that the care that she has received prior 

to the treatment that she is receiving now has not been 

adequate?

A. It’s not a matter of adequacy. But trial and error. How often 

do you need to do it. Individualize the treatment. Consider 

medication assisted treatment. Considering corporation [sic] of 

other treatment specialist in the team.

It’s a very complex approach. . . . 

Q. So it is fair to say that you cannot predict with any certainty 

that – that she will not continue to relapse once she is out of 

treatment?

A. The probability of relapse is always there. But if you treat a 

patient appropriately and monitoring him or her properly, the 

likelihood that the relapse is less and less. . . .

First, the trial court did not reject the expert’s testimony that the Mother 

was “amendable to treatment” without indicating its reasoning. In the final 

judgment, immediately after rejecting the expert’s opinion that the Mother is 

amenable to treatment and that the provision of treatment is not futile, the 

trial court explained: “The [M]other continues to manipulate and lie to 

treatment providers, right up to the date of trial.” The Mother’s expert’s

testimony reflects that the Mother was not completely forthcoming when 

detailing the extent of her relapses, including that the children were in her 

3 Although the Mother’s expert testified that the Mother “had” a severe 

alcohol disorder, unrebutted testimony reflects that she still has a severe 

alcohol disorder.
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sole care when she suffered several relapses and that she chose to drive 

with the children in the vehicle while intoxicated.

Moreover, the record reflects that the Mother’s latest relapses occurred 

despite her participation in six in-patient treatment programs, several outpatient treatment programs, and other services. The Mother’s expert

testified that treatment is a matter of “trial and error.” Based on the 

substantial history of “trial and error” in this case, the trial court permissibly 

looked at the Mother’s past behavior—lying, breaking rules at treatment 

facilities, relapses, etc.—when finding that “[t]here is no reasonable basis to 

believe the [M]other will ever rehabilitate herself, despite the provision of 

services.” This finding is supported by competent, substantial evidence. 

Therefore, we reject the cross-appeal and affirm the trial court’s 

determination that the Department proved “by clear and convincing evidence 

that the [M]other has engaged in conduct toward the children that 

demonstrates that the continuing involvement of the parent in the parentchild relationship threatens the life, safety, well-being, or physical, mental, or 

emotional health of the children irrespective of the provision of services. § 

39.806(1)(c), Fla. Stat. (2022).”

II. Least Restrictive Means

The Department and GAL challenge the trial court’s determination that 
15

the Department failed to establish by clear and convincing evidence that 

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

harm. Because the Department met its burden at trial, we reverse this 

portion of the final judgment and remand for entry of a final judgment 

terminating the Mother’s parental rights.

In Padgett v. Department of Health & Rehabilitative Services, 577 So. 

2d 565, 570 (Fla. 1991), the Florida Supreme Court recognized that parental 

rights constitute a fundamental liberty interest. “[T]he only limitation on this 

rule of parental privilege is that as between the parent and the child the 

ultimate welfare of the child itself must be controlling.” Id. at 570 (quoting 

State ex rel. Sparks v. Reeves, 97 So. 2d 18, 20 (Fla. 1957)). As such, 

“because parental rights constitute a fundamental liberty interest, the state 

must establish in each case that termination of those rights is the least 

restrictive means of protecting the child from serious harm.” Padgett, 577 

So. 2d at 571. The Department “ordinarily must show that it has made a 

good faith effort to rehabilitate the parent and reunite the family, such as 

through a current performance agreement or other such plan for the present 

child.”4 Id.

4

In Guardian ad Litem Program v. K.H., 276 So. 3d 897, 903 (Fla. 3d DCA 

2019), this Court recognized that the Department does not have to offer a 

case plan prior to terminating a parent’s parental rights, where doing so 
16

In S.M. v. Florida Department of Children & Families, 202 So. 3d 769 

(Fla. 2016), the Florida Supreme Court once again addressed the “least 

restrictive means” prong. In doing so, the Court recognized that “the focus 

of the ‘least restrictive means’ prong is whether the parent has the ability to 

be a parent to the child with all of the responsibilities that it entails and ‘not 

merely to be an occasional presence in the life of the child.’” Id. at 772 

(quoting S.M. v. Fla. Dep’t of Child. & Fams., 190 So. 3d 125, 128 (Fla. 4th

DCA 2015)). Further, the Court noted that the Fourth District’s opinion in 

S.M. “more faithfully articulates the appropriate considerations to be taken 

into account when analyzing the least restrictive means prong of the 

termination of parental rights test”:

The test is not whether, under controlled circumstances, a parent 

can have contact with the child and develop an emotional bond, 

but whether a mother or father can be a parent to the child, with 

all of the responsibility and care that entails. If reunification is not 

possible because the father or mother cannot or will not assume 

responsibility as a parent to the child, as demonstrated, for 

example, by the repeated failure to comply with a case plan, then 

termination is the least restrictive means of preventing harm.

S.M., 202 So. 3d at 780 (quoting S.M., 190 So. 3d at 129). Moreover, the 

would be futile. See also In re T.M., 641 So. 2d 410, 413 (Fla. 1994)

(recognizing that under certain “extraordinary circumstances . . . the 

termination of parental rights without the use of plans or agreements is the 

least restrictive means”).
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Court noted that this “interpretation of the least restrictive means prong 

properly puts the focus on the State’s actions prior to filing the termination of 

parental rights petition, rather than on the consideration of what remains of 

the bond between parent and child.” S.M., 202 So. 3d at 780. The Court 

also noted that the Fourth District’s interpretation is “more consistent with the 

Legislature’s permanency goals in dependency cases” set forth in section 

39.621(3), Florida Statutes. Id. at 781.

The Florida Supreme Court also rejected S.M.’s argument that if there 

is “‘some other arrangement,’ as opposed to termination of rights and 

adoption,” that arrangement “should be the preferred permanency goal.” Id.

at 782. In rejecting this argument, the Court explained that the argument 

“shift[s] the focus of the termination of rights hearing away from the best 

interests of the child to the parent’s interest in preserving the parent-child 

bond.” Id. The Court further stated:

The “right” of a parent to a bond with the child is important, but 

ultimately the health, welfare, and safety of the child must be 

paramount. Being a parent requires parental obligations to care 

for the child, specifically to ensure the child’s life, safety, wellbeing, and physical, mental, and emotional health.

Id.

With these principles in mind, we conclude that the trial court’s 

determination, that the Department failed to establish by clear and 
18

convincing evidence that termination is the least restrictive means of 

protecting the children from serious harm, is not supported by competent, 

substantial evidence. As recognized in S.M., “the focus of the ‘least 

restrictive means’ prong is whether the parent has the ability to be a parent 

to the child with all of the responsibilities that it entails and ‘not merely to be 

an occasional presence in the life of the child.’” S.M., 202 So. 3d at 772 

(quoting S.M., 190 So. 3d at 128).

Here, in the Mother’s prior dependency action, the Department 

provided the Mother with substantial services, and she was ultimately 

reunified with A.W., despite having several relapses. However, within days 

of not being under the Department’s watchful eye, the Mother relapsed 

numerous times, thereby continuing her twenty-year history of chronic 

substance abuse despite six inpatient treatment programs, various

outpatient treatment programs, and other services. These relapses put the 

children at risk.

In its final judgment, the trial court made explicit findings of fact 

indicating that its determination as to “least restrictive means” is not 

supported by the evidence. For example, the trial court stated, (1) “[The 

Mother] is not capable of raising her children; she likely never will.’’; (2) 

“There is no reasonable basis to believe the [M]other will ever rehabilitate 
19

herself, despite the provision of services.”; (3) “She is not committed to her 

recovery.”; and (4) “[The Department] proved that the provision of additional 

services to the [M]other is futile.” Based on the explicit findings, which are 

supported by competent, substantial evidence, the Mother does not have 

“the ability to be a parent to the child[ren] with all of the responsibilities that 

it entails and ‘not merely to be an occasional presence in the life of the 

child[ren].’” S.M., 202 So. 3d at 772 (quoting S.M., 190 So. 3d at 128).

Finally, at the hearing on the expedited petition, the children’s guardian 

ad litem testified that although the Mother is not likely to physically harm the 

children, she recommended termination of the Mother’s parental bond. In 

doing so, the children’s guardian ad litem testified as follows:

Q. And can you explain to the Court why, even with respect to 

the fact that [the Mother] has a bond with the children, why do 

you still recommend [termination of parental rights]?

A. Both the emotional, safety and physical well[-]being of the 

children. I mean since this case came in it has already happened 

once. And I am not talking about one relapse. I am talking about 

a very small[,] sustained period, of where [the Mother] wasn’t 

able to maintain her sobriety and not put the children at risk 

emotionally and physically. 

You know not that she would ever hurt the children physically. 

She loves these kids, and she wants the best. But she is just 

dominated by this disease. And I do feel that it puts the children 

at risk, despite her bond. Of course she loves them.

(emphasis added).

Based on the record before this court, the trial court’s determination 
20

that termination of the Mother’s parental rights is not the least restrictive 

means of protecting the children from serious harm is not supported by 

competent, substantial evidence. Accordingly, we reverse the portion of the 

final judgment denying termination of the Mother’s parental rights and 

remand for entry of final judgment terminating the Mother’s parental rights 

consistent with this opinion.

Affirmed in part; reversed in part; and remanded with directions.