### D ISTRICT 

### C OURT 

### O F 

### A PPEAL 

### O F 

### T HE 

### S TATE 

### O F 

### F LORIDA

F OURTH D ISTRICT

B.A., the Mother

, Appellant,

v.

STATE OF FLORIDA, DEPARTMENT OF CHILDREN AND FAMILIES
, Appellee

.

No. 4D 20

- 270

[ May 27, 2020 ]

Appeal from the Circuit Court for the Nineteenth Judicial Circuit, St. Lucie County ; Robert B. Meadows , Judge; L.T. Case No.

562019DP000127

.

Antony P. Ryan, Director, and Paul O ’ Neil, Assistant Regional Counsel, Office of Criminal Conflict and Civil Regio nal Counsel, West Palm Beach, for appellant.

Andrew Feigenbaum, Children ’ s Legal Services, West Palm Beach, for appellee

.

Craig Robert Lewis, Defending Best Interests Project, Florida Statewide Guardian Ad Litem Office, Miami Beach, and Thomasina F. Mo ore, Statewide Director of Appeals, and Samantha C. Valley, Senior Attorney, Statewide Guardian Ad Litem Office, Tallahassee, for Guardian Ad Litem Program.

C IKLIN
, J

.

B.A. (“the mother”) appeals a final judgment terminating her parental rights. We conclude that neither of the two statutory grounds relied upon

for termination of parental rights (“TPR”) was proven by competent, substantial evidence, and we reverse.

The trial court ’ s determination that TPR was proper under section

39.806 (1)(c) , Florida Statutes (2019), was based on the mother ’ s history

and findings related to (1) her “pattern of behavio r” of completing services

to obtain reunification with her children, (2) her reverting back to alcohol

abuse and domestic violence with the child’s father “once the Department2 terminates supervision

, ” and (3) the fact that “[t]he mother

. . . continue [ s ]

t o be in a relationship with [the father] to the detriment of her children

. ”

At the TPR hearing, the D epartment established that the mother had previously and successfully completed a case plan that included

substance abuse treatment

. S he was reunified with her children in 2015

with D epartment supervision conclud ing in 2016. The D epartment was permitted to admit records from prior cases to establish some of t hese

facts , but , importantly, the trial court indicated that it would not consider any hearsay allegations within the records. The testimonial evidence established that the mother began consuming alcohol again at the end of 2018, and that the children wer e removed due to an incident of domestic violence between the mother and father in May 2019, which incident occurred while they were both drinking. Even though the mother was not offered a case plan, she became sober immediately upon the removal of

the ch ildren and successfully completed a substance abuse treatment

program

. She is currently in an “aftercare” program for substance abuse.

To terminate parental rights, one of the grounds set forth in section 39.806, Florida Statutes (2019)

, must be establis hed by clear and convincing evidence

. J.G. v. Dep ’ t of Children & Families , 22 So. 3d 774, 775 (Fla. 4th DCA 2009) . C lear and convincing evidence has been defined as an “intermediate level of proof [that] entails both a qualitative and quantitative standard. The evidence must be credible; the memories of the witnesses must be clear and without confusion; and the sum total of the evidence must be of sufficient weight to convince the trier of fact without hesitancy.” In re N.F ., 82 So. 3 d 1188, 1191 (Fla. 2d DCA 2012) (alteration in original) (quoting In re Davey , 645 So. 2d 398, 404 (Fla. 1994)).

“ While a trial court ’ s decision to terminate parental rights must be based upon clear and convincing evidence, our review is limited to whe ther competent substantial evidence supports the trial court ’ s judgment. ” J.G.

, 22 So. 3d at 775

. “ Competent substantial evidence is tantamount to legally sufficient evidence. ” Dusseau v. Metro. Dade Cty

. Bd. of Cty

. Com m’ rs , 794 So. 2d 1270, 1274 (Fla. 2001)

. “ S ufficiency is a test of adequacy. Sufficient evidence is ‘ such evidence, in character, weight, or amount, as will legally justify the judicial or official action demanded. ’ ”

Tibbs v. State , 397 So. 2d 1120, 1123 (Fla. 1981) (quoting Black ’s Law Dictionary 1285 (5 th ed. 1979) ).

Section 39.806(1)(c) provides that grounds for termination may be

established:

When the parent or parents engaged in conduct toward the

child or toward other children that demonstrates that the3 continuing involveme nt of the parent or parents in the parent

child relationship threatens the life, safety, well

- being, or physical, mental, or emotional health of the child irrespective of the provision of services. Provision of services may be evidenced by proof that serv ices were provided through a previous plan or offered as a case plan from a child welfare

agency.

§ 39.806(1)(c), Fla. Stat. (2019). “ To terminate the mother ’ s rights under [section 39.806(1)(c)] , the Department was required to prove that the

children ’ s ‘ life, safety, or health would be threatened by continued interaction with the parent, regardless of the provision of services ’ and that

‘ there is no reasonable basis to believe the parent will improve. ’ ” Q.L. v. Dep ’ t of Children & Families , 2 80 So. 3d 107, 114 (Fla. 4th DCA 2019) (quoting T.O. v. Dep ’ t of Children & Families , 21 So. 3d 173, 179 (Fla. 4th

DCA 2009 )). There must be proof “either that services have been provided to the parent or that it would be futile to even attempt to provide services to address the parent ’ s issues. ” C.W. v. Dep ’ t of Children & Families , 228
So. 3d 725 , 725 (Fla. 1st DCA 2017)

.

The portion of the TPR order terminating the mother’s rights pursuant to subsection (1)(c) was based on the trial court ’ s findings o f the mother ’ s history of both alcohol abuse and domestic violence. The record does not
support TPR with respect to either of these issues.

First, we address the m other ’ s alcoholism. Proof of both elements

outlined in Q.L. is questionable in this case , but t he D epartment clearly failed to prove that there was no reasonable basis to believe that the

mother would improve

. “ Typically, this second evidentiary requirement is established through expert testimony. Where there is no expert testi mony on this issue,

. . . reversal may be appropriate because the trial court ’ s findings would be speculative. ” Q.L. , 280 So. 3d at 115.

Here , as in Q.L. , the D epartment did not call any experts to testify and it presented no testimony that the mother would not or could not

rehabilitate

. On the contrary, the evidence indicated that the mother previously and successfully completed substance abuse treatment and

th en spent years both sober and unsupervised. After the removal

, the mother again entered and successfully completed a substance abuse

program

— despite receiving no offer of a case plan . The evidence at the TPR hearing indicated that she has not had a n alco holic drink since the

incident that led to the latest removal. Moreover, the mother ’ s testimony indicated that the substance abuse program she most recently completed was much more comprehensive than her previous program. In light of the4 mother ’ s success and her expressed desire to overcome her addiction

— along with the absence of any affirmative evidence that the mother is unlikely to improve with treatment

— we see no competent, substantial evidence to support a determination that there was no reasonable b asis to

believe the mother w ould improve. 1

Second , the trial court ’ s factual findings regarding a history of domestic

violence and that “[t]he mother

. . . continue [ s ] to be in a relationship ” with

the father are not supported by the record. On the contrary, the

D epartment proved only a single instance of domestic violence which occurred immediately prior to the shelter order . The D epartment contends that the case manager ’ s testimony established a history of domestic

violence. In relevant part, the case manager testified that she had been assigned to the case for fewer than three months, she was “briefly” made aware of the family ’ s history, and that she familiarized herself “with the file” “to the best of [he r] ability,” but that she may not have been able to view everything due to the age of the case. She further testified that, in the instant case, the children were removed due to substance abuse and violence in the home, and that those were the “same reaso ns” addressed in prior dependency cases. She explained that there were not “any services

that the D epartment could offer in this case that [it has] not already offered

in the two prior cases.”

1 We acknowledge that there are many circumstances in which expert testimony may not be necessary to establish that a parent is not amenable to treatment. See, e.g., R.K. v. Dep ’ t of Children & Families , 898 So. 2d 998, 1000

- 01 (Fla. 5th DCA 2005) (affirming termination of parental rights wh ere mother had a 15

- year history of drug abuse, used cocaine while pregnant with children, and did well while in residential drug treatment, but failed to complete multiple treatment programs, and upon leaving last facility, violated her probation and was incarcerated) ; S.J. v. Dep ’ t of Children & Family Ser v s

. , 866 So. 2d 770, 771 (Fla. 4th DCA 2004) (affirming termination of parental rights where mother was twice unsuccessfully discharged from outpatient substance abuse treatment, refused inpatient treatment, and was arrested four times while under D epartment supervision). However, these cases are vastly distinguishable from the facts at hand, and “[w]here the record demonstrates a reasonable basis exists to find the
parent ’ s problems coul d be improved, parental rights cannot be terminated.” M.H. v. Dep ’ t of Children & Families , 866 So. 2d 220, 223 (Fla. 1st DCA 2004) (finding no evidence to establish a reasonable basis that mother would not improve where, despite drug addiction and relaps es, mother sought treatment before Department involvement, continued to seek help both through the Department and on her own, and expressed a “strong desire to overcome her addiction and parent her children”).5 Simply stated, the case manager ’ s testimony wa s not competent

, substantial evidence of a history of domestic violence

. The case manager’s testimony was expressly equivocal and she lacked personal knowledge of the history of the case. Furthermore, s imply stating that the children were

removed for the “same reasons” as in prior cases provided no substance, quantity, or detail surrounding any alleged past instance of domestic

violence. We find that her testimony lacked the nature and weight of

evidence required for establishing a past history of domestic viol ence in

this context.

Moreover, there was no evidence to support a conclusion that the parents were in an ongoing relationship. The evidence established just the opposite: the parents separated following removal, t hey no longer live together, and they a re no longer romantically involved with one another.

Accordingly, this court must evaluate whether termination under section 39.806(1)(c) is proper based on the evidence of one incident of

domestic violence. “ Termination under this section is terminati on based

on prospective abuse or neglect. Essentially, the trial court is asked to look at the parent ’ s current . . . condition or past behavior and predict whether the parent will likely harm the child in the future.” Q.L ., 280 So.

3d at 113

- 14 (emphasis in original ). Because the parents were no longer

liv ing together and there was no evidence of any reconciliation s following prior instances of domestic violence or any other evidence indicating a

likelihood of harm to the children based on do mestic violence

, it cannot be

said that the Department proved that t here is likelihood of harm to the

child ren based on domestic violence.

Furthermore, the D epartment failed to offer a case plan following the single proven incident, and there is nothing in the record to demonstrate whether or not the mother would improve with the assistance of services.

Thus , any determination that domestic violence services would be futile

was based on raw speculation with little if any evidentiary support

.

The second ground for termination in the order of TPR is based on section 39.806(1)( l ), Florida Statutes (2019), under which termination is permissible where “ [o]n three or more occasions the child or another child of the parent or parents has been placed in out

- of

- home care pursuant to this chapter . . . , and the conditions that led to the child’s out

- of

- home placement were caused by the parent or parents. ” The evidence was similarly in sufficient to support a TPR under this subsection. The

D epartment proved that children were removed from the home on three dates but there was not competent, substantial evidence to establish that6 the conditions that led to the earlier removals were caused by the mother.

The D epartment failed to meet its burde n.

In sum, there was not sufficient evidence to support termination of the

mother ’ s parental rights under either statutory ground. Consequently, we

reverse and remand.

Reversed and remanded

.

K LINGENSMITH
, J., and L EVENSON
, J EFFREY , Associate Judge, co ncur.

* * *

Not final until disposition of timely filed motion for rehearing.