### D ISTRICT 

### C OURT 

### O F 

### A PPEAL 

### O F 

### T HE 

### S TATE 

### O F 

### F LORIDA

F OURTH D ISTRICT

A.S. , the Father

, Appellant,

v.

DEPARTMENT OF CHILDREN & FAMILIES, J.A. , and GUARDIAN AD

LITEM PROGRAM
, Appellee s

.

No. 4D 14

- 3571

[ April 1, 2015 ]

Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County ; Kathleen J. Kroll , Judge; L.T. Case No. 2012DP300395 JL

.

Frank A. Kreidler, Lake Worth, for appellant.

Rosemarie Farrell, Orlando, for appellee DCF.

Jorge Anton, Attorney Ad Litem, Legal Aid Society of P .B. County, Inc.,

West Palm B e ach, for appellee J.A.

Patricia M. Propheter, Sanford, for appellee Guardian Ad Litem Program.

S TEVENSON

, J

.

The case before us arises from the termination of parental rights of A.S., the father. We find the trial court erred in finding that A.S. abandoned his child and that termination of his parental rights was the least restrictive means available. Accordingly, we reverse and remand for further

proce edings.

Facts

A.S. and the mother of J.A., the child, had a brief relationship

, during

which t he mother became pregnant but was uncertain as to the father

. A.S. knew the mother was pregnant and that he might be the father

. Still,

he did not believe the mother when she notified him and had no further

contact with her throughout her pregnancy.2

J.A. was born in September of 2012. He was sheltered almost immediately and was placed in licensed care. 1 In December of 2012, DCF filed a petition for termination of parental rights a s to both of J.A.’s parents on the basis of abandonment. The petition listed the father of the child as

“ unknown. ” J.A. was adjudicated dependent in January of 2013.

The mother has played an almost non

- existent role in J.A.’s life, and a

termination of parental rights has been entered against her. The mother provided DCF, over the course of a few months, three names of possible fathers. Two men took paternity tests within a few months of J.A.’s birth

. N either man was J.A.’s father.

By late Febru ary of 2013, more than six months after J.A.’s birth , the mother testified in open court that A.S. was the father

. 2 Testimony from the TPR hearing established that a case manager with DCF contacted A.S. The case manager spoke to A.S. once in March of 201 3, but was unable to speak at length because he was at work. In addition to speaking with A.S. by phone, the case manager e

- mailed him information about taking a paternity test.

A hearing on a motion to establish paternity was scheduled for March 20, 2013 . DCF served notice of th e hearing on someone who lived at A.S.’s

listed addre ss , but A.S. failed to appear . A.S. also missed two paternity test appointments scheduled by DCF

— one in April of 2013 and the other in May of 2013. DCF had sent letters to A.S.’s listed address, notify ing him of these appointments. A.S. later explain ed that he lived with his grand parents at their home and that he used his listed address as a rental property. He claimed he never received the notice or letters fr om his

tenant.

DCF eventually located A.S., and he took a paternity test in August of

2013. A.S. did not learn he was the father until the December 2013 hearing . When asked why he did not contact the testing company to

discover the paternity result

, A .S. said he assumed he would have been

contacted had the test shown he was the father.

According to the record before us, the test result proving A.S. ’s

1 At the time of the July 2014 TPR hearing, J.A. was living with foster parents.

2 In a January 23, 2013 order, there was a note from the case manager that the

mother had named A.S. and another man as possible fathers; however, the case manager wrote that the man initially identified was still listed as the father in DCF’s computer system.3

paternity w as filed with the trial court on October 2, 2013. On November 25, 2013, DCF filed an amended petition for termination of parental rights against the mother and A.S . The basis for termination against A.S. was abandonment. By the end of 2013, A.S. ’s paterni ty was established and

he was officially a party to the case , but h e was never offered a case plan.

After learning he was the father, and missing a scheduled mediation in January of 2014, A.S. took steps to begin forming a relationship with J.A.

A.S. fi rst met J.A. in late March of 2014. Seven subsequent visits followed, with each visit lasting approximately an hour

- and

- a

- half and generally taking place at a park. Three other scheduled visits were canceled because the case manager was on vacation. A.S . purchased food for J.A. during these visits, and brought J.A. a toy on one occasion.

There was conflicting testimony at the TPR hearing concerning the impact these visits had on J.A

. The foster mother testified that J.A. had night terrors following h is visits with A.S. She further testified that J.A. often returned home with a dirty diaper, which she attributed to A.S.’s failure to check J.A.’s diaper before dropping him off with the case manager. A.S. disputed the foster mother’s testimony, asserti ng that he always checked J.A.’s diapers during their visits.

The trial court entered an order terminating A.S.’s parental rights

, finding the evidence was clear and convincing that A.S. abandoned J.A. as defined in section 39.01(1), Florida Statutes (2 014 ) , and within the meaning of section 39.806(1)(b), Florida Statutes (2014)

. 3 The trial court

further concluded that termination was the least restrictive means available, as reunification with A.S. would , in its opinion, pose a substantial risk of sign ificant harm to J.A.

Analysis

Abandonment

We first address the trial court ’s finding that A.S. abandoned J.A. “Abandonment,” in the context of a termination of parental rights case, is

3 Section 39.806(1)(b), Florida Statutes (2014), provides:

(1) Grounds for the termination of parental rights may be established under any of the following circumstances:

. . . . (b) Abandonment a s defined in s. 39.01(1) or when the identity or location of the parent or parents is unknown and cannot be ascertained by diligent search within 60 days.4

defined as:

[A] situation in which the parent or legal custodian of a child or, in the absence of a parent or legal custodian, the caregiver, while being able, has made no significant contribution to the

child ’ s care and maintenance or has failed to establish or maintain a substantial and positive relationship with the child, or both. For purposes of this subsection, “establish or maintain a substantial and positive relationship” includes, but is not limited to, frequent and regular contact with the child through frequent and regular visitation or frequent and regular communication to or with the child, and the exercise of parental rights and responsibilities. Marginal efforts and

incidental or token visits or communications are not sufficient to establish or maintain a substantial and positive relationship with a chil d.

§ 39.01(1), Fla. Stat. (2014) (emphasis added) . Chapter 39 defines a “parent” as:

[A] woman who gives birth to a child and a man whose consent to the adoption of the child would be required under s. 63.062(1). If a child has been legally adopted, th e term “parent” means the adoptive mother or father of the child. The

term does not include

. . . an alleged or prospective parent

, unless the parental status falls within the terms of s. 39.503(1)

or s. 63.062( 1)

.

§ 39.01(49), Fla. Stat. (2014) (emphasis added).

When reading the definition of “parent” in conjunction with that of “abandonment,” we conclude that a prospective parent cannot abandon a child under Chapter 39

, unless the prospective parent’s status fa lls within the terms of sections 39.503(1) or 63.062(1 )

. 4 See Heart of Adoptions, Inc.

v. J.A. , 963 So. 2d 189, 198 (Fla. 2007) (“As with any case of statutory construction, we begin with the ‘actual language used in the statute.’” ) (quoting Borden v. Eas t

- European Ins. Co.

, 921 So. 2d 587, 595 (Fla.

2006 ))

.

4 Section 39.503, Florida Statutes (2014), illustrates the proper procedure a trial

court should follow when the identity or location of a parent is unknown and a dependency petition has been filed. Section 63.062(1), Florida Statutes (2014), lists persons who are required to consent to an adoption.5

In making this determination, we have considered the legislature’s finding “ that time is of the essence for establishing permanency for a child in the dependency system.” § 39.0136(1), Fla. Stat. (2014). Our resolution

of this case is not at odds with t he legislature’s intent of timely establishing

permanency as the trial court and DCF have set procedure s to expedite petition s for termination of parental rights

. Section 39.803, Florida Statutes (2014), prescribes the inquiry the trial court must make when the identity or location of a parent is unknown and a petition for termina tion of parental rights has been filed. More importantly , this section requires the trial court to direct DCF to conduct a diligent search for the prospective parent if the prospective parent’s location is unknown. 5 If DCF complies

and a diligent search fails to locate a prospective parent, then DCF can proceed with a petition for termination of parental rights without concern that the TPR could be later undermined by the appearance of a prospective parent seeking to establish his or her p arental rights.

N either section 39.503(1) nor section 63.062(1) is applicable to the

instant case

, and there is no evidence that DCF ever utilized section

39.803 to locate A.S. Therefore

, A.S. was a prospective parent until his paternity was established

. A.S.’s paternity was established , at a minimum, towards the end of 2013, not the beginning of 2013. Thus, in deciding whether A.S. abandoned J.A. , the trial court should have

considered only A.S.’s actions following his establish ed paternity. The trial court, however, erroneously relied on A.S.’s failure to take affirmative steps to establish his paternity in the early

- to mid

- months of 2013.

Looking at only A.S.’s actions after the establishment of his paternity,

we find the t rial court was not presented with clear and convincing

evidence that he abandoned J.A. See T.G. v. Dep’t of Children & Families

, 8 So. 3d 1198, 1199 (Fla. 4th DCA 2009) (“To terminate parental rights because of abandonment, there must be clear and convinc ing evidence.”).

From March of 2014 to the July 2014 TPR hearing, A.S. visited J.A. eight times. Combining these eight visits with the three visits that were canceled by the case manager, A.S. was on pace to see his son on a weekly basis.

5 Section 39.803( 8 ), Florida Statutes (2014), prov ides:

If the inquiry and diligent search identifies a prospective parent, that person must be given the opportunity to become a party to the proceedings by completing a sworn affidavit of parenthood and filing it with the court or the department. A prospective parent who files a sworn affidavit of parenthood while the child is a dependent child but no later than at the time of or prior to the adjudicatory hearing in the termination of parental rights proceeding for the child shall

be considered a parent for all purposes under this section.6

This establish ed pace constitutes “frequent and regular contact with the child.” § 39.01(1), Fla. Stat. (2014); see also S.L. v. Dep’t of Children &

Families , 120 So. 3d 75, 77 (Fla. 4th DCA 2013) (reversing on the issue of

abandonment when there was evidence that the mother visited her children twenty

- six times in a one

- year time period, had other visits with

the child ren that were not documented, and purchased clothing, food and other items for them).

Based on our conclusions that A.S. was a prospective parent until late

2013 and could not have abandon ed his child until his paternity was

established , and that the trial court was not presented with clear and convincing evidence that A.S. abandoned J.A. following the establishmen t of paternity, we find the trial court erred in finding A.S. abandoned J.A.

Least Restrictive Means

We next address why termination of A.S.’s parental rights was not the

least restrictive means available. DCF’s concession on this issue is well

taken.

To prove that termination of parental rights is the least restrictive means of protecting a child from harm, DCF “‘must show by clear and convincing evidence that reunification with the parent poses a substantial

risk of si gnificant harm to the child.’” A.H. v. Dep’t of Children & Families

, 144 So. 3d 662, 665 (Fla. 1st DCA 2014) (quoting B.C

. v. Fla. Dep’t of

Children & Families , 887 So. 2d 1046, 1053 (Fla. 2004)). “‘[T]he least restrictive means test [is not] intended to preserve the parental bonds at the cost of a child’s future. Instead, this test requires that those measures short of termination should be utilized if such measures can permit the safe reestablishment of the parent

- child bond.’” L.W. v. Dep’t of Childr en & Families , 71 So. 3d 221, 224 (Fla. 4th DCA 2011) (quoting A.J. v. K.A.O.

, 91 So. 2d 30, 33 (Fla. 5th DCA 2007)) (internal quotation marks omitted).

“Florida’s governing statutes clearly state that when DCF seeks to terminate parental rights due to abandonment, it need not offer the parent a case plan with a goal of reunification.” C.A.H. v. Dep’t of Children &

Families , 830 So. 2d 939, 941 (Fla. 4th DCA 2002). In general, however, DCF “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 pr esent child.” Padgett v. Dep’t of Health & Rehabilitative Servs. , 577 So. 2d 565, 571 (Fla. 1991)

. Further, “in order to establish that termination is the least restrictive means, DCF must show that the parent will not benefit from court ordered

services .” C.A.T. v. Dep’t of Children & Families , 10 So. 3d 682 , 684 (Fla. 5th DCA 2009).7

In the instant case, A.S . was never offered a case plan

, despite no indication in the record that he was un able to comply with a case plan or that J.A. would suffer sig nificant harm were he reunited with A.S . The attorney ad litem argues that there wa s no requirement to offer a case plan to A.S., and cites C.A.H

. for support. In C.A.H. , this court upheld a trial court’s decision to terminate a mother’s parental rights even though she

had not been offered a case plan. C.A.H. , however, is distinguishable.

T here, t he mother knew the location of her child but failed to visit the child for close to eight months , and she was repeatedly incarcerated. 830 So.

2d at 939

– 40.

Unlike the mother in C.A.H. , once A.S. discovered he was J.A.’s father,

he frequently visited his child and expressed an interest in playing a larger

role in his life

. Aside from testimony about dirty diapers and occasional night terrors, there was no additional evidence that J.A. would suffer harm if reunited with A.S. Accordingly, we find the trial court was not presented clear and convincing evidence that termination of parental rights was the

least restrictive means available.

Conclusion

Based on the forgoing , we reverse the order of termination as to A.S. and remand to the trial court for further proceedings.

Reversed and remanded

.

M AY and K LINGENSMITH

, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.