DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

A.S., the Father,

Appellant,

v.

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

LITEM PROGRAM,

Appellees.

No. 4D14-3571

[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 Beach, for appellee J.A.

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

Program.

STEVENSON, 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 

proceedings.

Facts

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

which the 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 as 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. 

Neither man was J.A.’s father. 

By late February 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 2013, 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 the hearing on someone who lived at A.S.’s 

listed address, 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, notifying 

him of these appointments. A.S. later explained that he lived with his 

grandparents at their home and that he used his listed address as a rental 

property. He claimed he never received the notice or letters from 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 was 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 paternity was established and

he was officially a party to the case, but he 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. first 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 his 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, asserting 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 (2014), 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 significant 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 as 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 child.

§ 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, the 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 falls 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. East-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 the legislature’s intent of timely establishing

permanency as the trial court and DCF have set procedures to expedite

petitions 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 termination 

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 parental rights.

Neither 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 established 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 trial 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 convincing 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), provides:

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 established 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 children 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 abandoned 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 establishment 

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 significant 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 Children 

& 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 present 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 unable to comply with a case plan or 

that J.A. would suffer significant harm were he reunited with A.S. The 

attorney ad litem argues that there was 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. 

There, the 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.

MAY and KLINGENSMITH, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.