Supreme Court of Florida

____________

No. SC2023-0604

____________

STATEWIDE GUARDIAN AD LITEM OFFICE,

Petitioner,

vs.

C.C., et al.,

Respondents.

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No. SC2023-0605

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DEPARTMENT OF CHILDREN AND FAMILIES,

Petitioner,

vs.

C.C., et al.,

Respondents.

March 7, 2024

FRANCIS, J.

The Department of Children and Families (the Department) 

and the Statewide Guardian ad Litem Office (GAL) seek review of 

the Fifth District Court of Appeal’s decision in C.C. v. Department of 
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Children & Families, 47 Fla. L. Weekly D2323 (Fla. 5th DCA Nov. 

14, 2022), which reversed the trial court’s final order terminating 

the father’s, C.C.’s, parental rights.1

Because the Fifth District’s decision failed to properly apply 

our precedent in S.M. v. Florida Department of Children & Families, 

202 So. 3d 769 (Fla. 2016), we quash the decision below and 

remand to the Sixth District to affirm the trial court’s final order 

terminating C.C.’s parental rights to L.A.2

I. BACKGROUND

L.A., the child at the center of these proceedings, is a six-yearold boy who was sheltered by the Department shortly after his birth 

in 2017,3 due to his mother’s continued physical abuse of his older 

1. We have jurisdiction. See art. V, § 3(b)(3), Fla. Const.

2. This case was originally heard by the Fifth District; 

however, after the opinion was released, the Department and GAL 

each filed a motion for rehearing, rehearing en banc, and 

certification. While those motions were pending, the case was 

transferred to the newly formed Sixth District. 

3. L.A. was removed from the mother’s care due to her 

involvement with the Department. The mother’s parental rights to 

L.A. were terminated, along with the father’s; however, only the 

father’s case is currently before this Court. 
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brother. He has lived with his current foster family for the past six 

years.

At the time L.A. was sheltered, C.C. was living in North 

Carolina and was facing charges of driving while impaired for which 

he would be convicted. It marked C.C.’s eighteenth conviction in a 

fifteen-year period.4 He would go on to secure two other such 

charges. And even though he repeatedly completed inpatient drug 

and alcohol treatment as part of his criminal cases, he did not 

change his ways.5 C.C.’s latest conviction landed him in prison for 

25-39 months, with a release date of September 2023. Of the past 

six years (the course of the Department’s involvement), C.C. has 

been incarcerated for three of those years.

One of C.C.’s more egregious crimes was first-degree arson 

and assault with a dangerous weapon arising from a domestic 

violence incident. Specifically, he stabbed his paramour and

4. C.C.’s convictions run the gamut: domestic violence, arson, 

driving while intoxicated (repeatedly), reckless driving to endanger 

(repeatedly), hit and run, felon in possession of a firearm, assault 

by pointing a weapon, and communicating threats.

5. Both the Department and C.C. allege that he no longer has 

substance abuse issues.
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mother of one of his children, injuring her arm, neck, back, and 

hand; the injuries required stitches. He then poured gasoline on 

the home and set it on fire, while his older son and another child 

were inside.6 For these crimes, C.C. spent seven years in prison. 

Although L.A. has always lived in Florida, C.C. resided in 

North Carolina for the duration of the Department’s involvement. 

He did, however, have some minimal involvement in L.A.’s life. For 

instance, he visited L.A. three or four times per year in person, and 

video-chatted with L.A. when he wasn’t incarcerated. However, 

C.C.’s remote video visits with L.A. became more difficult for L.A. 

when those visits resumed after C.C.’s release from incarceration in 

early 2020. The longest C.C. spent in-person with L.A. at one time 

was for four hours, and he did this on two occasions: once in 2019 

and once in 2020. C.C. nevertheless provided some financial 

support for L.A., both at the holidays and upon the caregiver’s 

request. 

When the Department first became involved with the family six 

years ago, C.C. sought to obtain custody of L.A. in North Carolina,

6. C.C. denied that his older son was present.
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so an Interstate Compact on the Placement of Children home study 

was completed in that state. The home study report concluded, 

however—after listing his numerous convictions from 2002-2017—

that it would be nearly impossible for C.C. to obtain a positive home 

study in North Carolina. As a result, C.C. prepared to move to

Florida in order to obtain custody of L.A. Though he reported he 

had leased an apartment in Jacksonville, C.C. did not commit to 

moving and ultimately went back to North Carolina because he 

didn’t like Florida’s “atmosphere.” He was arrested and 

incarcerated in North Carolina shortly thereafter for driving while 

impaired.

During the Department’s initial involvement, it took numerous 

actions directed at rehabilitating C.C. and fostering a relationship 

between him and L.A. Beginning in March 2018—a year and a half 

before the first petition for termination was filed—the Department 

offered to provide C.C. a voluntary case plan and pay for all 

associated services. C.C. agreed to the voluntary case plan, and the 

trial court accepted it.7 That case plan required C.C. to participate 

7. Although the trial court stated in its final order (and the 

Fifth District recited) that C.C. had no case plan tasks and/or no 
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in a psychological evaluation and follow recommendations, 

complete individual counseling, attend parent coaching, obtain 

stable employment and housing, and exercise supervised visitation 

with L.A. Despite C.C. living in North Carolina for the duration of 

the Department’s involvement, the Department referred C.C. to 

various services and paid for all of the services he received.

Following his third conviction for driving while impaired, the 

Department changed course from offering a voluntary case plan 

with the goal of reunification, to petitioning for termination of C.C.’s

parental rights based on: (1) abandonment; (2) continuing 

involvement threatening L.A.’s life, safety, well-being, or physical, 

mental, or emotional health; (3) chronic substance abuse; and (4) 

L.A.’s placement in out-of-home care for 12 of the last 22 months. 

§ 39.806(1)(b), (c), (j), (e)3., Fla. Stat.8 

case plan was offered to him, this finding is not supported by 

competent, substantial evidence. The record clearly shows that the 

Department offered C.C. a voluntary case plan with associated 

tasks, C.C. agreed to the case plan, the trial court accepted the case 

plan, and the Department paid for all services associated with 

C.C.’s case plan tasks.

8. The Department filed its first petition for termination in 

October 2019, and the matter went to a final hearing in February 

2020; however, due to COVID restrictions, the final hearing was not 
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At a final hearing on the Department’s petition in the spring of 

2022, the trial court entered a final order terminating C.C.’s 

parental rights based on the Department having proven (1), (2), and 

(4) above. Regarding (1), the court reasoned that C.C.’s repeated 

incarceration, provision of token support, and failure to maintain a 

substantial and positive relationship with L.A. constituted

abandonment. Regarding (2), the court determined that C.C.’s

repeated incarceration and unavailability caused a risk of harm to 

L.A. despite C.C. receiving services on multiple occasions. And

regarding (4), the court found that L.A.’s placement in out-of-home 

care met the 12-of-the-past-22-months benchmark because L.A.

was sheltered in December 2017, and hadn’t returned home by the 

time the final order was entered in April 2022.

completed until November 2020. At that time, the trial court denied 

the Department’s petition. The Department and GAL sought 

rehearing, and the trial court sua sponte granted a new final 

hearing. Prior to the commencement of the second hearing, the 

Department filed the most recent amended petition alleging the 

grounds for termination set forth here.
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The trial court also found that it was in L.A.’s manifest best 

interests to have C.C.’s rights terminated, and termination was the 

least restrictive means of protecting L.A. from serious harm.

On appeal to the Fifth District, C.C. argued one issue: that the 

trial court erred in finding that termination was the least restrictive 

means of protecting L.A. In response, the Department and GAL 

argued: (1) there was competent, substantial evidence supporting 

the trial court’s least restrictive means determination; (2) section 

39.806(2), Florida Statutes, relieved the Department of having to 

make reasonable efforts where the trial court found statutory 

grounds under section 39.806(1)(b) (abandonment) and (1)(c) 

(continuing involvement); and (3) termination was the least 

restrictive means pursuant to this Court’s decision in In Interest of

T.M., 641 So. 2d 410 (Fla. 1994).

The Fifth District, however, agreed with C.C. and concluded: 

“Under the facts of this case, and in the absence of other reasonable 

efforts at reunification, a case plan should have been provided to 

[C.C.], with the opportunity to perform satisfactorily thereunder, 

before DCF pursued severance of his parental rights.” C.C., 47 Fla. 

L. Weekly at D2326.
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The court then held there was not competent, substantial 

evidence that termination was the least restrictive means of 

protecting the child. Id. In reaching its determination, however, 

the Fifth District impermissibly reweighed the evidence and failed to 

properly apply our decision in S.M. Accordingly, we quash the Fifth 

District’s decision.

II. ANALYSIS

Before a trial court can terminate a parent’s rights to his or 

her child, there are three elements the Department must prove. 

First, the Department must prove by clear and convincing 

evidence that at least one statutory ground in section 39.806(1), 

Florida Statutes (2021), exists. See § 39.806(1), Fla. Stat. (2021); § 

39.809(1), Fla. Stat. (2021) (“In a hearing on a petition for 

termination of parental rights, the court shall consider the elements 

required for termination. Each of these elements must be 

established by clear and convincing evidence before the petition is 

granted.”).

Second, the Department must show that termination is in the 

child’s manifest best interests. See § 39.810, Fla. Stat. (2021) (“In a 
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hearing on a petition for termination of parental rights, the court 

shall consider the manifest best interests of the child.”).

And third, the Department must demonstrate that termination 

is the least restrictive means of protecting the child from serious 

harm. See Padgett v. Dep’t of Heath & Rehab. Servs., 577 So. 2d 

565, 571 (Fla. 1991) (“[B]ecause 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.”).

S.M.’s Guiding Principles for the Least Restrictive Means Prong

The least restrictive means element is a judicially implied 

requirement that “is tied directly to the due process rights that 

must be afforded to a parent before his or her parental rights are 

terminated.” S.M., 202 So. 3d at 778. We have addressed the least 

restrictive means prong numerous times since Padgett, and most 

recently, in S.M.

In S.M., the Department became involved when the mother’s 

youngest child tested positive for drugs at birth. Id. at 773. The 

mother was given a voluntary case plan, which required her to 

obtain stable housing, find a job, and participate in substance 
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abuse treatment. Id. After the mother failed to complete these

tasks and was found living in unsafe housing, the Department 

sought to terminate her parental rights, and the trial court entered 

a final order to that effect. Id. at 774, 783-84. On appeal to the 

Fourth District Court of Appeal, the mother argued that termination 

was not the least restrictive means of protecting the children 

because they shared a loving bond, and a family member would

allow the mother to regularly visit with the children. Id. at 774-75. 

The Fourth District disagreed and affirmed the trial court’s order 

terminating the mother’s rights.

In approving the Fourth District’s decision, this Court 

discussed several guiding principles regarding the least restrictive 

means prong, including the following.

First, we acknowledged that the least restrictive means prong 

is tied to due process rights and focuses on what actions the State 

took to preserve the parent-child bond, prior to filing the petition for 

termination. Id. at 778. Second, we emphasized that the least 

restrictive means prong is centered on protecting the fundamental 

liberty interest in being a parent to a child, with all of the 

responsibility and care that parenthood entails. Id. And third, we 
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reiterated that the “the only limitation on this rule of parental 

privilege is that as between the parent and the child[,] the ultimate 

welfare of the child must be controlling.” Id. (quoting Padgett, 577 

So. 2d at 570).

S.M.’s Application to this Case

Although the Fifth District’s opinion in C.C. correctly began by 

discussing S.M. as to least restrictive means, the analysis went 

sideways when the court started reweighing the evidence on appeal.

See Herzog v. Herzog, 346 So. 2d 56, 58 (Fla. 1977) (“Even if the 

appellate court disagrees with the trial court and would have 

reached a different conclusion had it been in the shoes of the trial 

court, barring a lack of substantial evidentiary support for the 

findings of the trial court, the judgment should be affirmed.”). 

Instead, the Fifth District should have simply reviewed for 

competent, substantial evidence and applied S.M., as discussed 

below. See K.D. v. Dep’t of Child. & Fams., 242 So. 3d 522, 523 

(Fla. 1st DCA 2018) (“Our review, confined to the least restrictive 

means prong of the termination order, is highly deferential and 

limited to whether competent, substantial evidence supports the 

trial court’s judgment and whether we cannot say that no one could 
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reasonably find such evidence to be clear and convincing. Our role 

is not to reweigh the evidence heard by the trial court.” (internal 

quotation marks omitted)).

As to the first principle from S.M.—the actions the State took 

to preserve the parent-child bond—we consider the efforts the 

Department made from the time it became involved until filing the 

petition for termination. See S.M., 202 So. 3d at 778. This due 

process protection does not require the Department to exhaust 

every possible service that could remotely help a parent; rather, the 

protection simply requires the Department to employ 

“fundamentally fair procedures” prior to seeking termination.

Santosky v. Kramer, 455 U.S. 745, 753-54 (1982). There is 

competent, substantial evidence supporting the conclusion that 

fundamentally fair procedures were employed here.

Although the Fifth District believed the Department should 

have provided more services to C.C. (including substance abuse 

treatment and services intended to reduce recidivism), it is clear the 

Department took numerous actions during the first year-and-a-half 

of its involvement that were directed at helping C.C. obtain custody 
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of L.A.—including offering C.C. a voluntary case plan with various 

tasks and paying for all associated services.

Even if C.C. could have benefited from additional services, the 

question remains whether there was a parent-child bond to reestablish. See S.M., 202 So. 3d at 778-79 (“The least restrictive 

means prong . . . simply requires that measures short of 

termination should be utilized if such measures can permit the safe 

re-establishment of the parent-child bond.” (internal quotation

marks omitted and emphasis added)). As found by the trial court 

and contained in the record, the evidence is undisputed and shows

there is no such bond: L.A. was sheltered when he was days old 

and has never lived with C.C.; during the six years of L.A.’s young 

life, C.C. has never spent more than four hours at one time with 

L.A.; C.C. only saw L.A. in-person a handful of times per year when 

he was not incarcerated; and the GAL testified that C.C. and L.A. do 

not share a parent-child bond. 

Second, as to the fundamental liberty interest at stake—the 

right to be a parent to the child—the parties do not dispute the 

minimal involvement C.C. had in L.A.’s life. And the trial court 

correctly concluded that C.C.’s calls and visits when he wasn’t 
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incarcerated, coupled with his sporadic financial support, do not 

demonstrate that he has the capacity to exercise his right to be a 

parent to L.A. 

To this end, we find it significant that despite C.C.’s clear 

understanding that he would likely never pass a home study in 

North Carolina, he failed to move to Florida—the only state where 

he believed he could obtain custody of his son. By C.C.’s own 

testimony, he did not move to Florida because he “didn’t like the 

atmosphere” here. Although it is certainly his prerogative to live 

where he wishes, C.C.’s decision to remain in North Carolina is 

competent, substantial evidence supporting the trial court’s 

conclusion that termination is the least restrictive means. See id.

at 780 (“If reunification is not possible because the father or mother 

cannot or will not assume responsibility as a parent to the child, . . 

. then termination is the least restrictive means of preventing 

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

129 (Fla. 4th DCA 2015))).

Third, as to the principle that between the parent and the 

child the ultimate welfare of the child must be controlling, L.A.’s 

best interests must prevail over C.C.’s right to be a parent to him.
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See id. As the trial court found, C.C.’s unwillingness to remain out 

of jail and prison, as well as the nature of his criminal convictions, 

present substantial threats to L.A.’s welfare. During C.C.’s monthsand years-long absences, he did not have any contact with L.A. and 

clearly did not have the ability to have custody of L.A. at that time. 

Over the past six years—even while knowing that his parental rights 

were at stake—C.C. continued to engage in illegal activity that 

caused him to be unable to care for his son. Despite the 

Department’s providing numerous services directed at helping C.C.

obtain custody of L.A., he has not been able to overcome the issues 

that led to L.A.’s dependency; therefore, termination is the least 

restrictive means of protecting the child from serious harm. See id.

III. CONCLUSION

We conclude that the Fifth District’s decision improperly 

reweighed the evidence below and, thus, conflicts with our 

precedent. It is clear from our review that there is competent, 

substantial evidence in the record supporting the trial court’s 

determination that termination is the least restrictive means of 

protecting L.A. from serious harm, while affording C.C. due process 

protections. We therefore disapprove and quash the Fifth District’s 
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decision and remand to the Sixth District to affirm the trial court’s 

order terminating C.C.’s parental rights to L.A.

It is so ordered.

MUÑIZ, C.J., and CANADY, LABARGA, COURIEL, and

GROSSHANS, JJ., concur.

SASSO, J., recused.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION 

AND, IF FILED, DETERMINED.

Application for Review of the Decision of the District Court of Appeal

Direct Conflict of Decisions 

Sixth District - Case No. 6D2023-1357

(Osceola County)

Dennis W. Moore, Executive Director, Sara Elizabeth Goldfarb, 

Statewide Director of Appeals, and Laura J. Lee, Assistant Director 

of Appeals, Statewide Guardian ad Litem Office, Tallahassee, 

Florida,

for Petitioner Statewide Guardian ad Litem Office

Stephanie C. Zimmerman, Deputy Director and Statewide Director 

of Appeals, and Kelley Schaeffer, Appellate Counsel, Children’s 

Legal Services, Bradenton, Florida,

for Petitioner Department of Children and Families

Keith Peterson of the Law Offices of Peterson, P.A., Mulberry, 

Florida,

for Respondent C.C.