NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING 

MOTION AND, IF FILED, DETERMINED 

IN THE DISTRICT COURT OF APPEAL 

OF FLORIDA 

SECOND DISTRICT 

In the Interest of A.R., a child. ) 

___________________________________ ) 

 ) 

R.R., ) 

 ) 

 Appellant, ) 

 ) 

v. ) Case No. 2D13-3036 

 ) 

M.M., ) 

 ) 

 Appellee. ) 

___________________________________ ) 

Opinion filed July 18, 2014. 

Appeal from the Circuit Court for Collier 

County; Elizabeth V. Krier, Judge. 

Radha Rothrock of Rothrock Law Firm PL, 

Bonita Springs, for Appellant. 

Cary Alan Cliff of Cary Alan Cliff, P.A., 

Naples, for Appellee. 

KHOUZAM, Judge. 

The Father appeals the final judgment terminating his parental rights to his 

minor child, A.R. On August 16, 2012, the Mother filed a private petition for involuntary 

termination of the Father's parental rights, arguing that the Father's parental rights 

should be terminated pursuant to—among other grounds—section 39.806(1)(d)(1), 
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Florida Statutes (2012). That section provides for termination of parental rights where 

"[t]he period of time for which the parent is expected to be incarcerated will constitute a 

significant portion of the child's minority." After a hearing, the court granted the petition 

and terminated the Father's parental rights on this ground. 

On appeal, the Father argues that the circuit court erred by failing to find 

that termination was the least restrictive means of preventing harm to the child and 

failing to adequately support its finding that termination was in the child's manifest best 

interests. He also claims that the court erred by not allowing him to present evidence 

that the Mother thwarted his efforts to maintain a relationship with the child, finding that 

such evidence was irrelevant to an analysis under section 39.806(1)(d)(1). We agree 

that the court erred and therefore reverse for a full evidentiary hearing. 

The Florida Supreme Court has held that in addressing the termination of 

parental rights under section 39.806(1)(d)(1), a court must not only consider the length 

of the parent's incarceration but also whether termination is the least restrictive means 

of protecting the child from harm and in the manifest best interests of the child. See 

B.C. v. Fla. Dep't. of Children & Families, 887 So. 2d 1046, 1053 (Fla. 2004). The 

incarcerated parent's relationship with the child and efforts to maintain that relationship 

while in prison are relevant to these inquiries. As the supreme court has stated: 

Termination of the parental rights of a parent who has played 

a supportive and beneficial role in the child's life despite the 

disabilities of incarceration probably would not meet these 

additional statutory and constitutional criteria. Cf. [In Interest 

of B.W., 498 So. 2d 946, 948 (Fla. 1986)] (stating that 

"efforts, or lack thereof," by incarcerated parent "to assume 

his parental duties through communicating with and 

supporting his children must be measured against his limited 

opportunity to assume those duties while imprisoned"). 

Further, termination of an incarcerated parent's rights when 
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another parent retains custody, which is permitted under 

section 39.810(3), Florida Statutes, would in many cases be 

contrary to the child's best interests if the custodial parent 

facilitates contact with the incarcerated parent. 

In sum, termination cannot rest exclusively on the 

length of incarceration. The actual effect of incarceration on

the parent-child relationship must also be considered in light 

of the additional statutory and constitutional requirements. 

As we recently stated in [Florida Department of Children & 

Families v. F.L., 880 So. 2d 602 (Fla. 2004)] concerning the 

court's obligation to assess when termination is the least 

restrictive means of protecting the child from serious harm, 

the termination decision as a whole "can be made only after 

a judicious assessment of all relevant circumstances." 880 

So. 2d at 608. We are confident that trial judges will 

diligently apply all the statutory and constitutional criteria in 

ruling on petitions for termination. 

Id. at 1053-54. 

Here, the court completely failed to address in its final judgment whether 

termination was the least restrictive means of protecting the child. And though the court 

did recite the required statutory factors on the manifest best interests of the child, the 

findings on these factors show that the court placed undue focus on the fact that the 

Father was incarcerated, failing to consider other relevant factors, such as the nature of 

the Father's relationship with the child. Indeed, the record shows that the court limited 

questioning about the Father's attempts to maintain a relationship with the child and the 

extent to which the Mother thwarted the relationship between the Father and the child. 

So the court did not give the Father the opportunity to present evidence on this 

important factor. Accordingly, we reverse and remand for a full evidentiary hearing. 

Reversed and remanded. 

MORRIS and SLEET, JJ., Concur.