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 J.W., a child. )

)

)

M.S., )

)

Appellant, )

)

v. ) Case No. 2D15-5005

) 

DEPARTMENT OF CHILDREN AND )

FAMILIES and GUARDIAN AD LITEM )

PROGRAM, )

)

Appellees. )

)

Opinion filed September 28, 2016.

Appeal from the Circuit Court for 

Hillsborough County; Emily A. Peacock, 

Judge.

Scott L. Robbins, Tampa, for Appellant.

Pamela Jo Bondi, Attorney General,

Tallahassee, and Christopher Lumpkin and

Mary Soorus, Assistant Attorneys General, 

Tampa, for Appellee Department of 

Children and Families.

Laura E. Lawson, Sanford, for Appellee 

Guardian ad Litem Program. 
2

WALLACE, Judge.

M.S. appeals the order that terminated her parental rights to her child, 

J.W., and the order that denied her "motion alleging ineffective assistance of counsel for 

termination of parental rights proceedings and request to withdraw current counsel from 

case." We affirm, without discussion, the denial of M.S.'s motion seeking a new 

adjudicatory hearing based upon the alleged ineffective assistance of her courtappointed counsel.1 Although four of the five grounds found by the trial court for 

termination are not supported by competent, substantial evidence, we affirm the 

termination order based on the trial court's finding that it would be harmful to the child to 

continue the relationship with M.S., an incarcerated parent, under section

39.806(1)(d)(3), Florida Statutes (2014).

I. THE FACTUAL BACKGROUND

M.S. was known to the Department of Children and Families (DCF)

because of her ongoing failure to complete a case plan for her older child, S.S. 

Because of M.S.'s substance abuse issues, S.S. had been sheltered in December 2011

and adjudicated dependent as to M.S. in 2012.2 J.W. was born on May 14, 2013. On 

 

1The Florida Supreme Court has recently recognized the right to effective 

assistance of counsel in proceedings involving the termination of parental rights and 

established an interim procedure for addressing such claims in cases in which parental 

rights are terminated. See J.B. v. Fla. Dept. of Children & Families, 170 So. 3d 780 

(Fla. 2015).

2The record reveals that S.S. was born blind and with reactive airway 

disease, developmental delay, and Lennox-Gastaut syndrome (severe epilepsy). 

Because of her mental illness and drug addiction, M.S. did not provide S.S. with the 

care needed. S.S.'s foster mother, who has a medical background, subsequently 

adopted her.
3

May 17, 2013, DCF filed an affidavit and petition for placement in shelter alleging that 

J.W. was in danger because M.S. had failed to address her substance abuse and 

mental health issues and had failed to obtain stable housing and stable income. The 

trial court ordered that J.W., who was three days old, be placed in shelter care. Two 

weeks later, M.S. voluntarily consented to J.W. being adjudicated dependent. 

While J.W. was sheltered, M.S. was arrested, along with J.W.'s father, for 

robbery with a deadly weapon and tampering with a witness. While in jail awaiting trial

on the criminal charges, M.S. agreed to a reunification case plan that DCF offered in 

August 2013. In October 2013, the trial court accepted the reunification case plan that

required M.S. to complete a substance abuse evaluation, any recommended treatment, 

and individual therapy. Under the case plan, M.S. also agreed to demonstrate stable 

housing and income and to pay child support. On December 4, 2013, M.S. pleaded 

guilty to armed robbery and a drug charge and was sentenced to three years in prison. 

The reunification case plan was set to expire on May 14, 2014, well before the

estimated date of M.S.'s release from prison of January 23, 2016.

3

On February 12, 2015, DCF petitioned to terminate M.S.'s parental rights 

to J.W. on the following grounds: (1) that M.S. had abandoned J.W., section 

39.806(1)(b); (2) that M.S.'s continued involvement with J.W. threatened his life or 

safety regardless of the provision of services, section 39.806(1)(c); (3) that M.S. 

continued to neglect or abandon J.W. after a case plan had been filed, section 

39.806(1)(e)(1); (4) that M.S. failed to comply with the case plan after the child had 

 

3The on-line records of the Department of Corrections reflect that M.S. 

was released from custody on January 17, 2016.
4

been in care for 12 of the last 22 months, section 39.806(1)(e)(3); and (5) that 

continuing the parental relationship with an incarcerated parent would be harmful to 

J.W., section 39.806(1)(d)(3). DCF also sought the termination of the parental rights of 

J.W.'s father, to whom M.S. was not married.

The trial court held an adjudicatory hearing on two separate days in 

August 2015. After the hearing, the trial court entered its order finding that DCF proved 

by clear and convincing evidence all of the grounds alleged for termination. The trial 

court also found that termination was in the best interest of J.W. and that termination 

was the least restrictive means of protecting the child from harm. The order terminated 

the parental rights of both M.S. and the child's father.

M.S. and the child's father filed separate appeals from the trial court's 

order.4 On January 27, 2016, this court dismissed the father's appeal for failure to 

prosecute. J.W. v. Dep't of Children & Families, No. 2D15-4723, 2016 WL 818921 (Fla. 

2d DCA Jan. 27, 2016). M.S.'s appeal has proceeded to this disposition on the merits.

II. THE LEGAL BACKGROUND

The trial court must find that DCF proved grounds supporting termination 

under section 39.806 by clear and convincing evidence. E.E.A. v. Dep't of Children & 

Family Servs., 846 So. 2d 1250, 1251 (Fla. 2d DCA 2003). That finding is presumed 

 

4The father's appeal was assigned to a different panel of this court. We 

note that the attorneys for both M.S. and the child's father failed to comply with this 

court's standard Notice to Attorneys and Parties requiring "all attorneys and 

unrepresented parties [to] advise this court of related cases currently pending or 

recently decided by this court." A failure by the attorneys for the parties to inform us of 

the existence of related cases in matters such as this not only disregards our 

reasonable request, it also makes our work more difficult and leads to the possibility of 

inconsistent results. See F.G. v. Dep't of Children & Families, 192 So. 3d 1250 (Fla. 3d 

DCA 2016).
5

correct but should be reversed if clearly erroneous or not supported by competent, 

substantial evidence. E.R.-J. v. Dep't of Children & Family Servs., 86 So. 3d 574, 579-

80 (Fla. 2d DCA 2012). The trial court must then consider whether termination is in the 

manifest best interest of the child under section 39.810. Rathburn v. Dep't of Children & 

Families, 826 So. 2d 521, 523 (Fla. 4th DCA 2002). Finally, the trial court must find that 

termination of parental rights is the least restrictive means of protecting the child from 

harm. E.E.A., 846 So. 2d at 1252.

"Our standard of review in parental rights termination cases is highly 

deferential." N.F. v. Dep't of Children & Family Servs., 82 So. 3d 1188, 1191 (Fla. 2d 

DCA 2012). The trial court's ruling will be affirmed if, upon the competent, substantial

evidence presented, there is any principle or theory of law that supports the judgment 

terminating parental rights. G.W.B. v. J.S.W., 658 So. 2d 961, 967 (Fla. 1995). "A 

finding that evidence is clear and convincing enjoys a presumption of correctness and 

will not be overturned on appeal unless clearly erroneous or lacking in evidentiary 

support." R.C. v. Dep't of Children & Family Servs., 33 So. 3d 710, 714 (Fla. 2d DCA 

2010) (quoting N.L. v. Dep't of Children & Family Servs., 843 So. 2d 996, 999 (Fla. 1st

DCA 2003)). "Thus, we review the circuit court's ruling for evidentiary support and legal 

correctness." N.F., 82 So. 3d at 1191 (citing D.P. v. Dep't of Children & Family Servs., 

930 So. 2d 798, 801 (Fla. 3d DCA 2006)).

III. DISCUSSION

A. Introduction

On appeal, M.S. contends that the trial court's findings are not supported 

by competent, substantial evidence. DCF properly concedes that the trial court's 
6

findings regarding the grounds for termination under sections 39.806(1)(b), 

39.806(1)(e)(1), and 39.806(1)(e)(3) are not supported by competent, substantial 

evidence. However, DCF argues that competent, substantial evidence supports 

termination under section 39.806(1)(c) and section 39.806(1)(d)(3). Thus we will limit 

our discussion of the grounds for termination to the two remaining grounds upon which 

DCF relies in support of the order under review: (1) harm to the child arising from the 

parent's continued involvement in the parent-child relationship under section 

39.806(1)(c), and (2) harm to the child arising from the child's continued relationship 

with an incarcerated parent under section 39.806(1)(d)(3).

B. Continued Involvement Under Section 39.806(1)(c)

Section 39.806(1)(c) provides that grounds for termination of parental 

rights may be established

[w]hen the parent or parents engaged in conduct toward the 

child or toward other children that demonstrates that the 

continuing involvement 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. 

The trial court found that M.S. had been offered services via a reunification case plan 

but that M.S. failed to complete several of the case plan tasks, including individual 

therapy, substance abuse evaluation and treatment, child support, stable housing, and 

stable income. The trial court also found that M.S. (1) was incarcerated and was not 

expected to be released until February 22, 2016; (2) was arrested and sentenced for 

robbery with a knife and for tampering with a witness; (3) did not then have a substantial 

or positive relationship with J.W.; (4) did not establish stable income or housing for 

J.W.'s entire life; and (5) did not demonstrate "a sustained duration of sobriety outside 
7

of residential treatment or incarceration in a normal stressful everyday environment." 

From this, the trial court concluded that M.S.'s continued involvement threatened J.W.'s 

well-being.

Two of the trial court's findings regarding M.S.'s alleged failure to complete 

certain case plan tasks—individual therapy and substance abuse evaluation and 

treatment—are refuted by the record. The other three—child support, stable housing, 

and stable income—were tasks that were impossible for M.S. to attempt to complete 

until she was released from prison. Cf. D.N. v. Dep't of Children & Family Servs., 48 

So. 3d 1035, 1036 (Fla. 2d DCA 2010) (holding that the trial court's finding that D.N. 

was non-compliant with his case plan because he could not provide stable housing or 

finances was insufficient to support the placement of D.N.'s child into a permanent 

guardianship because D.N.'s failure to achieve these two objectives was due to his 

incarceration during the pendency of the case). More important, and contrary to a 

specific factual finding of the trial court, there is no evidence that DCF had provided 

M.S. with any services with regard to J.W. either before or during her incarceration. 

See § 39.6012(1)(b) (detailing DCF's responsibilities in providing services).5 Finally, as 

to the trial court's finding that M.S. "did not demonstrate 'a sustained duration of sobriety 

outside of residential treatment or incarceration in a normal stressful everyday 

environment,' " M.S. was unable to comply with this objective because she was 

incarcerated during the entire period of the case plan. However, the record does reflect 

that M.S. had made significant progress in an outpatient drug treatment and 

 

5The record indicates that DCF may have provided M.S. drug treatment 

and parenting classes during the previous case plan for her older child, S.S.
8

rehabilitation program in which she participated while in prison. There is no reason that 

M.S. could not pursue these case plan objectives upon her release from prison. For 

these reasons, we conclude that the competent, substantial evidence in the record does 

not support termination of M.S.'s parental rights on the ground of continued involvement 

under section 39.806(1)(c).

C. Harm to the Child Arising from a Continued Relationship with an Incarcerated 

Parent Under Section 39.806(1)(d)(3)

Section 39.806(1)(d)(3) permits termination based upon incarceration if 

"[t]he court determines by clear and convincing evidence that continuing the parental 

relationship with the incarcerated parent would be harmful to the child" and that 

termination is in the child's best interest. In 2012, an amendment6to the statute added

five factors for the trial court to consider to assist it with this determination:

a. The age of the child.

b. The relationship between the child and the parent.

c. The nature of the parent's current and past provision for 

the child's developmental, cognitive, psychological, and 

physical needs.

d. The parent's history of criminal behavior, which may 

include the frequency of incarceration and the unavailability 

of the parent to the child due to incarceration.

e. Any other factor the court deems relevant.

§ 39.806(1)(d)(3)(a)-(e).

Here, the trial court found as follows: (a) J.W. was twenty-one months old;

(b) J.W. did not have a relationship with M.S. because of her incarceration; (c) M.S. had 

 

6Ch. 2012-178, § 15, at 2322-23, Laws of Fla.
9

not provided for J.W.'s developmental, cognitive, psychological, and/or physical needs 

because of her incarceration; (d) M.S. was frequently incarcerated and unavailable to 

J.W. because of her incarceration and that M.S. had a history of substance abuse 

charges and convictions for armed robbery, possession of a controlled substance, and 

delivery of a controlled substance; and (e) because of her incarceration, M.S. had not 

established a positive or substantial relationship with J.W. or addressed her substance 

abuse issues and would miss a substantial period of the child's life, including his most 

important developmental years. 

Based on these findings, the trial court concluded that "continuing the 

parental relationship with the Mother would be harmful to the child, and, for this reason, 

termination of parental rights of the incarcerated parent is in the best interest of the 

child." In its order, the trial court cited only section 39.806(1)(d), but the language of the 

order indicates that the trial court based its findings and conclusions on subsection 

(1)(d)(3) alone, as opposed to subsections (1)(d)(1) or (1)(d)(2), which provide 

alternative grounds for termination.7 However, in her initial brief on appeal, M.S. argues 

only that the trial court erred in terminating her parental rights under section 

39.806(1)(d)(1). But the trial court did not cite or rely on this section at all, and the 

criteria for termination under subsection (1)(d)(1), which focuses on the period of time 

the parent is expected to be incarcerated balanced against the child's need for a 

permanent and stable home, are completely different from that of subsection (1)(d)(3), 

 

7The trial court's order is a cut and paste from DCF's amended petition. 

The petition also cites only to section 39.806(1)(d), but the language in the petition is 

based on subsection (1)(d)(3) alone. 
10

which requires a determination by clear and convincing evidence that continuing the 

relationship with the incarcerated parent would be harmful to the child.

In their answer briefs, both DCF and the Guardian ad Litem Program 

argue that M.S. has waived the issue of termination based on section 39.806(1)(d)(3) 

because of her failure to argue the point in her initial brief. After M.S. was put on notice 

of this critical omission, she did not move for leave to file an amended initial brief to 

address the point. Under these circumstances, we agree that M.S. has waived the point 

about the sufficiency of the evidence to support termination under 39.806(1)(d)(3) by 

failing to address it in her initial brief.8 See City of Miami v. Steckloff, 111 So. 2d 446, 

447 (Fla. 1959); Kenyon v. Kenyon, 496 So. 2d 839, 840 (Fla. 2d DCA 1986); 

Polyglycoat Corp. v. Hirsch Distribs., Inc., 442 So. 2d 958, 960 (Fla. 4th DCA 1983).9 

Only one ground is required for termination. S.B. v. Dep't of Children & Family Servs., 

80 So. 3d 438, 439 (Fla. 2d DCA 2012); A.H. v. Dep't of Children & Families, 63 So. 3d 

 

8M.S. did not file a reply brief.

9

If M.S. had argued the point, we would have concluded that competent,

substantial evidence supports the trial court's findings for termination under section 

39.806(1)(d)(3). See Dep't of Children & Families v. J.S., 183 So. 3d 1177, 1185 (Fla. 

4th DCA 2016) (holding that where an incarcerated father had no relationship with his 

child, the trial court erred in finding that continuing the parental relationship would not be 

contrary to the child's best interest under section 39.806(1)(d)(3)); R.M. v. Dep't of 

Children & Families, 847 So. 2d 1103, 1104 (Fla. 4th DCA 2003) (holding that section 

39.806(1)(d)(3) does not require proof that actual contact with the incarcerated parent 

was detrimental to children and evidence that the possibility of the parent reclaiming his 

children after his incarceration would be extremely detrimental to the children's mental 

health was sufficient to support termination); but see C.B. v. Dep't of Children & 

Families, 874 So. 2d 1246, 1252-53 (Fla. 4th DCA 2004) (holding that despite the 

absence of a relationship between the mother and her child resulting from the mother's 

incarceration and that giving the mother an opportunity to complete a case plan would 

delay permanency for the child for at least one year, DCF had not established grounds 

for termination under section 39.806(1)(d)(3)). We note that the Fourth District's 

decisions in R.M. and C.B. predate the 2012 amendment to section 39.806(1)(d)(3).
11

874, 877 (Fla. 1st DCA 2011). Therefore, the insufficiency of the evidence to sustain 

the other grounds asserted for termination is of no consequence. See R.S. v. Dep't of 

Children & Families, 872 So. 2d 412, 413 (Fla. 4th DCA 2004).

D. Termination as in the Child's Best Interest and as the Least Restrictive Means

The trial court properly found that termination was in J.W.'s manifest best 

interest under section 39.810 and that termination was the least restrictive means of 

protecting J.W. from harm in accordance with Padgett v. Department of Health &

Rehabilitative Services, 577 So. 2d 565, 571 (Fla. 1991).

IV. CONCLUSION

There is no way to resolve this case that is entirely satisfactory. We are 

mindful of the principle that "[p]arental rights are a 'fundamental liberty interest' that 

cannot be terminated based on incarceration alone." S.B. v. Dep't of Children & 

Families, 132 So. 3d 1243, 1247 (Fla. 1st DCA 2014) (quoting J.R. v. Dep't of Children 

& Family Servs., 923 So. 2d 1201, 1205-06 (Fla. 2d DCA 2006)). It is only natural to 

wish that M.S. could have a chance to find stability in her life, complete a case plan, and 

be reunited with her son. But a reversal of the trial court's order would result in a further 

delay in permanency for J.W. Moreover, M.S. has no relationship with her son. A 

reunification of J.W. with M.S. would be traumatic and harmful to him after he has spent 

all of the years of his early childhood development with his foster mother, who seeks to 

adopt him. It is regrettable that the relatively brief period of M.S.'s incarceration began 

only a few weeks after J.W.'s birth. The proximity of these events has resulted in a 

situation where M.S. will lose her parental rights to J.W. Although this outcome is 

unfortunate, we cannot elevate M.S.'s wish for a chance at reunification with her child 
12

over J.W.'s opportunity for a secure and happy life in his current placement. The 

legislative policy established in section 39.806(1)(d)(3) and our highly deferential 

standard of review compel us to affirm the trial court's termination order and to remand 

for further proceedings. We also affirm the order denying M.S.'s motion based on her 

claim of ineffective assistance of counsel.

Affirmed.

KELLY and CRENSHAW, JJ., Concur.