FLORIDA'S DEPENDENCY BENCHBOOK BENCHCARD

FLORIDA’S DEPENDENCY BENCHBOOK

BENCHCARD: TERMINATION OF PARENTAL RIGHTS ADJUDICATORY

HEARING

Items in bold font are required by Florida Statutes.

Note: TPR Hearings are closed proceedings and, as appropriate, exclude persons who are

not parties, participants, persons entitled to notice of advisory, or lawyers involved in the

case. § 39.809(4).

Introductory remarks.

 Explain purpose of the hearing. State the number of days the child has been in care and

the number of placements to date.

 Swear in the parties, participants, and relatives. (See Parties and Participants, Section 8)

Representation and appointment of counsel.

 If parents do not have counsel, advise parents of right to legal counsel. The offer of

counsel must be renewed at every hearing. §§ 39.013(9).

 Ascertain whether the right to counsel is understood. § 39.013(9)(a).

 If counsel is waived it must be on the record. Rule 8.320(b)(2). Determine if waiver is

made knowingly, intelligently, and voluntarily. § 39.013(9)(a).

 If parents request counsel and claim to be indigent, have parents fill out affidavit for

indigency. If indigent per affidavit and the parents request it, appoint counsel for

parents. § 39.013(9)(a).

 If parents request a continuance to consult with counsel, if the child is in shelter care,

the court must follow the requirements of § 39.402(14) in determining whether to

grant the continuance. (See Continuances, Section 8)

 If parents are ineligible for the appointment of counsel or knowingly, intelligently, and

voluntarily waive appointed counsel, ask if the parents want to proceed pro se or hire a

private attorney. Explain “pro se” if necessary.

 Follow the circuit plan (developed by the chief judge) so that orders appointing counsel

are entered on an expedited basis.

Parties and notices.

 Have all parties identify themselves for the record with full name and permanent

address. § 39.0131. See also §§ 39.402(8)(g) & 39.506(4). Advise parties that the court

will use the address for notice purposes until notified otherwise in writing. (Note: Do not

openly identify the address when one or more of the parents is party to an injunction for

protection against domestic violence.)

 Confirm that the following persons were served with the petition for termination of

parental rights; notice of the date, time, and place of the advisory hearing; and a

summons with the required statutory language that specifically notified them that a

petition has been filed:

o Parents of the child;

o Legal custodians of the child (if the parents who would be entitled to notice are

dead or unknown);

o A living relative of the child;

o Physical custodian of the child;

o Grandparent entitled by law to priority for adoption under § 63.0425;

o Any prospective parent who has been identified under § 39.503 or § 39.803;

o The GAL or GAL program representative. (See Service, Section 8)

 If the parent’s location is not known, require a thorough description of DCF’s efforts

to locate and advise any absent parent of the hearing and confirm that a diligent

search is in progress, if not yet completed. Verify that the diligent search complies

with requirements of § 39.803(6).

 Verify that relatives who requested notice actually received notice to attend the hearing.

 Conduct a paternity inquiry if still in dispute. If a parent has not legally established

paternity, DNA testing should be ordered after proper inquiry, applying Privette principles

as appropriate. If necessary, examine birth certificate or inquire as to marriage status.

(See Paternity in Dependency Cases, Section 3)

 If inquiry and diligent search identifies a prospective parent, that person must be

given an opportunity to become a party to the proceedings by completing a sworn

affidavit of parenthood. § 39.803(8).

 If the diligent search fails to identify and locate a prospective parent, the court shall

so find and may proceed without further notice. § 39.803(9).

 Appoint Guardian ad Litem Program to represent the best interests of the child if it

has not yet been appointed. § 39.402(8)(c); Rule 8.215. (See Guardian ad Litem,

Section 4)

 If the child is eligible for membership in a federally recognized tribe, confirm that the

case worker has notified the tribe pursuant to the Indian Child Welfare Act. (See Indian

Child Welfare Act, Section 7)

 Ask the parents if they are involved in any other past or pending family law, paternity,

domestic violence, delinquency, or child support cases other than those previously

disclosed. (See Dependency in the Context of Unified Family Court, Section 2)

 Ask parents, and others entitled to notice, who else should be involved in the court

matter or who else is significant in the child’s life.

 Verify timely compliance with all ICPC requirements. (See Interstate Compact on the

Placement of Children, Section 7)

If parents wish to change their plea.

 Ask parents if they are satisfied with the advice of their attorney. (If no attorney present

inquire if parent would like to be represented by an attorney. If indigent, and clerk

verifies eligibility, appoint one.)

 Ask parents’ counsel if their client is asking the court to accept a plea of consent.

 Ask parents if they understand that by entering a consent they are giving up their right:

 To a trial;

 To compel the attendance of witnesses;

 To cross examine all witnesses; and

 To require DCF to prove the allegations in the petition by clear and convincing

evidence.

 Ask parents if anyone promised them anything or threatened them in any way to get them

to enter this plea.

 Inquire if the parents are currently under the influence of any alcohol, medication, or

drugs. (If YES, then what type, when, and how much last taken.)

 Inform the parents that they have 30 days from the entry of the termination of parental

rights judgment to file an appeal, and if they cannot afford an attorney, one will be

appointed to represent them.

 Announce: The court hereby finds that the plea of consent or admit is being knowingly,

intelligently, and voluntarily made and that the parents have had the benefit of legal

advice regarding the surrender of their parental rights.

 Ask if there is anything that the parents or their counsel would like to say before the court

concludes the hearing.

 Accept the plea and continue with the balance of the hearing as scheduled.

 Note that some judges do a similar inquiry concerning a surrender by a parent.

 Set a manifest best interests hearing for: (Date________, Time______, in Courtroom

_____). (See Manifest Best Interests Colloquy, Section 9)

TPR adjudicatory/disposition hearing.

 Proceed through regular course of the trial. (Ex: Each side calling witnesses to testify,

etc.)

 Determine whether TPR is the least restrictive means of protecting the child.

 Review petition and determine whether grounds for TPR have been proved by clear

and convincing evidence and whether there is clear and convincing evidence that TPR

is in the manifest best interests of the child. § 39.809(1).

 Verify that each family member was provided services to meet his or her particular needs.

 Verify that all services were accessible to the person receiving them.

 Determine the manifest best interests of the child. § 39.810.

 Consider the reasonable preferences and wishes of the child, if appropriate for the

child’s age. § 39.810(10).

 Inquire if parents have relatives who might be considered as a placement for the

child. § 39.810(1).

 Ask parent(s)/DCF if there are there any siblings in any other homes. If so, order

visitation, if appropriate, pursuant to § 39.811(7)(b).

 Ask if there anything that the parent or their counsel would like to say before the court

proceeds to conclude the disposition hearing.

 The court now:

 Terminates the parental rights of the parent(s);

 Places the child in the custody of DCF; and

 If the court terminates parental rights, order post-TPR visitation if appropriate,

including any “goodbye” visits by the parents. § 39.811(7)(b).

 If the hearing was on an expedited TPR, set a judicial review hearing. The initial

judicial review must be set within 90 days of the disposition hearing but in no event

later than 6 months from the date that the child’s removal from the home.

 Inform the parents that they have 30 days from the entry of the termination of parental

rights judgment to file an appeal. If they cannot afford an attorney and are eligible,

appoint one.

 Inform parents for whom counsel was appointed that they have the right to file a motion

in the circuit court alleging that appointed counsel provided constitutionally ineffective

assistance, if the court enters a judgment terminating parental rights. Rules 8.525(i) &

8.530(a).

 Inform parents for whom counsel was appointed that they do not have the right to

appointed counsel to file a motion alleging that trial counsel provided constitutionally

ineffective assistance. Rule 8.530(d)(1).

Consider dispositional alternatives and ask DCF/CBC to articulate the plan for the child’s

continued services.

Set the next hearing.

 If TPR is granted, schedule hearing within 30 days of disposition to amend case plan

and identify permanency goal. § 39.811(8).

 If TPR is not granted, but the child is adjudicated or re-adjudicated dependent, schedule

a disposition hearing under § 39.521 or a case plan conference under § 39.6011(1)(a).

 Verify that adoption home studies have been completed. Also verify that the CBC has

produced necessary adoption documents. (See Adoption Hearing Colloquy, Section 9)

Complete a written order.

TERMINATION OF PARENTAL RIGHTS ADJUDICATORY HEARING

SUPPLEMENT

 TPR generally.

Are termination of parental rights hearings closed to the public? Yes. § 39.809(4).

May I hold hearings involving more than one child simultaneously? Yes. When the children

involved are related to each other or were involved in the same case. § 39.809(4).

 Initiation of proceedings.

 How are proceedings initiated? Proceedings are initiated by filing an original TPR

petition in the pending dependency action, if any, by DCF, the guardian ad litem, or

any other person who has knowledge of the facts alleged or is informed of them and

believes they are true. § 39.802(1); Rule 8.500(a)(1).

 Must the petition be written? Yes. The TPR petition must be in writing and signed by

the petitioner under oath stating the petitioner's good faith in filing the petition.

§ 39.802(2).

 Service.

Court closure of termination of parental rights hearings is mandatory. Natural Parents of J.B.

v. DCF, 780 So. 2d 6 (Fla. 2001) (holding that closure is statutorily mandated, therefore the

court need not make particular showing to justify closure). “Because there is no presumption

of openness in TPR proceedings, a mandatory closure requirement does not unconstitutionally

limit the public’s right of access to the proceedings.” Id. at 10. Moreover, “. . . the mandatory

closure of certain proceedings involving children is not an unconstitutional limitation on First

Amendment freedoms.” Id. at 11.

 How will subpoenas for witnesses, documents or other tangible objects be issued? At

the request of a party or on the court’s motion subpoenas will be issued. § 39.801(4).

 All process and orders issued by the court must be served or executed as other process

and orders of the circuit court and, in addition, may be served or executed by

authorized agents of DCF or the guardian ad litem. § 39.801(5).

 Who may serve subpoenas in Florida? Subpoenas may be served within the state by:

 Any person over 18 who is not a party to the proceeding,

 DCF, or

 The guardian ad litem. § 39.801(6).

 No fee may be paid for service by an agent of DCF or the guardian ad litem. Any

sheriff's fees for service must be paid by the county. § 39.801(7).

 Standard of proof.

 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. § 39.809(1).

 However, if the provisions of ICWA apply, no termination of parental rights may be

ordered in the absence of a determination supported by evidence beyond a reasonable

doubt, including testimony of qualified expert witnesses that the continued custody of

the child by the parent or Indian custodian is likely to result in serious emotional or

physical damage to the child. 25 U.S.C. § 1912(f).

 TPR petition.

A TPR petition must contain facts supporting the following allegations:

 That at least one of the grounds for TPR has been met;

 That the parents were informed of their right to counsel at all hearings they attended;

 That a dispositional order adjudicating the child dependent was entered in any prior

dependency proceeding relied upon in offering a parent a case plan;

 That the manifest best interests of the child would be served by the granting of the

petition; and

 That the parents of the child will be informed of the availability of private placement

of the child with an adoptive entity, as defined in § 63.032. § 39.802(4); Rule 8.500(b).

What must be included in the petition? The petition shall contain:

 Allegations as to the identity and residence of the parents, if known;

 The age, sex, and name of the child;

 A certified copy of the birth certificate of each child named in the petition (unless

after a diligent search, petitioner is unable to produce it, in which case the petition

shall state the date and place of birth of each child unless these matters cannot be

ascertained after diligent search or for good cause); and

 When required by law, a showing that the parents were offered a case plan and have

not substantially complied with it. Rule 8.500(b).

Must an answer or any other pleading be filed? No answer to the petition or any other

pleading need be filed. § 39.805. Such matters may be pleaded orally before the court or

filed in writing. § 39.805; Rule 8.520(a).

If a written answer is filed, can it be amended? After a written answer has been filed,

amendments may be filed only with the permission of the court unless all parties consent.

Amendments must be freely permitted in the interest of justice and the welfare of the

child. Rule 8.500(d).

 Voluntary surrenders.

Consider using written plea form for Admit or Consent. (See TPR Surrender Colloquy,

Section 9).

 Parents may consent at any time, in writing or orally, on the record. Rule 8.500(g)(1).

 If the parents consent and execute surrenders and waivers of notice before filing of

the petition, this shall be alleged in the petition and copies filed with the court.

Rule 8.500(g)(2).

 A surrender must be executed before 2 witnesses and a notary public or other

person authorized to take acknowledgments. § 39.806(1)(a).

 When a parent has executed a voluntary surrender before the petition is filed, the

court must conduct a hearing at which the parent has an opportunity to challenge

the prior consent and/or deny the allegations of the petition. See L.O. v. DCF, 807

So. 2d 810 (Fla. 4th DCA 2002).

What should I do if the parents appear and enter an oral consent on the record? The court

shall determine the basis upon which a factual finding may be made and shall incorporate

these findings into the order of disposition. Rule 8.500(g)(3).

 Adjudicatory hearings for petitions for voluntary termination must be held within 21

days after the filing of the petition. Notice of the use of voluntary termination

provisions must be filed with the court at the same time as the filing of the TPR

petition. § 39.808(4).

May a surrender and consent be withdrawn after acceptance by DCF? A surrender and

consent may be withdrawn after acceptance by DCF only if the court finds the surrender

and consent was obtained by fraud or under duress. § 39.806(1)(a)(2).

Expedited TPR.

What is an “Expedited TPR”? It is a proceeding wherein a case plan with the goal of

reunification is not being offered. § 39.01(26). Expedited TPRs are sometimes referred to

as “front-end TPRs” because they are not preceded by a dependency case. Expedited

TPRs derive their name not from the length of time needed to process them but from the

fact that parental rights are being sought to be terminated even though no case plan has

been offered to the parents.

Consider including the following questions in an inquiry to determine whether a plea is entered

knowingly, intelligently and voluntarily.

 Have you read the petition or had someone read the petition to you?

 Did you have enough time to talk with your attorney?

 Were you promised anything or threatened in any way in order to get you to enter this plea?

 Are you under the influence of any drugs, alcohol, or medication at this time?

 Do you have a mental illness that you are being treated for or have been treated for in the

past?

 How far did you go in school?

Based on the answers to these questions, you may need to inquire further to determine whether

the parent is able to give a plea that is knowing, intelligent and voluntary, and make detailed

findings of fact. See In re D.M., 750 So. 2d 128 (Fla. 2nd DCA 2000) & S.F. v. Department of

Children and Families, 825 So. 2d 521 (Fla. 5th DCA 2002).

If a parent fails to appear, determine whether the parent was properly ordered to

appear and advised of the consequences for failure to appear, and enter a consent by

default as appropriate. See § 39.801(3)(d) (stating that if a parent appears for the

advisory hearing and the court orders that parent to personally appear at the

adjudicatory hearing stating the date, time and location of that hearing, then failure to

personally appear shall constitute consent to TPR).

 Reasonable efforts to preserve and reunify families are not required if a court has

determined that any of the events described in § 39.806(1)(b)-(d) or (f)-(m) have

occurred. § 39.806(2).

 When an expedited TPR petition is filed, reasonable efforts shall be made to place the

child in a timely manner in accordance with the permanency plan, and to complete

whatever steps are necessary to finalize the permanent placement of the child.

§ 39.806(4).

 Adjudicatory hearing - generally.

Determine whether absent parties were properly ordered to appear at adjudicatory

hearing and advised of consequences of failure to appear.

 Appoint a guardian ad litem, if one has not yet been appointed.

The court shall ascertain at each stage of the proceedings whether a GAL has been

appointed. § 39.807(2)(a).

Shall I appoint a guardian ad litem to represent the best interests of the child in any TPR

proceeding? Yes. § 39.807(2)(a). See G.S. v. DCF, 838 So. 2d 1221 (Fla. 3rd DCA 2003)

(reversing termination of parental rights where trial court failed to inquire whether a

guardian ad litem had been appointed, did not attempt to appoint a guardian ad litem,

and did not determine whether the child’s interests were adequately protected

throughout pendency of the proceeding); compare In re E.F., 639 So. 2d 639 (Fla. 2nd DCA

1994) (If the court makes a good faith effort to comply with the statute by attempting to

appoint a guardian ad litem, it is not fundamental error if none are available and the TPR

case proceeds.); See also L.D. v. DCF, 770 So. 2d 219 (Fla. 3rd DCA 2000).

A guardian ad litem is not required at a voluntary relinquishment of parental rights

proceeding. § 39.807(2)(e).

If a guardian ad litem is appointed for the first time at the TPR adjudicatory hearing the

court may wish to consider whether to continue the proceeding to allow the guardian ad

litem to conduct a meaningful evaluation of the case and develop recommendations.

The recommendation of the guardian ad litem is one of the required considerations

when determining manifest best interests. § 39.810(11).

The trial court “shall consider and evaluate all relevant factors, including, but not

limited to: . . . the recommendations for the child provided by the child’s guardian ad

litem or legal representative.” § 39.810(11). If the court properly considers and

evaluates the recommendation, however, “[t]he trial court may reject the

recommendations of the guardian ad litem and give weight to expert testimony in

consideration of all the evidence. The guardian ad litem and the expert do not render

legal judgments that have effect until overruled-that is the function of the trial judge.”

C.W. v. Department of Children and Families, 814 So. 2d 488, 490 (Fla. 1st DCA 2002).

What are the responsibilities of a GAL?

 To investigate the allegations of the petition and any subsequent matters arising in the

case;

 To be present at all court hearings unless excused by the court;

 To represent the best interests of the child until the jurisdiction of the court over the

child terminates or until excused by the court; and

 Unless excused by the court, to file a written report, which must include a statement of

the wishes of the child and the guardian ad litem’s recommendations.

§ 39.807(2)(b).

What must the GAL report include? The GAL report must:

 Include a statement of the wishes of the child,

 Include the recommendations of the guardian ad litem, and

 Be provided to all parties and the court at least 72 hours before the disposition

hearing. § 39.807(2)(b)(1).

 Right to counsel. § 39.807(1)(a).

If a parent indicates that he or she wishes to have counsel for the first time at the TPR

hearing, the court may want to consider continuing the case, if appropriate.

Once counsel has entered an appearance or been appointed by the court, the attorney

shall continue to represent the parent throughout the proceedings. § 39.807(1)(b).

If the attorney-client relationship is discontinued, the court must advise the parent of the

right to have new counsel retained or appointed for the remainder of the proceedings.

§ 39.807(1)(b).

If a parent has voluntarily executed a valid written surrender and consented to the entry

of a court order terminating parental rights, provisions relating to the appointment of

counsel do not apply. § 39.807(1)(d).

 Review petition and consider evidence.

Is the hearing held before a jury? No. The hearing must be conducted by the judge

without a jury, applying the rules of evidence in use in civil cases. § 39.809(3).

 The judge may consider in-court testimony previously given at any properly noticed

hearing, without regard to the availability or unavailability of the witness at the time

of the actual adjudicatory hearing, if the recorded testimony itself is made available

to the judge. Consideration of such testimony does not preclude the witness from

being subpoenaed to answer supplemental questions. § 39.809(3).

 A previous adjudication of dependency may be proved by introducing a certified copy

of the order of adjudication or disposition. § 39.802(6).

 A certified copy of the order of adjudication or disposition of dependency that

contains a finding of fact that the parent was informed of the right to counsel may

serve as proof that the parent was so advised. § 39.802(7).

 Examination of the Parties.

The child and the parents may be examined separately and apart from each other.

§ 39.809(4).

Grounds for termination of parental rights.

Any person with knowledge of the facts alleged and who believes such facts are true may

petition for TPR under any of the following circumstances:

 When a parent has voluntarily signed a written surrender and consented to an order

giving custody to DCF for adoption and DCF is willing to accept custody of the child.

§ 39.806(1)(a).

 When an abandonment as defined in § 39.01(1) has occurred or when the identity or

location of a parent is unknown and cannot be ascertained by diligent search within 60

days. § 39.806(1)(b).

 When a parent engaged in conduct toward the child or other children that

demonstrates the continuing involvement of the parent in the parent-child relationship

threatens the life, safety, well-being, or physical, mental, or emotional health of the

child, even with the provision of services. Provision of services may be evidenced by

proof that services were provided through a previous plan or offered as a case plan

from a child welfare agency. § 39.806(1)(c).

 When a parent is incarcerated in a state or federal correctional institution and one of

the following three circumstances exists:

 The expected period of incarceration will constitute a substantial portion of the

period of time before the child will turn 18;

 The incarcerated parent has been determined by the court to be:

 A violent career criminal (as defined in § 775.084);

 A habitual violent felony offender (as defined in § 775.084);

 A sexual predator (as defined in § 775.21);

 Convicted of: first degree or second degree murder (in violation of § 782.04) or

a sexual battery that constitutes a capital, life, or first degree felony violation

of § 794.011; or

 Convicted of an offense in another jurisdiction which is substantially similar to

one of the listed offenses; or

 The court determines by clear and convincing evidence that continuing the

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

and, for this reason, that termination of the parental rights of the incarcerated

parent is in the best interests of the child. § 39.806(1)(d).

 When determining harm under 39.806(1)(d)3, the court must consider the following

factors:

 The age of the child; § 39.806(1)(d)3.a.

 The relationship between the child and the parents; § 39.806(1)(d)3.b.

 the nature of the parent’s current and past provision for the child’s

developmental, cognitive, psychological, and physical needs; § 39.806(1)(d)3.c.

 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;

§ 39.806(1)(d)3.d.

 any other factor the court deems relevant; 39.806(1)(d)3.e.

 When a child has been adjudicated dependent, a case plan has been filed with the

court, and:

 The child continues to be abused, neglected, or abandoned by the parent or

parents. The failure of the parent or parents to substantially comply with the case

plan for a period of 12 months after an adjudication of the child as a dependent

Important notes about TPR when a parent is incarcerated:

 The Florida Supreme Court has clarified the meaning of “substantial portion” in §

39.806(1)(d)(1). The Court held that “the statutory language ‘requires the court to evaluate

whether the time for which a parent is expected to be incarcerated in the future

constitutes a substantial portion of the time before the child reaches eighteen, not whether

the time the parent has been incarcerated is a substantial portion of the child’s life to

date.’” B.C. v. Department of Children and Families, 887 So. 2d 1046, 1052 (Fla. 2004)

quoting In re J.D.C., 819 So. 2d 264, 266 (Fla. 2nd DCA 2002).

 Section 39.806(1)(d) was created effective October 1, 1997 and “applies to any person

incarcerated after October 1, 1997 who is sentenced to a term of incarceration which

would qualify under the provisions of this act, as well as any persons who are sentenced

after that date.” See Ch. 97-226, § 6, Laws of Florida; L.E. v. DCF, 783 So. 2d 346 (Fla. 3rd

DCA 2001); In re T.B., 819 So. 2d 270 (Fla. 2nd DCA 2002).

 Additionally, § 39.806(1)(d) formerly required that a parent be incarcerated and that all of

the circumstances in (d)1, (d)2 and (d)3 be proved. The statute was amended in 1999 so

that only one of the three circumstances has to be proved after establishing the parent’s

incarceration. See Ch. 99-193, § 45, Laws of Florida 1999.

 As used in this section, the term "substantially similar offense" means any offense that is

substantially similar in elements and penalties to one of those listed in subparagraph (1)(d),

and that is in violation of a law of any other jurisdiction, whether that of another state, the

District of Columbia, the United States or any possession or territory thereof, or any foreign

jurisdiction. § 39.806(1)(d).

child or the child's placement into shelter care, whichever occurs first, constitutes

evidence of continuing abuse, neglect, or abandonment unless the failure to

substantially comply with the case plan was due to the parent’s lack of financial

resources or the failure of DCF to make reasonable efforts to reunify the parent

and child. The 12-month period begins to run only after the child's placement into

shelter care or the entry of a disposition order placing the custody of the child

with DCF or a person other than the parent and the court’s approval of a case plan

having the goal of reunification with the parent, whichever occurs first, OR. §

39.806(1)(e)(1).

 When the parent or parents have materially breached the case plan. Time is of the

essence for permanency of children in the dependency system. In order to prove

the parent or parents have materially breached the case plan, the court must find

by clear and convincing evidence that the parent or parents are unlikely or unable

to substantially comply with the case plan before time to comply with the case

plan expires. § 39.806(1)(e)(2).

 When the child has been in care for any 12 of the last 22 months and the parents

have not substantially complied with the case plan so as to permit reunification

under § 39.522(2) unless the failure to substantially comply with the case plan was

due to the parent’s lack of financial resources or to the failure of the department

to make reasonable efforts to reunify the parent and child. § 39.806(1)(e)(3).

 When a parent engaged in egregious conduct or had the opportunity and capability to

prevent and knowingly failed to prevent egregious conduct that threatens the life,

safety, or physical, mental, or emotional health of the child or the child's sibling.

Proof of a nexus between egregious conduct to a child and the potential harm to the

child’s sibling is not required. § 39.806(1)(f).

How does Chapter 39 define “sibling”?

"Sibling" means another child who resides with or is cared for by the parent or parents

regardless of whether the child is related legally or by consanguinity. § 39.806(1)(f)1.

How does Chapter 39 define “egregious conduct”?

"Egregious conduct" means abuse, abandonment, neglect, or any other conduct that is

deplorable, flagrant, or outrageous by a normal standard of conduct. Egregious conduct

may include an act or omission that occurred only once but was of such intensity,

magnitude, or severity as to endanger the life of the child. § 39.806(1)(f)2.

 When a parent has subjected the child or another child to aggravated child abuse as

defined in § 827.03, sexual battery or sexual abuse as defined in § 39.01, or chronic

abuse. § 39.806(1)(g).

 When the parent or parents have committed the murder, manslaughter, aiding or

abetting the murder, or conspiracy or

solicitation to murder the other

parent or another child, or a felony

battery that resulted in serious bodily

injury to the child or to another child.

Proof of a nexus between the murder,

manslaughter, aiding or abetting the

murder, or conspiracy or solicitation

to murder the other parent or another

child, or a felony battery to a child

and the potential harm to a child or

another child is not required.

§ 39.806(1)(h).

 When the parental rights of the

parent to a sibling of the child have been terminated involuntarily.

§ 39.806(1)(i).

 When the parent or parents have a history of extensive, abusive, and chronic use of

alcohol or a controlled substance which renders them incapable of caring for the child,

and have refused or failed to complete available treatment for such use during the 3-

year period immediately preceding the filing of the petition for the termination of

parental rights. § 39.806(1)(j).

 When a test administered at birth that indicated that the child’s blood, urine, or

meconium contained any amount of alcohol or a controlled substance or metabolites

of such substances, the presence of which was not the result of medical treatment

administered to the mother or the newborn infant, and the biological mother of the

child is the biological mother of at least one other child who was adjudicated

dependent after a finding of harm to the child’s health or welfare due to exposure to

a controlled substance or alcohol as defined in § 39.01, after which the biological

mother had the opportunity to participate in substance abuse treatment.

§ 39.806(1)(k).

 On three or more occasions the child or another child of the parent or parents has

been placed in out-of-home care pursuant to Chapter 39 or the law of any state,

territory, or jurisdiction of the United States which is substantially similar to Chapter

39, and the conditions that led to the child’s out-of-home placement were caused by

the parent or parents.

§ 39.806(1)(l).

 When the court determines by clear and convincing evidence that the child was

conceived as a result of an act of sexual battery made unlawful pursuant to § 794.011,

or pursuant to a similar law of another state, territory, possession, or Native America

tribe where the offense occurred. It is presumed that termination of parental rights is

in the best interest of the child if the child was conceived as a result of the unlawful

sexual battery. A petition for termination of parental rights under this paragraph may

Section 39.806(1)(i) has been held to be

constitutional by the Florida Supreme Court. It

noted, inter alia, that “parental rights may be

terminated under section 39.806(1)(i) only if

the state proves both a prior involuntary

termination of rights to a sibling and a

substantial risk of significant harm to the

current child. Further, the state must prove

that the termination of parental rights is the

least restrictive means of protecting the child

from harm.” Department of Children and

Families v. F.L., 880 So. 2d 602, 609-610 (Fla.

2004).

be filed at any time. The court must accept a guilty plea or conviction of unlawful

sexual battery pursuant to § 794.011 as conclusive proof that the child was conceived

by a violation of criminal law. § 39.806(1)(m).

 When the parent is convicted of an offense that requires the parent to register as a

sexual predator under § 775.21. § 39.806(1)(n).

 Material Breach of Case Plan.

What is the standard to prove that a case plan has been materially breached? If DCF has

entered into a case plan with a parent with a goal of reunification, and a petition for

termination of parental rights based on the same facts as are covered in the case plan is

filed prior to the time agreed upon in the case plan for the performance of the case plan,

then the petitioner must allege and prove by clear and convincing evidence that the

parent has materially breached the provisions of the case plan. § 39.802(8).

A ground for termination of parental rights exists when a child has been adjudicated

dependent, a case plan has been filed with the court, and the parent or parents have

materially breached the case plan. Time is of the essence for permanency of children in

the dependency system. In order to prove the parent or parents have materially breached

the case plan, the court must find by clear and convincing evidence that the parent or

parents are unlikely or unable to substantially comply with the case plan before time to

comply with the case plan expires. § 39.806(1)(e)(2).

May I sever the parental rights of one parent but not the other? The parental rights of one

parent may be severed without severing the parental rights of the other parent only under

the following circumstances:

 If the child has only one surviving parent;

 If the identity of a prospective parent has been established as unknown after sworn

testimony;

 If the parent whose rights are being terminated became a parent through a single-

parent adoption;

 If the protection of the child demands termination of the rights of a single parent; or

 If the parent whose rights are being terminated meets any of the criteria specified in

§§ 39.806(1)(c), (d), (f), (g), (h), (i), (j), (k), (l), (m), or (n). §39.811(6).

An order of TPR, whether based on parental consent or after notice served, permanently

deprives the parents of any right to the child. § 39.811(5).

 Must I consider the manifest best interests of the child at the adjudicatory hearing? Yes.

Determine whether there is clear and convincing evidence that TPR is in manifest best

interests of child. § 39.810. This consideration shall not include a comparison between the

attributes of the parents and those of any persons providing a present or potential

placement for the child. § 39.810. (See Manifest Best Interests Colloquy, Section 9)

What must I consider and evaluate as all relevant factors to determine the manifest best

interests of the child? Relevant factors include, but are not limited to, the factors

enumerated in §§ 39.810(1)-(11).

 Any suitable permanent custody arrangement with a relative of the child. However,

the availability of a non-adoptive placement with a relative may not receive greater

consideration than any other factor weighing on the manifest best interests of the

child and may not be considered as a factor weighing against termination of parental

rights. If a child has been in a stable or pre-adoptive placement for not less than 6

months, the availability of a different placement, including a placement with a

relative, may not be considered as a ground to deny the termination of parental

rights.

 The ability and disposition of a parent to provide the child with food, clothing,

medical care, or other remedial care and other material needs of the child.

Section 39.811(6) has been held to apply to orders that originally terminated the rights of

both parents but were reversed as to one of the parents on appeal. As a result,

termination of the other parent’s rights was scrutinized under § 39.811(6) and was

subject to reversal if at least one of the criteria did not apply. “[B]ecause we have

reversed the termination of the Mother’s rights, R.C.’s termination is now subject to the

requirements of § 39.811(6). . . . This section creates complexities when an appellate

court reviews a judgment terminating the parental rights of both parents and concludes

that it must reverse the judgment as to one of the parents. The reversal suddenly

subjects the termination of the second parent’s rights to special requirements that were

not material at the time the trial court made its ruling.” J.T. v. Department of Children

and Families, 908 So. 2d 568, 573 (Fla. 2nd DCA 2005). See I.R. v. Department of Children

and Family Services and Guardian ad Litem Program, 18 So. 3d 26, 28 (Fla. 2nd DCA

2009)(reversing termination of mother’s rights because the father’s termination was

reversed by separate opinion and the mother’s rights had been terminated pursuant to

39.806(1)(e), which is not a ground for one parent termination under 39.811(6)); A.M.B.

v. Department of Children and Families, ___ So. 3d ____, 2017 WL 3160118 (Fla. 1st DCA

2017)(citing I.R. and J.T. in reversal of mother’s termination of parental rights). But cf.

A.G. v. Department of Children and Families, 932 So. 2d 311 (Fla. 2nd DCA

2006)(dismissing appeal as moot when the mother appealed that the court improperly

terminated her parental rights without terminating the rights of the prospective fathers

but also without addressing § 39.811(6); issue was moot because while the appeal was

pending, the fathers’ parental rights were terminated).

Because a termination of parental rights order may become subject to the

requirements of § 39.811(6) on appeal, the trial court should make any appropriate

findings as to the applicability of the criteria set forth in § 39.811(6). The inclusion of

such findings may preclude reversal of the entire order terminating parental rights.

 The capacity of a parent to care for the child to the extent that the child's safety;

well-being; and physical, mental, and emotional health will not be endangered upon

the child's return home.

 The present mental and physical health needs of the child and such future needs to

the extent they can be ascertained.

 The love, affection, and other emotional ties between the child and parents, siblings,

and other relatives, and the degree of harm to the child that would arise from

termination.

 The likelihood of an older child remaining in long-term foster care upon termination

because of emotional or behavioral problems or any special needs of the child.

 The child's ability to form a significant relationship with a parental substitute and the

likelihood that the child will enter into a more stable and permanent family

relationship as a result of termination.

 The length of time that the child has lived in a stable, satisfactory environment and

the desirability of maintaining continuity.

 The depth of the relationship existing between the child and the present custodian.

 The reasonable preferences and wishes of the child, if the court deems the child to be

of sufficient intelligence, understanding, and experience to express a preference.

 The recommendations by the child's GAL or legal representative. See § 39.810.

 Determine whether TPR is the least restrictive means of protecting the child.

The Florida Supreme Court has held that “parental rights may be terminated under

§ 39.806(1)(i) only if the state proves both a prior involuntary termination of rights to a

sibling and a substantial risk of significant harm to the current child. Further, the state

must prove that the termination of parental rights is the least restrictive means of

protecting the child from harm.” Department of Children and Families v. F.L., 880 So. 2d

602, 609-610 (Fla. 2004)(emphasis supplied). The Florida Supreme Court did not decide

whether other statutory grounds require such findings. Note however that other courts

have applied the F.L. holding to other grounds besides § 39.806(1)(i). In D.O. v. S.M., 981

So. 2d 11 (4th DCA 2007), the Fourth District Court of Appeal stated that:

Subsection 39.810(1) provides that the availability of a relative should not receive

greater consideration than any other factor. “By the text of [§ 39.810(1)], the possibility

of a relative placement is plainly not a reason to delay a decision to terminate parental

rights if termination is otherwise in the manifest best interest of the child.” K.W. v. DCF,

959 So. 2d 401, 2007 WL 173099, 32 Fla.L.Weekly D1494 (Fla. 1st DCA 2007).

Failure to consider factors relevant to the best interests of a child is reversible error.

K.M. v. DCF, 795 So. 2d 1129 (Fla. 5th DCA 2001). See also In the Interest of K.M., 788

So. 2d 306 (Fla. 2nd DCA 2001)(reversing a termination of parental rights where the trial

court made detailed factual findings in its order but made written findings on only three

of the eleven factors in § 39.810).

Because section 39.806(1)(f) similarly permits a court to terminate

parental rights to a child based on prospective abuse, we believe the

same constitutional analysis applies here. Thus to comport with

constitutional requirements, the state must establish that termination is

the least restrictive means of protecting the sibling of the abused child

from serious harm under section 39.806(1)(f)

D.O., at 19 (citation omitted). That same court had previously held that:

applying the rationale of our Supreme Court in F.L. to section

39.806(1)(h), we hold that in order for a termination of parental rights

to be based solely on the single act of committing manslaughter or a

felony assault against another child, the state must also prove that,

based on the totality of the circumstances surrounding the petition, the

parent currently poses a substantial risk of significant harm to the

current child or children and that termination of parental rights is the

least restrictive means of protecting the current child or children from

harm.

J.F. v. Department of Children and Families, 890 So. 2d 434, 441 (4th DCA 2004). Note:

Section 39.806(1)(h) has been subsequently amended to state the proof of a nexus is not

required. However, in Department of Children and Family Services and Guardian ad Litem

Program v. S.H. and F.R., 49 So. 3d 846 (2nd DCA 2010), the Second District Court of

Appeal disagreed with the Fourth District’s application of F.L. to a petition based on §

39.806(1)(h). S.H., 49 So. 3d at 853. The court certified conflict, Id., between its decision

and J.F. and held that the trial court erroneously requiring a nexus of harm between the

child’s murder and prospective harm to other children. S.H. 49 So. 3d at 860.

The Florida Supreme Court has elaborated that:

[t]he least restrictive means prong does not require the trial court to

consider a permanent guardianship, instead of adoption, after the

grounds for termination have been established by clear and convincing

evidence and reunification would not be in the manifest best interests

of the child. Not only would this option be contrary to legal precedent,

but it would also be contrary to the legislative scheme.

S.M. v. Department of Children and Families, 202 So. 3d 769, 772 (Fla. 2016)(resolving

conflict between Fourth & First District Courts of Appeal).

 Written order of disposition shall briefly state the facts upon which decision was

made. § 39.811(5).

If the court finds by clear and convincing evidence that the elements and one of the

grounds for termination of parental rights have been established, the court shall enter a

final judgment terminating parental rights and proceed with dispositional alternatives.

Rule 8.525(i)(1).

The judge shall enter a written order terminating parental rights that includes the

findings of fact and conclusions of law.

§ 39.809(5).

What will the appellate court review if termination as to one parent is reversed? If the

trial court terminates both parents’ rights but the termination as to one parent is

reversed, the appellate court will review termination of the other parent’s rights to

determine whether it can be sustained under § 39.8011(6). Therefore, if appropriate, the

court should make conditional findings regarding terminating the parental rights of only

one of the parents. See Termination of Parental Rights Adjudicatory Hearing.

If the court finds that grounds for TPR have not been established, but grounds for

dependency have been established, the court shall:

 Adjudicate or re-adjudicate the child dependent, and place or continue the child in

out-of-home care under a case plan; or

 Return the child to a parent.

 The court shall retain jurisdiction over a child returned to a parent for 6 months.

 At the end of the 6 months the court shall make a determination as to whether its

jurisdiction shall continue or be terminated.

See § 39.811(1)(a); Rule 8.525(i)(2).

If the child has not been adjudicated dependent, and

the court finds that the allegations in the petition do

not establish grounds for dependency or TPR, it shall

dismiss the petition.

 If TPR petition will be granted, consider

dispositional alternatives.

If the child is in the custody of DCF and the court finds that the grounds for TPR have

been established by clear and convincing evidence, the court shall, by order, place the

child in the custody of DCF for the purpose of adoption. § 39.811(2).

 After TPR, the court shall retain jurisdiction over any child and review the status of

the child's placement and the progress being made toward permanent adoptive

placement. § 39.811(a).

 As part of this continuing jurisdiction, for good cause shown by the GAL for the child,

the court may review the appropriateness of the adoptive placement of the child.

§ 39.811(a).

If the child is in the custody of one parent and the court finds that grounds for

termination of parental rights have been established for the other parent by clear and

convincing evidence, the court shall enter an order terminating the rights of the parent

for whom the grounds have been established and place the child in the custody of the

remaining parent, granting that parent sole parental responsibility for the child.

§ 39.811(3).

If a child is being adjudicated

or re-adjudicated dependent,

judges may wish to compare

§§ 39.811, 39.521, and 39.621

regarding options for

placement in out-of-home

care.

What shall I do if the child is neither in the custody of DCF nor in the custody of a parent

and the court enters an order terminating parental rights? The court should place the

child with DCF or an appropriate legal custodian.

 Chapter 39 does not define “custody” generally, but “legal custody” is defined as: a

legal status created by a court order which vests in a custodian of the person or

guardian, whether an agency or an individual, the right to have physical custody of the

child and the right and duty to protect, nurture, guide, and discipline the child and to

provide him or her with food, shelter, education, and ordinary medical, dental,

psychiatric, and psychological care. § 39.01(34).

 If the parental rights of both parents have been terminated, or if the parental rights of

only one parent have been terminated and the court makes specific findings that

placement with the remaining parent is likely to be harmful to the child, the court

may order that the child be placed with a legal custodian other than DCF after hearing

evidence on the suitability of such placement.

 Suitability of the intended placement includes the fitness and capabilities of the

proposed legal custodian to function as the primary caregiver and compatibility of the

child with the home.

 If the court orders that a child be placed

with a legal custodian, the court shall appoint

such legal custodian as the guardian for the child

as provided in § 744.3021 so long as the child has

been residing with the legal custodian for at

least 6 months. See § 39.811(4).

 If the court terminates parental rights, it

may, as appropriate, order that the

parents, siblings, or relatives of the

parent whose rights are terminated be

allowed to maintain some

communication or contact with the child

pending adoption, if in the best interests

of the child. § 39.811(7)(b);

Rule 8.525(i)(1).

 If the court orders such continued communication or contact, the nature and

frequency of the communication or contact must be set forth in a written order and

may be reviewed upon motion of any party or prospective adoptive parent.

§ 39.811(7)(b).

 If a child is placed for adoption, the nature and frequency of the communication or

contact must be reviewed by the court at the time the child is placed for adoption.

§ 39.811(7)(b).

If a TPR is granted as to one

parent only but there are still

findings of fact of abuse,

neglect, or abandonment as to

the other parent, judges may

wish to compare §§ 39.811,

39.521.

Section 63.0427 was amended in 2003

authorizing courts to allow post-adoption

contact with parents whose rights have been

terminated with the consent of adoptive

parents. Contact with siblings may be ordered

without such consent if it is in the child’s best

interests. See section 7, ch. 2003-58, Laws of

Florida.

 The TPR does not affect the rights of grandparents unless the court finds that

continued visitation is not in the best interests of the child or that such visitation

would interfere with the permanency goals for the child. § 39.811(7)(a).

If the court terminates parental rights, it shall, in its order of disposition, provide for a

hearing, to be scheduled no later than 30 days after the date of disposition.

 DCF shall provide to the court an amended case plan that identifies the permanency

goal for the child.

 Reasonable efforts must be made to place the child in a timely manner in accordance

with the permanency plan and to finalize the permanent placement of the child.

 The court shall hold hearings every 6 months to review permanency for the child until

adoption or the child turns 18, whichever occurs first. § 39.811(8).

 Records

How long shall records of cases that include an order that permanently deprives a parent

of custody be preserved? Records of cases when the order permanently deprives a parent

of custody of a child must be preserved permanently. § 39.814(2).

 Exclusive Jurisdiction

 The court retains exclusive jurisdiction in a child's adoption pursuant to chapter 63 when

parental rights are terminated. § 39.813. (See Adoption Hearing Colloquy, Section 9)

 Requirements of written order.

State the facts upon which the decision was made. § 39.811(5).

Include findings regarding indigency and appointment or waiver of counsel. § 39.807(1)(a).

As appropriate, order the parents, siblings, or relative of the parent whose rights are

terminated to be allowed to maintain communication with the child. § 39.811(7)(b).

If TPR is granted, set hearing within 30 days of the date of disposition for DCF to provide

amended case plan, providing the date, time, and location to the parties. § 39.811(8).

If TPR is proved by clear and convincing evidence, briefly state the findings of fact and

conclusions of law constituting grounds for TPR under § 39.806 and manifest best interests

under § 39.810. (Include language regarding TPR as the least restrictive alternative.)

§ 39.811(5).

It is unclear whether the rights afforded grandparents under § 39.811(7)(a) continue to

be valid in light of cases such as Beagle v. Beagle, 678 So. 2d 1271 (Fla. 1996) and Von

Eiff v. Azicri, 720 So. 2d 510 (Fla. 1998), holding that court-ordered visitation by

grandparents, over the objection of the parents, violates the privacy rights of the

parents in the absence of proof of demonstrable harm to the child.

State that the findings are being made by clear and convincing evidence. § 39.809(1).

What must I include in a TPR order? If TPR is granted under § 39.806(1)(i), the order must

find all of the following by clear and convincing evidence:

 The statutory ground has been proven, § 39.806(1)(i);

 The manifest best interests of the child have been considered, § 39.810(1)-(11);

 Reunification of the child with the parent poses a substantial risk of significant harm

to the child; and

 Termination of the parent’s rights is the least restrictive means of protecting the child

from harm. See Department of Children and Families v. F.L., 880 So. 2d 602, 609-610

(Fla. 2004)(upholding the constitutionality of § 39.806(1)(i) under these

circumstances).

Besides those findings, what else must be included in the TPR order? A written order

terminating parental rights must include a brief statement informing the parents of the

right to file a motion in the circuit court claiming ineffective assistance of counsel and a

brief explanation of the procedure for filing the motion. Rules 8.525(j)(1)(C) & 8.530(a).

What if a parent states an intention to file a motion alleging ineffective assistance of

counsel? If the parent states an intention to file a motion claiming ineffective assistance

of counsel, then the attorney must immediately seek withdrawal pursuant to the rules.

Rule 8.530(b).

Is a parent entitled to appointed counsel to assist with the filing of a motion alleging

ineffective assistance of counsel? No. An indigent parent is not entitled to a court-

appointed attorney to assist the parent in preparing, filing, or litigating a motion claiming

ineffective assistance of counsel. However, a parent may independently obtain an

attorney to represent the parent in pursuing the motion. Rules 8.517(c) & 8.530(d)(1).

Should counsel be permitted to withdraw immediately after entry of an order termination

parental rights? No. After entry of an order terminating parental rights, the attorney of

record shall not be permitted to withdraw until all of the requirements of Rule 8.517(b)

have occurred. Rule 8.517(b).

How soon after withdrawal by the parent’s attorney should new counsel be appointed? If

the court permits the attorney to withdraw, the court must expeditiously appoint

appellate counsel for indigent parents pursuant to law. Rule 8.517(c).

If a notice of appeal has been filed does the court have jurisdiction over a motion

claiming ineffective assistance of counsel? If a notice of appeal of the TPR order has been

filed, the trial court continues to have jurisdiction to consider a motion claiming

ineffective assistance of counsel. Rule 8.530(c).

Does the filing of the motion toll rendition of the order? A motion claiming ineffective

assistance of counsel filed in accordance with Rule 8.530 tolls rendition of the order

terminating parental rights under Rule 9.020 until the lower tribunal files a signed written

order on the motion, except as provided by Rule 8.530. Rule 9.146(i)(2).

Does the filing of the motion toll the time for an appeal? The timely filing of a motion

claiming ineffective assistance of counsel tolls rendition of the order terminating parental

rights for purposes of appeal until the circuit court enters an order on the motion or for 50

days from the date the court entered the written order terminating parental rights,

whichever comes first. Rule 8.530(f).

When must the motion be filed? A motion claiming ineffective assistance of counsel must

be within 20 days of the date the court entered the written order terminating parental

rights. Rule 8.530(e).