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Questions About Termination of Parental Rights?

Florida Statute 39.806 provides the statutory grounds for termination of parental rights. In order for a parent or the parents to terminate parental rights, the court must find by clear and convincing evidence that one of the statutory grounds has been established. J.G. v. Department of Children and Families, 22 So.3d 774 (Fla. 4th DCA 2009), review denied, 32 So.3d 59. In evaluating whether parental rights should be terminated, the court shall also consider the best interests of the child by evaluation of all relevant factors. Id.

Section 39.806, Fla. Stat., provides that grounds for the termination of parental rights may be established:

(a) when the parent or parents have voluntarily executed a written surrender of the child and consented to the entry of an order giving custody to the department for subsequent adoption and the department is willing to accept custody of the child;

(b) when the parent or parents abandon, as defined in Florida Statute 39.01(1), the child or children or when the identity or location of the parent or parents is unknown and cannot be ascertained by diligent search within 60 days;

(c) when 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 regardless of the provision of services;

(d) when the parent of the child is incarcerated in a state or federal correctional institution;

(e) when a child has been adjudicated dependent, a case plan has been filed with the court;

(f) when the parent or parents 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.

(g) when the parent or parents have subjected the child or another child to aggravated child abuse, sexual battery or sexual abuse, or chronic abuse;

(h) 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;

(i) when the parental rights of the parent to a sibling of the child have been terminated involuntarily;

(j) when he 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 termination of parental rights.

(k) 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, after which the biological mother had the opportunity to participate in substance abuse treatment.

(l) when on three or more occasions the child or another child of the parent or parents has been placed in out-of-home care, and the conditions that led to the child's out-of-home placement were caused by the parent or parents.

Q: If the other parent of the child is incarcerated, can I just ask the court to terminate his/her parental rights and it be granted?

A: No. If a parent of a child is incarcerated, there must also be evidence that either: (1) the period of time for which the parent is expected to be incarcerated will make up a substantial period of the time before the child turns 18 years of age; or

2) the incarcerated parent has been found by the court to be a violent career criminal, a habitual violent felony offender, a sexual predator, convicted of a first degree or second degree murder, or convicted of a sexual battery constituting capital, life, or first degree felony violation; or

3) the court determines that continuing the parental relationship with the incarcerated parent would be harmful to the child and for that reason, termination of parental rights is in the best interest of the child.

Florida Statute 39.806(d)(1.)-(3.).

Q: What constitutes abandonment for the purposes of terminating parental rights?

A: Abandonment occurs when the parent or legal custodian of a child, while being able, makes no provision for the child's support and has failed to establish or maintain a substantial and positive relationship with the child. “Establish or maintain a substantial and positive relationship" includes, but is not limited to, frequent and regular contact with the child through frequent and regular visitation or frequent and regular communication to or with the child, and the exercise of parental rights and responsibilities. Marginal efforts and incidental or token visits or communications are not sufficient to establish or maintain a substantial and positive relationship with a child. The incarceration of a parent, legal custodian, or caregiver responsible for a child's welfare may support a finding of abandonment. Florida Statute 39.01(1).

Q: Can I request the court to terminate the other parent’s parental rights due to domestic violence?

A: Possibly. To terminate parental rights based on the continued threat of domestic violence in the home, the requesting party must prove (1) that the child's life, safety, or health would be threatened by continued interaction with the parent, regardless of the provision of services; (2) that there is no reasonable basis to believe the parent will improve; and (3) that termination is the least restrictive means of protecting the child from serious harm. T.O. v. Department of Children and Families, 21 So.3d 173 (Fla. 4th DCA 2009), rehearing denied, 30 So.3d 493.

Q: If a child has been adjudicated dependent and a case plan has been filed with the court, can I just ask the court to terminate the parent’s or parents’ parental rights and it be granted?

A: No. When a child is adjudicated dependent and a case plan has been filed with the court, the requesting party must also demonstrate to the court that the child continues to be abused, neglected, or abandoned by the parent or parents and the parent or parents have materially breached the case plan. Florida Statute 39.806(e)(1), (2).

Q: How do I prove that the parent or parents have materially breached a case plan of a dependent child?

A: The court must find 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. Florida Statute 39.806(e)(2).

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