Below are summaries of recent decisions from Florida's appellate courts on Florida divorce and family law issues. Clicking on the case name allows you to view the appellate opinion described in the analysis below. These summaries are courtesy of Bruce Law Firm, P.A., a law firm limited to representation of clients in the mediation, litigation and appeals of Florida marital and family law matters. The firm also created and maintains the family law focused appellate resources website DivorceCourtAppeals.com.

Case:              J.P. v. D.C.F.
Court:            First District Court of Appeal.
Trial Judge: Marci L. Goodman.
Attorneys:     Crystal McBee Frusciante, Dwight O. Slater.
Issues:            Termination.

Holding:   A finding that evidence is clear and convincing attracts a presumption of correctness and will not be overturned on appeal unless clearly erroneous or lacking in evidentiary support. This standard of review is highly deferential. Prior to terminating a parent's rights under Florida statutes, several requirements must be met.

The trial court must find the children's life, safety, or health would be threatened by continued interaction with the parent, regardless of the provision of services.
The Department must show that there is no reasonable basis to believe a parent will improve and termination is in the child’s best interest.
Termination of parental rights must meet the least restrictive means test.

In this case, the trial court did not err as its findings were supported by competent, substantial evidence. A statutory ground for termination of parental rights was proven, the evidence supported the court’s finding that termination was in the child’s manifest best interest, and termination of parental rights passes the least restrictive means test. Using the “highly deferential” standard of review applied to termination of parental rights cases, the appeals court affirmed.

Case:              J.F. v. D.C.F.
Court:            Second District Court of Appeal.
Trial Judge: Scott Brownell.
Attorneys:      Patrick R. Cunningham, Pamela Jo Bondi, Meredith K. Hall, David Krupski.
Issues:            Termination.

Holding:        Florida statutes requires the trial court to find by clear and convincing evidence that at least one of the statutory grounds for termination exists. The amendment to section 39.806(1)(f), effective on July 1, 2014, which applied to this matter, provided that proof of a nexus between egregious conduct to a child and the potential harm to the child's sibling is not required. Prior to the amendment, the case law required proof of nexus, which was often provided by expert testimony. No one challenged the constitutionality of the amendment on the ground that it could not withstand the strict scrutiny required for statutes that impact a fundamental right.

In this case, the trial court did not err as there was competent, substantial evidence supporting termination as to each child on at least one of the grounds enumerated in section 39.806, Florida Statutes (2014). The appeals court affirmed, however, wrote to address the elimination of the "nexus" requirement such that trial courts may wish to take extra care in the application of this statute until any questions concerning its constitutionality have been resolved.

Case:              N.B. v. D.C.F.
Court:            Third District Court of Appeal.
Trial Judge: Cindy Lederman.
Attorneys: Eugene F. Zenobi, Kevin Coyle Colbert, Karla Perkins, Kelley Schaeffer (Sanford).
Issues:            Termination.

Holding:        To terminate parental rights, the State must demonstrate by clear and convincing evidence: (1) the existence of one of the statutory grounds under Florida statutes; (2) that termination is in the best interest of the child; and (3) that termination is the least restrictive means of protecting the child from harm. The standard of review for challenges to the sufficiency of the evidence supporting a termination of parental rights is whether the trial court’s order is supported by substantial competent evidence. Facial constitutional attacks and attacks involving fundamental liberty interest, such as parental rights, may be raised for the first time on appeal. Florida statutes authorize the filing of a petition for termination of parental rights 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 placement were caused by the parent or parents. When a statute impinges on a fundamental liberty interest, such as parenting one’s child, an appeals court must analyze the constitutionality of the statute under a strict scrutiny standard. The State must establish at least one statutory ground by clear and convincing evidence. It must also establish by clear and convincing evidence that termination is in the manifest best interest of the children and that termination is the least restrictive means of protecting the children from harm.

In this case, the trial court did not err in rendering its order as it was based on the record which contained competent evidence establishing the statutory grounds for termination exist, specifically that termination was in the manifest best interest of the children and was the least restrictive means of protecting the children from harm. The appeals court affirmed.

Case:              D.C.F. v. J.S. and S.I.
Court:            Fourth District Court of Appeal.
Trial Judge: Michael Heisey.
Attorneys:     Rosemarie Farrell, Laura E. Lawson, T. Charles Shafer, Ryan Thomas Truskoski.
Issues:            Termination.

Holding:         Termination may be ordered when:

the parent of a child is incarcerated and the period of time for which the parent is expected to be incarcerated will constitute a significant portion of the child’s minority. When determining whether the period of time is significant, the court shall consider the child’s age and the child’s need for a permanent and stable home. The period of time begins on the date that the parent enters into incarceration.
the parent of a child is incarcerated and 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 termination is in the best interest of the child.

When determining harm, the court shall consider the following factors:

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.

In this case, the trial court erred in denying the termination of both parents when the Department proved by clear and convincing evidence that, by applying the statutorily mandated factors, continuing the parental relationship with the incarcerated father would be harmful to the child and, for this reason, termination of the father’s parental rights is in the child’s best interests. First, the court did not address the relationship between the child and the father using the statutory factors. The Department proved by clear and convincing evidence that the father and the child have no relationship. Second, the court did not address the father’s current and past provision for the child’s developmental, cognitive, psychological and physical needs. Third, regarding the father’s history of criminal behavior, the court merely noted that the father’s commission of armed burglaries and felony assault with a firearm resulting in injury was “disturbing.” The court did not address the fact that this was the father’s second conviction for armed violent offenses or how the resulting incarceration caused his prolonged unavailability to parent. Fourth, while the court mentioned the child’s age, the court did not address the child’s age when considering the harm flowing from the father’s prolonged unavailability to parent.

The appeals court reversed the denial of the termination of the Mother and the Father, respectively.

Case:              Tatum v. Triana-Tatum
Court:            Fifth District Court of Appeal.
Trial Judge: Robert M. Evans.
Attorneys:     Carlton Pierce, Oscar Gonzalez, Jr.
Issues:            Child Support, Relocation.

Holding: Retroactive child support begins to run from the date the petition for modification is filed. In this case, the trial court erred when it set as the accrual date for retroactive child support, a date prior to that on which the Father’s supplemental petition for modification was filed. The appeals court remanded for recalculation of child support arrearages.

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