In the Interest of E.I.F. v. Department of Children & Family Services

STRINGER, Judge. J.H., the Father, seeks review of the trial court’s order adjudicating E.I.F. dependent and terminating his parental rights to E.I.F. The Father does not challenge the adjudication of dependency but argues that the trial court erred in terminating his parental rights pursuant to section 39.806(l)(c), (l)(d)(l), (l)(d)(3), and (l)(f), Florida Statutes (2002). We affirm the adjudication of dependency and reverse the termination of parental rights. E.I.F. was born on November 24, 2001, and sheltered by the Department of Children and Family Services (the Department) two days later based on allegations of the Mother’s continuing involvement with the Department and the pending termination of parental rights of the Mother’s [926] other children.1 The Father was incarcerated at the time of E.I.F.’s birth and was not identified as the Father of E.I.F. until February 2002.2 In March 2002, the Department filed a petition for termination of parental rights as to both parents. The petition alleged that termination was proper under section 39.806(l)(c), (l)(d)(l), (l)(d)(3), and (l)(f). At the time of the trial, E.I.F. was almost eight months old. The Department had placed E.I.F. in the custody of the Father’s sister, who is seeking adoption. The Mother consented to the termination of her parental rights. The Father testified that he had been incarcerated for the past year and two months. He was incarcerated for violating probation by failing to attend an appointment with his probation officer, failing to complete his community service hours, and failing to pay restitution on an aggravated battery or aggravated assault charge that occurred in 1998 or 1999. He also admitted he had been in prison in 1994 for aggravated assault or aggravated battery of a law enforcement officer. The Father testified that he was willing to pay child support for E.I.F. and expressed an interest in becoming involved in E.I.F.’s life. The Father had previously contacted his sister to request photographs of E.I.F. He explained that with credit for gain time, he expects to be out in 2007. The Department of Corrections submitted reports listing the Father’s tentative release date from prison as March or June 2010. The Father’s “85% Release Date” was listed as December 8, 2008. The Father’s ex-wife, who is not the mother of E.I.F., testified that the Father’s drug use contributed to their divorce in 1991 or 1992 and that he did not deal well with the divorce. On one occasion the Father threatened suicide in front of the ex-wife and their two young children. On another occasion, the Father threatened to burn the house down and harm her or the children if any more child support was taken out of his paycheck. The ex-wife only received child support for approximately the first year and a half after their divorce. The Father had virtually no involvement with their children when he was not incarcerated. However, when he was incarcerated, the Father sent the children cards and called monthly to speak with the children. She testified that the Father is a good person but that his priorities are mixed up. The Father testified that he received six months of psychiatric treatment at North-side Psychiatric Hospital after the suicide threat. In 1994 he voluntarily entered drug treatment in prison and he testified that he has not used drugs since. The record does not contain any evidence of suicidal tendencies since the incident in 1991 or 1992. In fact, the record does not contain any evidence of any violent acts committed by the Father towards or in front of his two older children since that incident. Regardless, the trial court found that the Father’s conduct towards his older children constituted clear and convincing evidence to support termination under section 39.806(l)(e), (l)(d)(3), and (l)(f). Section 39.806(l)(c) provides for termination of parental rights when the Department proves by clear and convincing evidence that the parent “engaged in conduct toward ... other children that demonstrates that the continuing involvement of the parent or parents in the par [927] ent-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 clear and convincing evidence supported termination of the Father’s parental rights to E.I.F. under this section based on the Father’s suicide threat, threats toward his other children, drug use, and his failure to maintain a relationship with his other children or pay child support. While this evidence does show conduct towards the Father’s other children that-demonstrated that the Father’s continuing involvement would have been detrimental to those children in the early 1990s before his treatment, it does not support the trial court’s finding of clear and convincing evi-dencé that the Father’s continuing involvement with a child who was born almost ten years later to a different mother would be detrimental to that child and threaten the child’s life, safety, or well-being. See D.S. v. Dep’t of Children & Families, 842 So.2d 1071, 1072 (Fla. 4th DCA 2003) (holding that a court may not terminate parental rights based on a parent’s criminal history absent evidence linking the criminal acts to the child’s well-being); L.B. v. Dep’t of Children & Families, 835 So.2d 1189, 1194 (Fla. 1st DCA 2002) (holding that the trial court erred in terminating the mother’s parental rights under section 39.806(l)(c) based on her domestic violence against the father when she had received treatment for same, had been taking her medication, and the parties had separated). Certainly if the Father was suicidal at present, E.I.F.’s safety or well-being might be threatened; however, the Father received psychological treatment after his suicide threat, and there is no evidence of any suicidal or violent acts of the Father in front of or toward any of his children for almost a decade. Likewise, the Father testified that he received drug treatment in 1994 and there is no evidence of drug use by the Father since. Finally, the Father’s failure to pay child support for or to maintain a relationship with his older children does not support the trial court’s finding of clear and convincing evidence of conduct that would “threaten[ ] the life, safety, well-being, or physical, mental, or emotional health of the child.” For the same reasons that the Father’s conduct towards his older two children does not support the trial court’s finding of clear and convincing evidence “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,” it does not support the trial court’s finding of clear and convincing evidence “that continuing the parental relationship with the incarcerated parent would be harmful to the child” under section 39.806(l)(d)(3), or of “egregious conduct ... that threatens the. life, safety, or physical, mental, or emotional health of the child or the child’s sibling” under section 39.806(l)(f). Thus, the trial court erred in terminating the Father’s parental rights under section 39.806(l)(c), (l)(d)(3), and (l)(f). The trial court also based its termination on section 39.806(l)(d)(l), which provides for termination of parental rights if the Department proves by clear and convincing evidence that the parent is incarcerated and the time of incarceration will be a “substantial portion of the period of time before the child will attain the age of 18 years.” The trial court terminated the Father’s parental rights under this section based on its finding that the Father will be incarcerated for the first eight years of E.I.F.’s minority. The court explained, In other words, it is the first eight years of his life, when he will be learning to talk, learning to walk, learning to eat, [928] starting school, and learning to read. Experiencing those milestones without having ever met his father or had any personal contact with him is a substantial portion of the child’s minority, though admittedly, not a majority of the time before he reaches the age of 18. However, the trial court is not to consider the quality of the time, but “only the length of time the parent will be incarcerated in determining whether that period constitutes a ‘substantial portion of the period of time’ before the child reaches age eighteen.” J.W. v. Dep’t of Children & Family Servs. (In re AW.), 816 So.2d 1261, 1264 (Fla. 2d DCA 2002). The inquiry is “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.” J.P.C. v. Dep’t of Children & Family Servs. (In re J.D.C.), 819 So.2d 264, 266 (Fla. 2d DCA 2002). But see Dep’t of Children & Family Servs, v. B.C., 28 Fla. L. Weekly D2009, — So.2d -, 2003 WL 22014737 (Fla. 4th DCA Aug.27, 2003) (holding that the time a parent has been incarcerated in the past should be considered under section 39.806(l)(d)(l) and certifying conflict with In re J.D.C. on this issue), review granted, 860 So.2d 976 (Fla.2003). The trial court’s finding that the Father will be incarcerated for eight years3 does not support its finding of clear and convincing evidence of incarceration for a “substantial portion of time” before E.I.F., who was only eight months old at the time of the trial, reaches eighteen. Cf. In re AW., 816 So.2d at 1263 (holding that incarceration for fifty-four months will not constitute a substantial portion of the remaining minority of a four-year-old or one-year-old child). The period of incarceration will not even constitute half of the time before E.I.F. reaches majority. Therefore, the trial court also erred in terminating the Father’s parental rights under section 39.806(l)(d)(l). The dissent would rely on the Fourth District’s decision in B.C., 28 Fla. L. Weekly D2009, — So.2d-, to support its determination that the length of the Father’s incarceration will constitute a substantial portion of the time period before the child reaches eighteen. However, as noted above, the Fourth District considers the time a parent has been incarcerated in the past, while this court considers only the future period of incarceration. In B.C., the Fourth District held that a period of incarceration of seven years and nine months was sufficient to support termination under section 39.806(l)(d)(l), but it is not clear how much of this term was future incarceration. Id. at D2009, — So.2d at-. Regardless, for the reasons stated above, we disagree with the Fourth District’s conclusion that incarceration for seven years and nine months constitutes a substantial portion of the time before a child who is three months old reaches eighteen. Because none of the cited grounds support termination of the Father’s parental rights, we reverse the portion of the order terminating the Father’s parental rights. Affirmed in part, reversed in part, and remanded. WALLACE, J., Concurs. SILBERMAN, J., Concurs in part and dissents in part. Footnotes [1] These children were not the Father’s children. [2] Results of a paternity test indicating that J.H. was the Father of E.I.F. were filed with the court on April 22, 2002. E.I.F.'s birth certificate does not list a father. [3] Eight years represents the time between the July 2002 trial and June 2010, which is the latest possible release date for the Father based on Department of Corrections reports.