The Department of Children and Families (“DCF”) and the Guardian Ad Litem (“GAL”) appeal the trial courts amended order denying DCFs petition to terminate the parental rights of N.S. (“Mother”) and D.E. (“Father”) to their three-year-old son, D.E. (“child”). That order also provided for essentially immediate reunification with, and sole custody being awarded to, Father. We reverse and remand for entry of an order terminating Mothers parental rights, as the trial courts conclusions regarding the manifest best interests of the child and least restrictive means are not supported by competent, substantial evidence or applicable legal principles. We affirm the trial courts order denying termination of Fathers parental rights.
Standard of Review and Background
“In termination of parental rights (TPR) cases, the standard of review is highly deferential.” C.D. v. Fla. Dept of Child. & Fams., 164 So. 3d 40, 42 (Fla. 1st DCA 2015). We review findings of fact to determine if they are supported by competent, substantial evidence. J.P. v. Fla. Dept. of Child. & Fams., 183 So. 3d 1198, 1203 (Fla. 1st DCA 2016). “However, an appellate court is not required to defer to the trial court where there is no theory or principle of law that would support the trial courts conclusions of law.” Statewide Guardian Ad Litem Program v. A.A., 171 So. 3d 174, 177 (Fla. 5th DCA 2015). “An appellate court will review de novo whether the trial courts determinations are based on a proper interpretation of the law.” G.S. v. T.B., 985 So. 2d 978, 982 (Fla. 2008).
The child was born addicted to the drugs Mother had been using during pregnancy. He was sheltered once he was weaned from use of a ventilator and able to leave the neonatal intensive care unit. Both parents have lengthy histories of drug abuse, addiction, and criminal activity. In fact, both parents were incarcerated on drug-related charges when the child was born. Both parents were given case plans that included drug abuse evaluation and therapy, random drug screening, parenting classes, stable income, and stable housing.
Findings of Fact and Conclusions of Law—Mother
The trial court found that despite being offered a variety of services by DCF, Mother remained a drug addict with no ability, disposition, or desire to parent the child. Mother has provided nothing in the way of care for the child since birth. There was no relationship between her and the child. The court found she had not made any positive changes whatsoever during the pendency of the case and failed to substantially complete her case plan. Regardless of any intervention or services, the trial court found that she remained a danger to the childs well-being and health. The trial courts only positive finding regarding the Mother was that she will remain in prison until at least 2026. The trial court order spelled out in detail the factual basis for each of the seven statutory grounds for termination of Mothers parental rights, which the court found DCF had proved by clear and convincing evidence.
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None of the parties contest the trial courts factual findings or legal conclusions as to those grounds. Having reviewed the record on appeal and trial transcript, we agree that those findings of fact are supported by competent, substantial evidence and the conclusions of law as to those grounds are legally correct.
Manifest Best Interests and Least Restrictive Means—Mother
Despite finding seven grounds justifying termination of Mothers parental rights, the trial court found that it was not in the childs manifest best interests to terminate Mothers rights. Further, it found that termination of Mothers rights was not the least restrictive means to safeguard the child. The only reason articulated by the trial court for reaching these conclusions was that the child was going to be reunited with Father. Nothing to do with Mother was offered as justification for those conclusions.
Section 39.810, Florida Statutes (2020), sets forth eleven factors to be considered by a trial court in determining whether a termination of parental rights is in the manifest best interests of the child. When used to analyze Mother, nine of the eleven factors
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demonstrate that it is in the childs manifest best interests that Mothers parental rights be terminated. Of the remaining two factors, one is inapplicable as the child is too young to state a preference for his future
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and the other presumes what was speculative at the time—that the child would be successfully placed with Father despite never before having so much as spent the night with him.
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While this analysis is not a matter of simple mathematics, we cannot find any support in the record or applicable law for the trial courts conclusion that continuing rather than terminating Mothers parental rights is in the childs manifest best interests.
“Because parental rights are a fundamental liberty interest, the state must establish that termination of those rights is the least restrictive means of protecting the child from serious harm.” A.A., 171 So. 3d at 177 (citing Padgett v. Dept of HRS, 577 So. 2d 565, 571 (Fla. 1991)). To satisfy the least restrictive means test, “DCF ‘must show that it has made a good faith effort to rehabilitate the parent and reunite the family, such as through a current performance agreement or other such plan for the present child.’ ” Id. (quoting Padgett, 577 So. 2d at 571). “The ‘least restrictive means’ test simply requires that measures short of termination should be utilized if such measures can permit the safe re-establishment of the parent-child bond.” Id. (quoting Dept of Child. & Fams. v. B.B., 824 So. 2d 1000, 1009 (Fla. 5th DCA 2002)).
In the present case, the trial court noted that DCF provided many different services to Mother in an effort to assist her in establishing a parent-child bond. However, the trial court concluded that Mother had not complied with, and had repeatedly violated the terms of, her case plan with the result that she was unable, not to mention unwilling, to serve as a parent to this child. Under those circumstances, the trial court erred in ruling that termination of Mothers parental rights was not the least restrictive means.
TPR as to Only One of Two Parents
The appealed order awarded custody to Father and found that grounds for terminating Mothers parental rights were established by clear and convincing evidence. Section 39.811(3) provides that in such circumstances—where the child is in the custody of one parent (here, Father), and the court has found that grounds for terminating the parental rights of the non-custodial parent (here, Mother), have been established 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 placing the child in the custody of the remaining parent, granting that parent sole parental responsibility for the child.” (emphasis added). Section 39.811(6)(e) permits the termination of one parents rights without terminating the other parents rights when the terminated parent meets the criteria, inter alia, of section 39.806(1)(c) or (j), which the trial court found applied to Mother.
Accordingly, given the trial courts undisputed findings of fact and its undisputed conclusions of law, described above, we find no theory or principle of law that supports the trial courts disputed conclusion denying termination of Mothers parental rights as a single-parent termination. Accordingly, we reverse the trial courts order as to Mother and remand for entry of an order terminating her parental rights as to this child.
Findings of Fact and Conclusions of Law—Father
DCF and the GAL disagree with many of the trial courts findings of fact regarding Father. While the evidence was disputed in certain regards, there is competent, substantial evidence to support the trial courts findings. In summary, the trial court found that Father initially had a serious drug problem and that several attempts at treating that problem were unsuccessful. Father repeatedly tested positive for illegal drugs. However, it was clear from the record that Father made diligent efforts to establish a parent-child relationship with this child and was successful in achieving that goal under the exceptional circumstances that included virtual visitation occasioned by the Covid-19 pandemic. Father remained employed; however, his financial contributions to help support the child were minimal at best.
DCF and Father entered into a mediated agreement whereby Father would once again enter a drug treatment program and if he became freed of his drug addiction, the goal of reunification was going to become reality. Father entered and completed a faith-based treatment program whose director certified and testified that Father was no longer addicted. DCF points out that the program did absolutely no drug testing or screening of the participants at any point. Thus, DCF argued that there was no objective, fact-based confirmation that this program had resolved Fathers drug addiction which was the original reason for sheltering the child.
As Father neared the goal of reunification, he once again tested positive for drug use. However, at trial, Father presented an expert witness who cast doubt on the reliability of those positive drug screens. The trial court found the experts testimony credible, which led to a finding that the positive drug tests were not proof of Fathers continued drug use.
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Although the trial court found several grounds that would justify terminating Fathers parental rights under section 39.806(1), the conclusions that terminating Fathers rights was neither in the manifest best interest of the child nor the least restrictive means of safeguarding the child are supported by competent, substantial evidence and applicable law. Accordingly, we affirm the trial courts order denying DCFs petition to terminate Fathers parental rights.
AFFIRMED, in part; REVERSED, in part; and REMANDED, with instructions.
FOOTNOTES
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. Those statutory grounds were: Ground one—abandonment (§ 39.806(1)(b), Fla. Stat. (2020)); Ground two—Mothers continuing involvement in the parent/child relationship threatens the childs health, safety, and/or well-being irrespective of services (§ 39.806(1)(c)); Grounds three and five—Mother failed to substantially comply with the case plan within 12 months and failed to substantially comply with the case plan for at least 12 of the last 22 months (§ 39.806(1)(e)1. and 3.); Ground four—Mother materially breached the terms of the case plan (§ 39.806(1)(e)2.); Ground six—on three or more occasions Mother has had this child or her other children placed in out-of-home care (§ 39.806(1)(i)); and Ground seven—Mother has a history of extensive, abusive, and chronic use of controlled substances that renders her incapable of caring for the child and has refused or failed to complete available treatment for such use. (§ 39.806(1)(j)).
2
. §§ 39.810(2), (3), (4), (5), (6), (7), (8), (9), and (11), Fla. Stat.
3
. § 39.810(10), Fla. Stat.
4
. § 39.810(1), Fla. Stat.
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. DCF argues that the trial court crossed the line from being a neutral arbiter to being an advocate for Father in the way the court cross-examined DCFs drug laboratory witnesses. Some of the courts questions were benign attempts to clarify witnesses’ testimony. There are certainly grounds for DCF saying that some lines and modes of questioning from the court appeared to be more adversarial in nature and were what one might expect to come from counsel, rather than the court. While we do not condone such questioning that could be interpreted as adversarial, we do not find that the trial courts questioning prejudiced the participants or deprived them of a fair trial.
EDWARDS, J.
NARDELLA and WOZNIAK, JJ., concur.