R.B., The Mother, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee

CONNER, J.,

concurring in part, dissenting in part.

I concur with all of the majority opinion except for the determination that the evidence supports the termination of parental rights because R.B. abandoned A.N.B.

Section 39.01(1), Florida Statutes (2010), provides:

“Abandoned” or “abandonment” means a situation in which 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. For purposes of this subsection, “establishes or maintains a substantial and positive relationship” includes, but is not limited to, frequent and regular contact with the child through frequent and regular visitation. ...

Thus, it appears that “abandonment” has two components: 1) failure to provide support for the child, and 2) failure to establish or maintain a substantial and positive relationship with the child.

The evidence was clear and convincing that R.B. did not provide support for A.N.B. However, there was no competent substantial evidence to support the trial court’s determination that R.B. failed to establish or maintain a substantial and positive relationship with A.N.B.

A.N.B. was born on November 4, 2010, and the final hearing was conducted on May 9, 2011. Thus, the child was six months old at the time of the termination hearing. There was evidence that R.B. was readmitted to the hospital shortly after A.N.B.’s birth due to complications from the birth. Then she was incarcerated for a probation violation in January 2011 and remained in custody until March 2011. During the child’s first six months of life, R.B. visited the child fifteen times. She never missed scheduled visits with the baby and conducted herself appropriately during those visits. If she was available to visit with the baby for only three months (because the rest of the time she was hospitalized or incarcerated), then it appears her visits were “frequent and regular” when she visited the baby fifteen times. Even assuming the mother is faulted for getting herself arrested for violation of probation and creating the circumstance which precluded more frequent visits, fifteen visits over six months is enough to demonstrate R.B. did not abandon A.N.B. In my view the second component of “abandonment” was not proven.

PER CURIAM.

We affirm the final judgment of the trial court terminating appellant’s parental rights as to her child, A.N.B. Although she argues that the trial court failed to make a finding that reunification posed a substantial risk of significant harm to the child, as required by Padgett v. Department of Health & Rehabilitative Services, 577 So.2d 565, 571 (Fla.1991), the trial court found that: “The mother lacks the capacity to care for her children to the extent that his safety, well-being, physical, mental, and emotional health would be endangered if he was returned to her home.” We conclude that this finding meets the requirement of Padgett. In addition, the court found that termination was the least restrictive means of protecting the child. While appellant argues that the trial court’s findings are not supported by competent substantial evidence, our review of the record reveals that the evidence did support termination of appellant’s rights on the grounds that: (1) the mother’s continued involvement threatened the well-being of the child, irrespective of the provision of services, pursuant to section 39.806(l)(c), Florida Statutes; and (2) the mother had abandoned A.N.B. within the statutory meaning because the mother did not provide financial support and did not have a substantial and positive relationship with the child, pursuant to section 39.806(l)(b), Florida Statutes.

Affirmed.

WARNER and STEVENSON, JJ., concur.

CONNER, J., concurs in part and dissents in part.