Third District Court of Appeal
State of Florida
Opinion filed October 14, 2026.
Not final until disposition of timely filed motion for rehearing.
No. 3D26-0731
Lower Tribunal No. D20-15319
Department of Children and Families,
Appellant,
vs.
A.M., the Mother, et al.,
Appellees.
An Appeal from the Circuit Court for Miami-Dade County, Marcia B. Caballero, Judge.
Karla Perkins, Appellate Counsel for appellant Department of Children & Families.
Thomas J. Butler, P.A., and Thomas J. Butler for appellee A.M., the Mother; Sara Elizabeth Goldfarb, Statewide Director of Appeals and Sara Todd Weitz, Senior Attorney, Appellate Division (Tallahassee), for appellee Guardian ad Litem.
Before GORDO, BOKOR and REBULL, JJ.
BOKOR, J.
The Department of Children and Families appeals a March 9, 2026,
order dismissing the department’s petition for termination of parental rights
while simultaneously declaring the minor children dependent. We have
jurisdiction.1
The department argues the trial court’s order is contrary to law and
warrants reversal because (1) competent substantial evidence supported a
prima facie case on all grounds pled in the petition, and (2) it is improper to
dismiss the petition while simultaneously adjudicating the children
dependent. All three parents, and the guardian ad litem, suggest that the
department failed to carry its burden. As explained below, the evidence,
taken in the light most favorable to the department, does not support
dismissal. We therefore reverse on that basis and remand with instructions
to proceed with the termination trial.2
I
The parties are not strangers to dependency proceedings. The children
have been in and out of the system for over six years. The mother, A.M., has
1
See Fla. R. App. P. 9.030(b)(1)(A); 9.146(b).
2
We issue the same opinion in the three related appeals of the three parents whose rights are subject to termination: 3D2026-0731; 3D2026-0733; and 3D2026-0734.
2
four children: two with B.H. (J.C.H. and J.H.), and two with N.B. (E.B. and
I.B.).
The pertinent facts began in May of 2020 with a domestic violence
incident involving a firearm between A.M. and N.B. The incident resulted in
N.B.’s arrest and criminal charges, with a restraining order entered against
him. Notwithstanding this, A.M. allowed N.B. to continue residing with her
and the children. The department provided in-home services. A second
report was filed a few months later, in September of 2020. This time, A.M.
and N.B. had another altercation while A.M. was intoxicated. The record
shows that J.H. was hit in the mouth and bitten on the cheek by the mother.
J.C.H. and J.H. grabbed their baby sister, E.B., and fled to their aunt’s house.
A shelter hearing took place. J.C.H., J.H., and E.B. were placed in
temporary legal custody of the maternal aunt under supervision. Thereafter,
the department filed a petition for dependency alleging the children were in
danger because N.B. was violent, unable to control his impulses, and did not
recognize the children’s needs. Similar allegations were made against A.M.,
i.e., violence, impulsive behavior, instability, and neglect. As to B.H., the
petition alleged he was not meeting the children’s needs. Ultimately, the
children were adjudicated dependent in 2021. The maternal aunt retained
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custody. A.M. gave birth to I.B. while these investigations were ongoing. He
would remain in A.M.’s custody but was deemed dependent as to N.B.
In April of 2022, A.M. and N.B. were deemed in partial compliance.
B.H.’s whereabouts remained unknown. Ultimately, the trial court granted
reunification with A.M., with in-home placement for the children at Lotus
House. In the interim, N.B. was arrested for possession of illicit drugs. B.H.
remained non-compliant.
In early 2023, the department terminated its supervision. But
reunification was short-lived. The department petitioned to shelter and
modify the placement of all four children following an incident during school
drop off. A.M. allegedly began to hit J.H. because she was fighting with her
sister. J.H. had bruises on her face and welts on her arms. It was reported
A.M. bit J.H. on the nose and pulled her hair. For a second time, J.H. was
removed. A.M. pled guilty to aggravated child abuse. The trial court withheld
adjudication and placed A.M. on probation for four years. However, the court
returned the other three children to A.M. Protective supervision for J.C.H.,
E.B., and I.B. was terminated in August 2023. Following a later case review
hearing, J.H. was reunited with A.M. Supervision was terminated in February
of 2025.
4
Not long after, in May of 2025, the department filed yet another
emergency motion to reopen following another altercation. This time, J.H.
presented with a stomach bite and bruises on her arm. A.M. provided
conflicting explanations. Moreover, A.M. had violated safety plans by
allowing a female paramour with a history of violence and drug use to live in
the home. Meanwhile, N.B. remained incarcerated and B.H.’s whereabouts
were unknown. Ultimately, A.M. was arrested while on probation for prior
child abuse. The children were removed a third time and were placed with
non-relative caregivers. J.H. was Baker Acted a fourth time, due to
expressing suicidal thoughts.
All three parents have a history of mental disorders and substance
abuse. J.H. has been diagnosed with intermittent explosive disorder and
disruptive mood dysregulation disorder, which may make her verbally and
physically assaultive. J.C.H. has been diagnosed with ADHD and anxiety.
E.B. suffers from language disorder and behavior disturbance.
The department filed the instant petition for termination of parental
rights in June of 2025. As to A.M., the petition alleges: (i) prospective neglect;
(ii) three or more placements in out-of-home care; (iii) egregious conduct;
and (iv) aggravated child abuse, sexual abuse, or chronic abuse, under
5
sections 39.806(1)(c), (f), (g) and (l), Florida Statutes.3 As to the fathers, the
petition alleges: (i) prospective neglect, and (ii) abandonment, under
sections 39.806(1)(b) and (l), Florida Statutes. A termination trial/hearing
took place. The mother, A.M., the fathers, J.H., J.C.H., the therapists, and
the case workers testified. All three parents moved for judgment of dismissal
following the department’s presentation of its case. The trial court granted
the motions and dismissed the petition, while simultaneously determining
there was a sufficient factual basis to adjudicate the children dependent
pursuant to sections 39.01(15)(a) and 39.01(15)(f), Florida Statutes. As to
the fathers, the order explains that “[t]he fathers have not maintained a
relationship with their respective children through visitation or contact and
have not provided for their care.” As to the mother, the order provides that
“the mother bit [J.H.] on the stomach. . . . [and] is currently not able to parent
her children without additional services.” Rehearing was denied. These
appeals followed.
II
3
The department concedes to the trial court’s findings that it did not present sufficient evidence to support a prima facie case under section 39.806(1)(f)—egregious conduct—or section 39.806(1)(g)—aggravated child abuse.
6
“Appellate review of a termination of parental rights case is ‘highly
deferential.’” Fla. Dep’t of Child. & Fams. v. A.R., 253 So. 3d 1158, 1164
(Fla. 3d DCA 2018) (quoting C.G. v. Dep’t of Child. & Fams., 67 So. 3d 1141,
1143 (Fla. 3d DCA 2011)). “That is, a ‘finding that evidence is clear and
convincing enjoys a presumption of correctness and will not be overturned
on appeal unless clearly erroneous or lacking in evidentiary support.’” Id.
(quoting C.G., 67 So. 3d at 1143). “[T]he standard of review is whether the
trial court’s judgment is supported by substantial and competent evidence.”
Id. (quotation omitted). “However, we review issues involving the
interpretation of statutes de novo.” Id.
To terminate parental rights, the department must prove: “(1) at least
one of the statutory grounds for termination; (2) termination is in the child’s
manifest best interest; and (3) termination is the least restrictive means of
protecting the child from harm.” Id. (citing C.T. v. State, Dep’t of Child. &
Fams., 22 So. 3d 852, 854 (Fla. 3d DCA 2009)). “To justify termination of
parental rights, [the department] bears the burden of proof to present clear
and convincing evidence that a parent has abused, neglected or abandoned
a child, or that the child is at substantial risk of future abuse, neglect, or
abandonment.” Id. (quoting T.V. v. Dep’t of Child. & Fam. Servs., 905 So. 2d
945, 946 (Fla. 3d DCA 2005)).
7
Despite the deferential standard to the trial court’s fact finding and
ultimate dependency determination after a full trial, “[m]otions for judgment
of dismissal in dependency cases are akin to motions for directed verdicts in
civil cases.” Dep’t of Child. & Fams. v. A.L., 307 So. 3d 978, 982 (Fla. 1st
DCA 2020). Generally, “a directed verdict is appropriate only when the
evidence considered in its entirety and the reasonable inferences to be
drawn therefrom fail to prove the plaintiff’s case under the issues made by
the pleadings.” Id. (citation modified). “These are the standards applicable to
granting and to reviewing an order on a motion for judgment of dismissal
pursuant to Rule 8.525(h).” Id.
Where a trial court grants a motion for judgment of dismissal under
Rule 8.525(h), “we cannot simply determine whether the court’s order is
supported by competent substantial evidence.” Id. at 983. “[I]nstead, we
must view the evidence and all inferences of fact in the light most favorable
to [the department], as the nonmoving party, and can affirm only where no
proper view of the evidence could sustain an order terminating parental
rights.” Id. As explained below, the record does not support dismissal as to
any of the parents.
A. The mother, A.M.
1. Termination for Three or More Placements in Out-of-Home Care
8
As to A.M., the department argues it presented competent substantial
evidence to support a prima facie case of termination under section
39.806(1)(l), Florida Statutes. This section allows termination when “[o]n
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.” §
39.806(1)(l), Fla. Stat.; see also K.J. ex rel. A.J. v. Dep’t of Child. & Fams.,
33 So. 3d 88, 90 (Fla. 1st DCA 2010) (Hawkes, C.J., concurring) (“Like other
statutory provisions recognizing the danger posed by repetitive bad
behavior, section 39.806(1)(l) was designed to protect children when parents
continually engage in conduct warranting out-of-home placement. Not only
have these parents proven they are incapable of improving their behavior,
but they have created a situation of instability and uncertainty for their
children by causing a need for them to be repeatedly uprooted.”).
Here, the department presented a significant prima facie case. But we
need only examine the evidence presented in the light most favorable to the
nonmoving party. And that evidence supporting the multiple out-of-home
placements includes (but is not limited to) A.M.’s intoxication, lack of
emotional control, outbursts, physical harm to the children, and cohabitating
with known violent individuals and habitual drug users. Since September of
9
2020, the children have only been outside the supervision of the court for
three months. The evidence taken in the light most favorable to the
department is more than sufficient to sustain grounds for termination under
section 39.806(1)(l), Florida Statutes, and the trial court erred in concluding
otherwise.
2. Termination for Prospective Neglect
“Termination under [section 39.806(1)(c), Florida Statutes] is
termination based on prospective abuse or neglect. Essentially, the trial court
is asked to look at the parent’s current . . . condition or past behavior and
predict whether the parent will likely harm the child in the future.” B.A. v.
State, Dep’t of Child. & Fams., 297 So. 3d 586, 591 (Fla. 4th DCA 2020)
(quoting Q.L. v. Dep’t of Child. & Fams., 280 So. 3d 107, 113–14 (Fla. 4th
DCA 2019)). “In essence, the trial court must find that any provision of
services would be futile or that the child would be threatened with harm
despite any services provided to the parent.” S.H. v. Dep’t of Child. & Fams.,
366 So. 3d 1120, 1124 (Fla. 3d DCA 2022) (quoting In re C.W.W., 788 So.
2d 1020, 1023 (Fla. 2d DCA 2001)); see also Dep’t of Child. & Fams. v. C.F.,
788 So. 2d 988, 989–90 (Fla. 3d DCA 1998) (reversing the denial of
termination where the mother had years to “get her act together” but failed
to do so, finding that reunification was not in the best interest of the children).
10
The trial court likewise erred in dismissing because in the light most
favorable, the department presented a prima facie case to support
termination under this section. Here, the record reflects that the department
provided A.M. with various support services with the goal of reunification.
The pattern is the same. She is partially compliant, gains reunification, and
reoffends. As correctly noted by the trial court, A.M. is not fit to parent her
children. The psychologist could not say, with certainty, that A.M. would
improve with additional services. The record leads to a reasonable
conclusion that more services would be futile. Despite the children’s bond
with their mother, the children suffer from extreme emotional and behavioral
problems likely stemming from being placed in dangerous circumstances
following reunification. After three removals, the children are in dire need of
permanency and a safe home environment. The record includes competent
substantial evidence in support of termination. The motion for judgment of
dismissal should have been denied.
B. The fathers, N.B. & B.H.
1. Termination for Abandonment
Ample evidence of abandonment exists, as to both fathers, under
section 39.806(1)(b), Florida Statutes. Abandonment is defined as follows:
(1) “Abandoned” or “abandonment” means a situation in which
the parent or legal custodian of a child or, in the absence of a
11
parent or legal custodian, the caregiver, while being able, has
made no significant contribution to the child’s care and
maintenance or has failed to establish or maintain a substantial
and positive relationship with the child, or both. For purposes of
this subsection, “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.
§ 39.01(1), Fla. Stat.; see also § 39.806(1)(b), Fla. Stat.; Molina v.
Fuenmayor, 388 So. 3d 877, 878–81 (Fla. 3d DCA 2023) (affirming
termination on the ground of abandonment where parent, while being able,
made no contribution to the child’s care and maintenance, and failed to
maintain a relationship, notwithstanding testimony that parent made efforts
to establish a relationship); Fla. Dep’t of Child. & Fam. Servs. v. A.Q., 937
So. 2d 1156, 1158 (Fla. 3d DCA 2006).
Both fathers conceded lack of visitation and failure to maintain a
relationship with the children. Both fathers, likewise, admitted to making no
contributions to their children’s care. They do not know the teachers,
therapists or doctors. Viewed in the light most favorable to the department,
the record and testimony clearly support abandonment.
2. Termination for Prospective Neglect
12
The department likewise argues that evidence was sufficient to
establish termination on the ground of section 39.806(1)(c), Florida Statutes.
As stated above, termination under this section is based on prospective
neglect. See B.A., 297 So. 3d at 591. Here, the record reflects years of
neglect, lack of visitation and no desire for involvement by both fathers.
Despite the provision of services for several years, both have failed to gain
reunification. The continued provision of services would likely be futile.
Viewed in the light most favorable to the department, the record and
testimony clearly support termination for prospective neglect.
III
Based on this record and viewing the evidence in the light most
favorable to the department, the trial court erred in granting any of the
parents’ motions for dismissal of the termination proceedings. We therefore
reverse and remand for further proceedings consistent with this opinion.4
Reversed and remanded for further proceedings.
4
Because we reverse and remand for further proceedings on the basis that the trial court erred in dismissing the termination proceedings against the parents at the close of the department’s case, we need not address the department’s second argument that the trial court erred by adjudicating the children dependent after having dismissed the petition.
13