Full Opinion

FIFTH DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________ Case No. 5D2026-1081 LT Case No. 27-2024-DP-60 ____________________________ R.M., FATHER OF A.S., MINOR CHILD, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee. _____________________________ On appeal from the Circuit Court for Hernando County. Stephen E. Toner, Jr., Judge. Scott Timothy Smith, Brooksville, for Appellant. Rachel Batten, of Children’s Legal Services, Brooksville, for Appellee, Department of Children and Families. Sara Elizabeth Goldfarb, Statewide Director of Appeals, and Amanda Victoria Glass, Senior Attorney, Appellate Division, Statewide Guardian ad Litem Office, Tallahassee, for the Office of the Guardian ad Litem. August 17, 2026 PER CURIAM. We affirm the order terminating Appellant’s parental rights. In its order, the trial court found that—even considering Appellant’s incarceration—he made “almost no effort to be a part of the child’s life.” Appellant asserts on appeal that he wrote six letters to the case manager during his incarceration—and according to the initial brief, this was a letter roughly every two months after Appellant discovered he was a father. Appellant says he could do no more from prison, and he argues that incarceration alone does not support a finding of abandonment. But Appellant does not directly challenge the trial court’s finding that he made “almost no effort.” Importantly, he does not address the frequency (or infrequency) of his letters. Nor does Appellant discuss the substance of the letters he wrote (directed to the case manager instead of the child), and he fails to explain why the substance of his letters precluded a finding of abandonment. While Appellant argues the case manager was his only available means of communication, he does not argue that he attempted to communicate with the child in any way through the case manager. Considering only the argument made in the initial brief, we conclude Appellant has not carried his burden to demonstrate error on appeal. See Lynn v. City of Ft. Lauderdale, 81 So. 2d 511, 513 (Fla. 1955) (“It is elementary that when a decree of the trial court is brought here on appeal the duty rests upon the appealing party to make error clearly appear.”). AFFIRMED. JAY, C.J., and EISNAUGLE, J., concur. HARRIS, J., dissents with opinion. _____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________ 2 Case No. 5D2026-1081 HARRIS, J., dissenting In this appeal, R.M. (“Father”), the father of two-year-old A.S., appeals the final judgment terminating his parental rights, arguing that the Florida Department of Children and Families (the “Department”) failed to prove by clear and convincing evidence that he has abandoned his child. Because, in my opinion, there was not competent, substantial evidence presented at trial to support a finding of abandonment under the clear and convincing standard, I would reverse the final judgment terminating Father’s parental rights. At the time Father was first advised that his former girlfriend was pregnant, he was incarcerated in Texas. He remained incarcerated up to and past the date of his TPR trial, by which time A.S. was about eighteen months old. Father’s incarceration alone provides the basis for the Department’s attempt to establish abandonment of A.S. under section 39.806(1)(b), Florida Statutes. Abandonment is defined as a situation where a parent, while being able, has made no contribution to the child’s care or has failed to establish or maintain a substantial and positive relationship with the child. See § 39.01(1), Fla. Stat. (2025); In Interest of B.W., 498 So. 2d 946, 947–48 (Fla. 1986) (“Section 39.01(1) . . . does not provide for the termination of parental rights when abandonment is involuntary, i.e., where a parent is unable to communicate with or financially support a child.”). To terminate parental rights, the Department has to prove, by the high standard of clear and convincing evidence, that one or both of these conditions were met. See T.S. ex rel. D.H. v. Dep’t of Child. & Fams., 969 So. 2d 494, 495 (Fla. 1st DCA 2007). I would conclude that the Department failed in this endeavor. The evidence was undisputed that, based on his incarceration, Father presently has no income nor any other source from which to contribute towards his daughter’s care and support. While the court correctly found that Father has paid no support, it had no evidence before it that Father had the ability to provide financial support, and thus it made no finding regarding Father’s ability. In the absence of such evidence and finding, there can be 3 no finding of abandonment on this ground. See In re T.H., 979 So. 2d 1075, 1080 (Fla. 2d DCA 2008) (holding it is improper to terminate parental rights if parent is unable to financially provide for child or to assume parental obligations due to incarceration). The Department also failed to prove that Father lacked efforts to maintain a relationship with his child despite the limitations imposed by his incarceration. The only evidence presented at trial was that Father was never given a case plan by the Department nor was he given any means by which to contact his daughter. The evidence established that over an eighteen- month period, Father sent correspondence on six to eight occasions to A.S.’s case worker and the Guardian ad Litem Program. This evidence was seemingly ignored by the trial court in its final judgment when it concluded that Father had made “almost no effort” to be part of the child’s life. And again, the court did not address the undisputed evidence that traditional written correspondence was Father’s only possible way of inquiring about his child. He could not email or telephone, and the Department presented no evidence that Father had the ability to correspond any more frequently than he actually did. See In Interest of B.W., 498 So. 2d at 947 (reversing termination of parental rights on basis of abandonment where father requested that his children be brought for a visit and he had written letters to his children and HRS, thus “us[ing] those means available to him in maintaining contact with his children”); In re E.D., 884 So. 2d 291, 294–95 (Fla. 2d DCA 2004) (reversing trial court’s finding of abandonment where mother sent cards and letters to children and talked to them by phone to extent permitted by her incarceration). And perhaps more important than the frequency (or infrequency) of his correspondence was its content. In his letters, Father inquired about his daughter, checked on her medical condition following a surgery, stated that he wanted a relationship with her and for her to one day move to Texas to be with him, and he asked on multiple occasions for updated photographs of her. This was the only evidence before the trial court relative to Father’s efforts to establish and maintain a relationship, given his circumstances, with his child, evidence that was seemingly ignored by the trial court in its ruling. 4 The court’s order notes that Father has not attempted to make contact with the child. To the extent the court has supported its abandonment finding on Father’s failure to directly contact A.S., there is once again no evidence to suggest that he ever had the ability to do so. In fact, A.S.’s case manager testified that Father was never told where his daughter lives or even who she lives with. She also testified that she never told Father that he should write directly to the child as A.S. was simply too young. Father never had the burden to prove that he did not abandon his child. Rather, the Department maintained the burden to prove, by clear and convincing evidence, that he did so. The scant evidence presented by the Department simply does not show that Father had the ability to provide for and form a relationship with his child yet failed or neglected to do so. Without such evidence, much less clear and convincing evidence, I would reverse the final judgment terminating Father’s parental rights on the grounds of abandonment. 5