R.M., THE FATHER v. DEPARTMENT OF CHILDREN AND FAMILIES

Third District Court of Appeal State of Florida Opinion filed April 22, 2020. Not final until disposition of timely filed motion for rehearing. ________________ Nos. 3D19-2379 and 3D19-2323 Lower Tribunal No. 16-139K ________________ D.M., a juvenile, and R.M., the Father, Appellants, vs. Department of Children and Families, et al., Appellees. Appeals from the Circuit Court for Monroe County, Bonnie J. Helms, Judge. Law Office of Richard F. Joyce, P.A., and Richard F. Joyce, for appellant D.M., the Child; R.M., the Father, in proper person. Karla Perkins, for appellee Department of Children & Families; Laura J. Lee (Tallahassee) and Thomasina F. Moore (Tallahassee), for appellee Guardian ad Litem Program. Before EMAS, C.J., and MILLER and GORDO, JJ. EMAS, C.J.  INTRODUCTION In these consolidated appeals, the Child, D.M., and the Child’s Father, R.M., appeal from a final judgment terminating the parental rights of the Father and of the Mother. 1 Upon our review, we affirm the final judgment terminating the parental rights of the Father, R.M. We further hold that the record contains competent substantial evidence to support the trial court’s final judgment terminating the parental rights of the Mother, A.M., but nevertheless reverse and remand for the trial court to amend the final judgment as to the Mother to conform with the requirements of Florida Rule of Juvenile Procedure 8.520(c). BACKGROUND AND PROCEDURAL HISTORY D.M. was born in September 2007 and has endured a heartbreaking history with his parents. When D.M. was just a few weeks old, the Mother’s parental rights to D.M.’s half-sibling were terminated. Soon after, D.M. was sheltered from both parents as a result of domestic violence in the home. In 2010, when D.M. was three years old, the Mother surrendered her parental rights to D.M. (though no final 1 As will be seen infra, the Mother (A.M.) voluntarily surrendered her parental rights to D.M. and has not appealed the final judgment terminating her rights. However, D.M. objected to the trial court’s acceptance of the Mother’s surrender of her parental rights, and D.M. has appealed that portion of the final judgment terminating the parental rights of the Mother. D.M. does not challenge that portion of the final judgment terminating the parental rights of R.M., the Father. 2 judgment of termination of parental rights was rendered at that time) and D.M. was placed in the custody of the Father. When the Father was later convicted and sentenced to prison, D.M. was sheltered once more, and sheltered yet again in 2014 when he was sexually molested by his adult half-brother. In 2016, when D.M. was nine years old, the Mother initiated D.M.’s commitment to a mental health facility pursuant to the Baker Act (§ 394.451 et. seq., Fla. Stat. (2016)) because D.M. attempted to suffocate his younger brother with a pillow. When D.M.’s treatment was complete and he was to be discharged from the facility, the Mother refused to pick him up, resulting in D.M. being sheltered once again. The Department of Children and Families (“the Department”) filed a dependency petition and, on March 8, 2017, D.M. was adjudicated dependent. The Mother has failed and refused, and has continued to fail and refuse, to complete her case plan and has failed to provide any support to D.M., who has been residing in various therapeutic foster care placements and in-house psychiatric programs for mental health and behavioral issues. In March 2018, the Department moved to terminate the parental rights of the Mother and the Father. In the operative Petition, the Department alleged as grounds for Termination of Parental Rights: 1) abandonment of D.M. by the Mother and 3 Father (§ 39.806(1)(b), Fla. Stat. (2018)); 2) conduct by the Mother and Father toward D.M. demonstrating that the continuing involvement of the parent-child relationship threatens the life, safety, well-being, or physical, mental, or emotional health of D.M., irrespective of the provision of services (§ 39.806(1)(c)); 3) failure of the Mother and Father to substantially comply with case plans for a period of twelve months following an adjudication of dependency or placement in shelter care (§ 39.806(1)(e)1.); 4) D.M. has been in the care of the Department during twelve of the last twenty-two months and the Mother and Father have failed to substantially comply with the case plan so as to permit reunification (§ 39.806(1)(e)3.); and (5) on three or more occasions, D.M. or another child of the Mother and Father has been placed in out-of-home care, and the conditions leading to those out-of-home placements were caused by the Mother and Father (§ 39.806(1)(l)). Following the commencement of the adjudicatory hearing,2 the Mother executed an Affidavit of Surrender of her parental rights to D.M., averring, inter alia, that it was in the Child’s best interest to be placed for adoption by the Department.3 During the adjudicatory hearing, the trial court reviewed the Affidavit of Surrender 2 The adjudicatory hearing took place over a period of several days and the Mother’s Affidavit of Surrender was submitted on the second day of the hearing. 3 See § 39.806(1)(a)1., Fla. Stat. (2018) (providing that grounds for the termination of parental rights may be established when the parent has “voluntarily executed a written surrender of the child and consented to the entry of an order giving custody of the child to the department for subsequent adoption and the department is willing to accept custody of the child.”) 4 and engaged the Mother in a colloquy about her decision to surrender her parental rights to the Child. Following the colloquy, and satisfied that the Mother made her decision knowingly, freely and voluntarily, the trial court accepted the Mother’s surrender of her parental rights. D.M. objected to the trial court’s acceptance of the Mother’s surrender of her parental rights, asserting it was not in the Child’s best interest to permit the Mother to do so. Following the adjudicatory hearing the trial court entered a final judgment terminating the parental rights of both the Mother and the Father. These consolidated appeals by the Father and the Child followed. DISCUSSION We affirm without discussion the termination of the parental rights of the Father, R.M. 4 However, as to the challenges raised by the Child, D.M., we write to address the requirements of a final judgment where, as in this case, a parent has voluntarily surrendered her parental rights. 5 The standard of review for a final judgment terminating parental rights is “whether the judgment is supported by substantial and competent 4 During the pendency of the appeal, R.M.’s appointed counsel filed a motion seeking to withdraw from further representation and representing that, following a full review of the record, it was counsel’s considered opinion that the appeal was without merit. Pursuant to Jimenez v. Dep’t of Health & Rehab. Servs., 669 So. 2d 340 (Fla. 3d DCA 1996), we withheld ruling on the motion to withdraw to permit the Father to file a brief in support of the appeal. The Father did not file a brief. We grant counsel’s motion to withdraw and affirm the final judgment as to the Father, R.M. 5 We affirm as to the other issues raised by D.M. in this appeal. 5  evidence” that the statutory requirements were met. See T.V. v. Dep’t of Children & Family Servs., 905 So. 2d 945, 946 (Fla. 3d DCA 2005). This standard is “highly deferential.” C.G. v. Dep’t of Children & Families, 67 So. 3d 1141, 1143 (Fla. 3d DCA 2011). D.M. v. Dep’t of Children and Families, 79 So. 3d 136, 138 (Fla. 3d DCA 2012). See also I.T. v. Dep’t of Children & Families, 277 So. 3d 678, 683 (Fla. 3d DCA 2019) (additionally providing: “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.’ Thus, our review of a termination of parental rights case is ‘highly deferential.’” (Internal citations omitted)). Further, before terminating parental rights, “the trial court must find that the Department established by clear and convincing evidence the following: (1) the existence of at least one statutory ground for terminating parental rights set forth in section 39.806(1); (2) termination is in the manifest best interest of the child; and (3) termination is the least restrictive means to protect the child from serious harm.” L.Q. v. Dep’t of Children & Families, 282 So. 3d 958, 962 (Fla. 3d DCA 2019). However, because the Mother voluntarily surrendered D.M. in accordance with section 39.806(1)(a)1., Florida Statutes (2019), it was not necessary for the Department to establish at an adjudicatory hearing the existence of another statutory ground for termination as to her. As that subsection provides: 6  (1) Grounds for the termination of parental rights may be established under any of the following circumstances: (a) When the parent or parents have voluntarily executed a written surrender of the child and consented to the entry of an order giving custody of the child to the department for subsequent adoption and the department is willing to accept custody of the child. 1. The surrender document must be executed before two witnesses and a notary public or other person authorized to take acknowledgments. 2. The surrender and consent may be withdrawn after acceptance by the department only after a finding by the court that the surrender and consent were obtained by fraud or under duress. Nevertheless, Florida Rule of Juvenile Procedure 8.520(c) requires the trial court to specify in the final judgment those acts which, independent of the voluntary surrender, support the termination of parental rights of the Mother: (c) Plea of Admission or Consent. If the parent appears and enters a plea of admission or consent to the termination of parental rights, the court shall determine that the admission or consent is made voluntarily and with a full understanding of the nature of the allegations and the possible consequences of the plea and that the parent has been advised of the right to be represented by counsel. The court shall incorporate these findings into its order of disposition, in addition to findings of fact specifying the act or acts causing the termination of parental rights. (Emphasis added.) In C.B. v. B.C., 851 So. 2d 847, 849 (Fla. 5th DCA 2003), the Fifth District construed the language of rule 8.520(c) to mean that, in addition to the voluntary consent serving as a basis for termination, the trial court must make findings with 7 regard to the conduct that led to the filing of the petition and would support the termination of parental rights: Under the rule, it is not sufficient for the court simply to identify the consent as the “act or acts” supporting termination. The structure of the rule as amended suggests that the court must make findings to establish the validity of the consent and identify the conduct that led to the termination. This appears to be analogous to the requirement that the criminal court, in taking a plea, ascertain its factual basis. Fla. R. Crim. P. 3.170(k). We agree with our sister court that it is not sufficient for the trial court merely to rely upon the parent’s voluntary surrender as the basis for termination. The trial court must also ensure that the petition alleges the act or acts which, if proven, would be legally sufficient to support a termination of parental rights. In the instant case, the final judgment specifies only the voluntary surrender as the basis for termination of the Mother’s parental rights to D.M. While the trial court made the requisite findings regarding the validity and voluntariness of the Mother’s surrender of her parental rights, it failed to expressly include in the final judgment those “findings of fact specifying the act or acts causing the termination of parental rights” as to the Mother. See Fla. R. Juv. P. 8.520(c). 6 6 By contrast, the final judgment did contain specific findings of fact with regard to the termination of parental rights of the Father. And while we acknowledge that the petition alleges in conjunctive fashion that the Father and Mother engaged in the same or similar acts, and we further acknowledge that competent substantial evidence was introduced to establish the Mother engaged in acts as alleged in the petition, we believe that the findings required by rule 8.520(c) should be made in the first instance by the trial court and not by this court. 8  We are not suggesting that, despite the Mother’s surrender of parental rights, the trial court was nevertheless required to continue with the adjudicatory hearing as to the Mother. Indeed, such is not required. See Fla. Dep’t of Children & Family Servs. v. P.E., 14 So. 3d 228, 236 (Fla. 2009) (holding: “Once the trial court has deemed the parent to have consented to the termination, there is no basis for the parent to complain that the trial court did not consider evidence establishing the existence of a [statutory] ground for termination.”)7 Rather, we hold only that, notwithstanding acceptance of the Mother’s surrender of her parental rights to the Child, the trial court must specifically identify in the final judgment what acts or acts as alleged in the petition would, if proven, establish a legally sufficient basis for termination of the Mother’s parental rights. This is, as the B.C. court noted, 851 So. 2d at 849, akin to making a finding of a 7 And in this case, the trial court did continue the adjudicatory hearing, taking evidence and ultimately concluding that termination of the Mother’s parental rights was in the Child’s best interest and was the least restrictive means of protecting the Child. We find that there was competent substantial evidence to support these determinations. In addition to the Guardian ad Litem, the Mother herself and all the other witnesses who testified in court during the adjudicatory hearing agreed that it was in the Child’s best interests for the Mother’s parental rights to be terminated. As to least restrictive means, this prong is generally satisfied if the Department of Children and Families makes a good faith effort to rehabilitate the parent and reunite the family, such as through a case plan, which was provided in this case. See e.g., A.F. v. Dep’t of Children & Families, 276 So. 3d 61 (Fla. 1st DCA 2019). There was ample testimony from the case workers that the Mother was provided a case plan, and the Mother herself testified at the hearing that she is unwilling to move from Key West to enable D.M. to have access to the mental health and behavioral professionals he needs. 9 factual basis for a guilty plea in a criminal case. See Fla. R. Crim. P. 3.170(k) (providing: “No plea of guilty . . . shall be accepted by a court without the court first determining . . . that there is a factual basis for the plea of guilty”); Fla. R. Crim. P. 3.172(a) (providing: “Before accepting a plea of guilty or nolo contendere, the trial judge shall determine that the plea is voluntarily entered and that a factual basis for the plea exists.”) A trial court should not accept a guilty plea where the allegations, if proven, would not establish the commission of the crime to which the defendant is pleading guilty. See, e.g., Williams v. State, 534 So. 2d 929 (Fla. 4th DCA 1988); Waugh v. State, 388 So. 2d 253 (Fla. 2d DCA 1980); Estes v. State, 294 So. 2d 122 (Fla. 1st DCA 1974). In like fashion, rule 8.520(c) seeks to ensure that a trial court will not terminate a parent’s parental rights, based upon a voluntary surrender, unless the allegations of the petition would, if proven, establish a legally sufficient basis for termination of parental rights. We therefore reverse that portion of the final judgment as to the termination of the parental rights of the Mother, A.M., and remand to the trial court for the sole and limited purpose of entering an amended final judgment that includes findings of fact specifying what act or acts alleged in the petition would, if proven, establish a 10 legally sufficient basis for termination of the Mother’s parental rights. The final judgment is, in all other respects, affirmed.8 8 D.M. also asserts that the trial court’s acceptance of the Mother’s surrender, over D.M.’s objection and without an independent evidentiary hearing, violated his due process rights. We note, initially, that D.M. cites no Florida statute, rule or case law in support of this proposition, nor did this court find any such Florida authority. At the time the Mother’s surrender was accepted by the trial court, the adjudicatory hearing had already commenced, and the Child’s testimony (in chambers) had been taken. After acceptance of the Mother’s surrender, the adjudicatory hearing continued, with additional evidence and testimony that supported termination as to both the Mother and the Father, including testimony from the Guardian ad Litem. While no one would dispute that a child has an interest in maintaining the integrity of family relationships, including relationships with his parents and siblings, it is equally clear that the Florida Legislature recognizes, protects and furthers that interest, having expressed that principle in language of statutory intent. See, e.g., § 39.001(1)(f), (l) Fla. Stat. (2018) (providing that among the purposes of chapter 39 are: “To preserve and strengthen the child's family ties whenever possible, removing the child from parental custody only when his or her welfare cannot be adequately safeguarded without such removal; [and] . . . [t]o provide judicial and other procedures to assure due process through which children, parents, and guardians and other interested parties are assured fair hearings by a respectful and respected court or other tribunal and the recognition, protection, and enforcement of their constitutional and other legal rights, while ensuring that public safety interests and the authority and dignity of the courts are adequately protected.”) Pursuant to this express intent, the Legislature has enacted a panoply of laws (and the Florida Supreme Court has approved a number of corresponding procedural rules) furthering and protecting these interests of the child, including, for example: 1) providing, where appropriate, for the appointment of an attorney ad litem for the child, who shall represent the child’s legal interests and shall have unlimited access to the child, see § 39.4085(20), Fla. R. Juv. P. 8.217; 2) providing for appointment of a guardian ad litem to represent the interests of the child, see §§ 39.807(2)(a), 39.4085(20), Fla. R. Juv. P. 8.217; 3) providing that the guardian ad litem must provide a statement expressing the wishes of the child, see § 39.807(2)(b)1; and 4) providing for the child, through the Guardian Ad Litem, to be served with process, be present at and participate in proceedings, see Fla. R. Juv. P. 8.505, 8.215. 11 Finally, the statutory scheme by which a parent may voluntarily surrender her parental rights, permits such a procedure only if: the Department accepts the surrender; the court finds that the surrender was voluntary; and the court finds that termination is in the manifest best interests of the child, thus requiring the court to consider the recommendations of the Guardian Ad Litem and the reasonable preferences and wishes of the child. See §§ 39.802(4) 39.806(1), 39.810(10),(11), Fla. Stat. (2019). We reject D.M.’s contention that these statutory provisions and procedural rules fail to adequately protect D.M.’s interests or that the trial court’s acceptance of the Mother’s voluntary surrender without an independent evidentiary hearing deprived D.M. of due process. 12