Full Opinion

Third District Court of Appeal State of Florida Opinion filed October 14, 2026. Not final until disposition of timely filed motion for rehearing. ________________ No. 3D26-0733 Lower Tribunal No. 20-15319 D202 ________________ Department of Children and Families, Appellant, vs. B.H., the Father, 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. Eugene F. Zenobi, Criminal Conflict and Civil Regional Counsel, Third Region, and Kevin Coyle Colbert, Assistant Regional Counsel for B.H., the Father; 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 3 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 “the 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. Dept 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