Full Opinion

DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT In the Interest of M.G., a child. K.M.G., Appellant/Cross-Appellee, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee/Cross-Appellant, and GUARDIAN AD LITEM PROGRAM, Appellee. No. 2D23-150 June 23, 2023 Appeal from the Circuit Court for Pinellas County; Patrice W. Moore, Judge. Thomas J. Butler of Thomas Butler, P.A., Miami Beach, for Appellant/Cross-Appellee. Bruce Bartlett, State Attorney for Sixth Judicial Circuit, and Leslie M. Layne, Assistant State Attorney, Clearwater, for Appellee/Cross- Appellant Department of Children and Families. Sara Elizabeth Goldfarb, Statewide Director of Appeals, and Caitlin E. Burke, Senior Attorney, Appellate Division, Tallahassee, for Appellee Guardian ad Litem Program. LABRIT, Judge. K.M.G., the mother, appeals a final judgment terminating her parental rights to her son, M.G., based on her failure to substantially comply with the case plan. The mother was incarcerated throughout the proceedings below and the Department of Children and Families made only minimal efforts to assist the mother in complying with her case plan. As a result, the mother did not substantially comply with the plan. The trial court terminated the mother's parental rights under section 39.806(1)(e)1, Florida Statutes (2022), due to her noncompliance. She correctly argues that this was error, which the appellees appropriately concede. See M.N. v. Dep't of Child. & Fam. Servs., 51 So. 3d 1224, 1230 (Fla. 2d DCA 2011) ("[I]t is improper to terminate parental rights for case plan noncompliance when the parent's incarceration renders the parent unable to comply."); W.L. v. Dep't of Child. & Fam. Servs., 15 So. 3d 866, 869 (Fla. 2d DCA 2009) ("Where a court is terminating parental rights based on a parent's failure to comply with a case plan or a performance agreement, it is axiomatic that the parent must have the substantial ability to comply with the plan or agreement." (quoting Hutson v. State, 687 So. 2d 924, 925 (Fla. 2d DCA 1997))); Hutson, 687 So. 2d at 926 ("Parental rights may not be terminated for lack of compliance where compliance is not possible. The law does not make such unreasonable demands."). We therefore conclude that the trial court erred in terminating the mother's parental rights under section 39.806(1)(e)1. Although the Department concedes error on this point, it cross- appeals the trial court's denial of its petition to terminate the mother's parental rights under section 39.806(1)(d)3. This subsection permits termination where "[t]he court determines by clear and convincing evidence that continuing the parental relationship with the incarcerated 2 parent would be harmful to the child." § 39.806(1)(d)3. The trial court found that the Department failed to present sufficient evidence of harm, and we agree. "[A] trial court is precluded from terminating parental rights on the statutory ground that continuing the parental relationship with the incarcerated parent would be harmful to the child under section 39.806(1)(d)(3) where no evidence regarding the impact of continuing the parent-child relationship is offered." K.S. v. Dep't of Child. & Fam. Servs., 898 So. 2d 1194, 1198 (Fla. 2d DCA 2005) (citing J.P.C. v. Dep't of Child. & Fam. Servs., 819 So. 2d 264, 266 (Fla. 2d DCA 2002)). This court applied this rule in both K.S. and J.P.C., holding in each case that the "Department's failure to offer evidence regarding the impact of continuing the relationship precludes termination" on section 39.806(1)(d)3 grounds. K.S., 898 So. 2d at 1198; J.P.C., 819 So. 2d at 266; see also J.R. v. Dep't of Child. & Fam. Servs., 923 So. 2d 1201, 1207 (Fla. 2d DCA 2006) ("[W]here, as here, there is no evidence that [the parent's] incarceration would adversely impact the child, a trial court is precluded from terminating a [parent's] parental rights on the statutory ground that continuing the parental relationship with the incarcerated parent would be harmful to the child."); cf. R.M. v. Dep't of Child. & Fams., 847 So. 2d 1103, 1104 (Fla. 4th DCA 2003) (affirming the termination of parental rights under section 39.806(1)(d)3 where the children's therapists testified as to their mental state, their lack of a relationship with their incarcerated parent, and the "extremely detrimental" effect that reunification with the incarcerated parent could have on them). This rule has not changed. The Department offered no evidence on the impact of continuing the parent-child relationship. Thus, the trial 3 court did not err in denying the Department's petition to terminate the mother's parental rights under section 39.806(1)(d)3.1 We recognize that the mother has been incarcerated for the child's entire life and that the child is entitled to permanency and stability. But the Department concedes that the trial court did not have grounds to terminate the mother's parental rights under section 39.806(1)(e)1, and the Department did not otherwise prove there were grounds to terminate under section 39.806(1)(d)3. Accordingly, we reverse the judgment's termination of the mother's parental rights under section 39.806(1)(e)1, affirm the judgment's denial of the Department's petition to terminate under section 39.806(1)(d)3, and remand to the trial court for further proceedings. Reversed in part, affirmed in part, and remanded. SLEET and ATKINSON, JJ., Concur. Opinion subject to revision prior to official publication. 1 The parties dispute the sufficiency of the trial court's findings on this issue. We deem the findings sufficient. The judgment reviews the factors that section 39.806(1)(d)3 lists, and then finds that grounds to terminate under section 39.806(1)(d)3 "ha[ve] not been established by the clear and convincing evidence standard" because "the Department has not demonstrated a relationship would be harmful." These findings facilitate our review, and they are consistent with this court's precedent discussed above. 4