Full Opinion

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED IN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT In the Interest of B.A., a child. ) ___________________________________) ) L.A., ) ) Appellant, ) ) v. ) Case No. 2D19-4856 ) DEPARTMENT OF CHILDREN AND ) FAMILIES and GUARDIAN AD LITEM ) PROGRAM, ) ) Appellees. ) ___________________________________) Opinion filed June 3, 2020. Appeal from the Circuit Court for Hillsborough County; Thomas N. Palermo, Judge. Maria Christine Perinetti, Tampa, for Appellant. Ashley Moody, Attorney General, Tallahassee, and Mary Soorus, Assistant Attorney General, Tampa, for Appellee Department of Children and Families. Thomasina Moore and Joanna Summers Brunell, Tallahassee, for Appellee Guardian ad Litem Program. CASANUEVA, Judge. L.A. (the Mother) appeals the order terminating her parental rights to B.A. (the Child). We reverse. On July 9, 2019, the Department of Children and Families (DCF) sheltered the Child, who was three years old at the time, because law enforcement allegedly found the Mother unconscious and intoxicated lying on the side of a busy road with the Child twenty-five feet away in a ditch that was located five feet from the road. The Mother admitted to taking prescribed Suboxone the day before (which contains the opioid buprenorphine) and drinking one beer. She was allegedly in possession of marijuana and prescribed fentanyl. DCF filed an expedited petition for termination of parental rights. The petition alleged the following as grounds for termination: (1) voluntary surrender under section 39.806(1)(a), Florida Statutes (2018); (2) continuing involvement threatens the Child irrespective of services pursuant to section 39.806(1)(c); and (3) the Mother's children have been removed from her care on three or more occasions pursuant to section 39.806(1)(l). After an adjudicatory hearing on October 23, 2019, the trial court concluded that (1) DCF had proven by clear and convincing evidence grounds for termination pursuant to sections 39.806(1)(c) and 39.806(1)(l); (2) termination was in the Child's manifest best interests; and (3) termination was the least restrictive means of protecting the Child from harm. On November 19, 2019, the trial court entered an order terminating the Mother's parental rights to the Child. For a trial court to terminate parental rights, the court is first required to find by clear and convincing evidence that one or more of the statutory grounds for -2- termination set out in section 39.806 has been established. See M.S. v. Dep't of Children & Families, 210 So. 3d 147, 149, 152–53 (Fla. 2d DCA 2016). Next, the trial court considers whether termination is in the manifest best interests of the child under section 39.810. Id. at 150. Finally, the court must find that termination is the least restrictive means of protecting the child from harm. Id. "Our standard of review in parental rights termination cases is highly deferential." Id. (quoting N.F. v. Dep't of Children & Family Servs., 82 So. 3d 1188, 1191 (Fla. 2d DCA 2012)). "The trial court's ruling will be affirmed if, upon the competent, substantial evidence presented, there is any principle or theory of law that supports the judgment terminating parental rights." Id. (citing G.W.B. v. J.S.W., 658 So. 2d 961, 967 (Fla. 1995)). The Mother argues that the trial court abused its discretion in terminating her parental rights to the Child because DCF failed to prove the grounds for termination, the court's findings regarding the manifest best interest determination were not supported by competent substantial evidence, and the court's findings regarding the least restrictive means determination were not supported by competent substantial evidence. Based on the record before us, we agree that DCF failed to prove a ground for termination of the Mother's parental rights. Because we agree with the Mother that DCF failed to prove a ground for termination, we do not reach the other issues raised. Section 39.806(1)(c) Section 39.806(1)(c) provides a ground for termination of parental rights [w]hen the parent or parents engaged in conduct toward the child or toward other children that demonstrates that the continuing involvement of the parent or parents in the parent-child relationship threatens the life, safety, well-being, or physical, mental, or -3- emotional health of the child irrespective of the provision of services. Provision of services may be evidenced by proof that services were provided through a previous plan or offered as a case plan from a child welfare agency. In terminating rights under this ground, the trial court must find that the child's life, safety, or health would be threatened by continued interaction with the parent regardless of any services provided to the parent. 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. R.W.W. v. Dep't of Children & Families, 788 So. 2d 1020, 1023 (Fla. 2d DCA 2001) (emphasis added). The Mother argues that the trial court erred when terminating her parental rights pursuant to section 39.806(1)(c) because it cited the "July 9, 2019 incident" as evidence that the Mother's substance abuse is "directly dangerous to her daughter." At the adjudicatory hearing, only the Mother, the DCF caseworker, and the Child's guardian ad litem testified. Despite the serious and troublesome allegations contained in the petition for termination of parental rights, no testimony, other than the Mother's, was presented at trial by anyone who was at the scene of the incident on July 9, 2019. The Mother testified that she had had one beer on July 9, 2019, and that she was never unconscious or lying down on the sidewalk, but rather was sitting on the side of the road with her daughter next to her. She said she was tired because they were walking three miles to the bus stop, and she stopped to give the Child a snack. She invoked her Fifth Amendment rights when asked about the marijuana but admitted to possessing the fentanyl, for which she said she had an old prescription. She claimed that the law enforcement officers who encountered her on the side of the road gave her -4- a drug test and it was negative. The Mother also testified that "they" told her that her blood alcohol level was .236. No law enforcement officer was called to testify about any of the allegations regarding the July 9, 2019, incident. The only possible evidence of risk or potential harm to the Child to be gleaned from the proof adduced at trial was that she and her Mother were sitting on the side of a busy road and the Mother had consumed alcohol that day. Had the law enforcement officers testified at trial about the Mother's and Child's physical and mental conditions on July 9, 2019, as alleged in the petition, we would agree that the Child was at a substantial risk of harm. Without their testimony, however, we cannot conclude that there was competent substantial evidence that the Mother's behavior and actions threatened the Child. As for DCF's provision of services to the Mother after the Child was removed, the Mother testified that although she had previously successfully completed a case plan after the Child's first removal at birth, she was not given a case plan in this removal. Instead, she asked for referrals for substance abuse treatment. In the three months between the Child's removal and the trial, the Mother completed a mental health evaluation as referred. She had not yet completed her DACCO (drug treatment) evaluation but provided a reasonable excuse that scheduling the evaluation had proved difficult because of DACCO's appointment availability and her work schedule. Additionally, there was no testimony that the Mother failed to follow through with substance abuse treatment. To the contrary, the Mother testified that she completed a three-month inpatient treatment program and attended four other treatment programs at the court's direction when she was on a previous case plan. And she made voluntary attempts to begin treatment at DACCO during the short pendency of this case, -5- although she had not yet completed an evaluation or any treatment. It should also be noted that the Mother testified that she had been seeing a drug abuse treatment doctor for over a year, she had a clean drug screen five days before trial, and when the court drug-tested her in the middle of her testimony, she only tested presumptively for alcohol (which the court stated would reveal that she had consumed alcohol within the last eighty hours) and the prescribed buprenorphine. Based on the foregoing, there is not competent substantial evidence that the Mother is a danger to the Child irrespective of continued services. Section 39.806(1)(l) To prove grounds for termination pursuant to section 39.806(1)(l), DCF was required to prove that the Mother's children had been placed in out-of-home care on three or more occasions and that the conditions that led to the Child's out-of-home placement were caused by the Mother. There was evidence presented at the adjudicatory hearing that the Mother's older child Z.K. had been previously removed from the Mother's care and that the Mother's rights to Z.K. had been terminated ten years earlier. The Child had been removed twice. She was removed at birth and reunified with the Mother before being removed on July 9, 2019. Both testimony and judicially noticed court records indicate that there had been three removals. The Mother claims that DCF failed to prove that the Child's current removal and out-of-home placement were caused by the acts of the Mother. The trial court took judicial notice of the July 10, 2019, shelter order, which stated the ground for removal was "[t]he mother was under the influence of alcohol while being the child's caretaker." In its termination of rights order, the court also found that "law enforcement -6- encountered [the Mother and the Child] on the side of Providence Boulevard, a very busy thoroughfare in Brandon. She illegally had in her possession marijuana and fentanyl citrate. She had previously consumed 'hash,' alcohol, and suboxone." However, there was no testimony presented at the adjudicatory hearing that the Mother had consumed hash or Suboxone that day, and there was no evidence that she possessed marijuana or illegally possessed the fentanyl, which had been prescribed to her. For the reasons stated above, the evidence and testimony at the adjudicatory hearing do not support these findings of fact with respect to the incident on July 9, 2019. Thus, the court's finding that the Mother caused the third removal is not based on competent substantial evidence. Because the record does not support the trial court's findings as to the grounds upon which it relied to terminate the Mother's parental rights, we must reverse. Reversed. MORRIS and SALARIO, JJ., Concur. -7-