Incarceration Term alone Insufficient to Terminate Florida Prisoner's
Parental Rights

The Florida Supreme Court has held that a trial court, when
assessing a petition to terminate a prisoner's parental rights, must apply
a forward-looking view when determining if the "parent's incarceration
constitutes a substantial portion of the period of time before the child
or children attain the age of eighteen years."

The matter was before the Court to resolve a conflict between
Florida's Second and Fourth District Courts of Appeals in construing
§39.806(1)(d)(1), Florida Statutes (2003). The certified conflict
required consideration of whether "the entire period of incarceration, or
only the period to be served after the petition for termination is filed"
constitutes a substantial portion of the time remaining before a child
will turn eighteen.

In the case before the court, the unnamed father's parental rights
were not terminated by the trial court, but the lower court's decision was
reversed by the Fourth Circuit. In quashing that decision, the Supreme
Court found a petition to terminate may be filed when "[t]he period of
time for which the parent is expected to be incarcerated will constitute a
substantial portion of the period of time before the child will attain the
age of 18 years."

As such, the statutory language "requires the court to evaluate
whether the time for which a parent is expected to be incarcerated in the
future constitutes a substantial portion of the time before the child
reaches eighteen, not whether the time the parent has been incarcerated is
a substantial period of the child's life to date."

To prevail, "the state must show by clear and convincing evidence
that reunification with the parent poses a substantial risk of significant
harm to the child," and that "termination of parental rights is the least
restrictive means of protecting the child from harm.... Termination of the
parental rights of a parent who has played a supportive and beneficial
role in the child's life despite the disabilities of incarceration
probably would not meet these additional statutory and constitutional
criteria." In sum, termination cannot rest exclusively on the parent's
length of incarceration.

In the case before the Court, the father's remaining term of
incarceration amounted to only 28.6 percent of the four-year-old child's
minority. As none of the other factors existed, termination was not
allowed under Florida law. Accordingly, the Fourth District's order was
quashed for reinstatement of the trial court's order. See: B.C. v.
Florida Department of Children and Families, 887 So.2d 1046 (Fla. 2004).

Subscribe today

Already a subscriber? Login

Related legal case