[*] Judge, Fourth Judicial Circuit, Jacksonville, Fla. B.A., University of Florida, 1968; M.A., University of Florida, 1972; J.D., University of Florida, 1985. Return to text.

[**] The author would like to thank Nora B. Flowers, Rebecca Feyerick, Martha Mann, Jerri Fish, Louise Borgia, and JoAnn Miller for their insightful contributions to earlier drafts of this article. Return to text.

[1] See FLA. STAT. 39.464 (1997). Section 39.464 allows petitions for the termination of parental rights to be filed by the Department of Children and Families, a guardian ad litem, a licensed child-placing agency, or "any person who has knowledge of the facts alleged or who is informed of said facts and believes that they are true." Id. 39.464(1)(a)-(f). Return to text.

[2] See, e.g., id. 39.464(1)(a)-(e); infra text accompanying note 13. Return to text.

[3] See Act effective Oct. 1, 1997, ch. 97-226, 1997 Fla. Laws 3926 (amending FLA. STAT. 39.464 (grounds for termination of parental rights), 39.469 (powers of disposition; order of disposition), 39.471 (oaths, records, and confidential information), 61.13 (custody following divorce) (1995)). Return to text.

[4] See FLA. STAT. 39.464(1)(d)(1) (1997). Return to text.

[5] See id. 39.464(1)(d)(2). Return to text.

[6] See id. 39.464(1)(d)(3). Return to text.

[7] See id. 39.464(1)(a)-(f). Return to text.

[8] See id. Return to text.

[9] See id. 39.464(1)(a). Return to text.

[10] See id. Return to text.

[11] See id. Return to text.

[12] See id. 39.464(1)(a)- (e). Return to text.

[13] See id. Return to text.

[14] See id. 39.4611(1)(b) (noting that the parents must have been offered a case plan, or a plan of rehabilitation, as described in FLA. STAT. 39.464). Return to text.

[15] See id. 39.4611(1)(c). Courts consider the following factors when determining the best interests of the child: (1) whether a permanent relative placement is available for the child; (2) whether the parents are willing and able to provide the child with the requisite food, clothing, shelter, and medical care; (3) whether the child's well-being will be endangered if reunified with the parents; (4) whether the child's mental and physical health needs can be met in the future; (5) whether the child would suffer harm by terminating the love, affection, and other emotional ties with the parents; (6) whether an older child is likely to remain in long-term foster care; (7) whether the child can form significant relationships with a parental substitute and enter into a more stable environment; (8) whether the child has lived in a stable environment for an extended period of time and whether it is desirable to maintain this continuity; (9) whether the child and the person with present custody have a strong relationship; (10) whether the court deems the child to be sufficiently intelligent to understand the situation to express a preference; (11) whether the child provides a recommendation to the guardian ad litem or legal representative. See id. 39.4612. Return to text.

[16] See id. 39.469(2)(b)(2). Return to text.

[17] See id. 39.469(4). Return to text.

[18] See id. 39.469(4)(a)- (d). Return to text.

[19] See id. Return to text.

[20] See id. 39.464(1)(d)(1)-(3). The new statute applies when the parent of a child is incarcerated in a state or federal correctional institution and:

1. The 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;
2. The incarcerated parent has been determined by the court to be a violent career criminal as defined in s. 775.084, a habitual violent felony offender as defined in s. 775.084, or a sexual predator as defined in s. 775.21; has been convicted of first degree or second degree murder in violation of s. 782.04 or a sexual battery that constitutes a capital, life, or first degree felony violation in another jurisdiction which is substantially similar to one of the offenses listed in this paragraph . . . . 3. The court determines by clear and convincing evidence that continuing the parental relationship with the incarcerated parent would be harmful to the child and, for this reason, that termination of the parental rights of the incarcerated parent is in the best interest of the child. Id. Return to text.

[21] See id. 39.464(1) (noting that any person who has knowledge of the facts alleged may petition for the termination of parental rights). Return to text.

[22] See, e.g., B.W. v. Department of HRS, 498 So. 2d 946, 948 (Fla. 1986) (declining to find abandonment where the incarcerated father, though unable to provide financial support for his children, still attempted to maintain contact with them); Harden v. Thomas, 329 So. 2d 389, 391 (Fla. 1st DCA 1976) (declining to find abandonment despite the father's life sentence). Return to text.

[23] See infra Part II.B. Return to text.

[24] See Twila Decker, Mom Tries to Keep Son From a Killer: His Dad, ORLANDO SENT., Feb. 2, 1997, at A1 (detailing the story of Justin Taylor, who's father was incarcerated for committing murder). Return to text.

[25] See id. Return to text.

[26] See id. Return to text.

[27] See id. Return to text.

[28] See id. Return to text.

[29] See id. Return to text.

[30] See id. Return to text.

[31] See id. (noting that Taylor will not be eligible for parole until 2015). Return to text.

[32] See id. Return to text.

[33] See id. Return to text.

[34] See id. Return to text.

[35] See id. Return to text.

[36] See Lori Horvitz, Defiant Mom Refuses to Tell Son About Father, DAYTONA NEWS-J., Dec. 16, 1996, at A1. Return to text.

[37] Repub., Ormond Beach Return to text.

[38] Fla. HB 1111 (1997). Return to text.

[39] See Decker, supra note 24, at A1. Return to text.

[40] Act effective Oct. 1, 1997, ch. 97-226, 1997 Fla. Laws 3926 (amending FLA. STAT. 39.464, 39.469, 39.471, 61.13 (1995)). The statute was enacted without the Governor's signature. See id. at 3932. Return to text.

[41] See e.g., ALA. CODE 26-18-7(a)(4) (1996); ARIZ. REV. STAT. 8-533(B)(4) (1997) (providing for termination of parental rights when the parent is "deprived of civil liberties due to conviction of a felony . . . if the sentence of such parent is of such length that the child will be deprived of a normal home for a period of years"); CAL. FAM. CODE 7825 (West 1997) (noting that the proceeding "may be brought where . . . [t]he child is one whose parent or parents are convicted of a felony" and "the crime of which the parent or parents were convicted . . . prove[s] the unfitness of the parent or parents to have the future custody and control of the child"); COLO. REV. STAT. 19-3-604(1)(b)(III) (1997) (stating that when determining the unfitness of the parent, the court shall consider the "[l]ong-term confinement of the parent of such duration that the parent is not eligible for parole for at least six years after the date the child was adjudicated dependent or neglected"); GA. CODE 15-11-81(b)(4)(B)(iii) (1997) (courts may consider "a demonstrable negative effect on the quality of the parent-child relationship"); IOWA CODE 232.116(1)(i)(2) (1997) (permitting termination of parental rights against parents who have been imprisoned for a period of five or more years); LA. CHILD CODE art. 1015(6) (West 1996) (allowing termination of parental rights after two years of incarceration); MICH. COMP. LAWS 712A-19b(3)(h) (1997) (considering termination where "[t]he parent is imprisoned for such a period that the child will be deprived of a normal home for a period exceeding [two] years, and the parent has not provided for the child's proper care and custody and there is no reasonable expectation that the parent will"); WYO. STAT. 14-2-309(a)(iv) (Michie 1997) (providing for termination of parental rights where the parent is incarcerated for a felony and is deemed unfit to have custody of the child). Return to text.

[42] FLA. STAT. 39.464(1)(d)(1) (1997). The new statute does not define what constitutes a substantial portion of time. By not providing a definition, the Legislature has given the judiciary the discretion to adapt the rule to the particular facts of each case. Other state statutes have defined the length of incarceration considered detrimental to the child in a similar manner. However, some states have specifically defined the length of incarceration considered detrimental to the child. For example, Colorado allows for termination of parental rights when a parent will not be "eligible for parole for at least six years after the date the child was adjudicated dependent or neglected." COLO. REV. STAT. 19-3-604(1)(b)(III) (1997). Return to text.

[43] See FLA. STAT. 39.464(1)(d)(1) (1997). Return to text.

[44] See id. 39.464(1)(d)(2). Return to text.

[45] See id. Return to text.

[46] Id. 39.464(1)(d)(3). Return to text.

[47] See Act effective Oct. 1, 1997, ch. 97-226, Fla. Laws 3926 (amending FLA. STAT. 39.469(4) (1995), codified at FLA. STAT. 39.469(6)(1997)). Return to text.

[48] See id. Return to text.

[49] See FLA. STAT. 61.13 (2)(b)(2) (1997). Return to text.

[50] See id. Return to text.

[51] See id. (stating "the convicted parent is not relieved of any obligation to provide financial support"). Return to text.

[52] 455 U.S. 745 (1982). Return to text.

[53] Id. at 753. Return to text.

[54] 577 So. 2d 565 (Fla. 1991). Return to text.

[55] Id. at 570. Return to text.

[56] See id. at 571. Return to text.

[57] Substantive due process jurisprudence originated from cases such as Meyer v. Nebraska, 262 U.S. 390, 401 (1923), and Pierce v. Society of Sisters, 268 U.S. 510, 534-35 (1925). The concept of privacy with regard to family matters extends from the landmark decision of Roe v. Wade, 410 U.S. 113, 152-54 (1973), in which the Court found a "penumbra" of rights in the Constitution guaranteeing privacy regarding matters within the realm of the family. In Florida, the protection extended to this liberty interest in the context of the family stems from the privacy provision of article I, section 23 of the Florida Constitution. See Fla. H.R. Comm. on Family Law and Children, HB 1111 (1997) Staff Analysis 4 (June 13, 1997) (on file with comm.); see also Beagle v. Beagle, 678 So. 2d 1271, 1276 (Fla. 1996) (holding that a state may only intrude upon the parents' fundamental right to raise their children when the children are threatened by harm). Return to text.

[58] Meyer, 262 U.S. at 398. Return to text.

[59] See id. Return to text.

[60] See, e.g., Hroncich v. Department of HRS, 667 So. 2d 804, 808 (Fla. 5th DCA 1995) (holding that in light of the fact that the mother's mental illness could be controlled through medication, termination of parental rights was not the least intrusive means to prevent harm to the child). Return to text.

[61] 678 So. 2d 1271 (1996). Return to text.

[62] See id. at 1273; FLA. STAT. 752.01(1)(e) (1997). Return to text.

[63] See Beagle, 678 So. 2d at 1273. Return to text.

[64] See id. at 1277 (holding that the interest of parents in determining the care and upbringing of their children free from governmental interference is a longstanding and fundamental liberty interest). Return to text.

[65] Padgett v. Department of HRS, 577 So. 2d 565, 571 (Fla. 1991). Return to text.

[66] See id. (holding that the state must prove by clear and convincing evidence that "reunification with the parent poses a substantial risk of significant harm to the child"); FLA. STAT. 39.464(1)(d)(3) (1997). Return to text.

[67] See Winfield v. Division of Pari-Mutuel Wagering, 477 So. 2d 544, 547 (stating that a state may violate privacy interests, but it must use the least restrictive means possible when so doing). Return to text.

[68] See supra note 22. Return to text.

[69] See H.R. Comm. on Family Law and Children, HB 1111 (1997) Staff Analysis 4 (June 13, 1997) (on file with comm.). Return to text.

[70] 547 So. 2d 981 (Fla. 5th DCA 1989). Return to text.

[71] See id. at 984. Return to text.

[72] See id. Return to text.

[73] See FLA. STAT. 39.464, 39.4611 (1997); Padgett v. Department of HRS, 577 So. 2d 565, 570 (Fla. 1991). Return to text.

[74] In considering the psychological effect that children might experience when visiting an incarcerated parent, the rationale promulgated in Palmer v. Department of HRS regarding prospective abuse seems applicable. In Palmer, the court opined that the father had no reasonable hope of successfully completing the treatment, much less completing the treatment within a reasonable time. Because of this, the court reasoned that the child's emotional and physical well-being were placed at risk. See Palmer, 547 So. 2d at 984; see also supra text accompanying note 36 (stating that Justin Taylor would suffer emotional trauma if his mother told him that his natural father was in jail for murder and the only father he ever knew, his step-father, was not his real father). Return to text.

[75] 563 So. 2d 655 (Fla. 1st DCA 1990). Return to text.

[76] See id. at 660. Return to text.

[77] See id. at 662-70 (considering factors such as the father's prior arrest for child abuse and his frequent failure to properly supervise his children, which resulted in a three-year-old child who often whimpered, stared into space, and was unable to feed himself or use the bathroom by himself). Return to text.

[78] 667 So. 2d 804 (Fla. 5th DCA 1995). Return to text.

[79] See id. at 808 (noting that prospective neglect is proven through evidence when "a parent's past conduct [] or current mental condition makes the risk of future harm to the child likely"). Return to text.

[80] See id. at 806. Return to text.

[81] See id. at 806-07. Return to text.

[82] See id. at 807. Return to text.

[83] Compare id. with Palmer v. Department of HRS, 547 So. 2d 981, 984 (Fla. 5th DCA 1989) (finding a father's untreated pedophilia to be grounds to terminate parental rights). Return to text.

[84] 424 U.S. 319 (1976). Return to text.

[85] See id. at 321. Return to text.

[86] See id. Return to text.

[87] See id. Return to text.

[88] See id. Return to text.

[89] Id. Return to text.

[90] See FLA. STAT. 39.467(1) (1997). Return to text.

[91] Id. 39.461(3). Return to text.

[92] See id. 39.462(1)(a)(1)(1)-(2). Return to text.

[93] See id. 39.463. Return to text.

[94] See id. 39.465(1)(a). This section further states that no waiver will be accepted by the court where it appears that the parent, guardian, or custodian of the child is unable to make an intelligent choice on the matter because of mental condition, age, education, experience, the nature and complexity of the case, or other factors the court might deem relevant. See id. Return to text.

[95] See id. 39.466(1). Return to text.

[96] See id. 39.466(3). Return to text.

[97] See Mathews v. Eldridge, 424 U.S. 319, 321 (1976). Return to text.

[98] See supra Part IV.A. Return to text.

[99] See FLA. STAT. 39.462 (1997). Return to text.

[100] See id. 39.464(1)(d)(1). Return to text.

[101] See id. 39.4612(2) (requiring courts to consider the parent's ability to provide the child with "food, clothing, medical care or other remedial care . . . and other material needs of the child"); id. 39.4612(3) (noting that courts will inquire into the parent's capacity to "care for the child to the extent that the child's health and well-being will not be endangered upon the child's return home"); see also B.W. v. Department of HRS, 498 So. 2d 946, 948 (Fla. 1986) (holding that the father, despite his incarceration, had not abandoned his children because he attempted to maintain contact with them); In re DJS and JSG, 563 So. 2d 655, 666 (Fla. 1st DCA 1990) (considering the father's past incarcerations as evidence of prospective abuse of his children) (quoting In re Baby Boy A, 544 So. 2d 1136, 1137 (Fla. 4th DCA 1989)). Return to text.

[102] See FLA. STAT. 39.464 (1997). Return to text.

[103] See supra Part III. Return to text.

[104] See supra Part III; FLA. STAT. 39.464(1)(d)(1) (1997). Return to text.

[105] See, e.g., COLO. REV. STAT. 19-3-604(1)(b)(III) (1997) (providing that at least six years of incarceration is required to terminate parental rights); see also LA. CHILD. CODE art. 1015(6)(a), (d) (West 1996) (stating that the child must have been in the custody of the Department of Health and Human Services for at least two years, and that the parent must have at least five more years of forthcoming incarceration). Return to text.

[106] See, e.g., ARIZ. REV. STAT. 8-533(B)(4) (1997). Return to text.

[107] See id. Return to text.

[108] In re Appeal in Maricopa County Juvenile Action No. JS-5609, 720 P.2d 548, 551 (Ariz. Ct. App. 1986) (noting that five years of incarceration constituted a sufficient period of time to deprive a father of his parental rights). Return to text.

[109] See FLA. STAT. 61.13(b)(2) (1997). Return to text.

[110] See, e.g., In re B.W. v. Department of HRS, 498 So. 2d 946, 948 (Fla. 1986). In this case, the father was incarcerated. The state attempted to terminate his parental rights on abandonment grounds. The Florida Supreme Court denied the request to terminate the father's rights, partially on the grounds that the father repeatedly asked the HRS caseworkers and the foster parents to bring the children to the prison for visits. The father also wrote his children regularly. He also wrote the HRS workers, the foster parents, and school officials, inquiring about and expressing concern for the welfare of the children. As one of the requirements of abandonment in Florida is the failure to communicate with the children, the court refused to terminate parental rights in light of the father's attempted communication. See id. Return to text.

[111] If a younger child has a deep attachment to an incarcerated parent, deprivation of that parent could be more detrimental to the child than allowing the incarcerated parent to maintain parental rights. With an older child, the same principle applies, but an older child is presumably more emotionally secure, and therefore more able to make a rational decision about personal needs. Return to text.

[112] Courts will have to consider whether an appropriate home is available for the child. Courts will probably be less likely to sever parental rights if the child will merely languish in the state's foster care system. As with all adoptions, younger children have a greater chance of being adopted than older children. In 1996-1997, there were 532 children below age five awaiting adoption after termination of parental rights. There were 858 children between the ages of six and 12 and 281 children between the ages of 13 and 15 awaiting adoption. Finally, only 51 children between the ages of 16 and 18 were awaiting adoption after termination of parental rights. The breakdowns in ages of children actually adopted were not available from the Department of Children and Families. However, one can assume that the Department is not seeking termination of parental rights in the cases of older children because it will be harder to place them in permanent homes. Moreover, because there are such large numbers of younger children available for adoption, one must wonder how likely it is that the state will seek to add to the pool of children awaiting good homes. See DEPARTMENT OF CHILD. AND FAM., ADOPTION AND RELATED SERVICES ANNUAL SUMMARY REPORT (1996-1997); see also FLA. STAT. 39.4611(1)(c)(6) (1997) (requiring the court to consider the likelihood that an older child will remain in long-term foster care). Return to text.

[113] 885 P.2d 355 (Colo. Ct. App. 1994). Return to text.

[114] See id. at 357. Return to text.

[115] See id. Return to text.

[116] Telephone Interview with Peggy Sanford, Staff Attorney for the Florida House of Representatives Committee on Children and Family Law (September 15, 1997). Ms. Sanford stated that the Legislature purposely did not promulgate a specific time limit because it was impossible to cover every possible situation. Ms. Sanford explained that the Legislature left the time limit to the court's discretion to apply it to the facts of each case. Return to text.

[117] See supra Part IV.B. Incarcerated parents do not have statutory right to attend hearings as long as they can participate by phone. Courts do not transport prisoners incarcerated for serious felony offenses such as murder. Return to text.

[118] Padgett v. Department of HRS, 577 So. 2d 565, 571 (Fla. 1991). Return to text.