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YOU CAN NEVER GO HOME AGAIN: THE FLORIDA LEGISLATURE ADDS INCARCERATION TO THE LIST OF STATUTORY GROUNDS FOR TERMINATION OF PARENTAL RIGHTS

THE HONORABLE JEAN M. JOHNSON* AND CHRISTA N. FLOWERS**

Copyright © 1998 Florida State University Law Review

I. INTRODUCTION
II. THE ROAD TO FLORIDA'S INCARCERATION- AS-GROUNDS- FOR-TERMINATION STATUTE
A. Termination of Parental Rights Prior to the New Statute
B. The Spradley Case
III. A SUMMARY OF FLORIDA'S INCARCERATION-AS- GROUNDS-FOR TERMINATION STATUTE
IV. THE CONSTITUTIONALITY OF ALLOWING INCARCERATION TO SERVE AS GROUNDS FOR TERMINATION OF PARENTAL RIGHTS
A. Substantive Due Process
1. Does Incarceration of a Parent Pose a Substantial Risk of Harm to the Child?
2. Is Termination of Parental Rights the Least Intrusive Means of Preventing Harm?
B. Procedural Due Process
V. JUDICIAL CONSIDERATIONS REGARDING FLORIDA'S INCARCERATION-AS- GROUNDS-FOR- TERMINATION STATUTE
VI. POTENTIAL DIFFICULTIES WITH THE NEW STATUTE
VII. CONCLUSION

I. INTRODUCTION

Of all the roles one plays in life, that of being a parent is perhaps the most important. The role requires a huge commitment of time and emotional support. However, when a parent is unable to meet a child's basic needs due to neglect or abuse, the best interests of the child may necessitate the revocation or termination of the parent's right to custody of the child. In these crucial cases, a court, upon finding a parent to be unfit, may terminate the parent's parental rights.[1]

Many statutory grounds for termination of parental rights exist in Florida.[2] However, cases may arise where termination is warranted but unavailable because the particular situation is not covered by a statute. In 1997, the Florida Legislature considered such a case, and in response, enacted chapter 97-226, Florida Laws, adding incarceration to the list of statutory grounds for termination of parental rights.[3] The new statute requires that the incarceration be for a substantial portion of the child's life.[4] Furthermore, the court must deem the parent to be either a violent career criminal, a habitual felony offender, a sexual predator, or to have been convicted of a sexual battery constituting a capital, life, or first degree felony or a substantially similar offense in another jurisdiction.[5] Additionally, the court must determine by clear and convincing evidence that it would be harmful to the child for the parent-child relationship to continue.[6]

This Article examines Florida's new termination of parental rights statute from a constitutional and judicial economy perspective. Part II discusses the grounds for termination available prior to the new statute, and the events leading to the new statute's enactment. Part III provides a summary of the requirements of the new statute. Part IV provides a constitutional analysis of the new statute, considering both substantive and procedural due process issues. Part V examines the effect the new statute will have on the judiciary. Part VI highlights potential problems with the new statute. Finally, Part VII concludes that despite its potential problems and uncertainty, the new statute is a welcome addition to the ongoing effort to protect Florida's children from harm.

II. THE ROAD TO FLORIDA'S INCARCERATION- AS-GROUNDS- FOR-TERMINATION STATUTE

A. Termination of Parental Rights Prior to the New Statute

Because termination of parental rights is a serious, permanent step, it occurs only under narrowly defined circumstances in Florida.[7] Section 39.464, Florida Statutes, details the grounds and processes surrounding voluntary and involuntary termination of parental rights.[8]

Voluntary termination of parental rights occurs when a parent executes a written surrender and consents to an order transferring custody of the child to the Department of Children and Families (Department), or to a licensed child-placing agency for subsequent adoption.[9] The Department or agency must be willing to accept custody of the child.[10] This is a relatively simple process compared to involuntary termination.

Petitioners permitted to seek involuntary termination of parental rights include the Department, a guardian ad litem, a licensed child-placing agency, or any person who has knowledge of or is informed of the stated facts and believes that such facts contain merit.[11] The petitioner seeking termination must meet certain requirements. First, the petitioner must file a petition in circuit court alleging one or more of the statutory grounds for termination.[12] Prior to enactment of the new statute, grounds for involuntary termination included when the identity or location of the parents was unknown and could not be ascertained; when the life or well-being of the child was threatened by the parents, irrespective of the provision of services; when the parents engaged in egregious conduct that threatened the life, health, or safety of the child or the child's siblings, or when the parent knowingly failed to prevent such conduct; and when the parents continued to abuse, neglect, or abandon the child after the child had been adjudicated dependent and a case plan had been filed with the court.[13]

In addition, the petitioner must demonstrate that the parents of the child were informed of their right to counsel and that a court previously adjudicated the child dependent.[14] Moreover, the petitioner must demonstrate that the best interests of the child would be served by granting the petition.[15] If the court finds that the grounds stated in the petition have been proven by clear and convincing evidence, it must place the child in the custody of either the Department or a licensed child-placing agency for subsequent adoption.[16]

Typically, when a court terminates the parental rights of one parent, it terminates the rights of the other parent.[17] However, under certain circumstances a court may terminate the parental rights of one parent while leaving the other parent's rights intact.[18] These circumstances include when the child has one surviving parent, when the prospective parent's location is unknown, when the parent in question obtains such rights through a single-parent adoption, and when it is necessary for the child's protection.[19]

While Florida's statutes address a variety of circumstances under which it is appropriate to terminate parental rights, they do not address all situations that demand parental rights be terminated. Section 39.469, Florida Statutes, addresses one such situation that until 1997 was not included within the statutory grounds for termination of parental rights: termination of parental rights based solely on incarceration.[20]

Prior to the passage of the new statute, the non-incarcerated parent could attempt to petition the court for termination of the incarcerated parent's rights on the grounds of abandonment.[21] Florida courts, however, have consistently held that incarceration, in and of itself, does not constitute abandonment.[22] Therefore, an incarcerated parent could retain his or her parental rights even if the non-incarcerated parent argued that such rights might not be in the best interests of the child.[23] After learning of one family's story, Florida lawmakers moved to include incarceration for certain offenses as a statutory ground for the termination of parental rights.[24]

B. The Spradley Case

In August 1990, Kim Spradley married John Edward Taylor following the birth of their son, Justin.[25] The marriage collapsed soon thereafter, and Kim moved with Justin into the apartment of her close friend, Lisa Kessler.[26] Taylor began stalking Spradley, begging her to return to him.[27] Enraged at his inability to convince his estranged wife to return home, Taylor broke into Lisa Kessler's apartment early on Thanksgiving morning, 1990, and thrust a knife into Kessler's neck eight times.[28] As a result of the wounds inflicted by Taylor, Kessler died, yet Taylor remained free for almost a year following the murder while police investigated the situation.[29] At his and Spradley's divorce hearing, he was charged with first degree murder and burglary.[30] He was convicted and sentenced to life in prison.[31]

When Kim Spradley remarried, she and her new husband were adamant that Justin not know about his natural father.[32] The Spradleys sought to have Justin's last name changed to Spradley when he reached school age, but Taylor, imprisoned at Marion Correctional Institution, fought the request and won.[33] He also filed for visitation and shared parental responsibility.[34] The Spradleys did not want Justin to visit Taylor in prison because they did not believe the contact to be in Justin's best interest.[35] They based this belief on the report of a child psychologist who had interviewed Justin and determined that because Justin believed Spradley was his natural father, he would suffer emotional trauma if told about Taylor.[36] However, under Florida law, Kim Spradley had no legal recourse available to keep Justin from his father.

News of the Spradleys' situation reached Representative Evelyn Lynn.[37] Moved by the Spradleys' plight, Representative Lynn sponsored House Bill 1111,[38] which would permit courts to terminate the parental rights of parents incarcerated for certain offenses.[39] On May 30, 1997, the bill passed as chapter 97-226, Florida Laws.[40] Florida has now joined the growing ranks of states that allow incarceration as a ground for termination of parental rights.[41]

III. A SUMMARY OF FLORIDA'S INCARCERATION-AS- GROUNDS-FOR TERMINATION STATUTE

For the new statute to apply, the parent must be incarcerated in a state or federal institution for a "substantial portion" [42] of time before the child attains eighteen years of age.[43] To terminate the incarcerated parent's rights, a court must deem the parent to be a violent career criminal, a habitual felony offender, or a sexual predator.[44] Parents convicted of first- or second-degree murder, sexual battery constituting a capital, life, or first-degree felony, or parents who have been convicted of a substantially similar offense in another jurisdiction may also have their rights terminated under the new statute.[45] The state must prove "by clear and convincing evidence that continuing the parental relationship with that 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."[46]

The new statute also amended section 39.469, Florida Statutes, allowing the parental rights of only one of the parents to be terminated when that parent is incarcerated.[47] The court will enter an order terminating the rights of the incarcerated parent and place the child in the custody of the remaining parent.[48]

Chapter 97-226, Florida Laws, also amended section 61.13, Florida Statutes, which addresses child custody and support following dissolution of marriage. Florida law has a preference for shared parental responsibility following dissolution of marriage.[49] However, under the new statute, incarceration of a parent meeting the requirements of section 39.464(1)(d), Florida Statutes, creates a rebuttable presumption against granting shared parental responsibility in dissolution of marriage proceedings.[50] However, the convicted parent is not relieved of the duty to financially provide for the child.[51] Moreover, a parent may seek to completely terminate the incarcerated parent's parental rights in accordance with section 39.464(1), Florida Statutes.

IV. THE CONSTITUTIONALITY OF ALLOWING INCARCERATION TO SERVE AS GROUNDS FOR TERMINATION OF PARENTAL RIGHTS

In Santosky v. Kramer,[52] the United States Supreme Court held that "freedom of personal choice in matters of family life is a fundamental liberty interest protected by the Fourteenth Amendment."[5]3 In Padgett v. Department of Health and Rehabilitative Services,[54] the Florida Supreme Court adopted the holding of Santosky and further held that "this interest is especially implicated in proceedings involving termination of parental rights."[55] Therefore, courts apply a very strict standard of review when determining whether termination of parental rights will violate a parent's right to either substantive or procedural due process.[56]

A. Substantive Due Process

The United States Supreme Court has determined that fundamental rights are incorporated within the liberty provision of the Fourteenth Amendment's Due Process Clause.[57] The Court has stated that this right to liberty "denotes not merely freedom from bodily restraint but also the right . . . to marry, establish a home and bring up children."[58] Therefore, courts must apply a high standard of review when deciding whether a state's intrusion into a citizen's private life, for example, by terminating parental rights, violates the parent's substantive due process rights.[59] The standard of review in such a case is whether the challenged law serves a compelling state interest, and whether it accomplishes its goal through the least intrusive means possible.[60]

The Florida Supreme Court applied this standard of review in Beagle v. Beagle.[6]1 Beagle concerned a statute that allowed grandparent visitation where either one or both parents prohibited a relationship between the minor child and the grandparents.[62] The parents objected to the grandparents' court-awarded visitation rights under the statute and challenged the statute's constitutionality.[63] The Florida Supreme Court agreed with the parents and held that the state may not intrude upon the fundamental rights of parents to raise their children except in cases where the children are threatened with harm.[64]

Further, in Padgett, the Florida Supreme Court stated that "before parental rights in a child can be permanently and involuntarily severed, the state must show by clear and convincing evidence that reunification with the parent poses a substantial risk of significant harm to the child."[65] Therefore, the Florida courts can sever a parent's rights to his or her child if it can be shown by clear and convincing evidence that substantial risk of harm is posed to the child if the parent's rights are not terminated,[66] and that termination of parental rights is the least restrictive means of preventing harm to the child. If those standards are met, the termination can proceed without violating the parent's substantive due process rights.[67]

1. Does Incarceration of a Parent Pose a Substantial Risk of Harm to the Child?

Incarceration of a parent cannot be used to show abandonment,[68] but can it by inference be used to show a substantial risk of future harm to the child?

If a parent is incarcerated for a substantial portion of time, and is thus unable to assume meaningful parental responsibilities, detriment to the child could occur.[6]9 In Palmer v. Department of Health and Rehabilitative Services,[70] a court found a father's diagnosed pedophilia, which had not been treated and had no prospects of successful treatment, to be sufficient grounds to terminate his parental rights.[71] The Court stated that in this situation, the propensity for future behavior that would adversely affect the child could be reasonably predicted.[72]

The legislative intent behind the new statute seems clear. A parent incarcerated for a substantial period of time prior to the child turning eighteen cannot meaningfully participate in the upbringing of the child. The 1997 Legislature sought to prevent a child from languishing in foster care, unable to be adopted into a stable, nurturing environment because a long-term incarcerated parent will not relinquish his or her parental rights. In these instances, substantial harm would occur to the child. The child's best interests would be better served by terminating the incarcerated parent's rights, and allowing the child to live in a more stable family environment.[73]

Moreover, the Legislature considered the harm some children, such as Justin Taylor, would undoubtedly suffer by having to visit a parent who has been incarcerated for committing a violent crime.[74] For example, in Justin's situation, the revelation that his step-father was not his natural father and that his natural father was in jail for murder could damage his emotional well-being. Additionally, visiting incarcerated parents would subject children to an emotionally unhealthy environment and perhaps desensitize them to incarceration.

2. Is Termination of Parental Rights the Least Intrusive Means of Preventing Harm?

Termination of parental rights appears to be the most drastic step that the state can take. Because the least intrusive means standard is very fact specific, one must apply it on a case-by-case basis. Therefore, in the context of termination of parental rights, courts must determine if anything short of termination would effectively achieve the compelling state interest of preventing substantial harm to a child.

In many cases, termination of parental rights is the only means available to protect the child from harm. For example, in In re DJS and JSG,[75] the children were left without a permanent home due to the father's refusal to relinquish his parental rights.[76] The court considered the father's prior incarceration and his past history of abuse and neglect in deeming termination of parental rights the only viable solution.[77] It stands to reason that if a less intrusive means were available to protect the children from harm, the court would have used it.

At times, courts have reversed lower courts' termination of parental rights, finding that less intrusive means existed. In Hroncich v. Department of HRS,[78] the Fifth District Court of Appeal reversed a trial court's termination of parental rights because authorities failed to prove neglect by clear and convincing evidence.[79] The court noted that the mother's schizophrenia accounted for her initial lack of compliance with the performance agreement.[80] Additionally, the court noted that medication would stabilize her mental condition.[81] Therefore, the trial court's order terminating the mother's parental rights was not the least intrusive means that could be taken to protect the child.[82]

There is no bright-line rule for courts to use when determining whether or not termination of parental rights is the least intrusive means of preventing harm to a child. Therefore, courts must base such decisions on the facts of each particular case, including whether the parent is now, or may at some future time be, a danger to the child, or has abused, abandoned, or neglected the child to the extent that termination is the only viable option left to the state.[83]

B. Procedural Due Process

In Mathews v. Eldridge,[84] the United States Supreme Court stated that government may not deprive an individual of a liberty or property interest within the meaning of the Fifth or Fourteenth Amendments without the benefit of procedures designed to prevent the risk of erroneous deprivation of the right in question.[85] The Court promulgated a test designed to ensure that proper procedures were followed prior to the deprivation of substantive property rights.[86] While children are certainly not property, the test is equally applicable to the protection of liberty interests, which include parental rights.[87] The test provides that a court should consider three factors when examining the constitutional sufficiency of administrative procedures prior to the initial termination of fundamentally protected rights.[88] Courts will consider:

(1) the private interest that will be affected by the official action; (2) the risk of an erroneous deprivation of such interest through the procedures used, and probable value, if any, of additional procedural safeguards; and (3) the Government's interest, including the fiscal and administrative burdens that the additional or substitute procedures would entail.[89]
Extensive procedural safeguards are currently in place in Florida to prevent the erroneous deprivation of parental rights.[90] First, "[w]hen a petition for termination of parental rights has been filed, the clerk of the court shall set the case before the court for an advisory hearing."[91] The parents must be served with the petition.[92] The court must advise the parents before the adjudicatory hearing that they have a right to counsel,[93] and the court must continue to advise the parents of their right to counsel at each stage of the proceeding.[94] The court, if necessary, will determine if the parents knowingly and intelligently waived their right to counsel.[95] The court will then set an adjudicatory hearing within forty-five days of the advisory hearing.[96] Only when the petitioner has proven his or her case by clear and convincing evidence, will parental rights be terminated.[97]

While the parents' privacy interest in continuing the parent-child relationship is substantial,[98] the law's detailed procedural requirements minimize the risk of erroneous deprivation.[99] Additionally, the new statute's failure to specifically define the required period of incarceration[100] further protects the parent's procedural due process rights because courts will not be constrained by an arbitrary time limit.[101]

V. JUDICIAL CONSIDERATIONS REGARDING FLORIDA'S INCARCERATION-AS- GROUNDS-FOR- TERMINATION STATUTE

In Florida, judges are given a great deal of discretion in dependency and child custody cases. The new statute continues that tradition. However, in practice, incarceration and felony convictions were already considered by judges in dependency and custody cases.[102] The main effect of the new statute is the weight those factors will be given, as they now must receive official consideration by judges considering termination of parental rights.[103]

The first difficulty judges will face is determining the meaning of the term "substantial portion" with regard to the amount of time the parent is incarcerated before the child reaches majority.[104] The new statute does not state what qualifies as a substantial portion of time.[105] Other state statutes have codified six years as a substantial portion of time.[106] For example, Arizona's statute, like Florida's, does not set a specific time period.[107] Arizona's statute states in part that parental rights may be terminated when the parent has been incarcerated for a felony offense that carries a sentence of such length that the child would be deprived of a normal home "for a period of years."[108]

Despite this precedent from a state with a similar statute, there are likely to be differing opinions among Florida judges concerning what constitutes a substantial period of time. It can be anticipated, however, that the older the child and the longer the child has had a relationship with the incarcerated parent, the less likely the court will sever the relationship.

Moreover, in a chapter 61 proceeding regarding shared parental responsibility, it is presumed that incarceration of a parent is detrimental to best interests of the child.[109] In a chapter 39 proceeding, however, the state must prove by clear and convincing evidence that continuing the relationship would be detrimental to the best interests of the child. To overcome the state's evidence, the incarcerated parent will need to show financial support; meaningful involvement in the child's life such as participation and interest in school and athletic activities; actual physical care for the child such as bathing and feeding; and professed expressions of affection for the child prior to the period of incarceration.[110] The child's wishes, particularly those of older children, may be considered in some cases.[111]

While it is difficult to say how many termination for incarceration cases will be presented to the courts, it seems doubtful that there will be large numbers.[112] Any amount, however, presents logistical problems for the courts and prisons as they must ensure that prisoners are informed of and able to participate in the termination hearings. In the Colorado case of In re C.G.,[113] an incarcerated father filed suit against the state on the grounds that the state's refusal to transport him at state expense to his termination hearing was a violation of his right to procedural due process.[114] The Colorado Court of Appeals held that the denial was not a violation of the father's due process rights as he was represented by counsel prior to and during the hearing, and he was given the opportunity to present testimony by deposition or affidavit.[115]

From the judges' standpoint, the new statute has essentially added another criteria—that of felony incarceration for a substantial period of time—to the list of factors that are considered in the termination of parental rights. The new statute provides judges with the opportunity to further ensure that the best interests of Florida's children are upheld.

VI. POTENTIAL DIFFICULTIES WITH THE NEW STATUTE

Most likely, courts will not apply the new statute in a uniform manner because of its lack of specificity regarding the requisite incarceration period. On the one hand, this lack of specificity will permit authorities to manipulate the statute to fit the particular circumstances of each case. On the other hand, authorities will not have concrete guidelines by which they can judge their actions. This problem can be easily remedied by adding a specific time period to the statute, thus making its application and effect uniform throughout the state. However, such an addition subverts the Legislature's intent of granting judges discretion when dealing with the facts of individual cases.[116]

Certain "functional" problems also exist regarding the inclusion of incarcerated parents in termination of parental rights proceedings. Transporting prisoners and scheduling hearings will have to be strictly monitored to ensure that, for procedural due process, an incarcerated parent can be present at proceedings if desired.[117] A statutory provision defining procedures for those situations would enable the judiciary to more effectively apply the new statute in a constitutionally valid manner.

VII. CONCLUSION

The addition of incarceration as grounds for termination of parental rights presents many meaningful questions. As the constitutionality of the new statute seems secure, the most profound impact of the statute will be its effect on the judiciary. The new statute allows the courts an additional means by which parental rights can be terminated. However, it presents uncertainty, as courts must determine what length of sentence justifies termination, and whether the termination is truly in the child's best interest.

Perhaps Chief Justice Shaw stated it best when he said "While we are loath to sanction government interference in the sacrosanct parent-child relationship, we are more reluctant still to forsake the welfare of our youth. Florida's children are simply too important."[118] In spite of the difficulties that will come, if the new statute protects even one child from harm it can be considered a success.