Opinion
No. 4-86-0152.
November 12, 1986. Clarification Denied December 12, 1986.
Appeal from the Circuit Court, Okeechobee County, Burton C. Conner, J.
Sid Garcia, Florida Rural Legal Services, Inc., Belle Glade, for appellant.
Jim Smith, Atty. Gen., Shirley A. Walker and James A. Peters, Asst. Attys. Gen., Tallahassee, for appellee-Dept. of Health and Rehabilitative Services.
This is an appeal from an order of permanent commitment terminating parental rights. Charged with child neglect, appellant entered into a performance agreement with the State Department of Health and Rehabilitative Services which required numerous changes in the mother's lifestyle, habits, and activities. The trial court's order is based on her failure to substantially comply with the agreement.
The trial court did not have the benefit of the supreme court's opinion in In Re Interest of R.W., 495 So.2d 133, 11 F.L.W. 427 (Fla. 1986). In that case it was determined that failure to comply with a performance agreement alone cannot be the basis for permanent termination of parental rights.
The record does not indicate whether an evidentiary hearing was held on the issue of neglect. It does appear, however, that the order under review is not based upon a finding of fact of neglect, but upon the conclusion that the performance agreement had been violated.
We therefore reverse and remand for a further hearing to determine whether there was neglect by clear and convincing evidence, and, if so, whether there should be a termination of parental rights.
HERSEY, C.J., and DOWNEY, J., concur.