Affirmed. See M.A. v. Dep't of Child. &Fams., 814 So.2d 1244, 124546 (Fla. 5th DCA 2002) (affirming termination without a case plan where competent substantial evidence supported trial court's finding of abandonment, explaining that "[s]ection 39.806(1)(b), Florida Statutes (2001), allows TPR based on abandonment, as defined in s. 39.01(1)").
Affirmed. See M.A. v. Dep’t of Child. & Fams., 814 So. 2d 1244, 1245–46 (Fla. 5th DCA 2002) (affirming termination without a case plan where competent substantial evidence supported trial court’s finding of abandonment, explaining that "[s]ection 39.806(1)(b), Florida Statutes (2001), allows TPR based on abandonment, as defined in s. 39.01(1)").
The temporal remoteness of abandonment, and long-term lack of contact by a parent, is not always a bar to such a claim. See, e.g., V.C.B. v. Shakir, 145 So.3d 967 (Fla. 4th DCA 2014) (concluding the child was abandoned based on four years without parental contact; five years without financial support); M.A. v. Dep't of Children & Families, 814 So.2d 1244 (Fla. 5th DCA 2002) (affirming the trial court's finding of abandonment based on five years with only marginal efforts to maintain contact, while making no provisions for the children's welfare). Neglect and abuse are similarly fact-intensive determinations.
AFFIRMED. See M.A. v. Dep't of Children & Families, 814 So.2d 1244, 1244 (Fla. 5th DCA 2002) (finding “the trial court could not terminate the father's parental rights under section 39.806(1)(e), Florida Statutes, because the children were not adjudicated dependent ‘as to him,’ ” but “nonetheless affirm[ing] the trial court's order of termination because parental rights may be terminated without a finding of dependency when abandonment is proven pursuant to the requisites of section 39.806(1)(b) ”).SAWAYA, BERGER and WALLIS, JJ., concur.
Marginal efforts and incidental or token visits or communications are not sufficient to establish or maintain a substantial and positive relationship with a child. . . . The incarceration of a parent, legal custodian, or caregiver responsible for a child's welfare may support a finding of abandonment. In M.A. v. Department of Children and Families, 814 So.2d 1244 (Fla. 5th DCA 2002), the court found sufficient evidence of abandonment where a father had left his children in foster care and failed to visit or even inquire of the foster parents or DCF as to their welfare. Similarly, in this case the court found the mother's lack of interest in her child and failure to even inquire as to her welfare constitutes abandonment under the statute.
We affirm the final judgment terminating the appellant's parental rights because it is supported by competent, substantial evidence. § 39.802, .806(1)(b), Fla. Stat. (2005); V.G. v. Dep't of Children Families, 813 So.2d 298 (Fla. 5th DCA 2002). M.A. v. Dep't of Children Families, 814 So.2d 1244 (Fla. 5th DCA 2002) (failure to visit, express concern for child or pay support warranted termination); In re R.V.F., 437 So.2d 713 (Fla. 2d DCA 1983) (same). Affirmed.
In addition, the trial court overlooked undisputed and corroborated testimony that the Mother communicated with the children by telephone to the fullest extent permitted by the children's custodian and that she regularly sent the children cards while she was incarcerated. Although the trial court was of the opinion that the Mother's efforts were only marginal efforts that did not evince a settled purpose to assume all parental duties, see § 39.01(1), its finding of abandonment does not reflect that it was based on any factor other than the Mother's incarceration. Cf. M.A. v. Dep't of Children Families, 814 So.2d 1244, 1245-46 (Fla. 5th DCA 2002) (affirming termination of parental rights for abandonment where the father did not write any letters when imprisoned, did not request visitation with the children when out of prison, did not express concern for the children, and did not make an effort to provide for them in five years). Therefore, the trial court's finding that the Mother abandoned the children was clearly erroneous.
In addition, the trial court overlooked undisputed and corroborated testimony that the Mother communicated with the children by telephone to the fullest extent permitted by the children's custodian and that she regularly sent the children cards while she was incarcerated. Although the trial court was of the opinion that the Mother's efforts were only marginal efforts that did not evince a settled purpose to assume all parental duties, see § 39.01(1), its finding of abandonment does not reflect that it was based on any factor other than the Mother's incarceration. Cf. M.A. v. Dep't of Children Families, 814 So.2d 1244, 1245-46 (Fla. 5th DCA 2002) (affirming termination of parental rights for abandonment where the father did not write any letters when imprisoned, did not request visitation with the children when out of prison, did not express concern for the children, and did not make an effort to provide for them in five years). Therefore, the trial court's finding that the Mother abandoned the children was clearly erroneous.
We also note that T.B. was never declared dependent as to J.T., which is also a prerequisite to termination under this provision. M.A. v. Dep't of Children Families, 814 So.2d 1244 (Fla. 5th DCA 2002). Further, because J.T. had no tasks to complete under the case plan he was given, there was no factual basis to find that he failed to substantially comply with the plan.