“To terminate parental rights because of abandonment, there must be clear and convincing evidence.” T.G. v. Dep't of Children & Families, 8 So.3d 1198, 1199 (Fla. 4th DCA 2009) (citations omitted). Here the court based abandonment on lack of visitation and failure to provide for the children's necessities.
While section 39.01(1) provides that "marginal efforts" and "incidental or token visits" will not prevent a finding of abandonment, the gaps in visitation in this case caused by P.R.'s six missed visits were not sufficient to constitute abandonment. See C.B. v. Dep't of Child. & Fams., 199 So.3d 528, 528-29 (Fla. 5th DCA 2016) (citing J.L. v. Dep't of Child. & Fams., 143 So.3d 1158, 1158 (Fla. 5th DCA 2014) ); S.L. v. Dep't of Child. & Fams., 120 So.3d 75, 77 (Fla. 4th DCA 2013) ; T.G. v. Dep't of Child. & Fams., 8 So.3d 1198, 1199 (Fla. 4th DCA 2009) ; see also A.S. v. Dep't of Child. & Fams., 162 So.3d 335, 339 (Fla. 4th DCA 2015) (citing § 39.01(1), Fla. Stat. (2014) ). The only testimony concerning P.R.'s relationship with M.C. and A.C. did not state that the relationship was no longer substantial and positive.
The trial court, however, erroneously relied on A.S.'s failure to take affirmative steps to establish his paternity in the early- to mid-months of 2013. Looking at only A.S.'s actions after the establishment of his paternity, we find the trial court was not presented with clear and convincing evidence that he abandoned J.A. See T.G. v. Dep't of Children & Families, 8 So.3d 1198, 1199 (Fla. 4th DCA 2009) (“To terminate parental rights because of abandonment, there must be clear and convincing evidence.”). From March of 2014 to the July 2014 TPR hearing, A.S. visited J.A. eight times. Combining these eight visits with the three visits that were canceled by the case manager, A.S. was on pace to see his son on a weekly basis.
However, the record indicates that no visitation was permitted upon the mother's release from jail because the termination proceedings were pending. Appellees cite T.G. v. Department of Children Families, 8 So.3d 1198 (Fla. 4th DCA 2009), in which this court affirmed the trial court's termination of parental rights based on the mother's abandonment of her children. Id. at 1198.