As the court in Padgett explained, the least restrictive means test means simply that "[DCF] ordinarily must show that it has made a good faith effort to rehabilitate the parent and reunite the family, such as through a current performance agreement or other such plan for the present child." Padgett, 577 So.2d at 571; L.D. v. Dep't of Children Family Servs., 957 So.2d 1203 (Fla. 3d DCA), review denied, 967 So.2d 197 (Fla. 2007); see also In re K.W., 891 So.2d 1068, at 1070 (Fla. 2d DCA 2004) ("Padgett describes the least restrictive means as those that offer the parent a case plan and time to comply with the plan so as to obtain reunification with the child."); B.C. v. Fla. Dep't of Children Families, 887 So.2d 1046, 1050 (Fla. 2004) (requiring application of the least restrictive means test to termination proceedings pursuant to section 39.806(1)(d)1., which applies in instances where a parent has been incarcerated); Fla. Dept of Children Families v. F.L., 880 So.2d 602 (Fla. 2004); In re T.M., 641 So.2d 410, 412-13 (Fla. 1994) (holding that the least restrictive means analysis requires only that state prove good faith effort to rehabilitate parent and unify family by providing case plan and related services); A.J. v. K.A.O., 951 So.2d 30, 32 (Fla. 5th DCA 2007) (same).
Further, because parental rights constitute a fundamental liberty interest, DCF must establish that termination of parental rights is the least restrictive means of protecting the child or children from serious harm. Id. at 571 ; see alsoJ.C. v. Fla. Dep't of Children & Family Servs., 937 So. 2d 184, 193 (Fla. 3d DCA 2006) (holding that natural parents have a fundamental liberty interest in the care, custody, and management of their children); L.D. v. Dep't of Children & Family Servs., 957 So. 2d 1203 (Fla. 3d DCA 2007) (Shepherd, J., dissenting). Full and accurate fact finding is essential not only on the question whether DCF has authority to terminate parental rights but also on the question whether it is in the child's best interests to do so. K.R.L. v. Dep't of Children & Family Servs., 83 So. 3d 936, 939 (Fla. 3d DCA 2012).
Further, if DCFS's position were accepted, it would essentially mean that physical harm to a child is presumed from a parent's substance abuse under the dependency statutes, and that it is a parent's burden to prove a negative, i.e., the absence of harm. Again, this is not what the dependency law provides."); L.D. v. Dep't of Children & Family Servs., 957 So.2d 1203, 1205–06 (Fla.Dist.Ct.App.2007) (holding drug addiction, standing alone, is insufficient basis to terminate parental rights); In re Adoption of Zoltan, 71 Mass.App.Ct. 185, 881 N.E.2d 155, 161 (2008) (reversing termination of parental rights where agency failed to demonstrate nexus between marijuana use and parenting ability); In re Danalia L., No. 1–10–2906, 2011 WL 10072924, at *3 (Ill.App.Ct. Mar. 25, 2011) (affirming dismissal of case where there was no evidence establishing a nexus between marijuana use and harm to the children or that "the marijuana use created an injurious environment"); In re Children of T.R., 750 N.W.2d 656, 663 (Minn.2008) (holding "substance or alcohol use alone does not render a parent palpably unfit"); New Jersey Div. of Child Prot. & Permanency v. C.R., No. FN–09–111–12, 2015 WL 3726304, at *4 (N.J.Super.Ct.App.Div. June 16, 2015) ("When drug use is a basis for an allegation of abuse and neglect, there must be proof that the drug use exposed the child to imminent danger or a substantia
In addition to providing a statutory ground, the second requirement before parental rights may be terminated is a showing by the Department that termination is in the child's manifest best interest pursuant to section 39.810, Florida Statutes. The third and final requirement is that to pass constitutional muster, termination of parental rights must meet the least restrictive means test. See L.D. v. Dep't of Children and Family Servs., 957 So.2d 1203, 1205 (Fla. 3d DCA 2007); Padgett v. Dep't of Health & Rehab. Servs., 577 So.2d 565, 571 (Fla.1991).First Requirement—Analysis of Termination under 39.806(1)(c)
To terminate on this ground, a trial court must find that “any provision of services would be futile or that the child would be threatened with harm despite any services provided to the parent.” In re T.H., 979 So.2d 1075, 1082 (Fla. 2d DCA 2008) (citation omitted); see also L.D. v. Dep't of Children & Family Servs., 957 So.2d 1203, 1205 (Fla. 3d DCA 2007) ; M.H. v. Dep't of Children & Families, 866 So.2d 220, 222 (Fla. 1st DCA 2004). The final judgment of termination contains no such finding.
Further, because parental rights constitute a fundamental liberty interest, DCF must establish that termination of parental rights is the least restrictive means of protecting the child or children from serious harm. Id. at 571; see also J.C. v. Dept. of Children and Family Servs., 937 So.2d 184, 193 (Fla. 3d DCA 2006) (holding that natural parents have a fundamental liberty interest in the care, custody, and management of their children); L.D. v. Dept. of Children and Family Servs., 957 So.2d 1203 (Fla. 3d DCA 2007). All parties, including the mother, accepted the court's determination that the injuries to the infant constituted egregious abuse under section 39.806(1)(f).
Id. If the Department contends services would be futile, the evidence must clearly and convincingly show that danger to the child will continue regardless of the services. See, e.g., C.G., 67 So.3d at 1144–45; see also L.D. v. Dep't of Children & Family Servs., 957 So.2d 1203 (Fla. 3d DCA 2007); M.E. v. Fla. Dep't of Children & Families, 919 So.2d 637, 644 (Fla. 3d DCA 2006). In determining whether the evidence is sufficient to support termination, the appellate court must determine whether DCF “establish [ed] that there is no reasonable basis to believe the parent will improve” as a result of its good faith efforts to assist the parent.
Though drug addiction is an important factor in assessing the threat of prospective harm to the children, a parent's substance abuse, standing alone, does not establish prospective neglect. CC. v. Dept of Children Family Servs., 812 So.2d 520, 522-23 (Fla. 1st DCA 2002); L.D. v. Dep't of Children Family Servs., 957 So.2d 1203, 1205-06 (Fla. 3d DCA 2007). The initial case manager, current case manager, and guardian ad litem all testified that the parents did not place the children in an environment that negatively affected their physical, mental, or emotional well-being.
There are three evidentiary requirements for terminating parental rights under this section: (1) that the child's life, safety, or health would be threatened by continued interaction with the parent, regardless of the provision of services; (2) that there is no reasonable basis to believe the parent will improve; and (3) that termination is the least restrictive means of protecting the child from serious harm. L.D. v. Dep't of Children Family Servs., 957 So.2d 1203, 1205 (Fla. 3d DCA 2007). There must be a nexus between the parent's conduct and the abuse, neglect, or specific harm to the child. See id. (quoting D.P. v. Dep't of Children Family Servs., 930 So.2d 798, 801 (Fla. 3d DCA 2006)).
Hence, in order to terminate parental rights, DCF must proceed in a narrowly tailored manner and prove, in addition to the statutory requirements for termination of parental rights under section 39.806(1), Florida Statutes (2007), that termination is the least restrictive means of protecting the child from serious harm. B.C. v. Fla. Dep't of Children Families, 887 So.2d 1046, 1050 (Fla. 2004) (requiring application of the least restrictive means test to termination proceedings pursuant to section 39.806(1)(d)1., which applies in instances where a parent has been incarcerated); Fla. Dep't of Children Families v. F.L., 880 So.2d 602 (Fla. 2004); Padgett; L.D. v. Dep't of Children Family Servs., 957 So.2d 1203 (Fla. 3d DCA), review denied, 967 So.2d 197 (Fla. 2007); C.M. v. Dep't of Children Families, 953 So.2d 547 (Fla. 1st DCA 2007); A.J. v. K.A.O., 951 So.2d 30 (Fla. 5th DCA 2007) (holding that the least restrictive means test applies in proceedings under chapters 39 and 63 of the Florida Statutes); D.P. v. Dep't of Children Family Servs., 930 So.2d 798, 801 (Fla. 3d DCA 2006); In re K.W., 891 So.2d 1068 (Fla. 2d DCA 2004); R.F. v. Dep't of Children Families, 889 So.2d 945, 946 (Fla. 5th DCA 2004); Dep't of Children Families v. L.D., 840 So.2d 432 (Fla. 5th DCA 2003). This test requires, as the court in Padgett explained, "that [DCF] ordinarily must show that it has made a good faith effort to rehabilitate the parent and reunite the family, such as through a current performance agreement or other such plan for the present child."