Opinion
Case No. 2D03-1834.
Opinion filed May 26, 2004.
Appeal from the Circuit Court for Polk County, James A. Yancey, Acting Circuit Judge.
Beth Harlan of Beth Harlan, P.A., Lakeland, for Appellant.
Douglas Sherman of Department of Children and Family Services, Bartow, for Appellee.
BY ORDER OF THE COURT:
Upon reconsideration of the trial court's order in conjunction with the Department of Children and Families' argument in its motion for rehearing, clarification, and/or rehearing en banc, it appears that the trial court declined to terminate the parental rights of the Mother to S.D. based on section 39.811(6), Florida Statutes (2002), and not section 39.806(1)(e), Florida Statutes (2002). Although the court's order does not specifically state that it was precluded from terminating the Mother's parental rights under section 39.811(6) because the Father's parental rights were not terminated, this certainly appears to be the case. Thus, the court never reached the merits of the statutory basis alleged by the Department to support termination of the Mother's parental rights to S.D., which was section 39.806(1)(e).
This distinction alters our analysis of whether termination of the Mother's parental rights as to M.J. and A.J. under section 39.806(1)(e) was supported by clear and convincing evidence. Section 39.806(1)(e) provides for termination "when a child has been adjudicated dependent, a case plan has been filed with the court, and the child continues to be abused, neglected, or abandoned by the parents." The parent's failure to "substantially comply" with a case plan for twelve months after the earlier of an adjudication of dependency or shelter care placement constitutes evidence of continuing abuse, neglect, or abandonment for purposes of section 39.806(1)(e).
Our review of the Mother's compliance with her case plan as to M.J. and A.J. under section 39.806(1)(e) is no longer constrained by a comparison between the Mother's compliance with her case plan as to S.D. and her compliance as to M.J. and A.J. We conclude that the record contains clear and convincing evidence to support the court's determination that the Mother failed to substantially comply with her case plan under section 39.806(1)(e) as to M.J. and A.J. Accordingly, the Department's motion for rehearing is granted. We withdraw our opinion dated April 2, 2004, and replace it with the attached opinion.
I HEREBY CERTIFY THE FOREGOING IS A TRUE COPY OF THE ORIGINAL COURT ORDER.
Affirmed.
WHATLEY, NORTHCUTT, and STRINGER, JJ., Concur.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED.