Aj v. Kao, 951 So. 2d 30 (Fla. 5th DCA 2007). · Go Syfert
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Aj v. Kao, 951 So. 2d 30 (Fla. 5th DCA 2007). Cases Citing This Book View Copy Cite
“he existence of a long-term relative placement is not the dispositive constitutional consideration in applying the least restrictive means test. nor is the least restrictive means test intended to preserve the parental bonds at the cost of a child's future.”
36 citation events (36 in the last 25 years) across 1 distinct court.
Strongest positive: State of Florida, Department of etc. v. B.C., the mother and C.S., the father (fladistctapp, 2016-02-18)
Treatment trajectory · 2007 → 2026 · click a year to view as-of
2007 2016 2026
Top citers, strongest first. 17 distinct citers. How cited ↗
discussed Cited as authority (verbatim quote) State of Florida, Department of etc. v. B.C., the mother and C.S., the father
Fla. Dist. Ct. App. · 2016 · quote attribution · 1 verbatim quote · confidence high
nor is the least restrictive means test intended to preserve the parental bonds at the cost of a child's future.
discussed Cited as authority (verbatim quote) N.B. v. Florida Department of Children & Families
Fla. Dist. Ct. App. · 2016 · quote attribution · 1 verbatim quote · confidence high
aeial constitutional attacks and attacks involving fundamental liberty interest, such as parental rights, may be raised for the first time on appeal.
examined Cited as authority (verbatim quote) Statewide Guardian Ad Litem Program v. A.A.
Fla. Dist. Ct. App. · 2015 · quote attribution · 1 verbatim quote · confidence high
he existence of a long-term relative placement is not the dispositive constitutional consideration in applying the least restrictive means test. nor is the least restrictive means test intended to preserve the parental bonds at the cost of a child's future.
discussed Cited as authority (rule) N. U. v. Department of Children and Families, Statewide
Fla. Dist. Ct. App. · 2026 · confidence medium
We acknowledge that "the least restrictive means test [is not] intended to preserve the parental bonds at the cost of a child's future," A.J. v. K.A.O., 951 So. 2d 30, 33 (Fla. 5th DCA 2007); however, allowing the Mother and Grandmother continued visitation—even after termination— cannot be reconciled with the trial court's finding that the Mother's continued involvement with the Child threatens the life, safety, well-being, or physical, mental, or emotional health of the Child or that terminating the Mother's parental rights is the least restrictive means of protecting the Child from harm…
discussed Cited as authority (rule) A.S., the Father v. Department of Children & Families, J.A., and Guardian Ad Litem Program
Fla. Dist. Ct. App. · 2015 · confidence medium
Instead, this test requires that those measures short of termination should be utilized if such measures can permit the safe reestablishment of the parent-child bond.’ ” L.W. v. Dep’t of Children & Families, 71 So.3d 221, 224 (Fla. 4th DCA 2011) (quoting A. J. v. K.A.O., 951 So.2d 30, 33 (Fla. 5th DCA 2007)) (internal quotation marks omitted).
discussed Cited as authority (rule) J.H. v. Department of Children & Families
Fla. Dist. Ct. App. · 2014 · confidence medium
Rather, it simply requires that “measures short of termination should be utilized if such measures can permit the safe reestablishment of the parent-child bond.” A.J. v. K.A.O., 951 So.2d 30, 33 (Fla. 5th DCA 2007); Dep’t of Children & Families v. B.B., 824 So.2d 1000, 1009 (Fla. 5th DCA 2002).
discussed Cited as authority (rule) T.M.W. v. T.A.C.
Fla. Dist. Ct. App. · 2012 · signal: cf. · confidence medium
See also M.L.B. v. S.L.J., 519 U.S. 102 , 117 n. 8, 117 S.Ct. 555 , 136 L.Ed.2d 473 (1996) (noting that whether a parental termination proceeding is brought by a state agency or a private party as a prelude to adoption, “the challenged state action remains essentially the same: ... imposition of an official decree extinguishing, as no power other than the State can, [the] parent-child relationships”); cf., A.J. v. K.A.O., 951 So.2d 30, 33 (Fla. 5th DCA 2007) (reiterating that because termination proceedings under Chapters 39 and 63 both involve state infringement of a fundamental right, th…
discussed Cited as authority (rule) Tmw v. Tac
Fla. Dist. Ct. App. · 2012 · signal: cf. · confidence medium
See also M.L.B. v. S.L.J., 519 U.S. 102 , 117 n. 8, 117 S.Ct. 555 , 136 L.Ed.2d 473 (1996) (noting that whether a parental termination proceeding is brought by a state agency or a private party as a prelude to adoption, "the challenged state action remains essentially the same: ... imposition of an official decree extinguishing, as no power other than the State can, [the] parent-child relationships"); cf., A.J. v. K.A.O., 951 So.2d 30, 33 (Fla. 5th DCA 2007) (reiterating that because termination proceedings under Chapters 39 and 63 both involve state infringement of a fundamental right, the sa…
discussed Cited as authority (rule) LW v. Department of Children and Families
Fla. Dist. Ct. App. · 2011 · confidence medium
Instead, this test requires that ‘those measures short of termination should be utilized if such measures can permit the safe reestablishment of the parent-child bond.’ ” A.J. v. K.A.O., 951 So.2d 30, 33 (Fla. 5th DCA 2007) (quoting S.S. v. D.L., 944 So.2d 553, 558 (Fla. 4th DCA 2007)) (citation omitted).
examined Cited as authority (rule) NS v. Department of Children and Families (4×)
Fla. Dist. Ct. App. · 2010 · confidence medium
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 an…
cited Cited as authority (rule) F.L.C. v. G.C.
Fla. Dist. Ct. App. · 2009 · confidence medium
A.J. v. K.A.O., 951 So.2d 30, 32 (Fla. 5th DCA 2007).
cited Cited as authority (rule) Flc v. Gc
Fla. Dist. Ct. App. · 2009 · confidence medium
A.J. v. K.A.O., 951 So.2d 30, 32 (Fla. 5th DCA 2007).
discussed Cited as authority (rule) KW v. Department of Children and Families (2×) also: Cited "see"
Fla. Dist. Ct. App. · 2007 · confidence medium
For example, in A.J. v. K.A.O., 951 So.2d 30, 31 (Fla. 5th DCA 2007), the court affirmed a decision to terminate a father's parental rights, even though the trial court had not considered a possible relative placement.
cited Cited "see" BB v. Department of Children and Families
Fla. Dist. Ct. App. · 2009 · signal: see · confidence high
See A.J. v. K.A.O., 951 So.2d 30, 31 (Fla. 5th DCA 2007).
discussed Cited "see" Johnson v. State
Fla. Dist. Ct. App. · 2007 · signal: see · confidence high
See Garnicki v. State, 951 So.2d 30 (Fla. 3d DCA 2007)(certifying conflict with Isaac v. State, 911 So.2d 813 (Fla. 1st DCA 2005)), review pending, No. SC05-2047 (Fla. filed Oct. 31, 2005); Nino v. State, 937 So.2d 756 (Fla. 3d DCA 2006).
cited Cited "see" M.C.C. v. Department of Children & Families
Fla. Dist. Ct. App. · 2007 · signal: see · confidence high
See A.J. v. K.A.O., 951 So.2d 30 (Fla. 5th DCA 2007).
discussed Cited "see, e.g." Guardian Ad Litem Program v. TR
Fla. Dist. Ct. App. · 2008 · signal: see also · confidence low
As this Court has held, "the possibility of a relative placement is plainly not a reason to delay a decision to terminate parental rights if termination is otherwise in the manifest best interest of the child." K.W., 959 So.2d at 402 ; see also A.J. v. K.A.O., 951 So.2d 30 (Fla. 5th DCA 2007) (concluding that the existence of a long-term relative placement does not preclude termination of parental rights).
Retrieving the full opinion text from the archive…
A.J., Father of B.J. and B.J., Children, Appellant,
v.
K.A.O., Mother of B.J. and B.J., Children, Appellee.
5D06-3451.
District Court of Appeal of Florida, Fifth District.
Feb 27, 2007.
951 So. 2d 30
Pleus.
Published

[*31] Ryan Thomas Truskoski, of Ryan Thomas Truskoski, P.A., Orlando, for Appellant.

[*32] No Appearance for Appellee.

PLEUS, C.J.

The father appeals a final judgment terminating his parental rights and allowing the stepfather to adopt his two children. We note at the outset that he does not challenge the trial court's findings regarding the grounds for termination or best interests of the children. Instead, he argues that involuntary termination of parental rights procedures under Chapter 63 of the Florida Statutes are facially unconstitutional because they fail to contain a requirement that termination be the least restrictive means of protecting the children. Alternatively, he argues that termination of his parental rights was not the least restrictive means of protecting the children in this case. We affirm.

Facts

The mother filed a petition to terminate parental rights pending a stepparent adoption under Chapter 63, Florida Statutes. The petition alleged that the father had abandoned the children, had willfully refused to pay child support, and had been sentenced to ten years in federal prison. After an adjudicatory hearing, the trial court terminated the father's parental rights, finding that the father had abandoned the children and that he would be incarcerated for a substantial portion of the time before the children reached eighteen years of age. The court also found that termination was in the children's best interests.

Constitutional Challenge to Chapter 63

On appeal, the father argues that Chapter 63 is unconstitutional on its face because there is no requirement that termination be the least restrictive alternative. He did not raise this argument below. Instead, he argued that the United States Constitution required the judge to consider whether termination was the least restrictive means of protecting the children. However, facial constitutional attacks and attacks involving a fundamental liberty interest, such as parental rights, may be raised for the first time on appeal. See B.C. v. Dep't of Children & Families, 864 So.2d 486, 491 (Fla. 5th DCA 2004); In Interest of D.M., 616 So.2d 1192 (Fla. 4th DCA 1993). The de novo standard applies to reviewing facial constitutional challenges and arguments relating to lack of findings in a final order. See, e.g., Am. Fed. of Labor & Cong. of Indus. Orgs. v. Hood, 885 So.2d 373 (Fla.2004).

Neither Chapter 39 nor Chapter 63 expressly require the court to find that termination is the least restrictive means of protecting the child. Florida courts have simply added this test to Chapter 39 involuntary termination analysis as a constitutionally-mandated requirement. See In Interest of L.B.W., 863 So.2d 480, 483 (Fla. 2d DCA 2004) (citing Padgett v. Dep't of Health & Rehab. Servs., 577 So.2d 565, 571 (Fla.1991)). However, no Florida court has passed on the issue of whether the least restrictive means test is constitutionally required in a Chapter 63 involuntary termination proceeding.

In general, a court must resolve all doubts as to the validity of a statute in favor of its constitutionality, provided it can give the statute a fair construction that is consistent with the Florida and federal constitutions and with legislative intent. State v. Globe Commc'ns Corp., 648 So.2d 110, 113 (Fla.1994).

There is no meaningful distinction between a Chapter 63 involuntary termination proceeding and a Chapter 39 involuntary termination proceeding with regard to the least restrictive means test. That test springs from the idea that when the state infringes upon constitutionally-protected activity, it must do so in a narrowly-tailored[*33] manner. See Dunn v. Blumstein, 405 U.S. 330, 343, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972). Although a Chapter 63 involuntary termination proceeding differs from a Chapter 39 proceeding in that the plaintiff is not the state, the end result is the same—the state, via the judicial branch, terminates a parent's constitutionally-protected parental rights. In M.E.K. v. R.L.K., 921 So.2d 787 (Fla. 5th DCA 2006), we concluded that indigent parents have a constitutional right to counsel in involuntary termination proceedings under Chapter 63, noting that in M.L.B. v. S.L.J., 519 U.S. 102, 117 n. 8, 117 S.Ct. 555, 136 L.Ed.2d 473 (1996), the United States Supreme Court noted that whether a parental termination proceeding is brought by a state agency or a private party as a prelude to adoption, "the challenged state action remains essentially the same: imposition of an official decree extinguishing, as no power other than the State can, [the] parent-child relationships." M.E.K. at 790-91.

Because involuntary termination of parental rights proceedings under Chapters 39 and 63 both involve state infringement upon a fundamental right, we believe the least restrictive means test should apply to Chapter 63 involuntary termination proceedings as it has been applied to Chapter 39 involuntary termination proceedings.

The Instant Case

The father argues that termination cannot be the least restrictive means of protecting the children because they reside with the mother. In support of this argument, he cites numerous cases in which termination orders were reversed because the trial court failed to consider long-term relative placement. See, e.g., C.M. v. Dep't of Children & Families, 32 Fla. L. Weekly D418, ___ So.2d ___, 2007 WL 412790 (Fla. 1st DCA Feb. 8, 2007); M.H. v. Dep't of Children & Families, 866 So.2d 220, 223 (Fla. 1st DCA 2004).

However, the existence of a long-term relative placement is not the "dispositive constitutional consideration" in applying the least restrictive means test. Nor is the least restrictive means test intended to preserve the parental bonds at the cost of a child's future. See, e.g., D.B. v. Dep't of Children & Families, 940 So.2d 516 (Fla. 5th DCA 2006). Instead, this test requires that "those measures short of termination should be utilized if such measures can permit the safe reestablishment of the parent-child bond." S.S. v. D.L., 944 So.2d 553 (Fla. 4th DCA 2007) (quoting L.B. v. Dep't of Children & Families, 835 So.2d 1189, 1196 (Fla. 1st DCA 2002)). The "clear purpose" of the least restrictive means test is "reestablishment of the parent-child bond." In Interest of K.W., 891 So.2d 1068, 1070 (Fla. 2d DCA 2004) (quoting M.H. v. Dep't of Children & Families, 866 So.2d 220, 223 (Fla. 1st DCA 2004)).

In the instant case, the trial court found that there was no bond between the father and the children. He had abandoned the children and had had no contact with them since they were ages two and four. The children did not relate to him as their father. Thus, similar to the situation in In Interest of K.W., there was "little or no bond to protect and there was never a parent-child relationship to reestablish. . . ." 891 So.2d at 1070. The father will be incarcerated until 2012, at which time the children will be fourteen and sixteen. They do not have contact with the father. The guardian ad litem testified, based on personally visiting the prison and interviewing numerous people, that requiring the children to visit the father would be detrimental to them. The trial court also noted a letter in the court file from the school guidance counselor which expressed the same opinion. Furthermore,[*34] the children's stepfather has acted in every capacity as their real father and wants to adopt them. Accordingly, there was ample evidence that termination of the father's parental rights was the least restrictive means of protecting the children.

AFFIRMED.

SAWAYA and EVANDER, JJ., concur.