Guardian ad Litem and Department of Children and Families v. J.G. and L.L., No. 5D2025-3210 (Fla. 5th DCA July 31, 2026)
Appellate courts in Florida give trial judges considerable room in termination of parental rights cases. The judge who sat through the testimony saw the witnesses; the appellate court reads a transcript. That deference is why most appeals from these judgments do not succeed. It is not unlimited. A decision from the Fifth District Court of Appeal this summer marks where the line falls, and it is a useful case to understand for anyone who has been told that a trial court’s findings simply cannot be disturbed.
The standard
Review of the factual findings in a termination case asks whether they are supported by competent, substantial evidence. Department of Children & Families v. D.E., 325 So. 3d 277, 279 (Fla. 5th DCA 2021). Whether the trial court’s determinations rest on a proper interpretation of the law is reviewed de novo. Id. (quoting G.S. v. T.B., 985 So. 2d 978, 982 (Fla. 2008)). And the sentence that does the work in this case: “[A]n appellate court is not required to defer to the trial court where there is no theory or principle of law that would support the trial court’s conclusions of law.” Id. (quoting Statewide Guardian Ad Litem Program v. A.A., 171 So. 3d 174, 177 (Fla. 5th DCA 2015)).
Reversal is warranted where a denial of termination is not supported by competent, substantial evidence and is not in the children’s best interests. Department of Children & Families v. K.W., 277 So. 3d 708, 710 (Fla. 1st DCA 2019).
What the trial court decided
The Department of Children and Families petitioned to terminate the rights of both parents to two children, a girl born in 2014 and a boy born in 2017. The trial court found the children dependent and found that the mother had abandoned them. It declined to find that the mother’s conduct was egregious. It declined to terminate the father’s rights at all, characterizing his incarceration as a circumstance that limited his ability to parent and ordering the Department to attempt reunification upon his release.
The Guardian ad Litem and the Department appealed. The Fifth District affirmed the dependency adjudication and the abandonment finding as to the mother. It reversed the rest.
The mother’s conduct
Section 39.806(1)(f), Florida Statutes, permits termination where a parent engaged in egregious conduct, or had the opportunity and capability to prevent it and knowingly failed to do so. The statute defines egregious conduct as “abuse, abandonment, neglect, or any other conduct that is deplorable, flagrant, or outrageous by a normal standard of conduct.” § 39.806(1)(f)2., Fla. Stat.
While the father was in prison and the mother was being arrested on a drug charge, she left the children with a couple she had seen at the homeless camp where the family had been living. She did not know their last names and had no way to contact them. The couple passed the children to a man the parties knew only by a first name, who repeatedly sexually molested the nine-year-old daughter. The children were kept in a home the court described as dirty, smelling, and with dog feces scattered about, and the children themselves were described as filthy and as though they had not bathed in days. Over the following months the mother, living nearby, saw the children once. She made no effort to retrieve them.
The trial court called this an unwise decision, reasoning that the mother had no cause to suspect what would happen. The Fifth District found that characterization impossible to reconcile with the record or the statute: what the mother did “was one degree away from simply leaving them on the street and hoping for the best.” The evidence was competent, substantial, and uncontradicted, and the contrary ruling was clearly erroneous.
The father’s incarceration
The trial court’s treatment of the father is where the opinion does its most instructive work, because the trial court’s reasoning was sympathetic and, on its face, not unreasonable. The father was in prison. He could not support the children financially. Corresponding with them was difficult. The court treated those facts as constraints imposed on him rather than choices made by him.
The Fifth District read the same facts differently, complying with statutory law. Abandonment is defined to mean a situation in which a parent, “while being able, has made no contribution to the child’s care and maintenance or failed to establish and maintain a substantial and positive relationship with the child, or both.” § 39.01(1), Fla. Stat. The trial court located the father’s inability in his incarceration. But the same statutory subsection states that “[t]he incarceration, repeated incarceration, or extended incarceration of a parent, legal custodian, or caregiver responsible for a child’s welfare may support a finding of abandonment.” Id. Incarceration is not an excuse that defeats abandonment; it is one of the circumstances the Legislature identified as capable of establishing it.
The record also undercut the premise that the father’s silence was imposed on him. Through two prison terms, from 2019 to 2022 and from 2022 to 2026, he intentionally stopped communicating with everyone in his family, the children included. He testified that this was his choice, that it made it easier to do his time, and that he had not thought about how the children might feel. His periods in solitary confinement (twice in prison, once in jail) followed his own violent conduct, including beating his cellmate and swinging at a corrections officer. The court’s response to his argument that the Department had not adequately assisted him while he was in solitary was blunt: such complaints “aren’t much different than the child who seeks sympathy as an orphan after killing his parents.”
Section 39.806(1)(d)3. separately provides for termination where continuing the relationship with an incarcerated parent would be harmful to the child. Two of its enumerated factors pointed the same direction: the nature of the parent’s current and past provision for the child’s development, cognitive, psychological, and physical needs, § 39.806(1)(d)3.c., and the parent’s history of criminal behavior including the frequency of incarceration and resulting unavailability, § 39.806(1)(d)3.d. The evidence on both was undisputed. Where testimony on pivotal issues is uncontradicted and unimpeached, it “can not be wholly disregarded or arbitrarily rejected.” Guardian ad Litem Program v. K.H., 276 So. 3d 897, 902 n.2 (Fla. 3d DCA 2019) (quoting Duncanson v. Service First, Inc., 157 So. 2d 696, 699 (Fla. 3d DCA 1963)).
The father testified that he believed he deserved another chance. The court assumed his sincerity rather than disputing it, and held that sincerity does not answer the statutory question: his intentions “even if heart-felt, to now become a good father amount to being too little, too late.” See J.C. v. K.K., 64 So. 3d 157, 163 (Fla. 4th DCA 2011).
Whose rights are at stake
Running underneath the analysis is a vital principle: A parent’s right to raise a child is a constitutional one. A.M. v. Department of Children & Families, 223 So. 3d 312, 315 (Fla. 4th DCA 2017). But in a termination proceeding the parent’s rights are not the only rights in the room. Id. (citing N.S.H. v. Florida Department of Children & Family Services, 843 So. 2d 898, 902 (Fla. 2003)). Where those interests conflict, “the ultimate welfare of the child . . . must be controlling.” Padgett v. Department of HRS, 577 So. 2d 565, 570 (Fla. 1991) (quoting State ex rel. Sparks v. Reeves, 97 So. 2d 18, 20 (Fla. 1957)).
The case is not over. The trial court never reached whether termination would be in the children’s manifest best interests or the least restrictive means of protecting them, and both remain to be decided on remand under section 39.810, Florida Statutes.
What to take from it
Two things, for different readers.
For a parent or relative who has watched a trial court deny a petition that the evidence seemed to support, this case is a reminder that the standard of review is demanding but not absolute. Where a trial court’s conclusion rests on a reading of the statute that the statute will not bear, like treating incarceration as a shield against abandonment when the Legislature made it a ground for finding abandonment, deference does not save the ruling.
For counsel, the case is an argument for building the record around the statutory language rather than around the equities. The trial court here was not indifferent to the evidence; it acknowledged what had been presented. It reached a result the appellate court could not sustain because the legal framework it applied did not match the one the Legislature wrote.
The Law Offices of Dayna Maeder handles termination of parental rights and dependency matters at both the trial and appellate levels. Contact Law Offices of Dayna Maeder to discuss your Florida parental rights needs.
This opinion is not final until disposition of any timely and authorized motion under Florida Rules of Appellate Procedure 9.330 or 9.331. This post is general information about a published decision and is not legal advice about any particular case.
