SSRGA successfully defended their client (the father) in a case where the mother sought to terminate his parental rights based on his incarceration, arguing that his placement on home confinement did not constitute incarceration under Florida law, ultimately resulting in the dismissal of the mother’s petition.<\/p>\n
K.M. (\u201cthe mother\u201d) appeals the trial court\u2019s order dismissing her private petition for termination of parental rights against K.B. (\u201cthe father\u201d). The mother\u2019s petition was based on section 39.806(1)(d), Florida Statutes (2023), which allows termination of parental rights under certain conditions when the parent is incarcerated. In dismissing the petition, the trial court concluded the father\u2019s placement on home confinement did not constitute \u201cincarceration.\u201d We affirm the dismissal order in all respects and write only to address why we reject the mother\u2019s argument that home confinement constitutes incarceration for purposes of termination of parental rights proceedings.<\/p>\n
By way of background, the father was convicted on federal healthcare fraud charges and sentenced to 72 months in federal prison. The mother filed a private petition to terminate the father\u2019s parental rights based on his incarceration. While the petition was pending, the father was released from federal prison and placed on federal home confinement for the remainder of his sentence. The mother thereafter filed a motion asking the trial court to determine whether the father\u2019s placement on home confinement qualified as \u201cincarceration\u201d for purposes of section 39.806(1)(d).<\/p>\n
At the ensuing hearing, the father testified as to his home confinement terms. In relevant part, the father testified that, while on home confinement, he is permitted, with prior approval, to do the following: take the child to and from school and the mother\u2019s house; take the child to doctor appointments and extracurricular activities; have the child over to his home; and go to the grocery store. The father also testified that he was permitted to take the child to the hospital in an emergency without first seeking prior approval. Based on this testimony, the father argued he was completely available to parent the child and therefore was not \u201cincarcerated\u201d within the meaning of section 39.806(1)(d). Following the hearing, the trial court concluded the father was not \u201cincarcerated\u201d as it relates to section 39.806(1)(d) and dismissed the mother\u2019s petition. In so doing, the court referenced the father\u2019s otherwise unrebutted testimony and concluded the home confinement terms permitted the father to \u201cact as a parent for the child.\u201d<\/p>\n
On appeal, the mother argues the father\u2019s placement on home confinement as part of his federal prison sentence constitutes incarceration for purposes of section 39.806(1)(d). In support thereof, the mother relies on Black\u2019s Law Dictionary which broadly defines incarceration as \u201c[t]he act or process of confining someone.\u201d Incarceration<\/em>, BLACK\u2019S LAW DICTIONARY (11th ed. 2019). Based on this definition, the mother argues the father is \u201cincarcerated\u201d as he is confined to his home.<\/p>\n The father counters that, in looking at the plain and ordinary meaning of \u201cincarceration\u201d and section 39.806(1)(d)\u2019s legislative intent, his placement on home confinement does not constitute \u201cincarceration.\u201d The father further argues that several district courts, including this court, have clearly held that house arrest or home confinement is not equivalent to incarceration.<\/p>\n Sections 39.806(1)(d)1. and 3. state that termination of parental rights is appropriate when the parent is incarcerated and either:<\/p>\n 1. The period of time for which the parent is expected to be incarcerated will constitute a significant portion of the child\u2019s minority. When determining whether the period of time is significant, the court shall consider the child\u2019s age and the child\u2019s need for a permanent and stable home. The period of time begins on the date that the parent enters into incarceration;<\/p>\n 3. The court determines by clear and convincing evidence that continuing the parental relationship with the incarcerated parent would be harmful to the child and, for this reason, that termination of the parental rights of the incarcerated parent is in the best interest of the child. When determining harm, the court shall consider the following factors:<\/p>\n a. The age of the child.<\/p>\n b. The relationship between the child and the parent.<\/p>\n c. The nature of the parent\u2019s current and past provision for the child\u2019s developmental, cognitive, psychological, and physical needs.<\/p>\n d. The parent\u2019s history of criminal behavior, which may include the frequency of incarceration and the unavailability of the parent to the child due to incarceration.<\/p>\n e. Any other factor the court deems relevant.<\/p>\n \u00a7 39.806(1)(d)1., 3., Fla. Stat. (2023).<\/p>\n Although section 39.806 does not define \u201cincarceration,\u201d we have previously defined \u201cincarceration\u201d as being confined in a \u201cgovernmental institution\u201d and held that house arrest is not equivalent to \u201cincarceration\u201d:<\/p>\n [I]ncarceration has been defined [as] confinement in a governmental institution such that a defendant\u2019s liberty is circumscribed to the functional equivalent of custody in the county jail. A house arrest program in which the defendant wears an electronic bracelet used for monitoring his whereabouts, and checks with a supervisor daily by telephone and weekly in person, imposes restraints on the defendant\u2019s liberty prior to trial, but the conditions do not impose on the defendant restraints which are so onerous as to be equivalent to incarceration in the county jail or the forensic ward of a mental hospital.<\/p>\n Licata v. State<\/em>, 788 So. 2d 1063, 1063\u201364 (Fla. 4th DCA 2001) (quoting McCarthy v. State<\/em>, 689 So. 2d 1095, 1096 (Fla. 5th DCA 1997)).<\/p>\n While Licata <\/em>involved the issue of pre-trial house arrest, we hold the definition of \u201cincarceration\u201d espoused in that case applies equally to a home confinement sentence. We further hold that when a parent is placed on home confinement with terms which enable the parent to be involved in the child\u2019s care and well-being, the parent is not \u201cincarcerated\u201d under section 39.806(1)(d). Such a holding is consistent with section 39.806(1)(d)\u2019s purpose of protecting the child\u2019s need for a permanent and stable home.<\/p>\n Accordingly, as the trial court in this case expressly found that the terms of the father\u2019s home confinement permitted the father to act as a parent to the child, we affirm the court\u2019s dismissal of the mother\u2019s petition.<\/p>\n Affirmed<\/em>.<\/p>\n ***<\/strong><\/p>\n Not final until disposition of timely filed motion for rehearing.<\/em><\/strong><\/p>\n","protected":false},"excerpt":{"rendered":" SSRGA successfully defended their client (the father) in a case where the mother sought to terminate his parental rights based on his incarceration, arguing that his placement on home confinement did not constitute incarceration under Florida law, ultimately resulting in the dismissal of the mother’s petition. K.M. (\u201cthe mother\u201d) appeals the trial court\u2019s order dismissing…<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"footnotes":""},"categories":[1811],"tags":[],"class_list":["post-1893","post","type-post","status-publish","format-standard","hentry","category-4th-dca-rulings"],"acf":[],"_links":{"self":[{"href":"https:\/\/ssrga.com\/appellate\/wp-json\/wp\/v2\/posts\/1893","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/ssrga.com\/appellate\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/ssrga.com\/appellate\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/ssrga.com\/appellate\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/ssrga.com\/appellate\/wp-json\/wp\/v2\/comments?post=1893"}],"version-history":[{"count":0,"href":"https:\/\/ssrga.com\/appellate\/wp-json\/wp\/v2\/posts\/1893\/revisions"}],"wp:attachment":[{"href":"https:\/\/ssrga.com\/appellate\/wp-json\/wp\/v2\/media?parent=1893"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/ssrga.com\/appellate\/wp-json\/wp\/v2\/categories?post=1893"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/ssrga.com\/appellate\/wp-json\/wp\/v2\/tags?post=1893"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}