NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
                      MOTION AND, IF FILED, DETERMINED

                                             IN THE DISTRICT COURT OF APPEAL
                                             OF FLORIDA
                                             SECOND DISTRICT

In the Interest of B.W.G and B.J.G.,
children.                           )
                                    )
___________________________________ )
                                    )
N.A.G.,                             )
                                    )
           Appellant,               )
                                    )
v.                                  )                 Case No. 2D16-1441
                                    )
J.L.G.,                             )
                                    )
                                    )
           Appellee.                )
___________________________________ )

Opinion filed August 12, 2016.

Appeal from the Circuit Court of Pinellas
County; Patrice W. Moore, Judge.

Deborah L. Thomson, Tampa, for Appellant.

Ingrid Anderson, Clearwater, for Appellee.



PER CURIAM.



             N.A.G., the mother, appeals the order terminating her parental rights to

her two children, B.W.G. and B.J.G. She argues that the trial court incorrectly found

that she abandoned her children. We agree. Not only is the record devoid of any facts
to support the finding of abandonment as a matter of law, but the trial court also

misapplied the definition of abandonment under chapter 63, Florida Statutes (2015).

Because the finding of abandonment is not supported by competent substantial

evidence, we reverse.

                                     BACKGROUND

              The mother and father divorced in 2012, and they have both remarried.

Their marital settlement agreement included a "temporary incapacity" clause providing

that in the event a parent was unable to care for the children, all timesharing rights

would be suspended and the other parent would assume sole responsibility for the

children. In 2012, when the mother attempted to pick up the children while intoxicated,

the father invoked the clause by sending a letter explaining that he was terminating her

timesharing rights and retaining full custody of the children. The mother challenged the

letter and the parties proceeded to negotiate timesharing.

            The record indicates that the children—who thereafter resided full-time with

the father and his new wife—enjoyed nightly phone calls and frequent Skype sessions

with the mother. However, the mother testified that the father was often in the

background and would punish the children for acting out by prohibiting them from talking

to her. At one point the father changed the children's schools without notifying the

mother. When the mother attempted to visit the children at school, she was informed by

the principal that her children were no longer enrolled. The father explained that he

"wanted to get away" from the marital home. However, the father and his new wife did

not inform the mother that the children had changed schools. She did not know where




                                            -2-
her children were and began placing panicked and threatening phone calls and text

messages to the father, his wife, and his attorney.

              The father and his wife obtained injunctions against the mother that

effectively prevented her from contacting the father or his wife and consequently the

children. The mother acknowledged that she made the threatening phone calls,

explaining that she "lost it" after the father repeatedly refused to let her see the children

on any birthdays. After she filed a motion to enforce timesharing, the court ordered that

she was entitled to supervised visitation.

              The father and his wife filed a petition for termination of parental rights for

the proposed adoption of the minor children by the wife in 2014. The petition alleged

that despite being able, the mother had failed to provide for and communicate with the

children since March 2013. Further, the petition alleged that this failure demonstrated a

willful disregard for the safety and welfare of the children. A trial was conducted in

February 2016.

               In its termination order, the trial court specifically found that the father and

his wife alienated the children from their mother. The court highlighted their testimony

that their intention was to move as far away from the mother as possible. Indeed, the

court found that "the [f]ather placed barriers in the [m]other's way to keep her from

spending quality time with the children." However, the court found that notwithstanding

these barriers, the mother had made only minimal efforts to contact or support her

children despite also acknowledging that it was "understandable" that the mother would

not have attempted to contact the father and his wife while the injunctions were in effect.




                                             -3-
After essentially finding that the mother should have done more to communicate with or

support her children, the court concluded that she abandoned her children.

                                 LEGAL FRAMEWORK

            Chapter 63 allows a parent or person having physical custody of a child to

seek termination of parental rights and subsequently adopt the child. See § 63.087(4);

see also V.C.B. v. Shakir, 

, 968 (Fla. 4th DCA 2014). If a parent does

not consent to the termination, the court may enter a judgment terminating parental

rights if it determines by clear and convincing evidence supported by written findings of

fact that the parent has been given notice and has abandoned the child. See §

63.089(3)(e). "Abandonment" is defined as a situation in which

             the parent or person having legal custody of a child, while
             being able, makes little or no provision for the child's support or
             makes little or no effort to communicate with the child, which
             situation is sufficient to evince an intent to reject parental
             responsibilities. If, in the opinion of the court, the efforts of such
             parent or person having legal custody of the child to support and
             communicate with the child are only marginal efforts that do not
             evince a settled purpose to assume all parental duties, the court
             may declare the child to be abandoned.

§ 63.032(1); see also M.A.F. v. E.J.S., 

, 238 (Fla. 5th DCA 2005)

(explaining that a finding of abandonment under chapter 63 "must be predicated on

'conduct which manifests a settled purpose to permanently forgo all parental rights' "

(quoting Webb v. Blancett, 

, 1378 (Fla. 5th DCA 1985))).

             In making an abandonment determination under this chapter, the trial

court must consider, among other factors, "[w]hether the actions alleged to constitute

abandonment demonstrate a willful disregard for the safety or welfare of the child." §

63.089(4)(a)(1). Specifically, the inquiry is whether the parent has demonstrated a

                                            -4-
commitment to the child, which has been defined as "a manifestation of a willingness to

accept custody and assume responsibility for the support and maintenance of the child."

G.T. v. Adoption of A.E.T., 

, 410 (Fla. 4th DCA 1999); see also Solomon

v. McLucas, 

, 346 (Fla. 2d DCA 1980) ("[A]bandonment is absolute,

complete, and intentional[] and must be established by clear and convincing

evidence."); M.M. v. Adoption of J.T.M., 

, 1138 (Fla. 4th DCA 2002)

(holding that "[a]bandonment, in its purest form, requires a complete relinquishment of

responsibility" and a "deliberate action by the parent to leave the child behind or the

refusal to assume parental responsibilities").

              This court must determine if the trial court's ruling is supported by

competent substantial evidence, and our review of the trial court's termination order is

highly deferential. See R.C. v. Dep't of Children & Family Servs., 

, 714

(Fla. 2d DCA 2010).

                                      DISCUSSION

              Even acknowledging the highly deferential standard of review of this kind

of order, we hold that the trial court's finding that the mother abandoned her children is

not supported by competent substantial evidence. In particular, the evidence was not

legally sufficient to support a finding that the mother's actions evinced a settled purpose

to forgo and relinquish all parental responsibilities. See § 63.032(1); see also 

. Termination may not be based on involuntary abandonment. See T.H.

v. Dep't of Children & Family Servs., 

, 1080 (Fla. 2d DCA 2008). For

example, incarceration alone does not constitute abandonment as a matter of law. Id.;

see also J.T. v. Dep't of Children & Family Servs., 

, 272 (Fla. 2d DCA


                                            -5-
2002) (holding that it is "improper to terminate parental rights if a parent is unable to

financially provide for the child or to assume parental obligations due to incarceration").

This is so because an incarcerated person has very limited opportunities to assume

parental duties. See R.R. v. M.M., 

, 450 (Fla. 2d DCA 2014).

              Similarly, in this case, because of the injunctions, the no-contact order,

and the actions of the father and his wife, the mother's ability and opportunity to contact,

locate, and communicate with her children were extremely limited and often beyond her

control. In spite of these obstacles, the mother sent the children birthday cards,

Christmas cards, and gift certificates, attended visitation at the Children's Justice Center

before the father prevented visitation, voluntarily entered rehabilitation for the sole

purpose of reuniting with her children, and successfully completed a diversion program.

              The mother testified that her frantic phone calls—which led to the

injunctions and no-contact order—stemmed directly from the father and his wife's efforts

to alienate her. The father admitted that he purposely moved the children away from

the mother. The record reveals that the father's wife, for whatever reason, told the

children that she would be upset if they kissed their mother. The father's method of

punishment was to prohibit the children from communicating with their mother over

Skype. Accordingly, the record illustrates that the father and his wife alienated the

mother from her children and then claimed that the mother abandoned the children.

              In this regard, we also note that the trial court's final judgment is internally

contradictory. The trial court found that the father and his wife alienated the mother

from her children, explaining that that they "placed barriers in the [m]other's way to keep

her from spending quality time with the children." But the trial court concluded that


                                             -6-
despite these barriers, the mother should have done more. This finding overlooks the

definition of abandonment under chapter 63, specifically the requirement that the

parent's actions must show an intent to forgo all parental responsibilities. By finding that

the mother's "minimal efforts" to contact and spend time with her children were not

enough, the court essentially recognized that the mother, in fact, made efforts to

assume parental responsibilities, which is antithetical to the notion that she relinquished

all of her parental responsibilities. Because the trial court's legal conclusion that the

mother abandoned her children is not supported by competent substantial evidence, we

reverse the final judgment terminating the mother's parental rights.

              Reversed and remanded.




CRENSHAW, MORRIS, and LUCAS, JJ., Concur.




                                            -7-