ROTHENBERG, C.J.
C.R. ("the Mother") appeals from an order terminating her parental rights as to her minor child, D.R.A. ("the Child"). Because the Department of Children and Families ("the Department") failed to establish either of the statutory grounds alleged in its petition, we reverse.
In late January 2015, the Mother and her teenage daughter, B.D., engaged in a physical altercation, which resulted in B.D. being arrested and "Baker Acted."
On February 10, 2015, the Department filed a verified dependency petition, alleging that the Mother had abused, abandoned, neglected and/or placed the three minor children at imminent risk of harm based on the Mother engaging in domestic violence with her two teenage daughters, A.D. and B.D. The Mother consented to the dependency petition and, on July 24, 2015, the Mother's three children were adjudicated dependent. The order adjudicating the children dependent states that the Mother has mental health issues that,
To address the circumstances stated in the dependency order, the Department issued five case plans between August 18, 2015, and March 14, 2017, with each stating that the primary permanency goal was reunification.
The trial court addressed the Mother's compliance with the case plans and her progress in four separate Orders on Judicial Review/Permanency Review ("Orders on Judicial Review") filed on November 4, 2015, April 4, 2016, September 28, 2016, and March 20, 2017. The first order issued on November 4, 2015, showed little progress by the Mother except for her submitting to the psychological evaluation.
However, in the trial court's second Order on Judicial Review filed on April 4, 2016, the trial court noted that the Mother had completed the parenting class, the substance abuse evaluation, and the psychological evaluation. The Mother was also participating in an outpatient substance abuse program and individual counseling. Although the case plan in effect at that time stated that the Mother was to attend family counseling, the trial court's order made no finding as to family counseling.
The trial Court's third Order on Judicial Review dated September 28, 2016, found that the Mother was continuing to make progress. The Mother had completed the parenting classes, the substance abuse evaluation, and the psychological evaluation. She was participating in an outpatient substance abuse program and individual counseling, she was maintaining adequate housing, and she had been complying with the court-ordered visitation. Once again, the trial court concluded that the Mother was in partial compliance but that she had not reached substantial compliance with the case plan and made no reference to family counseling. Importantly, however, the order states: "
On March 20, 2017, the trial court entered its fourth and final Order on Judicial Review. This order provided that the Mother had completed the parenting classes, the substance abuse evaluation, and the psychological evaluation; the Mother was currently participating in out-patient substance abuse program and individual counseling
On May 2, 2017, approximately two months after the fifth case plan was issued, the Department filed a petition to terminate the Mother's parental rights based on two statutory grounds,
The termination of parental rights ("TPR") hearing was held over a three-day period commencing in early September 2017, and concluding in late October 2017. In December 2017, the trial court entered its final judgment terminating the Mother's parental rights as to the Child, finding that the Department had established by clear and convincing evidence both statutory grounds.
The Mother contends that the trial court erred by terminating her parental rights
To terminate parental rights, the Department is required to establish by clear and convincing evidence the existence of at least one statutory ground for termination,
Section 39.806(1)(e)1. permits the termination of parental rights when a child is adjudicated dependent, a case plan has been filed with the trial court,
In the instant case, the Child was adjudicated dependent and case plans were filed with the trial court. However, as will be addressed below, there was no competent, substantial evidence to support the trial court's determination that the Department established by clear and convincing evidence that the Mother failed to "substantially comply" with the case plan.
The case plan required the Mother to complete several tasks to address and remedy the "circumstances which caused
The Mother completed the Level of Care Assessment on March 15, 2015, which was prior to the issuance of the initial case plan in August 2015.
The Mother submitted to a psychological evaluation on February 3, 2015, conducted by Dr. Rebecca Harvey, a clinical psychologist. Dr. Harvey's testimony at the TPR hearing and her report, which was introduced into evidence, reflect that the Mother has a history of volatile relationships, mood issues, and mood management issues, which would be consistent with a bipolar anxiety issue. As to the Mother's parenting skills, Dr. Harvey concluded that the Mother was overwhelmed and "bewildered" as to how to manage her daughters' aggressive behaviors. During the evaluation, the Mother acknowledged that many of her childhood experiences, including physical and mental abuse by her father, have impacted her parenting abilities.
Based on the evaluation, Dr. Harvey opined that the Mother suffers from a bipolar disorder, a generalized anxiety disorder, a post-traumatic stress disorder, and a substance abuse disorder. Dr. Harvey concluded that the Mother was in need of various services to enable her to provide a safe and healthy environment for her children. Dr. Harvey recommended that the Mother participate in individual therapy to: (1) address her mood issues; (2) address her childhood experiences and to examine how her childhood impacts her parenting; (3) work on developing positive coping skills; and (4) address her tendency to relate to her children as peers. In addition, Dr. Harvey recommended that the Mother continue to regularly see a psychiatrist and to receive medication management; attend a substance abuse treatment program; attend parenting classes to learn how to communicate with her children and cope with her children's defiant behavior; and participate in family therapy with her children to learn how to solve problems, de-escalate arguments, and express thoughts and feelings appropriately. These recommendations were the foundation for the tasks assigned to the Mother in the case plans.
The record reflects that the Mother began seeing a psychiatrist, Dr. Priscilla Borrego, in November 2015. Dr. Borrego diagnosed the Mother as being bipolar and prescribed several medications. At the TPR hearing, Dr. Borrego testified that the Mother has been compliant with taking her medications and attending her appointments. Dr. Borrego also testified that she has seen improvements in the Mother — the Mother is calmer, has fewer mood swings, speaks less rapidly, is sleeping better, has a better appetite, and attends her sessions in better spirits.
The Mother commenced parenting classes on August 31, 2015, and successfully completed the classes on December 21,
For each parenting construct, the score can range from one to ten, with a score of one to three indicating high risk, four to seven indicating medium risk, and eight to ten indicating low risk. Ms. Martinez's report sets forth the following pre-classes and post-classes scores for each parenting "construct": (A) inappropriate expectations of children: pre-parenting classes — 3 (high risk); post-parenting classes — 9 (low risk); (B) parental lack of empathy towards children's needs: pre-parenting classes — 2 (high risk); post-parenting classes — 8 (low risk); (C) strong parental belief in use of corporal punishment: pre-parenting classes — 5 (medium risk); post-parenting classes — 9 (low risk); (D) reversing parent-child family roles: pre-parenting classes — 3 (high risk); post-parenting classes — 5 (medium risk); and (E) oppressing children's power and independence: pre-parenting classes — 5 (medium risk); post-parenting classes — 9 (low risk). Thus, Ms. Martinez's report reflects that the Mother not only completed the parenting classes, but she showed significant improvement as to each parenting "construct" following the parenting classes, with four of the five constructs now being in the "low risk" category and one construct being in the "medium risk" category.
Although family therapy was a task included in the initial case plan issued in August 2015, the Mother did not commence family therapy with the Child until March 3, 2017, only six months before the TPR hearing commenced, and the family therapy was ongoing at the time of the hearing. It does not appear that the delay in commencing family therapy was attributable to the Mother.
Mr. Jeremiah Model, a registered mental health intern at Advance Health Community Services, described a positive relationship between the Mother and the Child:
Mr. Model also testified that although the Child is guarded during therapy, the Mother and the Child have progressed, but are still in need of family therapy. Mr. Model could not, at that point, recommend reunification because
The Mother was referred to a combined substance abuse therapy and individual therapy at Banyan Health Systems. The therapies commenced in December 2015, and were completed in September 2016, approximately a year before the commencement of the TPR hearing.
Thereafter, in May 2017, the Mother
The Mother participated in an outpatient substance abuse program at Banyan Health Systems with Lorena Paar, an outpatient substance abuse therapist. Ms. Paar's reports, which were introduced into evidence, and her testimony at the TPR hearing reflect that the Mother commenced the outpatient substance abuse program in December 2015 and successfully completed the program in September 2016. While attending the program, the Mother was subject to random drug testing, and on November 4, 2015, the trial court ordered the Mother to submit to urinalyses three times per week. The testimony at the TPR hearing reflects that
As to this final task, the case plan indicated that this task would be deemed completed
We acknowledge that completion of the tasks in a case plan does not necessarily equate to "substantial compliance" with a case plan. As previously stated, "substantial compliance" with a case plan "means that the circumstances which caused the creation of the case plan have been significantly remedied to the extent that the well-being and safety of the child will not be endangered upon the child's remaining with or being returned to the child's parent." § 39.01(78). In the instant case, the order adjudicating the Child and her siblings, A.D. and B.D., dependent reflects that the following "circumstances" caused the creation of the case plans: (a) the Mother's mental health issues, which if left untreated, will interfere with her ability to safely parent her children; (b) the Mother tested positive for drugs; (c) the Mother engaged in domestic violence with B.D.; and (d) the Child had excessive absences from school.
The record before this Court indicates that these "circumstances" have been "significantly remedied." First, the Mother's mental health issues have been addressed. She is currently under the care of psychiatrist, and the Mother is attending her appointments and taking her prescribed medications. Moreover, the psychiatrist testified that she has seen improvements in the Mother. Second, the Mother is not taking or using drugs. She successfully completed the outpatient substance abuse program and has tested negative for drugs for almost two years. Third, as to the Mother engaging in domestic violence with B.D., the record indicates that this "circumstance" has been "significantly remedied." B.D. is currently living with the Mother; B.D. received "wrap around" services, including therapy; and there have been no physical altercations between the Mother and B.D. since the Department permitted B.D. to move back into the Mother's home in May 2017. The record further reflects that A.D. and A.D.'s child are no longer living with the Mother, and there have been no further incidents of domestic violence between A.D. and the Mother. In addition, the Mother successfully completed parenting classes, and her post-classes scores on the AAPI-2 show that the Mother has significantly improved, with four of the five parenting constructs being at "low risk" and one being at "medium risk." Finally, there is no indication in the record that the Mother would continue to allow the Child to miss so many days of school. Thus, the record does not contain competent substantial evidence that the Mother failed to substantially comply with her case plan.
This Court's decision in
The facts in C.G. could not be more factually disparate from the facts in the instant case. Unlike C.G., in the instant case, the Mother has completed all tasks and/or services assigned to her in her case plans. Further, unlike C.G., the Mother in the instant case remedied the circumstances that initially brought her children into foster care. Basically, the Mother has done everything the Department has asked her to do — (1) she completed a Level of Care Assessment; (2) she submitted to a psychological evaluation, and she is compliant with her psychiatric appointments and taking the medications prescribed by her psychiatrist; (3) she attended parenting skills classes, and unlike C.G., the Mother's post-services scores increased dramatically; (4) she is attending family therapy; (5) she completed individual therapy, and the Mother voluntarily agreed to additionally therapy; and (6) she participated in a substance abuse program and has
Despite the Mother's significant efforts, completion of services, and tremendous progress, the Department argued and the trial court found that the Mother had not gained sufficient "insight." This determination was based primarily on a single incident that occurred a couple of days prior to the commencement of the TPR hearing. During one of the Mother's unsupervised visitations, the Mother told the Child that if the trial court terminated her parental rights and the Child stays with the foster mother, the Mother will move back to New York, the Child will never see the Mother again, and the Mother will have another girl. Following this statement, the Child became sad and reported this conversation to the foster mother. The Mother acknowledged during the TPR hearing that she was aware of the trial court's order prohibiting her and others from discussing the case unless the discussion took place in a therapeutic setting.
We agree with the trial court's determination that this conversation was inappropriate. However, this one isolated incident was insufficient to support the trial court's finding that the Mother failed to substantially comply with her case plan, warranting the termination of the Mother's parental
Accordingly, based on the above analysis, we conclude that there was a lack of competent, substantial evidence to support the trial court's finding that the Department established by clear and convincing evidence the statutory ground set forth in section 39.806(1)(e)1.
The Department also sought termination pursuant to section 39.806(1)(e)3., which permits the termination of parental rights when a child is adjudicated dependent, a case plan has been filed with the trial court, and
(emphasis added).
It is undisputed that the Child "has been in care for any 12 of the last 22 months." However, for the reasons previously stated, we conclude that there was a lack of competent, substantial evidence to support the trial court's finding that the Mother failed to substantially comply with her case plan and that the circumstances that caused the Child's out-of-home placement have not been "remedied to the extent that the return of the child to the home
The undisputed record evidence is that the Child remains bonded with the Mother, and several witnesses supported the reunification of the Mother and the Child. However, we do not need to address whether the trial court's findings that termination was in the manifest best interest of the Child and is the least restrictive means to protect the Child from serious harm are supported by clear and convincing
We do note, however, that despite the Mother's significant progress, the child therapist found that Child has "shown little, measureable improvement" since therapy began, and the Child does not "open up" during therapy as to her relationship with her Mother. Although the record is unclear as to why the Child does not "open up" during therapy, the record reflects that the Child has met with approximately five different therapists since being removed from the Mother's home and she did not receive therapy for at least three months.
The constant change of therapists may have contributed to the Child not opening up during therapy. As one expert testified at the TPR hearing, it takes approximately five sessions for a therapist to build "rapport" with a patient. Thus, it is unclear whether the Child's failure to "open up" about her Mother is attributable to some sort of past trauma or to the Child not receiving therapy for at least three months or from the Child being subjected to so many different therapists since being removed from the Mother's home. At this point, the Department should attempt to slowly reunify the Mother and Child and to coordinate therapy for the Child with the same therapist, if possible.
Accordingly, we reverse the order terminating the Mother's parental rights as to the Child, D.R.A., and remand for further proceedings consistent with this opinion.
Reversed and remanded.