author: SWANSON, J.

text:
    Jeremy HUNTER, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-5085.
    District Court of Appeal of Florida, First District.
    May 29, 2012.

      Charles L. Trúncale, Jacksonville, for Appellant.
    Pamela Jo Bondi, Attorney General, and Charlie McCoy, Assistant Attorney General, Tallahassee, for Appellee.
   SWANSON, J.

Appellant appeals the trial court’s denial of his motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. We reverse and remand for further proceedings.

I. History.

At a jury trial held in Leon County, Florida, on July 10, 2008, Appellant was found guilty of a single count of sexual battery on a physically helpless victim. A sentencing hearing was conducted on September 28, 2008, and Appellant was sentenced to 108 months in state prison. This Court per curiam affirmed the judgment and sentence as imposed. See Hunter v. State, 36 So.3d 88 (Fla. 1st DCA 2009).

On October 12, 2010, Appellant filed a timely motion for postconviction relief. The state’s response denied Appellant’s claims and requested an evidentiary hearing, which was held on July 25, 2011. At the conclusion of the evidentiary hearing, the postconviction motion claims were denied. No factual findings were made. The court simply stated:

I did review the transcripts in the case and I do not find from my hearing the testimony today and my review of the transcript that there was ineffective assistance of counsel. So, I deny the motion.

On August 3, 2011, the trial court issued an Order Denying Defendant’s 3.850 Motion “for the reasons stated on the record at the July 25, 2011 evidentiary hearing.”

II. Substantive Issues.

In his claim for postconviction relief, Appellant alleged two substantive claims of ineffective assistance of counsel. Those claims, as restated, are:

1. Did the trial court err by denying postconviction relief based on trial counsel’s failure to impeach the victim?

2. Did the trial court err by denying postconviction relief based on trial counsel’s failure to object to evidence that Appellant took the victim’s son for a motorcycle ride?

III. Analysis

To prevail on a claim of ineffective assistance of trial counsel, a defendant must demonstrate (1) trial counsel’s performance was deficient, and (2) there is a reasonable probability that the outcome of the proceeding would have been different without the deficient performance. See Spencer v. State, 842 So.2d 52, 61 (Fla.2008) (citing Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). Both prongs of the analysis involve mixed questions of law and fact, and only the trial court’s factual findings are to be afforded deference by appellate courts. See Stephens v. State, 748 So.2d 1028, 1033 (Fla.1999). As a result, the standard of review of the trial court’s findings of fact is whether they are supported by competent, substantial evidence. The trial court’s legal conclusions are reviewed de novo. Id. at 1033-34.

Here, the trial court did not make any factual findings either orally during the evidentiary hearing or in a written order. The trial court simply concluded it did not find that there was ineffective assistance of counsel. Florida Rule of Criminal Procedure 3.850(d) provides, in pertinent part, that “[i]f an evidentiary hearing is required, the court shall ... determine the issues, and make findings of fact and conclusions of law with respect thereto.”

The standard of review of the denial of a motion for postconviction relief following an evidentiary hearing requires deference to the trial court’s factual findings. See Brancaccio v. State, 27 So.3d 739 (Fla. 4th DCA 2010). Moreover, a fundamental principle of appellate procedure is that an appellate court is not empowered to make findings of fact. See Farneth v. State, 945 So.2d 614, 617 (Fla. 2d DCA 2006). See also Thomas v. State, 954 So.2d 56 (Fla. 1st DCA 2007). When the trial court does not make factual findings at the evidentiary hearing or in the written order, “this court cannot independently review the sufficiency of the court’s conclusion under the prejudice prong.” Kornegay v. State, 826 So.2d 1081, 1081 (Fla. 1st DCA 2002). Therefore, the proper remedy is to direct the trial court on remand to determine whether it can make the necessary findings and conclusions based upon the record that will show the defendant was not entitled to relief. Id. In Thomas, this Court observed that even though the record clearly contained competent, substantial evidence upon which the trial court could have relied in denying the defendant’s claim the failure of the trial court to make the requisite findings compelled this Court to remand the case to the trial court so that it could make the required findings. See 954 So.2d at 57 and n. 1.

Based on the foregoing, we REVERSE the trial court’s final order and REMAND for the trial court to make findings of fact and draw legal conclusions of law regarding Appellant’s claims.

ROWE, and MARSTILLER, JJ„ concur.


source: Caselaw Access Project

author: CIKLIN, J.

license: Public Domain

text:
    GLENN B. WRIGHT CONSTRUCTION AND DEVELOPMENT, INC., a Florida corporation, and Glenn B. Wright, Jr., individually, Appellants, v. Allan COHARA, Chase Home Finance LLC, Independent Title of Broward County, Inc., and Magdits Appraisals, Inc., Appellees.
    No. 4D11-3603.
    District Court of Appeal of Florida, Fourth District.
    May 30, 2012.
    Lilliana M. Fariñas-Sabogal, Perry M. Adah- and Kevin Markow of Becker & Poliakoff, P.A., Miami, for appellants.
    Charles D. Barnard of Charles D. Barnard, P.A., Wilton Manors, for appellee Allan Cohara.
   CIKLIN, J.

Glenn B. Wright, Jr. (“Wright”) appeals a non-final order denying his motion to compel arbitration of his dispute with Allan Cohara (“Cohara”). We affirm the order because Wright waived his right to arbitration by taking actions inconsistent with his arbitration rights.

Wright is the owner and principal of Glenn B. Wright Construction and Development, Inc. (“Wright Construction”). Wright Construction entered into a Standard Purchase Agreement (the “Contract”) with Cohara whereby Wright Construction was to construct a house for Cohara. The Contract contained an arbitration provision providing, “Any dispute or claim arising under or with respect to this agreement will be resolved by arbitration.... ”

One month later, the parties signed an “Addendum” to the Contract whereby Wright, who was not a party to the original Contract, individually agreed “to buy back the residence ... during the first year of ownership for a purchase price of $1,350,000” if Cohara could not sell the property after listing it in good faith with a licensed real estate broker for six months. Additionally, the Addendum concluded by stating that “[t]he above provisions and amendments are the only changes to the Contract and have no effect on the balance of the agreement.” The Addendum was signed by Cohara, Wright Construction, and Wright, individually.

In November 2007, Cohara filed a complaint against both Wright Construction and Wright, individually (collectively referred to as the “defendants”), alleging that they breached the Contract and Addendum by failing to buy back the residence. In January 2008, the defendants filed, as their first response to the complaint, a motion to compel arbitration and to either dismiss the suit or to stay the case pending the outcome of arbitration.

There is nothing in the record indicating that the defendants did anything further to procure a ruling on their motion. In August 2008, however, the defendants participated in discovery by serving a request for production of documents on Cohara. In November 2008, Cohara filed a second amended complaint which contained the same causes of action against the defendants but now included additional parties and separate counts against those additional parties. In response to the second amended complaint, the defendants filed an answer and affirmative defenses but did not move to compel arbitration.

Finally, in September 2009, Cohara filed a third amended complaint. The counts and allegations against the defendants remained unchanged. On May 6, 2011 (more than one and a half years after the third amended complaint was filed), Wright individually filed a motion to dismiss the third amended complaint or to stay the matter pending arbitration. On August 29, 2011, the trial court entered an order denying Wright’s request for arbitration. Wright now appeals that ruling.

We review a trial court’s order denying a motion to compel arbitration de novo. BGT Grp. v. Tradewinds Engine Servs., 62 So.3d 1192, 1194 (Fla. 4th DCA 2011). “[T]here are three elements for courts to consider in ruling on a motion to compel arbitration of a given dispute: (1) whether a valid written agreement to arbitrate exists; (2) whether an arbitrable issue exists; and (3) whether the right to arbitration was waived.” Id. (quoting Seifert v. U.S. Home Corp., 750 So.2d 633, 636 (Fla.1999)).

First, we agree with Wright that a valid written agreement to arbitrate exists between him and Cohara. While Wright, individually, was not a party to the original Contract, he was a party to the Addendum. The plain language of the Addendum, however, makes it clear that the Addendum was intended to be a modification to the original Contract which incorporated all the terms of the Contract. The first paragraph of the Addendum specifically identifies the Contract that it is modifying by the title of the Contract, the parties to the Contract, and the date the Contract was signed. The final paragraph specifies that the “above provisions and amendments are the only changes to the Contract and have no effect on the balance of the agreement.” Thus, the plain language of the Addendum shows that the intent of the parties was for the Addendum to serve as a contract modification that incorporated all of the terms of the original Contract. See Crawford v. Barker, 64 So.3d 1246, 1255 (Fla.2011) (“Where the terms of a contract are clear and unambiguous, the parties’ intent must be gleaned from the four corners of the document. In such a situation, the language itself is the best evidence of the parties’ intent, and its plain meaning controls.” (citations and quotation marks omitted)).

Although a valid written arbitration agreement exists and it is undisputed that the subject matter of this controversy falls within the scope of that agreement, we affirm the trial court’s order denying Wright’s motion to compel arbitration because Wright waived his right to arbitrate by taking actions inconsistent with that right. See Price v. Fax Recovery Sys., 49 So.3d 835, 837 (Fla. 4th DCA 2010) (“A party’s arbitration rights may be waived by taking action inconsistent with its arbitration rights.”).

While Wright’s first response to the initial complaint was a motion to compel arbitration, he took no action on that motion for more than three and a half years, and instead propounded discovery and took other actions to attack the merits of the case. See Green Tree Servicing, LLC v. McLeod, 15 So.3d 682, 687 (Fla. 2d DCA 2009) (“A party who timely asserts the right to arbitration may still waive the right by later conduct that is inconsistent with the arbitration request.”).

In August 2008, Wright participated in discovery which was related to the merits of the case by propounding a request for production of documents on Cohara. By propounding discovery without first trying to obtain a ruling on the motion to compel arbitration which he had filed seven months earlier, Wright waived his right to arbitrate. See Gordon v. Shield, 41 So.3d 931, 933 (Fla. 4th DCA 2010) (“[T]he active participation in litigation or the propounding of discovery would be circumstances where the right to arbitrate would be deemed waived.” (emphasis added)).

Additionally, Wright took other actions which were inconsistent with his right to arbitrate. In November 2008, Cohara filed a second amended complaint. Wright filed an answer with affirmative defenses, but did not move to compel arbitration (either as an affirmative defense or as a separate motion). See Bland, v. Green Acres Grp., 12 So.3d 822, 824 (Fla. 4th DCA 2009) (“Filing an answer without claiming the action should be referred to arbitration waives the right to arbitrate.”). In September 2009, Cohara filed a third amended complaint. Wright then waited more than one and a half years before filing a motion to compel arbitration. Wright’s inaction constituted conduct that was inconsistent with his right to arbitrate. Even if this long delay were not inconsistent with the right to arbitrate, Wright’s earlier actions already constituted a waiver and he could not reclaim his arbitration right without Cohara’s consent. See McLeod, 15 So.3d at 687 (“[OJnce a party has waived the right to arbitration by active participation in a lawsuit, the party may not reclaim the arbitration right without the consent of his or her adversary.”).

For these reasons, we affirm the order of the circuit court denying Wright’s motion to compel arbitration.

Affirmed.

TAYLOR and GERBER, JJ., concur.


author: CONNER, J.

text:
    D.B., the father, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 4D11-3372.
    District Court of Appeal of Florida, Fourth District.
    May 30, 2012.
    Karen Martin, West Palm Beach, for appellant.
    Hillary S. Kambour, Appellate Counsel, Guardian ad Litem Program, Tavares, and Jeffrey Dana Gillen, CLS Chief Appellate Counsel, Department of Children and Families, West Palm Beach, for appellee.
   CONNER, J.

D.B. (“the Father”) appeals the termination of his parental rights to his child Z.S. (“the Child”). The Department of Children and Families (“the Department”) petitioned to terminate the Father’s parental rights under section 39.806(l)(c), Florida Statutes (2010), which allows termination of parental rights when a parent engages in conduct that demonstrates his continued involvement as a parent threatens the life, safety, well-being, or physical, mental, or emotional safety of the Child. He contends the trial court erred because he was never offered a case plan, despite his request for one. Finally, he contends the Department failed to prove termination of parental rights was the least restrictive alternative to protect the Child. We affirm the judgment of the trial court.

Factual Determinations By The Tnal CouH

The lengthy final judgment contains numerous findings of fact based on evidence the trial court determined to be clear and convincing.

At the time of the adjudicatory hearing, the Child was two years and one month old. He was removed from the mother three days after birth because the mother had severe untreated mental health issues. One year after removal, the Child was adjudicated dependent with the consent of the mother. At that time, the father of the Child was unknown because the mother refused to identify him. When the Child was almost a year and a half old, the mother finally identified the Father as the biological father. Paternity was confirmed by DNA testing.

After paternity was confirmed, the Father began weekly supervised visits with the Child and established a bond with him. The visitations went well. A home study of the Father’s home found it to be clean and without safety hazards. The Father was employed part time and also received social security benefits for mental health reasons. He lived alone, but had an extended family nearby who assisted him. His mother managed his money. Because the Father suffered from mental illness, the home study did not recommend placing the Child with the Father. After the Department obtained and reviewed the psychological records of the Father, the Department petitioned to terminate the parental rights of both parents. The mother was offered a case plan; the Father was not offered one.

The Father had been diagnosed in 2001 with psychosis and schizoaffective disorder. As early as 2003, he became connected to mental health outpatient treatment facilities which offered medication and therapy. The goal of the treatment plan was to control or eliminate symptoms of paranoia and delusions and to promote daily compliance with medication. Records regarding his mental health treatment over the years were introduced into evidence. Those records totaled approximately 257 pages. The final judgment notes the records are replete with references to the Father’s poor compliance with medication, poor or guarded prognosis, poor or limited insight and judgment, and various instances of active hallucinations and delusional behavior. The Father was hospitalized five times for mental health problems. As late as May 2006, he was unsure of his diagnosis, and in July 2009, it was reported that he had poor insight into his illness.

A psychological evaluation ordered as part of the termination proceedings confirmed the Father suffered from paranoid schizophrenia. It revealed the Father was fairly consistent with taking his medication in 2008, 2009, and the first two months of 2010. Then, he stopped all medication until May 2010, when he received medication by injection. The plan was to administer medication by injections because the Father would not consistently follow his medication regime. However, he failed to return for the injections. At the time of his court-appointed evaluation, he had not taken any medication for approximately five months and was responding to internal stimuli.

The court-appointed psychologist testified at trial that the Father did not fully understand his illness and the importance of his medication. He further opined that unless the Father was stabilized on medication, he would not be able to understand and come to terms with his illness. The expert testified the Father’s history of noncompliance with taking medication and attending treatment is one of the strongest predictors of whether he would be compliant in the future. He opined that the Father had a 33% chance of taking his medicine. The expert further expressed concern that the Father would not be able to meet a necessary predicate for achieving stability with his disorder because he failed to understand his illness. He testified that schizophrenia affects the Father’s ability to parent because his perceptions of reality can become distorted and inaccurate. If the person is hallucinating or having delusions, those distortions can cause him to harm his child.

Regarding proof that the child’s life, safety, or health would be threatened by a continued interaction with the parent regardless of the provision of services, the trial court found:

[The court appointed expert’s] testimony in conjunction with [the Father’s] medical records from South County show an eight (8) to ten (10) year history of unsuccessful attempts by various mental health professionals and case managers to get [the Father] to become medication compliant. This- Court must and does find that any further attempts would meet with the same futility.... As a result of [the Father’s] eight to ten year history of lack of medication compliance,- not recognizing the seriousness of his mental illness, poor insight and judgment, and poor prognosis, there is no reasonable basis to believe he will improve sufficiently to entrust this child to his exclusive care and control.

Those same findings led the trial court to find a nexus between the conduct of the Father and the prospective abuse, neglect, or harm to the Child if placed with the Father. They also led the trial court to find that because there is no reasonable basis to believe the Father will improve to the point of being able to appropriately care for the Child, termination of parental rights was the least restrictive alternative to protect the Child from harm.

Legal Analysis

Prospective Neglectful Conduct Will Harm the Child in the Future

Section 39.806(l)(c), Florida Statutes (2010), allows termination of parental rights:

When the parent or parents engaged in conduct toward the child or toward other children that demonstrates that the continuing involvement of the parent or parents in the parent-child relationship threatens the life, safety, well-being, or physical, mental, or emotional health of the child irrespective of the provision of services. Provision of services may be evidenced by proof that services were provided through a previous plan or offered as a case plan from a child welfare agency.

The Father contends the Department failed to prove that he engaged in conduct that demonstrates his continued involvement as a parent threatened the life, safety, well-being, or physical, mental, or emotional safety of the Child. In support of his argument, the Father cites M.H. v. Department of Children and Families, 866 So.2d 220 (Fla. 1st DCA 2004). The First District reversed termination of the mother’s parental rights because there was no evidence her drug addiction caused harm to the children. In that case, the mother had the foresight to place her children in a group home operated by a church while she sought inpatient drug treatment. Even though she relapsed twice during the year that the children were in the group home, the mother immediately sought further inpatient treatment without the necessity of referrals by others. The First District determined the evidence showed the mother had a strong desire to overcome her addiction.

The evidence in this case is not at all comparable to the evidence in M.H. In this case, the evidence clearly and convincingly proved the Father repeatedly failed to take medication and seek treatment. He sometimes would go months with no medication. Unlike M.H., the evidence in this case showed the Father did not understand his illness, and despite repeated efforts to make him understand the need for medication and therapy, the Father would not comply with his treatment plan.

The testimony of the court-appointed expert in this case clearly and convincingly proved the Child would be at risk if placed with and parented by the Father. The expert testified that when the Father is not on medication, he becomes delusional. At the time of his evaluation, the Father was responding to internal stimuli. He opined that based on prior history the Father has a 33% chance of complying with taking his medicine. He testified the Father’s schizophrenia affects his ability to parent because his perceptions of reality become distorted and inaccurate. When the Father is responding to internal stimuli and is unable to recognize what is happening, those distortions can cause him to harm the Child.

Before prospective abuse or neglect arises as a valid ground for termination, the evidence must show a parent’s past conduct or current mental condition makes the risk of future harm to the child likely. Hroncich v. Dep’t of Health & Rehabilitative Servs., 667 So.2d 804 (Fla. 5th DCA 1995). Moreover, there must be no reasonable basis to conclude that past behaviors will improve. Palmer v. Dep’t of Health & Rehabilitative Servs., 547 So.2d 981 (Fla. 5th DCA 1989). We are satisfied the trial court correctly determined the Department clearly and convincingly proved the Child would prospectively suffer abuse or neglect while in the care and control of the Father, and there is no reasonable basis to conclude the Father’s past noncompliance with treatment for schizophrenia will improve.

We recently issued an opinion in I.Z. v. B.H. and R.M., 53 So.3d 406 (Fla. 4th DCA 2011). Similar to this case, the mother suffered from mental illness. The child was placed in a permanent placement with the grandparents. The grandparents then sought to terminate the mother’s parental rights on three grounds, one of which was section 39.806(1)(c). In reference to that section, we said:

[T]he statute clearly provides that termination of one’s parental rights is warranted where the parent’s conduct toward the child or toward other children demonstrates a threat to the child’s well being. Evidence of a parent’s mental health issues, without evidence that those issues manifested themselves in behavior that poses a risk to the child’s well-being, is insufficient to justify termination of parental rights under this subsection.

Id. at 409. (Emphasis in original.) We denied the termination of parental rights because the only evidence which might have supported a finding that the mother’s conduct toward the child would be harmful was conduct during a visitation session prior to the permanent placement with the grandparents. We determined the trial court should have given minimal weight to such evidence. Unlike this case, the evidence was insufficient to prove that the parent’s mental illness was likely to pose a risk to the child in the future. The emphasis given to the statutory language “toward the child or toward other children” was to make the point that for past conduct to be used to prove a future likelihood of significant harm as a basis for terminating parental rights, the focus must be whether the future conduct of the parent will be harmful to the child at issue. In the very next sentence we pointed out that evidence of mental health issues is insufficient to warrant termination of parental rights unless it results in “behavior that poses a risk to the child’s well-being.” Id.

This case has some similarity to the circumstances presented by In the Interest of J.L.P., 416 So.2d 1250 (Fla. 4th DCA 1982). In that case, the mother suffered from mental retardation. Similar to this case, the child was taken into shelter protection by the Department the day after he was born, and the child was never in the mother’s care. Also similar to this case, there was expert testimony that if the child were left alone with the mother, he would be subject to considerable risk of abuse because of the mother’s inability to think in terms of the child’s welfare. We see little difference in risk of harm to a child between a parent mentally unable to understand and appreciate the needs of a child and a parent who is experiencing a delusion and unable to appreciate the reality of a situation’s harm to a child. In J.L.P., the mother argued that her parental rights could not be terminated on a theory of prospective neglect because she never had custody of the child. In response to that argument, we wrote:

Our sympathy for the mother cannot blind us to the overriding concern for the welfare of the child. We cannot help the one and shall not harm the other. As the trial court pointedly observed in his final order, placing the boy with his mother will assure mistreatment. The Legislature clearly did not intend to have a child suffer such an experience before a trial court could act. Because of the clear and convincing evidence that neglect and abuse will occur if the child is placed in the care of his mother, we affirm [the termination of parental rights].

Id. at 1253.

Our case law and statutory law clearly recognizes that parental rights are subject to the overriding principle that it is the ultimate welfare and best interest of the child which must prevail. Caso v. Dep’t. of Health & Rehabilitative Servs., 569 So.2d 466, 468 (Fla. 3d DCA 1990); In Interest of J.A., 561 So.2d 356 (Fla. 3d DCA 1990); In Interest of M.J., 543 So.2d 1323, 1324 (Fla. 4th DCA 1989); In Interest of Baby Boy A, 544 So.2d 1136, 1137 (Fla. 4th DCA 1989). See also In Interest of J.L.P., 416 So.2d at 1252; 39.001(1)(b)l, Fla. Stat. (2011) (purpose of chapter 39 includes “[t]o preserve and strengthen the child’s family ties whenever possible, removing the child from parental custody when his or her welfare cannot be adequately safeguarded without such removal”). The evidence in this case clearly and convincingly shows it will not be safe to place the Child with the Father in the future.

No Case Plan for the Father

The Father also contends the trial court erred in terminating his parental rights without offering a case plan to allow him an opportunity to show he can parent the Child with the provision of services. In support of this argument, the Father relies on I.R. v. Department of Children and Families, 904 So.2d 583 (Fla. 3d DCA 2005). I.R. is factually very distinguishable from this case.

In I.R., the Third District reversed the termination of the mother’s parental rights because the evidence showed the mother was not offered a reasonable opportunity to complete the case plan offered to her by the Department. The Third District also determined that the case plan offered by the Department was based on an incorrect diagnosis of paranoid schizophrenia, when in fact the mother suffered from bipolar disorder. Thus, the provisions of services under the case plan did not appropriately address her mental health needs. The evidence also did not support the trial court’s finding that the mother was in denial that she was mentally ill. Initially the mother was in denial of her illness, which is a symptom of bipolar disorder. As a result of the court-ordered evaluation, she accepted her diagnosis and was amenable to treatment. The Third District also noted that the trial court made no reference in the final judgment to the testimony of the court-appointed expert. In that case, it was significant that the court-appointed expert opined that with appropriate treatment it was likely the mother would improve her parenting abilities and the risk of future neglect was not high. Finally, the Third District was persuaded by the fact that all of the mother’s allegedly neglectful conduct predated the order determining the child to be dependent. The mother did not engage in conduct that could be deemed neglectful after the child was removed.

Unlike I.R., in this case there is no issue of misdiagnosis. In the final judgment, the trial court relied heavily upon the testimony of the court-appointed expert. The court-appointed expert opined the Father did not appreciate the seriousness of his condition despite treatment for at least eight years. The expert also opined the risk of future neglect of the Child by the Father was high due to the Father’s inability to comply with his medication regime. Also, in this case the Father was engaging in neglectful conduct (failing to take medication and responding to internal stimuli) at the time of his court-ordered evaluation. Because it is so factually distinguishable, I.R. is neither controlling nor helpful to our analysis.

Our research reveals no cases in Florida in which a termination of parental rights under section 39.806(l)(c) was upheld and no case plan was offered to the parent. The Department cited no such cases. However, we found one case which discussed a situation where the Department sought termination under section 39.806(l)(c) and no case plan was offered to the parent. The case is from this district.

In W.R. v. Department of Children and Family Services, 896 So.2d 911 (Fla. 4th DCA 2005), similar to this case, the child, S.R., was sheltered with the Department the same day he was born. The trial court terminated W.R.’s parental rights after finding she did not successfully complete a case plan for her two older children and her parental rights were terminated as to those children. W.R. had been arrested at least twenty times and was out of jail a few weeks before S.R. was born. She faced new charges shortly after S.R. was born. As a result of the new offenses, one of which was strong arm robbery, W.R. was serving a four-year prison sentence at the time of the termination trial. The trial court also found no evidence that W.R. had addressed the mental health and substance abuse issues in the prior termination case. Also similar to this case, the Department sought termination of parental rights as to S.R. without offering W.R. a case plan.

In W.R., we noted that the evidence did not support some of the findings of the trial court. We also said that the record did not disclose or support the trial court’s finding that the mother would not be amenable to services. We determined there was no competent substantial evidence to rebut the mother’s testimony at trial that if she was offered a case plan she would do whatever was necessary to comply with the case plan. Based on the record in that case, we denied the termination of parental rights because the evidence did not show that termination was the least restrictive means of protecting S.R. Id. at 915-16.

In W.R., we discussed another case from this district, C.B. v. Department of Children Families, 874 So.2d 1246 (Fla. 4th DCA 2004), because it seemed factually similar. In C.B., the mother did not comply with a case plan offered for an older child and her parental rights were terminated as to that child. The mother also led a life of crime resulting in periods of incarceration. She was offered a case plan as to the second child, but the Department sought to terminate her parental rights as to the second child before she had an opportunity to complete the case plan. The trial court found the mother was not amenable to services even though she was attending parenting classes. We determined the finding that the mother was not amenable to services was based on speculation. We further determined the evidence did not support a finding that termination was the least restrictive alternative to protect the child.

Unlike W.R. and C.B., the evidence in this case clearly and convincingly established that the Father is not amenable to services. Despite years of mental health services designed to assist him with appreciating the seriousness of his condition and the need for medication, the court-ordered evaluation relied upon by the trial court revealed the Father had poor insight into his illness, was responding to internal stimuli, and had not taken any medication for five months prior to the evaluation. The evidence also showed this was a consistent pattern of behavior for over eight years and there was only a 33% chance that the Father would comply with taking medication in the future. Thus, the evidence that the Father was not amenable to services was not speculative.

In R.W.W. v. Department of Children and Families, 788 So.2d 1020 (Fla. 2d DCA 2001), the Second District stated:

[I]n order to terminate parental rights under section 39.806(l)(c), the trial court must find that the child’s life, safety, or health would be threatened by continued interaction with the parent regardless of any services provided to the parent. In essence, the trial court must find that any provision of services would be futile or that the child would be threatened with harm despite any services provided to the parent.

Id. (emphasis added). Citing R.W.W., the First District reversed a termination in N.L. v. Department of Children and Family Services, 843 So.2d 996, 997 (Fla. 1st DCA 2003), in part because there was “no evidence of the provision of services (or the futility of providing services) necessary for termination under subsection [39.806](l)(c) .... ” (emphasis added). The evidence in this case supports the trial court’s determination that the provision of any further services to the Father would be futile.

In M.A.P. v. Department of Children and Families, 739 So.2d 1287 (Fla. 5th DCA 1999), a mother suffering from drug addiction contended termination of her parental rights was inappropriate because the Department rendered insufficient assistance to allow her to succeed in her case plan. The evidence showed, throughout the dependency proceeding, the mother denied her need for drug treatment. In upholding the termination, the Fifth District observed, “The Department, however, cannot force the appellant to attend [drug treatment] meetings....” Id. at 1288. Although the Fifth District did not discuss the futility of services, it appears implicit the appellate court agreed with the trial court that the case plan was futile because the mother denied the need for treatment. In terms of futility, we see little difference between the situation where a parent denies the need for drug treatment and the situation where a parent cannot appreciate the need for treatment due to mental illness.

In this case, the evidence clearly and convincingly showed the Father was provided treatment services for mental illness by mental health agencies for approximately eight years. Those treatment services would have ameliorated conduct which would be harmful for parenting a child. As the court-ordered psychological evaluation showed and the trial court found, even after he received notice of the termination proceedings, the Father failed to follow the treatment plan. The fact that the Father was not a parent for seven of the eight years of the treatment plan and did not know he was in fact the biological father of the Child during the eighth year of his treatment plan does not alter our conclusion that the trial court did not err: irrespective of all the services he has received over the years, the provision of further services would have been futile, and it was not speculative for the trial court to conclude that the threat of harm to the child would continue despite the provision of services. We hold that under the facts of this case, the Department did not have to offer a case plan prior to terminating the Father’s parental rights under section 39.806(l)(c).

We also note there is no statutory obligation to offer a parent a case plan prior to termination of parental rights. Section 39.806(3) states that if a petition for termination of parental rights is filed under subsection (1), “the department need not offer the parents a case plan having a goal of reunification, but instead may file with the court a case plan having a goal of termination of parental rights.... ”

Least Restrictive Alternative

In A.W. v. Department of Children and Families, 969 So.2d 496 (Fla. 1st DCA 2007), the mother was developmentally disabled. The Department offered her a case plan, and the mother facially complied with it, including attending parenting classes. However, the evidence clearly showed that despite the provision of services, her mental deficiencies prevented her from comprehending and implementing the parenting information provided to her. One of the grounds found by the trial court for terminating her parental rights was section 39.806(l)(c). On appeal, the mother contended, among other things, that termination of her parental rights is not the least restrictive means to protect the child from harm. In analyzing that issue, the First District said:

“Least restrictive means” analysis embodies due-process concerns. Before depriving someone of a fundamental right, such as the right to parent, the State must demonstrate a compelling interest and further such an interest through the least intrusive and restrictive means. [Citations omitted.] “This means that [the Department] 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.”

A.W., 969 So.2d at 504 (quoting Padgett v. Dept. of Health Rehabilitative Servs., 577 So.2d 565, 571 (Fla.1991)). The First District determined that the Department made reasonable and good faith efforts to reunify the child with the mother by providing more than three years of services on how to parent a child; however, the provision of services was futile to protect the child from harm, so termination was the least restrictive alternative to provide that protection.

In this case, the Father had over eight years of services which would have ameliorated the conduct deemed harmful to the child. Even after receiving notice of the termination proceedings, he failed to benefit from the services offered and failed to follow his treatment program. If the provision of three years of services was futile and supported a finding that termination of parental rights as the least restrictive alternative in A.W., where the mother facially complied with her treatment plan, certainly the provision of services for over eight years to the Father, which proved to be futile, supports the conclusion that termination of parental rights is the least restrictive alternative to protect the Child from harm.

We affirm the termination of the Father’s parental rights.

Affirmed.

CIKLIN and GERBER, JJ., concur.

      . The mother’s parental rights were terminated by constructive consent after she failed to appear at the adjudicatory hearing. No issue is raised on appeal about the termination of the mother's parental rights.

      . We also note two other factual distinctions between I.Z. and this case. Neither the opinion nor the record identified the diagnosis of the mother’s mental illness. The record does not suggest she suffers from paranoid schizophrenia or becomes delusional as the Father in this case does. Also, the child in I.Z. was nine years old at the time of the termination trial. She testified that she is not afraid of her mother and wanted to continue to have a relationship with her. Although the record does not clearly show it, it may well be the child in I.Z. could cognitively understand her mother suffered from mental illness and would understand the need to seek help if she were in a compromised position while in her mother’s care. In this case, the Child was approximately two years old at the time of the termination hearing, and it is doubtful the Child had the cognitive skills to recognize his father suffers from mental illness.


author: PER CURIAM.

text:
    AAA-STAR BAIL BONDS and Continental Heritage Insurance Company, Appellants, v. STATE of Florida and Clarisa D. Cardozo, Appellees.
    No. 4D10-4913.
    District Court of Appeal of Florida, Fourth District.
    May 30, 2012.
    Glenn H. Mitchell, West Palm Beach, for appellants.
    L. Denise Coffman, West Palm Beach, for appellee State of Florida.
   PER CURIAM.

Affirmed. See Polakoff Bail Bonds v. Orange Cnty., 634 So.2d 1083 (Fla.1994).

MAY, C.J., HAZOURI and GERBER, JJ., concur.


text:
    Lyndon Bayne JOHNSON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D12-1683.
    District Court of Appeal of Florida, First District.
    June 1, 2012.
    Matt Shirk, Public Defender, and Richard B. Gordon, Assistant Public Defender, Jacksonville, for Petitioner.
    Pamela Jo Bondi, Attorney General, and Trisha Meggs Pate, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. Petitioner shall be allowed a belated appeal from the December 5, 2011, judgment and sentence, in Duval County Circuit Court case number 16-2010-CF-10075-AXXX-MA. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as the notice of appeal. Fla. R.App. P. 9.141(c)(5)(D).

BENTON, C.J., THOMAS and SWANSON, JJ., concur.


text:
    GATOR INVESTMENT & DEVELOPMENT, LLC, Petitioner, v. MACOR REALTY, INC., and Elisia (“Lisa”) Mason Beuning, Respondents.
    No. 1D12-1101.
    District Court of Appeal of Florida, First District.
    June 1, 2012.
    Robert A. Stok and Rebecca L. Rhew of Stok Folk & Kon, P.A., Aventura, for Petitioner.
    T. Scott Frazier of Terry and Frazier, P.A., Orlando, for Respondents.
   PER CURIAM.

By petition for writ of prohibition, petitioner Gator Investment & Development, LLC, seeks review of the lower tribunal’s order denying petitioner’s motion for disqualification. We have jurisdiction. See, e.g., Lusskin v. State, 717 So.2d 1076, 1077 (Fla. 4th DCA 1998).

Upon review, we find that the motion for disqualification was timely and legally sufficient. The petition is therefore granted and the trial judge is directed to enter an order of disqualification which requests the chief circuit judge to appoint a successor judge.

BENTON, C.J., THOMAS and SWANSON, JJ., concur.


text:
    Brandon JOHNSON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D12-2158.
    District Court of Appeal of Florida, First District.
    June 1, 2012.
    Michael Ufferman of the Michael Uffer-man Law Firm, P.A., Tallahassee, for Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. Petitioner shall be allowed a belated appeal from the January 25, 2012, Order Denying Fourth Amended Motion for Postconviction Relief, in Santa Rosa County Circuit Court case number 03-13-CFA. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as the notice of appeal. Fla. R.App. P. 9.141(c)(5)(D).

BENTON, C.J., THOMAS and SWANSON, JJ., concur.


text:
    Tyrone D. BLACKSHEAR, Petitioner, v. STATE of Florida, Respondent.
    No. ID12-2092.
    District Court of Appeal of Florida, First District.
    June 1, 2012.
    Matt Shirk, Public Defender, and J. Mark Wright, Assistant Public Defender, Jacksonville, for Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. Petitioner shall be allowed a belated appeal from the March 1, 2012, judgment and sentence, in Clay County Circuit Court case number 2010-CF-1886. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as the notice of appeal. Fla. R.App. P. 9.141(c)(5)(D).

BENTON, C.J., THOMAS and SWANSON, JJ., concur.


author: PER CURIAM. MAKAR, J.,

text:
    Steven Allen MATTISON, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-1950.
    District Court of Appeal of Florida, First District.
    June 1, 2012.
    Katharine B. Heyward, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Giselle D. Lylen, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED.

WOLF and RAY, JJ., concur.

MAKAR, J., concurs With Opinion.

MAKAR, J.,

concurring.

While I concur in affirmance, I note that the prosecutor’s arguments to the jury raise a number of significant concerns that might otherwise result in reversal but for the lack of full and timely objections. The totality of these arguments, which push fundamental error analysis to the brink, unnecessarily injected potential legal error in this case for no valid purpose. Affir-mance in this case does not condone the arguments at issue; it is required only because the fundamental error threshold was ascended but not reached.


author: PER CURIAM. BENTON, C.J.,

text:
    JACKSONVILLE TRANSPORTATION AUTHORITY, Appellant, v. TITUS HARVEST DOME SPECTRUM CHURCH, INC., a Florida Non-Profit Corporation, Titus Shekinah Evangelistic Harvest Dome Church, Inc., a Florida Non-Profit Corporation, City of Jacksonville, a municipal Corporation of the State of Florida, GBR Group, Ltd., a Florida limited partnership, Sprintcom, Inc., a foreign corporation licensed to do business in the State of Florida, Verizon Wireless Personal Communications LP, d/b/a Verizon Wireless, a foreign corporation licensed to do business in the State of Florida, Jacksonville Electric Authority, a body politic and corporate, Mike Hogan, Tax Collector, Duval County, Florida; if alive, or if dead, any unknown spouses, heirs, devisees, grantees, creditors and all parties claiming interest, by, through under or against defendant named in this action, and all persons having or claiming to have any right, title or interest in the property herein described, Appellees.
    No. 1D11-3206.
    District Court of Appeal of Florida, First District.
    June 1, 2012.

      Ronald R. Austin of Austin & Austin, Jacksonville, Richard Milian and Edgar Lopez of Broad and Cassel, Orlando, and Beverly A. Pohl of Broad and Cassel, Fort Lauderdale; for Appellant.
    Tyrie A. Boyer and Herbert T. Sussman of Boyer, Tanzler & Sussman, P.A., Jacksonville, for Appellees.
   PER CURIAM.

AFFIRMED.

MARSTILLER and SWANSON, JJ., concur; BENTON, C.J., concurs in part and Dissents in part with Opinion.

BENTON, C.J.,

concurring in part and dissenting in part.

Except as to portions of the AVA Engineers, Inc. (AVA) order, I concur in the affirmance of the three post-judgment orders entered in favor of Titus Harvest Dome Spectrum Church, Inc. (Church) awarding costs incurred in defending an eminent domain proceeding instituted pursuant to section 73.091, Florida Statutes (2008). A portion of the costs awarded to AVA for services it rendered to the Church is duplicative of the “cost to cure” plan the Church presented to the jury at trial as part of its proof of damages. Treating these AVA services as costs as well as part of the Church’s “cost to cure” sought as damages was improper. The damages awarded by the jury greatly exceeded and presumptively included the “cost to cure.” See Dade Cnty. v. Cross, 127 So.2d 141, 142 (Fla. 3d DCA 1961), overruled in part on other grounds by Chatlos v. City of Hallandale, 220 So.2d 353 (Fla.1968).

       "In effect, the 'cost to cure’ is the cost of an attempt to ameliorate the damage to value sustained by the property as a result of the partial taking by the government.” Fla. Dep't of Transp. v. Annadillo Partners, Inc., 849 So.2d 279, 285 (Fla.2003). The "cost to cure” is an appropriate component of a damages award when there has been a partial taking. Id.


text:
    M.M., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-185.
    District Court of Appeal of Florida, Third District.
    June 6, 2012.
    Carlos J. Martinez, Public Defender, and Michael T. Davis, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Heidi Milan Caballero, Assistant Attorney General, for appellee.
    Before SHEPHERD and EMAS, JJ., and SCHWARTZ, Senior Judge.
   CORRECTED OPINION

PER CURIAM.

On Appellant’s motion for rehearing or clarification, we withdraw our previously-issued opinion and issue the following opinion in its place.

Appellant, M.M., appeals the trial court’s finding and adjudication of delinquency on the charges of grand theft and burglary. As to the grand theft charge, the State properly concedes that the evidence presented at the adjudicatory hearing was insufficient to establish that the value of the property was $300 or more. See § 812.041(2)(c)l, Fla. Stat. (2009); AD. v. State, 30 So.3d 676 (Fla. 3d DCA 2010). Therefore, we reverse the adjudication of delinquency as to the grand theft charge and remand with directions to enter an adjudication of delinquency for petit theft.

Finding no merit as to the remaining points on appeal, we affirm the trial court’s findings and adjudications in all other respects. See Sorey v. State, 419 So.2d 810, 813 (Fla. 3d DCA 1982) (holding that where fingerprints “are located in a place, on an object, or on a particular part of an object to which the general public does not have access, the hypothesis that the print was not placed on the object at the time of the crime is not one which the court must declare reasonable as a matter of law, and it remains for the jury to determine its reasonableness.... [S]uch proof, standing alone, is legally sufficient, and the jury may infer from it that the print was made at the time of the crime”); Roberts v. State, 268 So.2d 578 (Fla. 3d DCA 1972) (holding motion for judgment of acquittal properly denied where defendant’s fingerprints were found on kitchen doorjamb, on cigarette lighter in bedroom, and on windowsill in bedroom; prints were left in a private home in areas or on objects not accessible to general public); Summerson v. State, 200 So.2d 594 (Fla. 3d DCA 1967) (holding fingerprint evidence sufficient to support conviction where dentist’s office was broken into and defendant’s fingerprint was found on a file cabinet located in a private area not accessible to patients or the general public).

Affirmed in part, reversed in part, and remanded.