Second DCA Dodges 39.806(1)(l) Retroactivity Question

I quote:

Because DCF was required to prove only one ground for termination, we do not need to decide whether the trial court correctly relied on section 39.806(1)( l ) as an alternative ground for termination. See § 39.802(4)(a), Fla. Stat. (2010); cf. A.H. v. Dep’t of Children & Families, 63 So.3d 874, 877 (Fla. 1st DCA 2011). Section 39.806(1)( l ) has an effective date of July 1, 2008, which means it became effective after the filing of the dependency proceeding but before the filing of the termination proceeding in this case. See Ch.2001–245, § 16, Laws of Fla.

In re S.D., — So.3d —-, 2012 WL 556167(Fla. 2nd DCA 2012).

Section 39.806(1)( l ) provides a ground for TPR when a parent has had a child removed three or more times.  Since it was enacted, courts have been dodging the question of how it applies retroactively: Does it mean three or more removals since the effective date of the statute, three or more removals ever, or three or more removals with at least one after the effective date? It’ll take at least 20 years for this generation of parents to pass and the retroactivity question to become moot. Until then, PRO TIP: never rely solely on 39.806(1)( l )–allege something else concurrently if you’ve got it.


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