Losing parental rights is a significant impact resulting from a criminal conviction, even while it is a collateral consequence of the conviction. Everyone knows that a prison sentence entails much more than simply serving the time. A convicted felon will be reminded of his mistake for the rest of his life. Whether it be obtaining employment, registering to vote, or applying for a driver’s license; there are many different ways a convicted felon is reminded of when she broke the law. A recent Florida Supreme Court decision reminds us how a conviction can also terminate parental rights.
B.C. v. Florida Department of Children and Families, 29 Fla. L. Weekly S 508 (2004) involved the termination of parental rights of a father serving a prison sentence. Section 39.806(1)(d)(1), Florida Statutes (2003) states that, "The department may petition for the termination of parental rights when the parent of a child is incarcerated in a state or federal correctional institution and the period of time for which the parent is expected to be incarcerated will constitute a substantial portion of the period of time before the child will attain the age of 18 years." Attorneys, especially those practicing dependency law, are very familiar with this statute section. However, the issue in B.C. was whether "substantial portion" was to be weighed against the entire period of incarceration, or if the language pertained to only the remaining time to be served after the petition for termination is filed.
First, the court considered how much time constitutes a "substantial portion of the time before the child reaches 18." The father in B.C. had approximately four years left to serve in his seven year seven month prison sentence. The father’s four-year old child had fourteen years remaining until reaching the age of majority. The Florida Supreme Court agreed with the trial court and concluded that, "the four years remaining in the father’s sentence was not a substantial portion of the remaining fourteen-year minority of the child." Id. at 511.
If the court considered the entire period of incarceration, the father in B.C. would have his parental rights terminated because his total sentence was more than 50% of the remaining fourteen-year minority, which would be considered a substantial portion. However, in this same situation, if the court considered the time remaining on the prison sentence, this same individual will be able to remain a father when he completes his prison sentence. B.C. held that the period of incarceration remaining after the petition is filed is the appropriate standard. Id. at 509. Applying this rationale, B.C. concluded that before parental rights may be terminated, "the trial court must find by clear and convincing evidence that the time remaining in the parent’s incarceration constitutes a substantial portion of the time remaining before the child or children attain the age of eighteen years." Id. at 511.
Why is B.C. beneficial to a defense attorney? If you represent a parent in a criminal case, you may have to advise her of the long-term impacts a conviction may have on her future. It is crucial to be aware of B.C. because accepting a plea of X years may result in the termination of parental rights. While a collateral consequence of the conviction, losing parental rights is still a significant impact resulting from a criminal conviction.
B.C. is a constant reminder of the long-range impacts of criminal convictions. Attorneys who inform their clients of all possible negative impacts from a conviction are providing the highest quality legal services.
