C.D. v. Department of Children and Families

• Decision Date: 31 January 2008
• Docket Number: No. 1D06-6397.,1D06-6397.
• Citation: 974 So.2d 495
• Parties: C.D., the Mother of B.G., C.D. and A.D., each a Child, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
• Court: Florida District Court of Appeals

974 So.2d 495

C.D., the Mother of B.G., C.D. and A.D., each a Child, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.

No. 1D06-6397.

District Court of Appeal of Florida, First District.

January 31, 2008.

Patricia L. Parker of Parker & Du-Fresne, P.A., Jacksonville, for Appellant.

Anthony C. Musto, Hallandale Beach, for Appellee.

ON MOTION FOR REHEARING OR CLARIFICATION

LEWIS, J.

We deny the Department's motion for rehearing or clarification. On our own motion, we withdraw our previous opinion and substitute the following.

C.D., the mother of B.G., C.D., and A.D., seeks review of the trial court's Order on Judicial Review Permanency Hearing and Termination of Supervision.¹ This order placed the children in permanent guardianship and denied the mother's then pending Petition for Reunification, stating that although the mother had substantially complied with her case plan, reunification was not in the children's best interests.² The mother argues the trial court failed to list adequate factual findings and that there was not competent substantial evidence to justify denying her request for reunification. We agree with both contentions, and accordingly, we reverse.

The mother has an extensive history of alcohol and drug abuse, psychological problems, and experiences involving domestic violence. In 2002, when the mother was Baker Acted in the State of Ohio, B.G. and C.D. were removed from her care. Later, the mother underwent a psychological evaluation, which revealed she had experienced a "substance-induced psychotic disorder" but that her alcohol and cannabis dependence was in "early full remission," The evaluation ruled out "schizoaffective disorder/bipolar type" as a diagnosis. After the mother successfully completed her case plan in Ohio, B.G. and C.D. were returned to her care.

Approximately one year and four months later, the Florida Department of Children and Families (the Department) removed the children again, along with their younger sibling, A.D.³ At that time, B.G. was twelve years old, C.D. was four years old, and A.D. was twenty months old. The Department filed shelter petitions, alleging the mother had been Baker-Acted again, that her home was in "deplorable conditions" with unsanitary sleeping arrangements, "what could be found" of the children's clothing was "filthy," and there were several animals in the home and animal food "all over the floor." The children were sheltered, and the Department filed a Petition for Dependency. The dependency petition contained the same allegations as the shelter petitions, as well as details of a domestic violence situation between the mother and her paramour. The trial court adjudicated the children dependent and approved a case plan that had a goal of reunification. The goal was later changed to long-term relative care, although in every relevant order, the trial court found the mother was either partially or substantially compliant with her case plan.

Throughout the case, the Department and the guardian ad litem expressed concerns about the mother's mental health. The Department maintained that the mother had been diagnosed with "bipolar disorder, schizophrenia, and psychosis," although the record contains no documentation of these diagnoses from any licensed mental health professional. Early in the case, the mother underwent a Parental Fitness Evaluation by Dr. Philip Yates, a psychologist. At that time, Dr. Yates expressed an unfavorable opinion about the mother's fitness as a parent. He recommended long-term psychotherapy as well as a psychiatric consultation for medication. Dr. Yates questioned whether the mother would be willing to participate in therapy, but he believed she could benefit from it. He recommended against unsupervised visitation with the children and suggested that the mother be re-evaluated after undergoing therapeutic treatment. Approximately one year after Dr. Yates' initial evaluation of the mother, the Department quoted him as saying the mother was "doing extremely well" in therapy.

After living apart from her mother for almost a year, B.G. wrote a letter to the caseworker, expressing her feelings about the situation. The letter revealed that B.G. did not want to live with her mother because she remembered having to "move around" and change schools often when she was in her mother's care. She recalled that "[Mere were times when there was no food in the house," and stated that she wanted "to live with a family who doesn't spend all their money on drugs and alcohol." She was troubled by her mother's past relationships with men because she remembered "a lot of fighting" and observed that her mother had often. "mov[ed] from one relationship to the next." B.G. also resented that her mother had broken promises to her.

Due to their ages, C.D. and A.D. did not express opinions regarding the desirability of reunification. However, the staff at the family visitation center in Ohio, where the mother had been visiting C.D. and A.D., made positive observations regarding the mother's interaction with them.⁴ At the same time, notes from the family visitation center indicated that while the children were happy to see their mother when she arrived, they were not upset when she departed.

In the guardian ad litem's final report to the court, she indicated that the fact that the children were not emotionally distressed when visits with the mother ended was significant. Additionally, she maintained her position that the mother's mental health problems made reunification inappropriate, identifying three facts to support this position: (1) that the mother had bought an excessive amount of furniture and clothing for her children in anticipation of their return; (2) that the mother had two dogs in the house, one that belonged to her and one that she was keeping for a friend; and (3) that the mother had made excuses for her several hospitalizations. The guardian ad litem opined that the mother's excessive spending indicated she may have been experiencing a manic state of bipolar disorder. The presence of the dogs reminded the guardian ad litem of the fact that the mother had spent too much money on dogs and birds when the children came into state custody. She felt that the dogs' presence indicated that the mother had difficulty prioritizing. The guardian ad litem stated that the mother's excuses for her hospitalization indicated that she had an "inability to deal with reality."

Nonetheless, the therapist and psychologist who had remained involved in the case had begun to express more confidence in the mother's ability to maintain stable mental health. Dr. Yates specifically disapproved of the guardian ad litem's characterization of the mother's behavior as a continuation of a manic state. He identified positive aspects of the mother's decisions to purchase furniture and clothing for her children and to care for a friend's dog while the friend was on vacation. Dr. Yates believed that the younger children's failure to show distress when visits with the mother ended could indicate that they had accepted the situation, and not that they had "some pathological lack of attachment" to her. Regarding the allegations that Appellant had bipolar disorder, Dr. Yates said,

[M]y testing has failed to indicate the presence of a Bipolar Disorder. I have been assessing [Appellant] on this specific dimension for over a year ... and still have not found the presence of that disorder. While it is true that bipolar episodes can occur with a frequency of once every four to ten years, it is also a commonly accepted practice among trained mental health professionals ... to take a year of continuing observation assessment of an individual before a full diagnosis of a Bipolar Disorder is made.

Dr. Yates further opined that the guardian ad litem's conclusions were "over defined" and did not reflect a "proper and realistic appreciation" of the mother's efforts. He concluded the mother was "functioning at a stable emotional state," and he did not believe she posed a danger to the children. He further stated that "[t]here [were] absolutely no indications that she is prone to destabilize" and that tests he had administered revealed no signs of "vulnerability for acts of child physical abuse." Likewise, Lisa Angel, a therapist from the Child Guidance Center, indicated that the mother had "reached all of her goals in therapy," and further stated, "I see no reason for [the mother] to not be able to have at a minimum visitation with her children." She noted that the mother had matured and learned to accept the circumstances involving B.G.'s desire not to see her.

Still, at the final permanency hearing, the caseworker and the guardian ad litem maintained their previous positions. Both opined that reunification was not in the children's best interests. They felt strongly that the mother's troubled history, combined with the fact that she had previously been reunified with her children, only to have them removed again, established a pattern that would be repeated in this case if the trial court ordered reunification. The guardian ad litem further testified that the mother resorted to drugs and alcohol to deal with stress. It is not clear from the transcript whether she was referring to recent events or problems the mother experienced prior to the initiation of the Florida dependency case, but there is no suggestion in the record of any such events that post-dated the Florida removal. The caseworker testified that B.G.'s therapist did not recommend contact with the mother. Ultimately, the children were placed in permanent guardianship, and the Department's protective supervision was terminated, on the basis of the magistrate's finding that although the mother had substantially complied with her case plan, reunification was not in the children's best interests.

Initially, we note that the primary purpose of Florida's dependency system is to protect the health and...