D.G. v. Dep't of Children & Families

• Decision Date: 22 June 2011
• Docket Number: Nos. 4D10–4124,4D10–4187.,s. 4D10–4124
• Citation: 77 So.3d 201
• Parties: D.G., The Father and S.M., The Mother, Appellants, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
• Court: Florida District Court of Appeals

77 So.3d 201

D.G., The Father and S.M., The Mother, Appellants,

v.DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.

Nos. 4D10–4124

4D10–4187.

District Court of Appeal of Florida, Fourth District.

June 22, 2011.

Frank A. Kreidler, Lake Worth, for appellant D.G., the father.

Moria Rozenson of Pickett, Marshall & Rozenson P.A., West Palm Beach, for appellant S.M., the mother.

Jeffrey Dana Gillen, West Palm Beach, for appellee.WARNER, J.

Both the father and mother appeal the termination of their parental rights to their child. The trial court terminated their rights based upon its findings that they failed to substantially comply with their case plans; that their conduct demonstrates that their continuing involvement in their child's life threatens her life and safety, regardless of the provision of services; and that they materially breached their case plans by failing to substantially complete them prior to their expiration. Primarily, the court found that over the three years that the child has been in foster care the parents have failed to provide support to the child, have made no meaningful effort do so, have continued to test positive for drugs contrary to their case plans, and, in the case of the mother, materially breached the plan by continuing to have contact with the man who abused her other child and committed acts of domestic violence against her. Although these parents have made some attempt to comply with their case plans and engage with their child, we cannot say that the trial court abused its discretion in terminating their rights.

D.O. was born in October 2005 to S.M. In July 2006, S.M. married J.P., who was not the father of D.O., and they had a son in 2006, J.A.P. The family lived with S.M.'s mother in her small three bedroom home. Neither S.M. nor J.P. worked, and S.M.'s mother was their main source of support. In October 6, 2006, D.O., and her seven-week-old brother, J.A.P., were removed from the mother, S.M. and father, J.P. The seven-week-old son had suffered egregious abuse, and his injuries indicated the child had shaken baby syndrome, including bilateral subdural hematomas, retinal hemorrhages and possible blindness, old bone fractures, bilateral breaks of the wrist bones, bilateral breaks of the pelvic bones and other injuries. Both children were sheltered, and D.O. was placed with her alleged paternal grandparents, the parents of the man whom S.M. believed was the father.

The Department of Children and Families commenced an expedited termination of parental rights, proceeding as to both children based upon the abuse to J.A.P. DCF did not offer services to either parent because of its determination that termination for both children was the appropriate remedy. With respect to D.O., the department alleged in its petition not only the egregious abuse of her sibling but also the mother's substance abuse, excessive smoking around the child, failure to take the child to necessary medical appointments, and leaving her with inappropriate caregivers.

Neither S.M. nor J.P. admitted causing the injuries to J.A.P. During the termination trial, J.P. voluntarily gave up his rights to J.A.P. The evidence at trial showed that S.M. was the victim of domestic violence from J.P. The court terminated S.M.'s rights to J.A.P. because she failed to protect J.A.P. from abuse. However, as to D.O., the court found that the child had not been abused and that the grounds for termination as to D.O. had not been proved. The court adjudicated D.O. dependent and ordered that DCF develop a case plan for reunification or adoption for S.M. Both S.M. and her mother were allowed visitation with D.O., which they both exercised regularly. S.M. was also ordered to have no further contact with J.P. or his family.

S.M. appealed the order terminating her rights to J.A.P., and DCF appealed the order denying the termination of her parental rights to D.O. See D.O. v. S.M., 981 So.2d 11 (Fla. 4th DCA 2007). This court's opinion contains a lengthy description of the facts of the proceeding. We affirmed the denial of termination of S.M.'s parental rights as to D.O. Our decision was final in December 2007.

In the order of dependency, the trial court required that a case plan address the following issues: the mother's lack of parenting skills; the mother's lack of education; the mother's lack of employment; the mother's lack of housing; the mother's continued acceptance of domestic violence; and the mother's drug and alcohol use. It ordered domestic violence counseling, drug and alcohol evaluations, psychiatric evaluation, parenting classes, and anger management classes. It also required her to follow all recommendations as well as any other recommendations by the department. The court warned the mother in the order that if she violated the terms of the case plan, the Department “will file an additional Termination of Parental Rights Petition based on the mother's non-compliance.”

The court ordered a psychological evaluation of the mother, and it was performed by Dr. Francis Crosby in May 2007, just after the termination proceedings but before the issuance of the final judgment. He interviewed the mother for about an hour and a half. Based upon that interview, he concluded that regardless of services she could not be rehabilitated, and D.O. would be in danger if she were returned to her mother at that time. He based this conclusion on the near-fatal abuse of J.A.P.; his diagnosis that the mother suffered from a mood disorder; the mother's substance abuse; and her non-compliance with treatment. Nevertheless, he also provided a list of areas where the mother should be offered services through a case plan, and it appears that his list was incorporated in the final judgment of the trial court.

After a case plan was prepared for S.M., she immediately began working on the tasks assigned. She completed the recommended courses in parenting, anger management, domestic violence, and substance abuse in the summer of 2007. Although one of the providers recommended additional therapy to her, she declined the additional treatment. She had not improved in her education, but she did obtain a job working at Pizza Hut, and she paid child support to the family having custody of D.O.

S.M. had been charged in connection with the abuse to J.A.P. As a condition of pretrial release, she was ordered to have no contact with J.P. In violation of this condition and even after her training in domestic violence, she contacted him several times while he was in jail and afterwards. In January of 2008 she was re-incarcerated because she had been seen with J.P. She remained incarcerated until October 2008, when she entered a plea and was convicted of culpable negligence in connection with the injuries to J.A.P. She was sentenced to time served.

While she was incarcerated, she was seen by another psychologist, Dr. Sheehan. Dr. Sheehan found that the mother was at high risk for continuing the behaviors because of her continued contact with J.P., who abused both her and J.A.P. Although she had completed all of the required courses on her case plan, her inability to comply with the court order by seeing J.P. showed that she had very poor judgment and insight. The mother had not benefitted from the services provided to her. As to substance abuse, S.M. described herself as a functional addict but contended that she did not use drugs around her children. She had, however, tested positive for drugs while under supervision, which was of concern to Dr. Sheehan that she would be using drugs even where there was external supervision.

S.M. told Dr. Sheehan that she intended to divorce J.P. and eventually did so in February 2009. She has not seen J.P. since January of 2008. In addition, she received her G.E.D. sometime after her incarceration.

We now digress from the mother's story to weave in the evidence regarding the father, D.G. The father was born in Germany to an American father and a German mother and moved to the United States when he was young. During his teenage years, he began a relationship with S.M. which she terminated when she met J.P. The father did not know that the mother was pregnant with his child at the time. The mother reported to DCF that another man was the father of D.O. When that man questioned his paternity, DNA tests proved that he was not the father. D.G. was then identified as the child's father, and DNA tests proved his paternity. D.G. did not learn that D.O. was his child until August 2007.

A petition for dependency was filed against the father, and an order adjudicating D.O. dependent as to him was entered. The father was given a case plan in October 2007 with a goal of reunification or adoption.

D.G. was seen by Dr. Rojas, a psychologist, soon after D.G.'s fatherhood of D.O. was established. Dr. Rojas found D.G. to be of average intelligence with no history of abuse and from a stable family. His opinion was that “overall findings are consistent with mild risk for future maltreatment....” While he recommended reunification between father and daughter, his recommendation required D.G. to complete certain tasks. “[I]t is suggested that reunification take place between six to twelve months of appropriate social behavior, absent from any substance use ... [and he should] be considered for full reunification ... only after completing all core requirements for reunification. He should obtain stable housing, employment, and meet with his daughter in a consistent manner.”

D.G. proceeded to enroll and complete all classes required in his case plan. This included a substance abuse referral, but no treatment or other counseling was recommended for him, as he was considered not to be an abuser of drugs. He began visiting with D.O. For the most part, these visits were very positive.

One of the goals included child support which was due when D.G. became employable. Although he was a United States citizen, he did not have the proper...