D.J.S., In Interest of
| Decision Date | 16 April 1990 |
| Docket Number | No. 88-141,88-141 |
| Citation | 563 So.2d 655 |
| Parties | 15 Fla. L. Weekly D1072 IN the INTEREST OF D.J.S. and J.S.G., children. John DOE, 1 Appellant, v. DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Appellee. |
| Court | Florida District Court of Appeals |
Brian F. McGrail, Crestview, for appellant.
Robert A. Butterworth, Atty. Gen., Eric Taylor, Asst. Atty. Gen., and Rodney M. Johnson, Dist. Legal Counsel, Dept. of Health and Rehabilitative Services, Tallahassee, for appellee.
ON REHEARING EN BANC
This cause is before the court en banc pursuant to Rule 9.331, Florida Rules of Appellate Procedure, the court having determined that the case is one of exceptional importance, 2 affecting the rights of parents and children in this State and the interpretation of Chapter 39, Florida Statutes (Supp.1986), as applied to a noncustodial, biological father 3 and proceedings to terminate parental rights based on abuse and neglect. On consideration of the briefs, supplemental briefs, oral argument, and record, the majority of the court en banc has determined that the order of the trial court severing parental rights of appellant be affirmed.
On February 10, 1980, "Betty," age 20 and unwed, gave birth to a son "D." 4
Later that same year, she moved to Florida, renewed her acquaintance with appellant, and she and appellant started living together. On October 23, 1981, appellant struck D., 18 months, repeatedly 5 in the face during the course of an altercation with Betty, who was holding the baby. Both appellant and Betty had been drinking, and appellant was, by his own description, "quite intoxicated." The next day, the landlord happened to come to the house occupied by appellant, Betty, and D. His testimony at the termination hearing was as follows:
I was painting an apartment. I had two duplexes next door and I had some stuff stored in the house by agreement with the young lady and young man and went over there to get a drop cloth and some painting material and I knocked on the door and Betty answered the door and she had--looked like she was injured. She had caked blood all over her face and a black eye and she looked like she had been injured and I asked her if I could help her and she said, no, she'd be all right. And I said, how did this happen and she said John had done this to me. I said, well, I don't want to interfere with anything that goes on between you and [he] but I need some stuff out of the back room and I need to get it. She said, okay, so she let me in and the little boy came out of the kitchen area and the little boy is--he was injured, he was hurt. He had severe welts around his face and his eyes were bloodshot, not bloodshot--like you would stay up all Appellant took the baby to the emergency room, where he told a story of the child falling down. The emergency room doctor, however, determined that the child's injuries were inconsistent with a fall. The baby had nine distinct bruised areas on his face, as well as injuries to the left eye and to the tympanic membrane of the left ear. The doctor reported it as a case of aggravated child abuse to Children and Youth Services. Officer Paul Brown arrived at the hospital to investigate. Officer Brown took pictures of the injured child, personally observed the child's injuries, and contacted appellant and Betty. After being advised of their rights, both gave statements that appellant struck the child in the course of committing a battery on Betty. Officer Brown testified at the termination hearing as to the foregoing facts, as well as to the fact that appellant expressed remorse over the incident and that appellant stated he was like a "daddy" to D.
night but there was blood injury lines in his eyes. The kid was hurt and I said, Betty, what happened to this kid and she said he fell and I said, that kid didn't fall and I said what happened to the kid, he should go to the hospital and she said the kid fell and I said, well, I'm going to take him to the hospital so I asked--I can't remember if they had a phone or whether I went next door to the apartments to get a phone but I called my wife and she came over and took the child to the hospital.[ 6 Betty said John was not home at the time. She said, don't do this, John will get mad. I said, I don't care whether he got mad or not and the child went to the hospital and I stayed back at the place.
Appellant was charged with aggravated child abuse but was allowed to plead nolo contendere to child abuse. The court withheld adjudication on the child abuse charge and, after preparation of a presentence investigation report, sentenced appellant on March 26, 1982, to five years' probation. Appellant was placed on community control. He was ordered out of the residence he had shared with Betty for at least six months, but visited there nonetheless.
Three days after appellant pleaded to the child abuse charge, HRS assigned a protective service worker, Sandy Cesulka, to the family. Beginning February 19, 1982, and for four years and three months thereafter, Ms. Cesulka visited in the home at least once a month.
On March 10, 1983, Betty gave birth to another child, son "J.," fathered by appellant. The parents voluntarily placed the newborn under Department of Health and Rehabilitative Services (HRS) protective services.
Protective service worker Cesulka testified at the termination hearing that during the time appellant and Betty were together, the fighting and beating up of Betty continued. Cesulka testified to the condition of the various places the couple lived during her supervision, to the holes in the wall, the telephone pulled out of the wall, the window and/or door being broken, and to other evidence of violence. Officer Brown reported he had been called to investigate disturbances involving the couple that were domestic in nature and involved alcohol. There was testimony that appellant "got crazy" when he was drinking. Counsel for appellant frankly stated at oral argument before this court that the relationship between Betty and appellant was a "combative" one.
Ms. Cesulka testified that during her work with the family, cooperation was minimal and that conditions never improved to the point where the case could be closed out. Problems kept occurring, and there were continued complaints of the children not being taken care of, of their being left with neighbors and relatives for long periods of time, and of their not being fed or clothed properly. On one occasion, Ms. Cesulka went to the home at 10:00 a.m. and found the child J., then age two, wandering around, unattended and unfed, draining the Cesulka testified that "the relationship between the two of them [appellant and Betty] was always detrimental to the children," and that when appellant was imprisoned for a period of time, that things were better. HRS obtained marriage counseling for the couple. They showed some interest, but then the fighting would resume.
dregs from a beer can. Betty was still in bed.
Sometime after the birth of J. in February of 1983, appellant and Betty broke up, and Betty began her involvement with a series of other boyfriends. Appellant was irate and harassed her by driving around the neighborhood squealing the tires of his car. In January of 1985, he broke into the apartment where Betty was with another man and physically assaulted them. An altercation resulted in which appellant was shot in the leg by the other man. Appellant was charged with two counts of battery plus burglary. He pleaded nolo contendere to all three counts, and adjudication was withheld. On January 11, 1985, he was sentenced to two years of community control.
After the breakup, appellant also made a number of reports to HRS of the children being left unattended, that the children were being mistreated by Betty's new boyfriend, and that Betty was giving AFDC (Aid to Families with Dependent Children) money to a boyfriend to buy drugs instead of using it for the children. HRS dutifully investigated the reports, but only the two made on June 18 and 19, 1986, were substantiated. Betty testified she had to go pick up a car and that a friend had promised to babysit. In any event, while investigating appellant's report, HRS found the children, ages three and five, left alone on June 18. The intake officer at the scene on June 18 turned the children over to appellant. The next morning, appellant called Betty and told her to come and get them, saying nothing to Betty about his report to HRS or about the intake officer having been to her home. The next night, appellant again reported the children left alone, and this time HRS found five-year-old D. alone and took him into protective custody. Later, HRS located J. and took him into custody as well. The agency was then required to, and did, file dependency proceedings under Chapter 39, Florida Statutes.
On June 21, 1986, HRS filed a petition for dependency of both boys, and the children were adjudicated dependent. On that same day, a guardian ad litem was appointed, and the children were placed into foster care. The dependency order allowed appellant to have supervised visitation with J. one day every two weeks for up to two hours, the visitation to begin 30 days after he signed a performance agreement. John signed the performance agreement, the first of two he was offered, on June 21, 1986, the same day the order of dependency was entered.
Appellant did not complete the first performance agreement and was offered another chance in November of 1986. At the time he signed the second agreement, he was in jail awaiting sentencing for yet another criminal offense. On April 2, 1987, he pleaded nolo contendere to possession of over 20 grams of marijuana and violation of community control, and was sentenced to 30 months in prison. He ultimately served 11 months of that sentence, with time off for work days and gain time.
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