Guardian ad Litem Program ex rel. J.H. v. K.H.
| Decision Date | 26 June 2019 |
| Docket Number | No. 3D19-24,3D19-24 |
| Parties | Guardian ad Litem Program o/b/o J.H., Child, Appellant, v. K.H., the Mother, and Department of Children and Families, Appellees. |
| Court | Florida District Court of Appeals |
Not final until disposition of timely filed motion for rehearing.
An Appeal from the Circuit Court for Miami-Dade County, Laura Stuzin, Judge.
Thomasina Moore and Laura J. Lee (Tallahassee), for appellant.
Karla Perkins, for Department of Children & Families; Kevin G. Thomas, for K.H., the Mother, for appellees.
Before SCALES, LINDSEY, and GORDO, JJ.
This appeal arises from a trial court order denying a petition by the Department of Children and Families ("the Department") for termination of parental rights of K.H. ("the Mother") as to her child, J.H.
J.H., one of the Mother's fourteen children, was born on November 10, 2005, and was removed from the Mother's custody when he was a year old. He has had scarce contact with the Mother since that time and they have no parent-child relationship. The Mother is diagnosed with a lifelong psychotic condition that renders her unable to parent. She is presently committed to the Department and undergoing treatment for her mental illness. She is incapable of functioning alone and incapable of safely providing supervision and care for the child.
When J.H. was a year old, a Georgia court placed him with his adult sister, Tiffany. The Georgia court found that efforts to reunify J.H. with the Mother would be detrimental to the child and therefore reunification was not in his best interest. Thereafter, J.H. resided with Tiffany, who he refers to as his mom. In 2014, Tiffany consented to a withhold of adjudication of dependency as to J.H. and his twin sister following allegations of physical abuse. In March 2015, the court removed him from Tiffany's custody and placed him in the Department's legal custody. The court found it was in the child's best interest to be placed in foster care. In March 2017, the court again modified J.H.'s placement finding it was in his best interest to be placed with a pre-adoptive non-relative. However, after eighteen months, the non-relative caregiver requested J.H. be removed from the home due to continuous aggressive and concerning behavior. J.H. was again placed in foster care.
In October 2017, the Department filed a petition for termination of parental rights as to the Mother, which was amended in November 2018, five days before the trial. The amended petition proceeded under section 39.806(1)(c), Florida Statutes, which provides: "Grounds for the termination of parental rights may be established . . . [w]hen the parent . . . engaged in conduct toward the child . . . that demonstrates that the continuing involvement of the parent . . . in the parent-child relationship threatens the life, safety, well-being, or physical, mental, or emotional health of the child irrespective of the provision of services." § 39.806(1)(c), Fla. Stat. (2018).
In November 2018, the trial court held an adjudicatory hearing on the Department's petition for termination of parental rights of the Mother. During the trial, the Department presented testimony from Dr. Michael DiTomasso, a licensed forensic psychologist, Ermine Brooks, the guardian ad litem ("GAL"), Diana Barker, the Mother's mental health case manager, and from the deposition of Dr. Indu Senapati, a board certified psychiatrist.
Dr. Senapati was the Mother's treating psychiatrist at the South Florida State Hospital for more than six months.1 Dr. Senapati conducted a comprehensive evaluation of the Mother's history of mental illness, medical history, psychiatric history, family history, and history of drug use. She continued to meet with herfrequently for treatment. The Mother reported she was diagnosed with mental illness in her twenties and has been repeatedly hospitalized. Dr. Senapati testified the Mother's diagnosis is schizoaffective disorder (depressive type), which causes her to have hallucinations, delusions, disorganized thoughts, depressive mood, and suicidal thoughts. The Mother admitted having a history of suicide attempts and hearing voices that tell her to do bad things. Dr. Senapati testified the Mother has borderline intellectual functioning. Dr. Senapati declared the Mother suffers from a lifelong condition and is incapable of functioning on her own. She recommended the Mother continue to reside in a residential facility where her compliance with medication and treatment can be monitored.
Dr. DiTomasso, an expert in psychological evaluations of parents in dependency proceedings, testified regarding his evaluation of the Mother. He reviewed all pertinent documents relating to the Mother, conducted a clinical interview, and performed psychological testing. Dr. DiTomasso concluded the Mother suffers from a psychotic condition that renders her unable to parent. Dr. DiTomasso testified she cannot meet J.H.'s needs and is likely to physically harm him. He testified she lacks empathy toward children, lacks nurturing skills, and sees independence in children as threatening. She does not have a good grasp of children's developmental abilities and needs. Moreover, the Mother has a history of substance abuse. Dr. DiTomasso fears she could revert to cocaine abuse and pose ahigher risk of harm to J.H. Due to the Mother's severe chronic mental illness, she is unable to think correctly and lacks appropriate judgment. As a result, Dr. DiTomasso opined no treatment could render her able to safely raise J.H.
The GAL testified the Mother is incapable of providing for J.H.'s basic needs. J.H. also has medical and behavioral issues requiring care and attention, which she is unable to provide. The GAL explained that there is no emotional tie between J.H. and the Mother. He met her once in recent years as if meeting her for the first time. He refers to his sister, Tiffany, as his mom and never asks about his biological mother. Further, the GAL testified about J.H.'s desire for an adoptive family and his ability to bond. She unequivocally opined that termination of parental rights was in J.H.'s manifest best interest and recommended no contact with the Mother.
The Mother's mental health case manager provides case management and medication management services to the Mother in a residential treatment facility. The Mother is currently in a "level one" program requiring a high level of supervision where her medication is tracked and observed. The case manager testified the Mother is doing well in the program and is working on a discharge plan with the goal of re-integration into the community. However, the Mother will continue to need services. The case manager testified the Mother is not capable of living alone or managing her own daily needs.
At the conclusion of the trial, the trial judge correctly adjudicated J.H. dependent as to the Mother. The judge found that, based on the credible evidence presented, the Mother's mental illness may harm J.H., she is currently incapable of caring for him, and he is at a substantial risk of imminent abuse, abandonment, or neglect due to her mental illness. However, the court determined the Department failed to prove its case by clear and convincing evidence because no case plan had ever been offered to the Mother in order to reunify her with J.H. and the record was silent as to any services offered. Thus, the court concluded the Department did not prove termination was the least restrictive means as a matter of law. The court also found the Department failed to prove termination was in the child's manifest best interest because J.H. is not in a current permanent custody arrangement and resides in a group foster home. Ultimately, the court granted an involuntary dismissal and denied the petition for termination of parental rights. The court further ordered the Department to provide a case plan for the Mother and to find a pre-adoptive home for J.H.
The Guardian Ad Litem Program appeals the trial court's denial of the petition.
"An appellate court may reverse the trial court's order denying a petition to terminate parental rights when the denial is not supported by competent substantialevidence and is not in the best interests of the children." Fla. Dep't of Children & Family Servs. v. A.Q., 937 So. 2d 1156, 1158 (Fla. 3d DCA 2006) (quoting Dep't of Children & Families v. K.F., 916 So. 2d 948, 950 (Fla. 4th DCA 2005)). Our review of a termination of parental rights case is "highly deferential." C.G. v. Dep't of Children & Families, 67 So. 3d 1141, 1143 (Fla. 3d DCA 2011) (citing D.P. v. Dep't of Children & Families, 930 So. 2d 798, 801 (Fla. 3d DCA 2006)). "However, an appellate court is not required to defer to the trial court where there is no theory or principle of law that would support the trial court's conclusions of law concerning its least restrictive means findings." Statewide Guardian Ad Litem Program v. A.A., 171 So. 3d 174, 177 (Fla. 5th DCA 2015) (citing In re Baby E.A.W., 658 So. 2d 961, 967 (Fla. 1995)). The standard of review for questions of law is de novo. C.R. v. Dep't of Children & Family Servs., 53 So. 3d 240, 242 (Fla. 3d DCA 2010).
Before a trial court can grant a petition for termination of parental rights, the court must consider whether: (1) grounds exist for termination of parental rights under section 39.806, Florida Statutes; (2) termination is in the manifest best interest of the child pursuant to section 39.810, Florida Statutes; and (3) termination is the least restrictive means of protecting the child from harm. C.T. v. Fla. Dep't of Children & Families, 22 So. 3d 852, 854 (Fla. 3d DCA 2009).
To grant termination pursuant to section 39.806, the Department must establish the statutory grounds by clear and convincing evidence. Section 39.806(1)(c) provides for termination:
When the parent . . . engaged in conduct toward the child . . . that...
To continue reading
Request your trial