M.C. v. Dep't of Children & Families

• Decision Date: 24 February 2016
• Docket Number: No. 3D15–2401.,3D15–2401.
• Citation: 186 So.3d 74
• Parties: M.C., the mother, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, et al., Appellees.
• Court: Florida District Court of Appeals

186 So.3d 74

M.C., the mother, Appellant,

v.DEPARTMENT OF CHILDREN AND FAMILIES, et al., Appellees.

No. 3D15–2401.

District Court of Appeal of Florida, Third District.

Feb. 24, 2016.

Eugene F. Zenobi, Criminal Conflict and Civil Regional Counsel, Third Region, and Kevin Coyle Colbert, Assistant Regional Counsel, for appellant.

Karla Perkins, for appellee Department of Children and Families; Laura J. Lee, Sanford, for appellee Guardian ad Litem Program.

Before ROTHENBERG, EMAS, and FERNANDEZ, JJ.

ROTHENBERG

, J.

M.C. ("Mother") appeals from a final judgment terminating her parental rights to her children G.C. and E.C. (collectively, "the Children") under section 39.806(1)(f), Florida Statutes (2015)

.¹ Because there is no clear and convincing evidence in the record to support the termination, we reverse.

I. PROCEDURAL HISTORY

In June 2014, the Department of Children and Families ("Department") obtained a shelter order as to both G.C., who was then eleven years old, and E.C., who was then eight years old and has a severe developmental disability. Thereafter, in July 2014, the Department filed a verified petition for dependency, stating, in part, that services are not appropriate because no voluntary services could be instituted while also ensuring the safety of the Children, who are at substantial risk of imminent harm, neglect, and/or abuse.

In September 2014, the Department filed a petition to terminate the Mother's parental rights as to both G.C. and E.C., asserting that the Department was proceeding directly to termination pursuant to section 39.806(1)(f)

due to the egregious nature of the alleged abuse, abandonment, or neglect. Because the Department sought termination under section 39.806(1)(f), the Department did not, and was not required to, make "reasonable efforts to preserve and reunify" the family. § 39.806(2), Fla. Stat. (2015).

Although the petition to terminate made allegations as to both G.C. and E.C., the Department limited its presentation and proof to the allegations regarding E.C. The petition alleges that the Mother took E.C. to the hospital on June 15, 2014, with second degree, caustic, liquid burns over his lower back, buttocks, right shoulder, and to the right side of his body. Although the Mother stated that she believes that G.C. inflicted E.C.'s burns based on an incident that occurred the night before, she was not able to provide a "cohesive explanation" as to how the burns occurred.

II. TESTIMONY PRESENTED AT THE ADJUDICATORY HEARING

At the adjudicatory hearing on the petition to terminate the Mother's parental rights, the Department called several witness, including the Mother and Dr. Jefry Biehler, a physician who consults with the Child Protection Team.

A. The Mother's testimony

The Mother testified that she was a licensed foster care provider from 1996 to 2011, she has fostered approximately fifteen children, and she has adopted three of these foster children—G.C., E.C., and K.C. G.C., who was born on October 23, 2003, was placed with the Mother when he was three months old and adopted by her when he was two years old. E.C., who was born on January 20, 2006, was placed with the Mother when he was six months old after his biological father inflicted a severe brain injury

upon E.C. that required E.C. to undergo brain surgery, and the Mother adopted E.C. when he was three years old. E.C. suffers from cerebral palsy, is non-verbal, and has severe disabilities. K.C. moved away as a teenager to live with her biological family. In addition to her adopted children, the Mother has an adult daughter, R.C., who was living in the family home when E.C. sustained his burns in mid-June 2014.

In 2013, G.C. was diagnosed with attention deficit hyperactivity disorder

("ADHD") and depression and prescribed medication for the ADHD. In addition, G.C. has run away from the family home approximately twelve times. The Mother testified that she has never seen G.C. behave violently or aggressively toward any of his siblings.

On June 12, 2014, G.C. was Baker Acted, and he was returned to the family home on June 14, 2014. At approximately 8:00 p.m. on the evening that G.C. returned to his home after being Baker Acted, R.C., the Mother's adult daughter who was living with the Mother, placed E.C. on the toilet unclothed, and then she yelled out to inform her Mother, who was in the kitchen, that E.C. was in the bathroom. As the Mother was walking to the bathroom to attend to E.C., she told G.C. to pick up a towel from the bathroom floor, and then she stopped to answer the phone. Moments later, the Mother heard E.C. scream, which the Mother described as a noise he makes when he is upset, not when he is in pain, and she immediately went toward the bathroom to attend to E.C. However, before the Mother was able to enter the bathroom, E.C. and G.C. exited the bathroom with G.C. nudging E.C. from behind. The Mother testified that E.C. was "silent" crying, with his mouth open but with no noise coming out, and he was holding the side of his head where he had the brain surgery

. Based on E.C.'s actions, the Mother checked E.C.'s head and body. She did not see any burns, marks, or bruises, but she admitted that she had focused mainly on E.C.'s head. The Mother placed a diaper on E.C., who did not appear to be in pain, and then she went into the bathroom where she did not see or smell anything unusual. Meanwhile, G.C. took E.C. to his bedroom and dressed E.C. in pajamas with long sleeves and pants. When the Mother entered the bedroom, she noticed that G.C. had a white cloth in his hand, and when she asked G.C. about the cloth, G.C. told her it only had water on it. That night, E.C. and G.C. slept in the Mother's bed while the Mother slept on a sofa at the edge of the bed. The Mother was awake until 4:00 a.m., and she testified that E.C. did not cry out.

E.C. woke up the next morning at 10:00 a.m. and was cared for primarily by R.C. Around 12:30 p.m., when R.C. removed E.C.'s pajama top and she saw the burns, she notified the Mother, who immediately took E.C. to an urgent care center. The Mother testified that, although she does not know how E.C. was injured, she believes G.C. inflicted the injuries. The Mother testified that she has various household cleaning supplies at home, such as pure bleach, watered-down bleach, Fabuloso, Comet, and Lysol, but G.C. only had access to the watered-down bleach and Fabuloso.

B. Dr. Jefry Biehler's testimony

Dr. Biehler testified that E.C. was taken by his Mother to an urgent care facility affiliated with Miami Children's Hospital and was later transported to Miami Children's Hospital. Dr. Biehler examined E.C. at Miami Children's Hospital on June 16, 2014, and noted that E.C. had burns that extended from over his shoulder and down his back, with a dripline going from the back of his leg to his ankle. Dr. Biehler described the burns as "significant" "dried partial thickness burns" and opined that they were "certainly potentially scarring injuries, potentially life threatening injuries" because "any burn that ... is big has potential for being that." However, E.C.'s burns did not require Whirlpool treatment to remove dead skin, surgical debridement

, or skin grafts.

Based on the dripline injury, Dr. Biehler opined that E.C. was burned with some form of liquid, which could have been either an "alkaline substance, an acid substance or a hot liquid." Although Dr. Biehler could not definitively state what caused E.C.'s burns or if the burns would have been immediately evident, he explained that while chemical burns and hot water burns can appear quickly, and acid burns generally result in an immediate disruption of the skin, alkaline burns

can take more time to become noticeable depending on the PH, the strength of the alkaline solution, and the area where the burn is located. Dr. Biehler further explained:

But I think a caustic injury [of] that size would have been evident fairly quickly. I don't know if I can say instantly, but I think fairly quickly.

Again, caustic injuries

that are not properly treated, the caustic agent can stay on the skin or in the body part and continue to cause problems for a while. So it's very difficult to say with certainty the timeframe between when he was injured and when I saw him, or the timeframe between the time of whatever it was that touched skin and the skin changes occurred.

Dr. Biehler was also asked whether a chemical that could cause such a burn would have some type of odor. In response, Dr. Biehler stated: "It is possible that it would have some kind of odor. But, again, without knowing what the chemical was, it's hard for me to say that.... My experience is things that are caustic have an irritant or a smell to it. But I can't say with any specificity on this."

Dr. Biehler further testified that he could not "say with any certainty whether [the burns] were accidental or intentional," but that Clorox and common household items do not usually cause severe burns or such a widespread injury. When Dr. Biehler was asked if E.C. could have sustained those injuries by G.C. wiping him with a cloth as described by the Mother, he stated:

I think likely because it seems more like possible. But likely I think again that there are parts of the back that have a wide area that could be from somebody wiping something on there.

But again the dripline, the line that goes down the leg, does not look like a wipe injury; and it looks like a liquid that has gone down the back.

Dr. Biehler testified that he believes the burns were painful, and when he examined E.C. at the hospital, he noted that E.C. acted uncomfortable and resisted Dr. Biehler. However, Dr. Biehler stated that with a "severely developmentally delayed child, it was impossible for [him] to tell how much of this [reaction] was pain...." Moreover, Dr. Biehler testified that during the examination, E.C. would "inappropriately laugh ..., which is very, very common with children with developmental delays."

Lastly, Dr. Biehler concluded...