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

• Decision Date: 01 September 2021
• Docket Number: No. 4D21-1127,4D21-1127
• Citation: M.P. v. Dep't of Children & Families, 327 So.3d 292 (Fla. App. 2021)
• Parties: M.P., the Mother, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES and Guardian ad Litem Program, Appellees.
• Court: Florida District Court of Appeals

327 So.3d 292

M.P., the Mother, Appellant,

v.DEPARTMENT OF CHILDREN AND FAMILIES and Guardian ad Litem Program, Appellees.

No. 4D21-1127

District Court of Appeal of Florida, Fourth District.

[September 1, 2021]

Sean Conway of Sean Conway Law Firm, P.A., Fort Lauderdale, for appellant.

Ashley Moody, Attorney General, Tallahassee, and Carolyn Schwarz, Assistant Attorney General, Fort Lauderdale, for appelleeDepartment of Children and Families.

Thomasina F. Moore, Statewide Director of Appeals, and Samantha C. Valley, Senior Attorney, Tallahassee, for appelleeGuardian Ad Litem.

Ciklin, J.

The mother of three children appeals the order terminating her parental rights, which was based on a finding of egregious conduct.¹She disputes that she engaged in egregious conduct by allowing the father of two of the children to have contact with the oldest child, N., after his parental rights were terminated for sexually abusing N.She also asserts that the trial court erred in finding termination was in the manifest best interests of the children and the least restrictive means of protecting them from harm.The record before us belies the mother's arguments and we affirm.

In 2018, the Department of Children and Families(DCF) filed a shelter petition, alleging that N. had reported sexual abuse by her father.The children remained in the mother's custody under DCF's protective supervision.The trial court entered a final injunction for protection against child abuse or domestic violence, which barred the father from having any contact with the children and from being within 500 feet of their residence.DCF then petitioned to terminate the father's parental rights.During the adjudicatory hearing, DCF presented substantial evidence establishing that the father molested the child on numerous occasions, and the court terminated the father's parental rights.The termination judgment required the mother to enroll N. in counseling and to ensure her attendance.The judgment further required the mother to attend counseling to enhance her protective capacities and for the purpose of executing a safety plan to ensure the father had no contact with the children.

In October 2018, the mother signed a safety plan, which provided that the father would have no contact with the children and that N. and the mother would attend counseling.The mother was referred to services but made no progress initially.In response, DCF filed a dependency petition in January 2019, alleging that the mother lacked protective capacity.The mother consented to a withhold of adjudication of dependency based on the allegation that her conduct subjected N. to a substantial risk of an imminent threat of harm.The disposition order provided that "[t]he Mother shall ensure that [the father] has no contact with [N.]"The mother ultimately completed the case plan tasks, including therapy for herself and for N.Based on DCF's recommendation, the trial court terminated supervision in June.

About one year later, in July 2020, DCF petitioned to shelter the children, alleging a domestic violence incident involving the mother, father, and N.The children were sheltered with their maternal grandmother, and the mother was granted supervised visitation.Subsequently, DCF filed an expedited petition for termination of the mother's parental rights as to all three children, alleging that law enforcement responded to the mother's home based on a 911 call.N. heard the mother and father arguing in the middle of the night and went into the mother's bedroom and witnessed the father choking the mother.When N. attempted to intervene, the father struck and choked N., and also pulled hair out of her head.N. reported that the father was frequently visiting the children at the mother's home.DCF consequently alleged the mother engaged in egregious conduct or had the opportunity and capability to prevent and knowingly failed to prevent egregious conduct that threatened the life, safety, or physical, mental, or emotional health of the minor child or that child's sibling(s), and that the mother lacked protective capacity.

The case proceeded to an adjudicatory hearing.The evidence established that the mother participated in domestic violence counseling and parenting classes while the termination case was pending.Various service providers reported that the mother had successfully completed the programs and visited the children daily, providing the bulk of their care.However, in addition to the domestic violence incident, there was evidence that the father visited the home while the children were present on numerous occasions, beginning just weeks after the father's parental rights were terminated.The mother acknowledged her relationship with the father had never ended.

The trial court entered an order terminating the mother's parental rights based on egregious conduct, finding that the mother allowed N.'s sexual abuser to have contact with her for two years, and observing that the conduct was "compounded by the violence which ensued ... at the hands of [the father,] violence that could have, and should have, been prevented by the Mother's adherence to the court orders and any semblance of protective capacity."

The mother's primary argument on appeal relates to the ground for termination: egregious conduct.DCF sought termination of parental rights based on section 39.806(1)(f), Florida Statutes(2020), which permits termination when "[t]he parent ... engaged in egregious conduct or had the opportunity and capability to prevent and knowingly failed to prevent egregious conduct that threatens the life, safety, or physical, mental, or emotional health of the child or the child's sibling."Under such circumstances, "[p]roof of a nexus between egregious conduct to a child and the potential harm to the child's sibling is not required."Id .²"Egregious conduct" is defined as "abuse, abandonment, neglect, or any other conduct that is deplorable, flagrant, or outrageous by a normal standard of conduct."§ 39.806(1)(f) 2., Fla. Stat.(2020).Further, "[e]gregious conduct may include an act or omission that occurred only once but was of such intensity, magnitude, or severity as to endanger the life of the child."Id .

The mother frames the termination as based on her mere violation of court orders and the single domestic violence incident, which she believes is not sufficient to establish egregious conduct.But the mother's reading of the final judgment is disingenuous.The trial court based termination on the mother's conduct of allowing the father continued access to the children despite her knowledge of the father's sexual abuse of N.The evidence supported termination on this ground.The mother testified during the adjudicatory hearing that she believed N.'s allegations of abuse.But while the mother was completing her case plan tasks in her dependency case, she was simultaneously allowing the father to have contact with the children.This was not a one-time occurrence and, in fact, the father visited often.In essence, the mother repeatedly placed N. in harm's way in order to satisfy herself.This amounts to...