N.W. v. Dep't of Children & Families (In re Interest of A.W.)
Decision Date | 18 December 2015 |
Docket Number | No. 2D15–933.,2D15–933. |
Citation | 184 So.3d 1179 |
Parties | In the Interest of A.W. and S.W., children. N.W., Appellant, v. Department of Children and Families and Guardian Ad Litem Program, Appellees. |
Court | Florida District Court of Appeals |
Norman A. Palumbo, Jr., Tampa, for Appellant.
Pamela Jo Bondi, Attorney General, Tallahassee, and Mary Soorus, Assistant Attorney General, Tampa, for Appellee Department of Children and Families.
Thomasina Moore and Dennis W. Moore, Sanford, for Appellee Guardian Ad Litem Program.
N.W. appeals the dependency court's judgment terminating her parental rights to her daughters, S.W. and A.W. Although thorough and considered in its evidentiary findings, we are compelled to reverse the dependency court's judgment because it erroneously applied a statutory amendment retroactively to those findings.
This case revolves around a long and violent history between N.W. and her longtime girlfriend, T.H. The couple resided together for several years along with S.W. and A.W., as well as T.H.'s daughter (whom we will refer to as T.K.H. for the sake of clarity). Sadly, it seems that T.K.H. was swept into the torrents of violence that marked N.W. and T.H.'s relationship. Following a lengthy trial on the Department of Children and Families' third amended expedited petition to terminate N.W.'s parental rights to S.W. and A.W., the dependency court entered its judgment, which recounted in considerable detail the repeated physical abuse T.K.H. suffered at the hands of N.W.
Ch. 14–224, § 19, at 3021, Laws of Fla. (amended language emphasized.)
Deeming T.K.H. a "sibling" of S.W. and A.W. under section 39.806(1)(f)(1), the dependency court applied the amended provision retroactively to N.W.'s case, which had commenced before the amendment's effective date.1 The court explained its reasoning in its judgment:
(Citations and quotations omitted.)
Proceeding under this analysis and the assumption that it need only apply the amended version of the statute, the dependency court made no finding as to whether a connection or nexus existed between N.W.'s abuse of T.K.H. and any potential harm to A.W. or S.W. It did observe, however, that N.W.'s multiple acts of violence toward T.H. and T.K.H. "may detrimentally impact [N.W.'s] own children's mental and emotional health." With respect to the alternative ground the Department alleged in its petition against N.W. under section 39.806(1)(g) (), the court found it unnecessary to render any determination on that ground because section 39.806(1)(f) already justified termination of N.W.'s parental rights.2
Thus, the dependency court tethered its decision to terminate N.W.'s parental rights entirely to the 2014 amendment to section 39.806(1)(f). As we will explain, that was error.
We review a dependency court's findings of fact in a termination of parental rights proceeding for competent, substantial evidence. E.R.–J. v. Dep't of Children & Family Servs., 86 So.3d 574, 579–80 (Fla. 2d DCA 2012) (); D.G. v. Dep't of Children & Families, 77 So.3d 201, 206–07 (Fla. 4th DCA 2011) (). The determination of whether a statutory amendment can be applied retroactively, however, is a pure issue of law subject to de novo review. Bionetics Corp. v. Kenniasty, 69 So.3d 943, 947 (Fla.2011).
The amended text of section 39.806(1)(f) is silent on the subject of retroactivity. Rather, the statute's 2014 amendment stated an effective date of July 1, 2014, see ch. 14–224, § 62, at 3067, Laws of Fla., which would ordinarily connote a legislative intent of prospective, not retroactive, application. See Fla. Ins. Guar. Ass'n v. Devon Neighborhood Ass'n, 67 So.3d 187, 196 (Fla.2011) ( ); Walker & LaBerge, Inc. v. Halligan, 344 So.2d 239, 241 (Fla.1977) (). However, as our court has observed, "[w]hile statutory changes in the law are normally presumed to apply prospectively, procedural or remedial changes may be immediately applied to pending cases." Heilmann v. State, 310 So.2d 376, 377 (Fla. 2d DCA 1975).
In applying section 39.806(1)(f)'s amendment retroactively, the dependency court believed the removal of the nexus requirement in the statute was merely procedural in nature, akin to changing the Department's burden of proof in termination of parental rights proceedings.Cf. Halligan, 344 So.2d at 243 ; Ziccardi v. Strother, 570 So.2d 1319, 1321 (Fla. 2d DCA 1990) ( ).
However, the 2014 amendment to section 39.806(1)(f) did not affect the Department's burden of proof in termination proceedings. Conceptually speaking, a burden of proof is the measurement by which a fact-finder processes evidence to determine whether the elements of a crime, claim, or defense have been proven. Cf. Allstate Ins. Co. v. Vanater, 297 So.2d 293, 295 (Fla.1974) ( ); Interest of K.H., 444 So.2d 547, 551 (Fla. 1st DCA 1984) (Wentworth, J., concurring specially) ( ). The legal construct of a burden of proof (the measuring device) must not be confused with the underlying elements of a claim (the subjects to be measured).
The nexus requirement that the 2014 amen...
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