NL v. DEPT. OF CHILDREN AND FAMILY SER.

• Decision Date: 01 May 2003
• Docket Number: No. 1D02-0454.,1D02-0454.
• Citation: 843 So.2d 996
• Parties: N.L., mother of S.W., a child, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Appellee.
• Court: Florida District Court of Appeals

843 So.2d 996

N.L., mother of S.W., a child, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Appellee.

No. 1D02-0454.

District Court of Appeal of Florida, First District.

May 1, 2003.

Mary C. O'Rourke, Esquire of Three Rivers Legal Services, Inc., Gainesville, for Appellant.

Phillippa G. Hitchins, Esquire, Lake City, for Appellee.

PER CURIAM.

N.L., the mother of S.W., appeals an order terminating her parental rights. The court below found that both subsections 39.806(1)(c) and (1)(f), Florida Statutes (2000), authorized termination of parental rights. Because the record contains no competent substantial evidence supporting termination under subsection (1)(f) of section 39.806 and contains no evidence of the provision of services (or the futility of providing services) necessary for termination under subsection (1)(c), we reverse and remand.

Background

On the morning of October 20, 2000, N.L. took her nine-month-old daughter, S.W., to a hospital emergency room because the child's left arm was red and swollen. X-rays revealed a fracture at the proximal end of the left humerus ten to fourteen days old. Emergency room personnel placed a call to the abuse hotline maintained by the Department of Children and Family Services (DCFS). The police were contacted, and N.L. was interrogated. N.L. told both the emergency room personnel and the police that her live-in boyfriend, S.W.'s father, had said that, when the child reached around his neck the evening before, he heard a popping noise. The boyfriend reiterated this account. A nurse practitioner affiliated with the Child Protection Team examined the child and concluded that the fracture was the result of child abuse.

DCFS employees took custody of the child and later filed an emergency shelter petition asserting child abuse. The trial court granted the petition by order entered on October 23, 2000, giving DCFS legal custody of the child. DCFS eventually placed S.W. with her maternal grandmother in North Carolina. Neither this placement decision nor the emergency shelter order is at issue on the present appeal.

Without preparing a case plan or offering to do so, DCFS filed a petition for termination of parental rights. As amended, the petition alleged that both parents engaged in egregious conduct or had the opportunity and ability to prevent egregious conduct detrimental to S.W. and knowingly failed to do so, within the meaning of section 39.806(1)(f), Florida Statutes (2000). The amended petition also alleged that both parents engaged in conduct that threatened S.W.'s life, safety, well-being, or health within the meaning of section 39.806(1)(c), Florida Statutes (2000), irrespective of the provision of services.

In January 2001, the boyfriend consented to, and the trial court subsequently ordered, termination of his parental rights. In March 2001, the boyfriend pleaded guilty to aggravated child abuse of S.W. and was sentenced for that offense.

The DCFS petition remained pending as to N.L. and came on for hearing on May 2, 2001. A radiologist testified that, based on the extent to which they had healed, S.W.'s fractures had occurred ten to fourteen days before x-rays were taken of S.W. on October 20, 2000. These and other x-rays revealed fractures of S.W.'s right tibia, left tibia, and left humerus. In every case, the fractures were "metaphyseal," or near the ends of the bones. William Alison Cumming, a professor of medicine at the University of Florida with approximately 30 years of experience in pediatric radiology, testified that S.W.'s fractures were, in his opinion, "due to the child being rapidly and forcibly shaken probably while held by the trunk with the limbs free to flail about."

Dr. Cumming also testified that the fractures were probably inflicted without bruising. He testified further that, for a long time after these injuries were inflicted, S.W. may have exhibited no signs of the fractures or of any kind of physical distress as a result of the fractures. In Dr. Cumming's opinion, the fractures might have been the result of a single shaking episode of very brief duration.

N.L. testified that, as the child's primary caretaker, she spent as much time with the child as she could. Conceding that there were times when she was not with the child, such as when she went to the bathroom, took a shower, or went to the store, she testified that she believed the longest period that the child had not been in her care lasted no more than a half hour. When not in her care, the child was in the boyfriend's care. She testified that she never saw any indication when she returned from the store, bathroom, or shower, that the child had been injured.

A clinical coordinator with the Child Protection Team, who performed a psychosocial assessment of N.L. testified that she recommended N.L. receive a further psychological evaluation. She stated she could not testify as to whether N.L. posed any danger to the child and stated that a psychological evaluation was "imperative before any decision was made." The record does not indicate whether DCFS ever offered or sought a psychological evaluation. Although a case plan appears in the record, it is unsigned and the record is devoid of evidence that a case plan was offered to N.L. There is no record evidence that N.L. posed a risk to the child for "psychosocial" reasons that could not be ameliorated with the provision of services.

The trial court entered the order under review, terminating parental rights under both section 39.806(1)(c) and (1)(f), Florida Statutes (2000), and concluding that N.L. "has 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 child and that N.L. had "engaged in a course of conduct toward the child that demonstrates that her continuing involvement in the parent-child relationship threatens the well being of the child."

Standard of Review

We are obliged to affirm the termination of parental rights if DCFS has met its burden to present clear and convincing evidence of a statutory ground for terminating parental rights, along with clear and convincing evidence that terminating parental rights is in the best interests of the child. See § 39.809(1), Fla. Stat. (2000). Clear and convincing evidence is defined as "an `intermediate level of proof [that] entails both a qualitative and quantitative standard. The evidence must be credible; the memories of the witnesses must be clear and without confusion; and the sum total of the evidence must be of sufficient weight to convince the trier of fact without hesitancy.'" In re Adoption of Baby E.A.W., 658 So.2d 961, 967 (Fla. 1995), cert. denied, 516 U.S. 1051, 116 S.Ct. 719, 133 L.Ed.2d 672 (1996) (quoting In re Davey, 645 So.2d 398, 404 (Fla.1994)).

Our standard of review is highly deferential. A finding that evidence is clear and convincing enjoys a presumption of correctness and will not be overturned on appeal unless clearly erroneous or lacking in evidentiary support. See T.C.B. v. Fla. Dep't of Children & Families, 816 So.2d 194, 197-98 (Fla. 1st DCA 2002); C.W. v. Dep't of Children & Families, 814 So.2d 488, 492 (Fla. 1st DCA), rev. denied, 823 So.2d 122 (Fla.2002). Sitting en banc in In Interest of D.J.S., 563 So.2d 655, 662 (Fla. 1st DCA 1990), this court affirmed the trial court's termination of parental rights, concluding "that the trial court's determination that the evidence is clear and convincing ... cannot be held to be unreasonable as a matter of law." The D.J.S. court explained the standard of review in termination cases, as follows:

We hold that a trial court's determination that evidence is clear and convincing will not be overturned unless it may be said as a matter of law that no one could reasonably find such evidence to be clear and convincing.

* * *

Our review of the record is not a de novo review or redetermination of the facts and issues. Even were we so inclined, we find no authorization for that procedure. Our review is addressed to the issues made on appeal and to the evidentiary support for, and correctness under the law of, the trial court's order on those issues.

Id.; see also McKesson Drug Co. v. Williams, 706 So.2d 352, 353 (Fla. 1st DCA 1998)("In civil cases involving the burden of clear and convincing evidence, an appellate court may not overturn a trial court's finding regarding the sufficiency of the evidence unless the finding is unsupported by record evidence, or as a matter of law, no one could reasonably find such evidence to be clear and convincing. Accordingly, the appellate court's function is not to conduct a de novo proceeding or reweigh the evidence by determining independently whether the evidence as a whole satisfies the clear and convincing standard, but to determine whether the record contains competent substantial evidence to meet the clear and convincing evidence standard." (citations omitted)). Further, as the Florida Supreme Court observed in E.A.W., in reviewing findings of the trial court made under a "clear and convincing" evidentiary standard,

[O]ur task on review is not to conduct a de novo proceeding, reweigh the testimony and evidence given at the trial court, or substitute our judgment for that of the trier of fact. Instead, we will uphold the trial court's finding "if, upon the pleadings and evidence before the trial court, there is any theory or principle of law which would support the trial court's judgment in favor of terminating... parental rights."

658 So.2d at 967 (quoting Kingsley v. Kingsley, 623 So.2d 780, 787 (Fla. 5th DCA 1993), review denied, 634 So.2d 625 (Fla.1994)).

Thus, our review involves a two-step analysis. Where the trial court's findings that the evidence is clear and convincing are supported by competent substantial evidence,¹ and the appellate court cannot say that no one could reasonably...