Smith v. Department of Health and Rehabilitative Services, 94-2262
| Decision Date | 12 January 1996 |
| Docket Number | No. 94-2262,94-2262 |
| Citation | 665 So.2d 1153 |
| Parties | 21 Fla. L. Weekly D164 Michelle SMITH, Appellant, v. DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Appellee. |
| Court | Florida District Court of Appeals |
Appeal from the Circuit Court for Orange County; Thomas S. Kirk, Judge.
Eric Lee Bensen, Alexander Zouzoulas & Lori Wheeler, P.A., Orlando, for Appellant.
Lee Bernbaum and James A. Sawyer, Jr., Orlando, for Appellee.
AFFIRMED.
After considering the record in its entirety, I believe there was substantial competent evidence to support the trial court's finding of dependency. Specifically, there was evidence that the mother, Michelle Smith, had frequently struck the three older children with a brown stick, a belt, and her hands. Marks and bruises had been observed on the legs and buttocks of each of such children. 1 Additionally, the record reflects that Smith was not a stranger to the juvenile dependency court system. Her three older children had previously been found dependent in 1990 due to her physical abuse and neglect. The children were subsequently returned to her in August, 1992.
Smith appeals from an order adjudicating her daughter, S.C., dependent. The trial judge found that Smith and S.C.'s father, Robert Corbett, had disciplined S.C.'s half-siblings too harshly. S.C. was adjudicated dependent based solely on "prospective abuse." In my opinion, the evidence at the dependency hearing was insufficient to establish that S.C. was at substantial risk of imminent abuse or neglect and therefore I respectfully dissent.
"Abuse" is defined as "any willful act that results in any physical, mental or sexual injury that causes or is likely to cause the child's physical, mental or emotional health to be impaired." Sec. 39.01(2), Fla.Stat. (1993). A child may be found to be dependent because of "abuse" under several circumstances. Secs. 39.01(10)(a)-(e), Fla.Stat. (1993). They include when a child is found:
(a) To have been abandoned, abused, or neglected by [the] parents or other custodians.
* * * * * *
(e) To be at substantial risk of imminent abuse or neglect by the parent or parents or the custodian.
Pursuant to this statute, a child may be found to be dependent based upon a finding of risk of abuse as opposed to actual abuse, if the evidence at the hearing supports a finding that the risk is substantial. Richmond v. Department of Health and Rehabilitative Services, 658 So.2d 176 (Fla. 5th DCA 1995). A finding of risk of abuse may be based on proof of neglect or abuse of other children. See C.F. v. Department of Health and Rehabilitative Services, 649 So.2d 295 (Fla. 1st DCA 1995); In Interest of M.T.T., 613 So.2d 575 (Fla. 1st DCA 1993). See also Padgett v. Department of Health and Rehabilitative Services, 577 So.2d 565 (Fla.1991). However, the evidence must establish that a child is at "substantial risk" of suffering abuse or neglect if left in the custody of a parent. This showing is generally based on evidence that the abusive or neglectful parent suffers from a condition that makes the prospect of future abuse or neglect of another child highly probable and there is no reasonable basis for improvement. See Richmond; Palmer v. Department of Health and Rehabilitative Services, 547 So.2d 981 (Fla. 5th DCA), dismissed, 553 So.2d 1166 (Fla.1989).
In Palmer, this court upheld a termination of parental rights of one son (D.L.P.) based on prospective sexual abuse. In that case, Palmer sexually abused D.L.P.'s stepbrother (B.G.), for which he was convicted and sentenced to a sex offender program. He did not complete the program, however, because he was unable to benefit from it. The program director noted that he had shown little remorse for his sexual battery offense, he had a low capacity to evaluate his problems and behavior, and he had did not accepted responsibility for his behavior. A psychiatrist diagnosed Palmer as an untreated pedophile, opining that such an individual would be likely to repeat his sexual behavior when placed under stress or when indulging in alcohol. The psychiatrist further concluded that D.L.P. would be at risk if placed in Palmer's custody because he had a significant potential for abusing a youngster.
The issue in Palmer was whether his parental rights could be terminated based on prospective abuse. This court noted that the issue in prospective neglect or abuse cases is whether future behavior, which will adversely affect a child is predictable. It noted additionally that courts may find prospective neglect or abuse, if a parent is so afflicted that there is no reasonable basis for improvement. Acknowledging that psychological disorders involving persons of average intelligence often pose diagnostic problems, this court found, however, that pedophilia, had been studied extensively. Studies showed that there was no easy cure for the disorder and that the recidivism rate was extremely high. It found that the placement of a child with a person who suffers from this condition, was "tantamount to placing matches in a tinder box" because of the probability that the child would be sexually abused and because there was no reasonable prospect that the perpetrator would ever be cured. 547 So.2d at 984.
In Padgett v. Dept. of Health and Rehabilitative Services, 543 So.2d 1317 (Fla. 5th DCA 1989), approved, 577 So.2d 565 (Fla.1991), this court also affirmed a termination of parental rights based on prospective abuse and/or neglect. The child at issue, W.L.P., had been taken from the Padgetts, his natural parents, immediately after his birth through a dependency proceeding and had remained in foster care since that time. At the termination hearing, evidence was presented that he would be subject to abuse and neglect if left with the Padgetts, who had been guilty of these offenses with other children. Admittedly, there was no evidence that they had abused or neglected W.L.P. since they had never had custody of him. Thus, the termination of parental rights was based solely on prospective abuse or neglect. Affirming the trial court, this court and certified a question to the supreme court concerning prospective abuse and/or neglect, as a question of great public importance. The supreme court approved this court's decision to affirm the termination of the Padgetts' parental rights. It found, however, the term "prospective" abuse, neglect or abandonment to be misleading, reasoning:
The term 'prospective' simply means likely to happen. Although every termination case is prospective in the sense that it involves an element of speculation as to whether mistreatment will occur if the child is returned to the home, courts generally have reserved use of the term to characterize those termination cases where parental rights in a child are severed without evidence of abuse or neglect to that particular child. Parental rights are said to be terminated in such cases based on 'prospective,' as opposed to 'actual,' abuse of the child. We reject this analysis and point out that most such 'prospective' abuse cases are in fact based on actual, documented mistreatment of other children and are no more speculative in nature than conventional termination cases involving prior abuse or neglect of the present, as opposed to some other child.... Such is the case in the present proceedings. To characterize these cases as 'prospective,' thus implying that they are somehow more speculative than conventional cases, is misleading. We are not presented today with a truly 'prospective' abuse case in which the state seeks to terminate parental rights based solely on prospective abuse, i.e., without evidence of actual abuse to any child, and we do not decide this issue.
The record showed that the Padgetts' other children had emotional and behavioral disorders, together with a low level of intelligence functioning. A clinical psychologist testified that in his opinion, these emotional disorders and low IQ were the result of having lived in a deprived environment. The psychologist also testified that two of the children showed signs of sexual abuse. The children's mother had abandoned them on several occasions and on other occasions, she had tied the children to the furniture, and left them. Additionally, HRS took one of W.L.P.'s siblings, a newborn, into custody after having received reports from hospital authorities that the mother was poking the child and engaging in other inappropriate conduct. A psychiatrist who examined the mother testified that she was a chronic schizophrenic, that she had a history of numerous psychiatric hospitalizations, and that her treatment prognosis was poor. In his opinion, the mother would never be able to effectively parent her child. Another expert testified that the risk of abuse to the child was very high. Finally, while the permanent commitment proceedings were pending, the mother staged a fake rape in which she abused herself and later reported to officers that she had been bound and raped by a neighbor, and she sexually abused a four-year-old child in her care.
Though the supreme court affirmed the trial court's order terminating parental rights, it declined to characterize the issue in the case as one of prospective abuse or neglect. The court noted that the mistreatment asserted by HRS as grounds for terminating the Padgetts' parental rights was actual, rather than prospective and had resulted in the permanent termination of parental rights in other children. The question posed by the court was whether the prior termination of parental rights in other children could serve as grounds for permanently severing the Padgetts' rights in the present child. After reviewing statutory law (...
To continue reading
Request your trial