Tolley v. Department of Health and Rehabilitative Services, 95-1216

• Decision Date: 02 February 1996
• Docket Number: No. 95-1216,95-1216
• Citation: 667 So.2d 480
• Parties: 21 Fla. L. Weekly D305 David TOLLEY, Appellant, v. DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Appellee.
• Court: Florida District Court of Appeals

Page 480

667 So.2d 480

21 Fla. L. Weekly D305

David TOLLEY, Appellant, v. DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Appellee.

No. 95-1216.

District Court of Appeal of Florida Fifth District.

Feb. 2, 1996.

Appeal from the Circuit Court for Orange County, Charles N. Prather, Judge.

Michael L. Irwin, Orlando, for Appellant.

Patricia A. Savitz, Orlando, for Appellee.

THOMPSON, Judge.

David Tolley ("Tolley"), the biological father of three sons (J.T., B.T. and Jf. T.) appeals the trial court's final order of adjudication and disposition which terminated his parental rights. Although several grounds were written as the basis for the termination, the primary ground cited by the trial court was its finding that Tolley's three sons were at substantial risk of prospective abuse or neglect due to his pedophilia. At trial, Tolley argued that his parental rights could not be terminated because the Department of Health and Rehabilitative Services ("HRS") failed to prove by clear and convincing evidence that the children were at substantial risk of prospective abuse or neglect due to his pedophilia. After reviewing the testimony presented to the trial judge, especially the expert testimony, we affirm the final judgment terminating Tolley's parental rights.

Initially, we note that a child may be found dependent because of prospective abuse. Section 39.01(10), Florida Statutes (1993) reads in pertinent part:

(10) "Child who is found to be dependent" means a child who, pursuant to this chapter, is found by the court:

. . . . .

(e) To be at substantial risk of imminent abuse or neglect by the parent or parents or the custodian."

This allows the court to find a child dependent before the child is actually harmed. See Richmond v. Department of Health & Rehabilitative Servs., 658 So.2d 176 (Fla. 5th DCA 1995) (affirming finding of dependency based on substantial risk of imminent abuse or neglect where expert and lay testimony demonstrated nexus between mother's mental health problems and her potential to harm daughter). Further, parental rights may be terminated because a child is at substantial risk of prospective abuse or neglect. Palmer v. Department of Health & Rehabilitative Servs., 547 So.2d 981 (Fla. 5th DCA), cause dismissed, 553 So.2d 1166 (Fla.1989) (affirming termination of father's parental rights to son based on prospective sexual abuse where evidence showed that father had been diagnosed as untreated pedophile, his prognosis for improvement was poor, and there was substantial expert testimony that risks were "too high" that father would likewise abuse son).

Recently this court stated:

A child may be declared dependent or parental rights terminated based on the sexual abuse of other children ... where there is some reasonable basis in the evidence that the child is likewise at risk.

Denson v. Department of Health & Rehabilitative Servs., 661 So.2d 934, 936 (Fla. 5th DCA 1995) (emphasis added). Therefore, to justify the termination of parental rights in such cases, "the state must show by clear and convincing evidence that reunification with the parent poses a substantial risk of significant harm to the child." Padgett v. Department of Health & Rehabilitative Servs., 577 So.2d 565, 571 (Fla.1991). Although there was a dispute and disagreement between experts, the state met its burden in this case by showing with expert testimony a nexus between Tolley's pedophilia and the potential harm to his sons.

A report was made to HRS concerning the children and an investigation was begun. HRS filed a dependency petition and the children were adjudicated dependent. During the investigation of the dependency, Tolley admitted to having been sexually active with female children. He admitted to his case worker that he had molested his nieces about ten years previously, that he had molested another young girl, that he watched pornographic movies depicting children, and that he once peeked through a crack in the door to watch his neighbor's child. Tolley felt that his own children were not at risk because they were boys and the other children had been girls. As a result of these revelations, a plan was developed for Tolley in order that the children be returned to him. One part of the plan was that he receive counseling for his sexual predisposition toward children.

Ann McDaniel, a licensed mental health counselor, was accepted as an expert. She testified that Tolley was required to attend the Altamonte Center for Counseling because of the treatment modality they used. She evaluated Tolley and recommended a course of outpatient sex offender treatment, which included group therapy and regular polygraph examinations. This form of treatment modality was recommended because of the high degree of denial among pedophiles. Specifically, group therapy reduced the ability of the individual to manipulate his therapist or to deny his problem. Tolley was accepted into the program but was temporarily discharged because he refused to take a polygraph test. Even when he was accepted back into the program, he did not appear when scheduled to take the polygraph test. Eventually, he was completely discharged from the program. McDaniel testified that without further treatment using the treatment modality she recommended, Tolley remains at a high risk of reoffending.

Dr. Daniel P. Tressler, a clinical and forensic psychologist, was accepted as an expert in the field of clinical psychology with the ability to evaluate and assess parents, in relation to sexual abuse and sexual offenders. Dr. Tressler was Tolley's treating psychiatrist. Dr. Tressler's diagnosis of Tolley was: (1) acute, chronic depression; and (2) "pedophilia, opposite sex, nonexclusive type, based upon admitted instances of sexual behavior in [Tolley's] past at several different stages with children who were prepubescent." Specifically, Tolley admitted to fondling his two-year-old sister when he was only eleven or twelve years old, molesting his nieces (his sister's children) approximately ten to eleven years prior to the evaluation, and molesting the daughter of a friend. Tolley also admitted to having engaged in homosexual as well as heterosexual activities with adults. Based upon this history, Dr. Tressler testified:

That means that [Tolley] had been able, in the course of his life, to demonstrate or to form and maintain...