V.S. v. Dep't of Children & Families

• Decision Date: 09 June 2021
• Docket Number: No. 4D20-1833,4D20-1833
• Parties: V.S., the Mother, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES and Guardian Ad Litem, Appellees.
• Court: Florida District Court of Appeals

322 So.3d 1153

V.S., the Mother, Appellant,

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

No. 4D20-1833

District Court of Appeal of Florida, Fourth District.

[June 9, 2021]

Albert W. Guffanti of Albert W. Guffanti, P.A., Miami, for appellant.

Ashley Moody, Attorney General, Tallahassee, and Carolyn Schwarz, Assistant Attorney General of the Office of the Attorney General, Children's Legal Services, Fort Lauderdale, for appellee Department of Children and Families.

Thomasina F. Moore, Statewide Director of Appeals, and Samantha Costas Valley, Senior Attorney of the Florida Statewide Guardian ad Litem Office, Tallahassee, for appellee Guardian ad Litem.

Per Curiam.

The mother appeals the termination of her parental rights to her four children based upon egregious conduct toward her thirteen-month-old child, egregious conduct being a ground for termination in section 39.806(1)(f), Florida Statutes (2020). She argues that the Department of Children and Families ("the Department") did not prove this ground for termination by clear and convincing evidence. She also claims that the statute is, in part, unconstitutional because it eliminates proof of a nexus between the egregious acts to one child and substantial risk of significant harm to the child's siblings.

As to the mother's first claim, because an appellate court cannot reweigh the evidence presented, and competent substantial evidence supported the ground for termination of parental rights to the child K.M.4, all three panel members agree with an affirmance.

As to the second claim involving the termination of parental rights to K.M.4's three siblings, a two-judge panel majority determines that the statute is not unconstitutional. The majority further determines that the trial court properly applied the statute as amended in 2014, and concludes that (1) the mother engaged in "egregious conduct ... that threatens the life, safety, or physical, mental, or emotional health of ... the child's sibling[s,]" a ground for termination of parental rights found in section 39.806(1)(f), and (2) that termination of the mother's parental rights of the siblings is the least restrictive means of protecting them from serious harm.

Finally, all three panel members agree that the case is to be remanded to have the trial court decide and make findings whether it is in each sibling's manifest best interest to terminate the mother's parental rights.

Background

At the time of the incident, the mother lived with her four children: a seven-year-old girl ("K.M.1"); five-year-old boy ("K.M.2"); two-year-old boy ("K.M.3"), and a one-year-old boy ("K.M.4"). The maternal grandmother also lived with them.

The Department filed a verified petition for dependency and a petition to shelter the children based upon injuries suffered by K.M.4 while in the mother's care: two left femur fractures, a rib fracture

, and a chest injury. These were revealed when the mother took K.M.4 to the emergency room the morning after the alleged incident. A child protective investigator was called to investigate. She interviewed the mother at the hospital and then interviewed the other children.

Later, a Child Protection Team ("CPT") nurse examined K.M.4 and found positive indicators of physical abuse. The nurse determined that the injuries on the child were "inflicted" and that the mother could not "provide any explanation regarding the child's injuries." The trial court granted the shelter petition, finding probable cause to believe that the children were abused, abandoned, neglected, or facing impending danger. The children were placed in the custody of the father, who is not married to the mother, and the mother was given supervised visitation.

Subsequently, the Department filed an expedited termination of parental rights petition against the mother, pursuant to section 39.806(1)(f), Florida Statutes (2020), on the grounds that she engaged in egregious conduct threatening the life, safety, or physical, mental or emotional health of the child or his siblings. The mother denied the allegations, and the case proceeded to trial.

At trial, the mother testified that on the evening of the incident she left K.M.4 in his playpen when she went to the bathroom. While still in the bathroom, she heard K.M.4 scream. As soon as she finished, she went straight to the child and picked him up. She noticed a red spot on his leg but saw no swelling or bruising. Because he was crying, she took him downstairs, gave him a chewable Tylenol

, elevated his leg, and put ice on it. He went to sleep, and she slept on the floor next to him. He slept through the night.

When the mother awoke the next morning, she realized that K.M.4's leg was swollen and decided to take him to the hospital. At the hospital, the doctors diagnosed a fracture and then transferred the baby to Plantation General Hospital, where a body scan revealed other injuries. The mother testified that she did not know how the baby could have been injured. She speculated that K.M.3, her two-year-old, may have jumped into the crib onto K.M.4 but got out when K.M.4 cried, because she observed K.M.3 running out of the bedroom just after K.M.4 started crying.

The child protective investigator testified she commenced her investigation after receiving a report of a bone fracture on the child. She spoke to the mother at the hospital and confirmed that what the mother told her at the hospital was consistent with her trial testimony as to the occurrence. The investigator also interviewed K.M.1 and K.M.2. Their stories were not entirely consistent, nor were they consistent with the mother's. However, both placed blame on K.M.2, the five-year-old. K.M.2 admitted to the investigator that he tried to pick up K.M.4 and then dropped him, and the investigator testified that there was nothing about his demeanor to suggest that he was not being truthful with her.

A CPT case coordinator testified she too had interviewed the mother, whose statements were consistent with her trial testimony. Further, a CPT nurse practitioner testified she examined K.M.4 at the hospital and obtained his medical records. She also took a statement from the mother, which again was consistent with the mother's trial testimony.

The nurse practitioner's review of K.M.4's medical records and imaging reports indicated physical abuse. The child had a fracture of the corner of his left femur, which attaches to part of the hip. This fracture is indicative of abuse. He also had a spiral fracture

across the same femur. In addition, he had a rib fracture, and a chest injury called a pneumomediastinum, which is air trapped underneath the chest wall and is usually caused by a direct impact. The nurse did not feel the mother's explanation that one of the other children may have jumped on top of the baby in the playpen was consistent with his injuries. She stated that the corner fracture in particular raised a red flag because these fractures are indicative of intentional injuries and "are usually not accidental." The nurse thought that another child could not have caused the injuries by jumping on the baby or dropping the baby, stating either scenario was "highly unlikely."

The CPT medical director, a pediatrician, testified to his review of K.M.4's medical records and confirmed the child's various injuries. He concluded the injuries were inflicted and not accidental. The injuries were not consistent with any of the explanations given by the mother or the other children, nor did he think that children could exert sufficient force to cause all the injuries. And while some of the injuries could occur accidentally, the totality of the injuries indicated abuse.

The child advocate and guardian ad litem both testified. Each acknowledged that the children and mother had a strong bond and that the mother continued to visit and support the children. The child advocate noted, "[e]very time they see Mom, they're always in a happy mood." The mother had provided food and money to the father for his rent and their care. Nevertheless, the child advocate and guardian ad litem each recommended termination of the mother's parental rights to the children because of the injuries to K.M.4 and their concern that caring for all four children overwhelmed the mother.

Testimony also revealed no prior reports of physical abuse. While the mother and father had been involved in some domestic violence earlier, those incidents stopped when the father moved out of the home long before this incident. The father testified he had seen the mother "whoop" the children, but he never observed any abuse. He was concerned, however, for the welfare of the children because of K.M.4's injuries.

The court entered a final judgment terminating the mother's parental rights as to all four children. The court found the mother's testimony was not credible. The mother was K.M.4's caregiver, and neither the grandmother nor the father was with the child at the time of the incident. The court accepted the nurse's and doctor's findings that the injuries were intentionally inflicted and were not an accident because the injuries required a large amount of force which could only come from an adult, not a child. Therefore, the court accepted the experts’ testimony that rejected the explanation that the other children somehow caused the injuries.

Given the mother's caretaker role, the court determined she had engaged in "egregious conduct" threatening the child's life, safety, physical, mental, or emotional health. While no evidence was presented of abuse to the other children, the court noted section 39.806(1)(f) does not require proof of any nexus between egregious conduct toward K.M.4 and harm to his siblings.

The trial court further found that because the Department had proved termination pursuant to section 39.806(1)(f), it was not required to use reasonable efforts to reunify the siblings with the mother. Thus, termination was the least restrictive means to protect the children.

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