Z.C. v. K.D.
| Citation | 88 So.3d 977 |
| Decision Date | 06 June 2012 |
| Docket Number | No. 2D10–3474.,2D10–3474. |
| Parties | In the Interest of Z.C.(1) and Z.C.(2), children. Department of Children and Family Services and Guardian Ad Litem Program, Appellants, v. K.D. and Z.H., Appellees. |
| Court | Court of Appeal of Florida (US) |
OPINION TEXT STARTS HERE
Pamela Jo Bondi, Attorney General, Tallahassee, and Kimberly G. Gore, Assistant Attorney General, Tampa, for Appellant Department of Children and Family Services.
Jennifer S. Paullin and Kelley Schaeffer, Tavares, for Appellant Guardian ad Litem Program.
Ita M. Neymotin, Regional Counsel, Second District, Office of Criminal Conflict and Civil Regional Counsel, Bartow; and Kimberly Nolen Hopkins, Special Assistant Regional Counsel, Tampa, for Appellee K.D.
David A. Dee, Tampa, for Appellee Z.H.
EN BANC
K.D. and Z.H. are the parents of twin boys, Z.C.(1) and Z.C.(2), who were infants when they were sheltered after Z.C.(1) suffered severe injuries while he was in the parents' care. The Department of Children and Families (DCF) filed an expedited petition to terminate the parental rights to both children based on egregious conduct toward Z.C.(1) under section 39.806(1)(f), Florida Statutes (2009), and aggravated child abuse of Z.C.(1) under section 39.806(1)(g). Although the trial court found that the Department established these statutory grounds by clear and convincing evidence, it declined to terminate parental rights based on its sua sponte consideration of an alternative placement in a permanent guardianship with the maternal grandparents. The trial court entered separate orders denying DCF's petition and placing the children in the permanent guardianship.
We reverse the order terminating parental rights because the trial court misapplied the manifest best interests and least restrictive means tests by basing its decision not to terminate solely on the availability of the alternative placement. We reverse the order placing the children in a permanent guardianship because the trial court was precluded as a matter of law from considering this alternative placement at this stage in the proceedings. This court, sua sponte, has exercised its en banc review of this case because the case addresses recurring issues regarding the termination of parental rights to a child based on the abuse of a sibling. We have determined that clarification is necessary to maintain uniformity in our decisions. Thus, we take this opportunity to clarify the manifest best interests and least restrictive means tests in such cases in the context of the trial court's erroneous application of those tests. In addition, we address the nexus test derived from Padgett v. Department of Health & Rehabilitative Services, 577 So.2d 565 (Fla.1991), in the context of the trial court's proper application of that test.
Z.C.(1) and Z.C.(2) are identical twin boys who were born on October 28, 2009. The twins were born healthy and had a normal pediatric checkup on November 5, 2009. They lived alone with the parents, and there is no indication that they had ever been harmed while in the care of relatives.
In mid-November 2009, the Mother attended a family party with the twins. Those attending the party claimed that the children appeared to be fine. At some point after the party, however, the parents claimed that they noticed that Z.C.(1)'s leg was dangling at an odd angle. They took him to the hospital. At the hospital, the doctors diagnosed Z.C.(1) with a recent, severely displaced fracture of the left femur. They also diagnosed a healing skull fracture and a healing rib fracture. The matter was reported to law enforcement.
Law enforcement interviewed the parents about the events of the day; the evidence did not support the parents' version of events after the Mother left the party. The parents initially told law enforcement that the Mother drove straight home. After law enforcement confronted the Mother with evidence that she had gone to Wal–Mart, the Mother changed her story. She claimed she took the twins to Wal–Mart on her way home from the party. But the interviewing detective had already obtained the Wal–Mart security footage which showed the Mother shopping alone.
The Mother changed her story again and said she picked up the Father and drove to Wal–Mart after the party. She claimed that the Father stayed in the car with the twins while she shopped. When the Mother returned to the car, the Father got out and helped her load the shopping bags into the trunk. The Father corroborated this version of events. But Wal–Mart security footage showed the Mother by herself loading shopping bags into the backseat of a seemingly empty car. Despite this contradictory evidence, the parents adhered to this version of events. They were unable to offer an explanation for Z.C. (1)'s injuries.
DCF believed that the parents were being evasive and uncooperative in an effort to avoid prosecution for felony child abuse. Concluding that no case plan for reunification would be viable under these circumstances, DCF elected not to pursue a dependency proceeding. Instead, it filed an expedited petition for termination of parental rights. DCF alleged egregious conduct toward and aggravated child abuse of Z.C.(1) and maintained that these circumstances warranted termination as to both children.
The trial court found the parents' testimony incredible and accepted medical testimony that Z.C.(1) had been subjected to two or three instances of severe abuse during his seventeen days of life. The trial court concluded that DCF had established that the parents committed egregious conduct toward and aggravated abuse of Z.C.(1). The more difficult question for the trial court was whether these circumstances warranted termination of parental rights to Z.C.(2) who did not appear to have suffered any abuse similar to the abuse endured by his twin. Ultimately, the evidence convinced the trial court that the parents had a “mutual commitment to lying and covering up the abuse of a child whose sibling can, at any time, be equally susceptible to the kind of aggravated child abuse proven against his twin brother.”
The trial court then considered the children's manifest best interests. It made an unusual placement decision, one not advocated by any of the parties. As the trial court explained:
The Court considered the cases noted above, and finds that grounds for TPR and nexus were shown and it is clearly in the best interests of the twins to maintain their joint placement. Nevertheless, the Department failed its burden of proving that termination of parental rights was the “least restrictive” alternative available to these parties. Another option is available that meets half way between termination of rights/adoption and the impossibility of reunification, and that is permanent guardianship.
The court entered an order denying DCF's petition to terminate parental rights and subsequently entered a second order placing the children in a permanent guardianship with the twins' maternal grandparents. In the trial court's view, a guardianship could ensure the children's safety while allowing regular visitation between the children and their parents. DCF and the Guardian ad Litem Program (GAL) challenge these orders on appeal.1
For a better understanding of the principles at issue, we must examine the trial court's actions in the applicable legal framework. Chapter 39 expressly requires DCF to prove the following elements to support a termination of parental rights: (1) that at least one of the grounds set forth in section 39.806 has been met, and (2) that termination would be in the manifest best interests of the children under section 39.810.2§§ 39.802(4), 39.809(1).
In order to protect the parents' constitutional right to parent their children without governmental interference, the Florida Supreme Court has held that chapter 39 implicitly requires DCF to prove that termination is the least restrictive means of protecting the children from serious harm. See Fla. Dep't of Children & Families v. F.L., 880 So.2d 602, 609 (Fla.2004); Padgett, 577 So.2d at 571. In the same vein, the supreme court has determined that if the termination is based solely on the abuse of a sibling, DCF must also prove that there is a substantial risk of significant harm to the child resulting from the abuse of the sibling. Id. As will be discussed later, this requirement has been referred to as the “nexus test.”
Of the twelve grounds listed in section 39.806, DCF alleged those set forth in subsections (1)(f) and (g). Subsection (1)(f) provides for termination if “[t]he parent or parents engaged in egregious conduct or had the opportunity and capability to prevent and knowingly failed to prevent egregious conduct that threatens the life, safety, or physical, mental, or emotional health of the child or the child's sibling.” Subsection (1)(g) provides for termination if “[t]he parent or parents have subjected the child or another child to aggravated child abuse as defined in s. 827.03, sexual battery or sexual abuse as defined in s. 39.01, or chronic abuse.”
When DCF proceeds with termination under these sections, it may file an expedited petition for termination of parental rights without filing a separate petition for dependency. §§ 39.802(5), 39.806(3). DCF filed such an expedited petition in this case in which it requested that the court adjudicate the children dependent and terminate parental rights. DCF also filed a case plan with a permanency goal of adoption.
If the court finds that DCF met its burden of proving the elements by clear and convincing evidence, it must grant the petition for termination of parental rights and proceed with adoption of a child in its custody. § 39.811(2). If the court finds that DCF has not met its burden of proof, its powers of disposition are limited by section 39.811(1). If grounds for dependency have...
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