Opinion
1D22-2969
08-29-2023
Florida Department of Children and Families and the Guardian ad Litem, Appellants, v. M.H., the Father of K.H., a minor child, Appellee.
Carolyn Schwarz, Appellate Counsel, Fort Lauderdale, for Children's Legal Services. Sara Elizabeth Goldfarb, Statewide Director of Appeals, and Stephanie E. Novenario, Senior Appellate Attorney, Tallahassee, for Guardian ad Litem o/b/o K.H. Chana Watson of Chana M. Watson P.A., Cross City, for Appellee.
Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331.
On appeal from the Circuit Court for Dixie County. Jennifer Johnson, Judge.
Carolyn Schwarz, Appellate Counsel, Fort Lauderdale, for Children's Legal Services.
Sara Elizabeth Goldfarb, Statewide Director of Appeals, and Stephanie E. Novenario, Senior Appellate Attorney, Tallahassee, for Guardian ad Litem o/b/o K.H.
Chana Watson of Chana M. Watson P.A., Cross City, for Appellee.
ROWE, J.
The Department of Children and Families (DCF) and the Guardian Ad Litem (GAL) appeal the circuit court's order denying DCF's expedited petition to terminate M.H.'s (Father's) parental rights under sections 39.806(1)(c) and (f), Florida Statutes (2021). The trial court concluded that DCF failed to prove that termination was (1) supported under any alleged statutory ground, (2) in the manifest best interests of the child, and (3) the least restrictive means to protect the child. Because the trial court's findings lack evidentiary support and its legal conclusions conflict with the applicable statutes, we reverse.
Facts
The police executed a search warrant of Father's home in connection with an FBI investigation into child pornography. Investigators discovered baggies, a scale, a glass pipe, and needles in the home. They also confirmed that Father transmitted images of child sexual abuse on the internet. During the investigation, an agent chatted online with Father. Father bragged about his sexual contact with children as young as two years old, boasting that he had performed oral sex on a two-year-old girl and had penetrated her vagina with his penis. Father offered to give the agent drugs in exchange for having sex with a minor female. Father also expressed that he would trade K.H., Father's then seven-year-old son, to have sex with an adult.
DCF sheltered K.H. and placed him with a paternal aunt. After the criminal investigation of Father ended and the State filed charges against him, DCF petitioned to terminate Father's parental rights under sections 39.806(1)(c) and (f), Florida Statutes. DCF argued that the evidence supported termination under both statutory grounds, termination was in the manifest best interests of K.H., and termination was the least restrictive means to protect him. GAL supported the petition.
The law enforcement officers involved in the child pornography investigation testified at the termination hearing. Also testifying was a psychologist who reviewed Father's records to complete a risk assessment using the Child Pornography Offender Risk Tool. Father scored four out of seven on the CPORT assessment, indicating a twenty-three percent likelihood that Father would reoffend in the next five years. The psychologist testified that Father's risk of reoffending was above average and expressed concern about K.H. returning to Father's care. It was her professional opinion that Father needed to engage in sex offender treatment once a week for at least one year before having any contact with K.H. And Father should complete three to four years of treatment before K.H. could be safely returned to Father's care. No evidence presented contradicted the psychologist's testimony about the measures necessary to safely return K.H. to Father's care.
A child mental health counselor who evaluated K.H. also testified in support of DCF's petition. The counselor reported no allegations of direct abuse from K.H. Even so, K.H. exhibited several abnormal behaviors-intrusive recollections, recurrent dreams, psychological reactivity to reminders, trouble remembering, negative beliefs, hypervigilance, exaggerated startle, and dissociation. She described these symptoms as trauma responses.
The GAL reported on K.H.'s placement during the termination proceedings. K.H.'s mother was not involved in his life. After removing K.H. from his Father's home, DCF placed K.H. with his paternal aunt. K.H. remained in his aunt's care at the time of the termination hearing. The GAL reported that the aunt wished to adopt K.H, who had bonded with her and was close with members of Father's extended family. The GAL considered adoption the most appropriate permanent placement for K.H. because if he were placed in a permanent guardianship with his aunt, Father would still have access to K.H.
After considering the evidence presented, the trial court found that DCF established that Father possessed child pornography and had been willing to trade K.H. for sex. Even so, the trial court denied the petition for termination of Father's parental rights. The trial court concluded that DCF failed to prove the statutory grounds for termination and failed to show that termination was the least restrictive means to protect K.H. The trial court determined that Father's possession of child pornography and willingness to trade K.H. for sex had not actually harmed the child because K.H. was unaware of his Father's acts. The trial court concluded that the paternal aunt provided K.H. with a suitable living arrangement through a permanent guardianship. The trial court was unconcerned about Father having contact with K.H. because Father had recently been sentenced to fifteen years in prison.[*] The trial court denied DCF's motion for rehearing. This timely appeal follows.
Standard of Review
This Court employs a "highly deferential" standard when reviewing orders terminating parental rights. L.C. v. Dep't of Child. & Fams., 333 So.3d 815, 817 (Fla. 1st DCA 2022). "A trial court's finding that the evidence is clear and convincing enjoys a presumption of correctness and will be overturned only if clearly erroneous or lacking evidentiary support." Id. But no deference is required when "no theory or principle of law [ ] would support the trial court's conclusion of law." Dep't of Child. & Fams. v. S.S.L., 352 So.3d 521, 524 (Fla. 5th DCA 2022) (quoting Dep't of Child. & Fams. v. D.E., 325 So.3d 277, 279 (Fla. 5th DCA 2021)). Instead, we review the trial court's legal conclusions de novo. G.S. v. T.B., 985 So.2d 978, 982 (Fla. 2008) (explaining appellate courts "review de novo whether the trial court's determinations are based on a proper interpretation of the law").
Analysis
To terminate the Father's parental rights, DCF had to prove the existence of at least one of the statutory grounds for termination, show that termination is in the manifest best interests of the child, and prove that termination is the least restrictive means to protect the child. E.K. v. Dep't of Child. & Fams., 326 So.3d 149, 151-52 (Fla. 1st DCA 2022) (explaining that DCF must prove the two statutory elements for termination and show that termination "is the least restrictive means of protecting the child from serious harm") (citation omitted).
Statutory Grounds
DCF petitioned for termination under sections 39.806(1)(c) and (f), Florida Statutes. The court denied the petition under both of drug paraphernalia and was sentenced to fifteen years in prison followed by five years of probation. As part of the agreement, the State dismissed three charges of possession of child pornography and one charge of unlawful use of a two-way communication device. grounds, concluding that DCF failed to prove actual harm to the child. And as for termination under section 39.806(1)(c), the trial court concluded termination was not permissible because DCF failed to offer Father a case plan before seeking to terminate his rights. As explained below, the trial court erred in determining that DCF had to show actual harm and in concluding that a case plan was required before termination was permissible.
Section 39.806(1)(c)-Conduct Threatening the Life, Safety, Wellbeing, or Physical, Mental, or Emotional Health of the Child
To terminate parental rights under section 39.806(1)(c), the trial court had to find: "(1) the child's life, safety, or health would be threatened by continued interaction with the parent, regardless of the provision of services; (2) there is no reasonable basis to believe the parent will improve; and (3) termination is the least restrictive means of protecting the child from harm." B.V. v. Dep't of Child. & Fams., 328 So.3d 48, 50 (Fla. 1st DCA 2021). The trial court denied the petition for termination on this statutory ground because (1) DCF did not offer Father a case plan or services, and (2) DCF failed to prove that Father's conduct actually harmed the child. DCF had to do neither.
DCF ordinarily "must show that it has made a good faith effort to rehabilitate the parent and reunite the family...." Padgett v. Dep't of Health &Rehab. Servs., 577 So.2d 565, 571 (Fla. 1991). Offering the parent a case plan is a means for DCF to accomplish this objective. Even so, DCF need not offer a case plan or services to a parent when the parent's continuing involvement in the parent-child relationship would threaten a child irrespective of services. See K.D. v. Dep't of Child. & Fams., 242 So.3d 522, 524 (Fla. 1st DCA 2018) (affirming termination of a parent's rights under section 39.806(1)(c) without offering the parent a case plan). Indeed, the Legislature has made clear that DCF need not offer a case plan when the trial court determines that termination is proper under section 39.806(1)(c). § 39.806(2), Fla. Stat. (2021) ("Reasonable efforts to preserve and reunify families are not required if a court of competent jurisdiction has determined that any of the events described in paragraphs (1)(b)-(d) or paragraphs (1)(f)-(m) have occurred.").
DCF did not need to offer a case plan here because Father's continuing involvement in the parent-child relationship would threaten K.H. DCF showed this threat through evidence that Father possessed child pornography, bragged about having sex with children as young as two years old, and was open to trading K.H. for sex. The trial court found that DCF had provided evidence of this conduct by the Father. On these facts, no case plan was required, and the trial court erred when it concluded otherwise.
The trial court also erred in denying termination under section 39.806(1)(c) on grounds that K.H. did not suffer actual harm from Father's conduct. The trial court found that "it was not shown by clear and convincing evidence that [K.H.] actually intended to move forward with the trade." And it found that no evidence was presented to show that K.H. "was ever in actual danger or harmed as a result of the Father's actions."
These findings by the trial court conflict with the applicable statutes. Actual harm to a child is not required before a trial court may terminate parental rights. Indeed, the statutory ground at issue-section 39.806(1)(c)-expressly does not require proof of actual harm. Instead, termination is permissible when DCF can show that "a parent's past conduct or current medical condition makes the risk of future harm to the child likely." T.B. v. Dep't of Child. & Fams., 299 So.3d 1073, 1077 (Fla. 4th DCA 2020) (quoting D.B. v. Dep't of Child. & Fams., 87 So.3d 1279, 1282 (Fla. 4th DCA 2012)). Put differently, "[t]he issue in prospective neglect or abuse cases is whether future behavior, which will adversely affect the child, can be clearly and certainly predicted." T.H. v. Fla. Dep't of Child. & Fams., 308 So.3d 678, 684 (Fla. 1st DCA 2020) (quoting E.M.A. v. Dep't of Child. & Fams., 795 So.2d 183, 187 (Fla. 1st DCA 2001)).
Here, DCF proved the risk of future harm to K.H. The uncontradicted evidence before the trial court showed that Father possessed child pornography, bragged about viewing images of very young children, admitted to sexual battery of a two-year-old, and said he was open to allowing a stranger to have sex with his seven-year-old son. The psychologist who reviewed Father's records testified that there was an above-average risk of Father reoffending within the next five years and recommended against reuniting K.H. with Father. And the mental health counselor who evaluated K.H. testified that he exhibited indicia of trauma. Considering the gravity of Father's conduct and the potential future harm to K.H., DCF met its burden under section 39.806(1)(c) to show that Father's past conduct posed a likely risk of future harm to K.H. Because the trial court erroneously concluded that actual harm was required, it erred in its conclusion that DCF failed to prove the elements required for termination under section 39.806(1)(c).
Section 39.806(1)(f)-Egregious Conduct Threatening the Life, Safety, or Physical, Mental, or Emotional Health of the Child
The trial court also erred in denying termination under section 39.806(1)(f), Florida Statutes. Under this statutory ground, DCF must prove that a parent engaged in or failed to prevent "egregious conduct that threatens the life, safety, or physical, mental, or emotional health of the child or the child's sibling." § 39.806(1)(f), Fla. Stat. Egregious conduct includes "abuse, abandonment, neglect, or any other conduct that is deplorable, flagrant, or outrageous by a normal standard of conduct." § 39.806(1)(f)2., Fla. Stat. As with section 39.806(1)(c), the trial court seemingly denied this ground based on its conclusion that DCF failed to prove actual harm to K.H. This was error because, again, proof of actual harm is not required.
Instead, egregious conduct that threatens the child's mental or emotional health is enough to support termination under section 39.806(1)(f), Fla. Stat. See M.P. v. Dep't of Child. & Fams., 327 So.3d 292, 296 (Fla. 4th DCA 2021) (affirming termination under section 39.806(1)(f)-even without proof of actual harm-when the mother allowed the father to have access to their children despite knowing that the father had abused one of the children); In re E.R., 49 So.3d 846, 858 (Fla. 2d DCA 2010) (holding that, under section 39.806(1)(f), the mother's knowing failure to protect her children from past and prospective abuse was egregious conduct).
DCF presented uncontradicted evidence of egregious conduct by Father that threatens K.H.'s mental and emotional health. Father was willing to give K.H. to a stranger to have sex with that stranger. Father boasted that he had sexually battered a two-year-old child, and he solicited an undercover officer to allow Father to have sex with a minor female. The trial court found that Father possessed images of child sexual abuse. This conduct individually and collectively is "deplorable, flagrant, or outrageous by a normal standard of conduct." That K.H. was unaware of these behaviors does not mean that the child has not or will not be harmed by Father's conduct. To the contrary, these actions show a clear threat to K.H.'s mental and emotional health and show that Father cannot provide a safe environment for his son. For this reason, we hold that the trial court erred when it denied termination on grounds that DCF failed to prove that Father's egregious conduct harmed K.H.
Manifest Best Interests
Along with concluding that DCF failed to prove a statutory ground for termination, the trial court also found that DCF failed to prove that termination was in K.H.'s manifest best interests. Section 39.810, Florida Statutes (2021), lists eleven factors a court must consider to determine whether termination is in the manifest best interests of the child. The trial court made findings on each factor. But several of the trial court's findings lack evidentiary support, while other findings reveal a misinterpretation of the applicable statutes. We discuss the trial court's erroneous findings under the first, fifth, and seventh factors.
First Factor-Suitable Permanent Custody Arrangement
The first factor for the trial court's consideration was whether there is a "suitable permanent custody arrangement with a relative of the child." § 39.810(1), Fla. Stat. The trial court concluded that this factor weighed against termination because K.H. enjoyed living with his paternal aunt and K.H. could be placed in a permanent guardianship with the paternal aunt. But in reaching this conclusion, the trial court ignored the statutory imperative that the availability of a relative placement "may not receive greater consideration than any other factor" and "may not be considered as a factor weighing against termination of parental rights." Id.; Guardian Ad Litem Program v. T.R., 987 So.2d 1269, 1271 (Fla. 1st DCA 2008) (holding that the possibility of a non-adoptive relative placement should not delay a decision to terminate parental rights if termination is otherwise in the best interests of the child).
Instead, the trial court should not have considered permanent guardianship until it first concluded that reunification or adoption were not possible. Florida's dependency system is designed to provide children with a safe and permanent placement in a timely manner. See § 39.001(1)(h), Fla. Stat. (2021) (stating one purpose of chapter 39 was "[t]o ensure that permanent placement with the biological or adoptive family is achieved as soon as possible for every child ...."). To achieve this goal, the Legislature has expressed a preference for permanency goals for children in the following order: reunification, adoption, permanent guardianship, permanent placement with a fit and willing relative, and placement in another planned living arrangement. § 39.621(3), Fla. Stat. (2021). A child in state custody should be permanently placed with a legal guardian only "when reunification or adoption is not possible." § 39.001(1)(j) Fla. Stat. (2021); see also S.M. v. Fla. Dep't of Child. & Fams., 202 So.3d 769, 779 (Fla. 2016) (rejecting the argument that termination of parental rights is not appropriate where "a stable, long-term placement with a family relative is available that poses no risk of harm by the parent to her children and there is a strong parent-child bond").
K.H. resided with his paternal aunt for almost a year before the trial court entered a final order. She was willing to adopt K.H., and the undisputed evidence showed that K.H. had developed a strong bond with his aunt. Despite evidence that K.H. would be adopted quickly by his aunt, and despite the clear statutory preference for adoption, the trial court still decided to place K.H. in a permanent guardianship. This was error.
Fifth Factor-Emotional Ties Between the Child and Relatives
Section 39.810(5) required the trial court to consider "[t]he love, affection, and other emotional ties existing between the child and the child's parent or parents, siblings, and other relatives, and the degree of harm to the child that would arise from the termination of parental rights and duties." The trial court found that K.H. had a strong bond with his paternal aunt. The evidence supports this finding. The trial court also concluded that termination of Father's rights would be "extremely detrimental" to K.H. No competent, substantial evidence supports this conclusion.
To the contrary, the psychologist who examined Father's records testified that K.H. should not have contact with Father until Father had one year of counseling and that K.H. should not live with Father until he had completed several years of treatment. A mental health counselor and the GAL agreed that severing all ties with the paternal side of K.H.'s family would affect the child, but termination of Father's rights would not sever ties with K.H.'s other relatives-particularly with his paternal aunt seeking to adopt him. The uncontradicted evidence showed that termination would be in K.H.'s best interests and foster permanency with his aunt. And no evidence supports that termination of Father's parental rights would be extremely detrimental to K.H.
Seventh Factor-Ability to Form Significant Relationship with Parental Substitute; Entry to More Stable and Permanent Family
The trial court also had to consider under section 39.810(7), K.H.'s "ability to form a significant relationship with a parental substitute and the likelihood that the child will enter into a more stable and permanent family relationship as a result of permanent termination of parental rights and duties." The trial court acknowledged that K.H. already had a significant relationship with his paternal aunt who wished to adopt him, as well as his paternal grandmother. Even so, the trial court concluded that it could not see how termination of Father's rights would benefit K.H. But this conclusion is unsupported by the evidence.
K.H. had formed a significant relationship with his paternal aunt with whom he had been living for almost a year. Father was sentenced to a fifteen-year prison term. Permanent placement with the paternal aunt through adoption is clearly a means to provide K.H. with "a more stable and parental family relationship as a result of permanent termination of [Father's] parental rights." § 39.810(7), Fla. Stat. No evidence supports the trial court's conclusion to the contrary.
Because several of its findings were unsupported by competent, substantial evidence or were based on a misunderstanding of the law, the trial court erred in concluding that termination was not in K.H.'s manifest best interests.
Least Restrictive Means
The next factor that a trial court must ordinarily consider is whether termination of the parent's rights is the least restrictive means to protect the child from harm. The least restrictive means test requires that measures short of termination be used when those measures can permit the safe re-establishment of the parentchild bond. The test is not intended to preserve parental bonds at the cost of the child's future. See State, Dep't of Child. & Fams. v. B.C., 185 So.3d 716, 720 (Fla. 1st DCA 2016).
DCF did not need to separately establish that termination was the least restrictive means to protect K.H. because it met its burden to show that termination was proper under sections 39.806(1)(c) and (1)(f). This is because when clear and convincing evidence shows that the child's life, safety, or health would be threatened by continued interaction with the parent under section 39.806(1)(c) or shows that the parent engaged in the egregious conduct described in section 39.806(1)(f), "a TPR is warranted and constitutional upon sufficient proof of the other statutory element-manifest best interest of the child-without the need to judicially imply the extra, least-restrictive-means element into the text." L.F. v. Dep't of Child. & Fams., 343 So.3d 1264, 1267 (Fla. 1st DCA 2022) (quoting E.K., 326 So.3d at 153); § 39.806(2), Fla. Stat. ("Reasonable efforts to preserve and reunify families are not required if a court of competent jurisdiction has determined that any of the events described in paragraphs (1)(b)-(d) or paragraphs (1)(f)-(m) have occurred."). For this reason, the trial court erred in finding that DCF had not met its burden to show that termination was the least restrictive means to protect K.H. See S.S.L., 352 So.3d at 527 ("[T]he trial court erred by applying the least restrictive means test after it had found Mother and Father had engaged in the egregious conduct prohibited by section 39.806(1)(f).").
Conclusion
The trial court reversibly erred when it concluded that DCF failed to prove the alleged grounds for termination, that termination was in K.H.'s best interests, and that termination was the least restrictive means to protect the child. We reverse the order denying the petition to terminate Father's parental rights and remand with directions for the trial court to enter a judgment terminating Father's parental rights to K.H. See Dep't of Child. & Fams. v. K.W., 277 So.3d 708, 713 (Fla. 1st DCA 2019) (reversing an order denying a termination petition and remanding for entry of a judgment of termination); Dep't of Child. & Fams. v. D.E., 325 So.3d 277, 281 (Fla. 5th DCA 2021) (remanding for entry of an order terminating the mother's parental rights where no theory or principle of law supported the trial court's denial of the petition for termination).
REVERSED and REMANDED.
RAY and NORDBY, JJ., concur.
[*] Father entered into a substantial assistance agreement where he pleaded guilty to constructive possession of a firearm by a convicted felon, possession of methamphetamine, and possession.