Opinion
Case Nos. 5D20-10 5D20-77
04-30-2020
M.H., Mother of A.H. and H.H., Jr., Children, and H.H., Father of A.H., and H.H., Jr., Children, Appellants, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
Richard F. Joyce, Special Assistant Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel, Casselberry, for Appellant, M.H., Mother. Samuel T. Lea, of Law Office of Samuel T. Lea, Orlando, for Appellant, H.H., Father. Kelley Schaeffer, of Children's Legal Services, Department of Children and Families, Bradenton, for Appellee. Matthew B. Hall, Orlando, for Guardian ad Litem Program.
Richard F. Joyce, Special Assistant Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel, Casselberry, for Appellant, M.H., Mother.
Samuel T. Lea, of Law Office of Samuel T. Lea, Orlando, for Appellant, H.H., Father.
Kelley Schaeffer, of Children's Legal Services, Department of Children and Families, Bradenton, for Appellee.
Matthew B. Hall, Orlando, for Guardian ad Litem Program.
PER CURIAM. In these appeals, which we have consolidated for purposes of this opinion only, M.H. ("the Mother") and H.H. ("the Father") challenge the post-dependency orders placing their two sons, A.H. and H.H., Jr., in a permanent guardianship and terminating the protective supervision of the Department of Children and Families ("DCF"). On appeal, the Mother and Father argue that competent, substantial evidence does not support the trial court's ruling. We agree; thus, we reverse and remand for further proceedings.
This case began when the parents took two-month-old H.H., Jr. to a hospital due to indications that he was experiencing leg pain. Hospital staff determined that H.H., Jr.'s left femur was fractured. Based, in part, on the parents' inability to provide an explanation consistent with that injury, DCF took A.H. and H.H., Jr. into protective custody and placed them with their maternal grandmother and maternal step-grandfather.
The parents ultimately consented to a finding of dependency, and the court approved a reunification case plan. The case plan required the parents to complete intensive parenting classes, undergo individual counseling, obtain stable housing and income, and submit to psychological evaluations. Additionally, the Father was required to complete a psychiatric evaluation and follow any recommendations.
While the parents were in the process of completing the case plan tasks, the State charged the Father with aggravated child abuse in connection with H.H., Jr.'s fractured femur. Following negotiations with the State, the Father pled no contest to the charge of neglect of a child causing great bodily harm or disability. Consistent with the plea agreement, the court imposed a five-year probationary sentence with a special condition which prohibited the Father from having unsupervised contact with minors.
Ultimately, the Mother requested reunification and, in turn, DCF filed a motion asking the court to place the children in a permanent guardianship with the maternal grandmother. At the evidentiary hearing on the competing motions, DCF conceded that both parents had substantially complied with their case plans. The assigned case manager testified that she had no safety concerns with the physical home and that the parents appeared able to care for the children. She noted that, following the removal of A.H. and H.H., Jr., the Mother gave birth to a daughter, who remained in the parents' care. According to the case manager, DCF had not received any reports regarding that child, nor had it attempted to shelter the child.
Nevertheless, the case manager testified that reunification would not be proper, stressing that the main issue hindering reunification was the order of probation. The case manager explained that the Mother had proposed multiple safety plans to ensure that the Father was not left unsupervised with the children. However, the case manager testified that the proposed plans could not ensure that this goal would be met. In particular, the case manager opined that none of the proposed safety monitors met DCF's criteria; however, she gave no explanation to support this conclusion. As an additional reason for deeming the proposed safety plans unsatisfactory, the case manager indicated that she did not want to "set the Father up for failure." The Mother and Father also testified at the hearing. The Mother testified that she routinely relied on the maternal grandmother to supervise the daughter when the Mother was working. When asked if she would be willing to separate from the Father to be reunited with A.H. and H.H., Jr., the Mother stated that she would not be willing to do so. The Father testified that his probation officer had conducted unannounced visits but had never found him in violation of any terms of probation.
The Guardian ad Litem also testified at the hearing, noting that he was "leaning toward" permanent guardianship. But he also testified that he felt reunification should be reconsidered within one year. In addition, he recommended establishing overnight visitation in the parents' home.
The Mother and Father are married.
Ultimately, the trial court entered an order denying the Mother's motion for reunification and granting DCF's motion for permanent guardianship. The trial court found that reunification would not be in the best interests of A.H. and H.H., Jr. In so finding, it relied primarily on the special condition of probation and the Mother's refusal to separate from the Father. The court further found:
There was no competent evidence presented of a safety plan that would allow the children to be placed in the home without detriment to [A.H. and H.H., Jr]. Although there was testimony that there are no physical safety concerns for [A.H. and H.H., Jr.] being in the care of the parents, there is a risk of prospective harm should ... [they] be returned to the mother while the father resides in the home due to the criminal order.
The Mother and Father timely appealed.
Our standard of review is whether competent, substantial evidence supports the trial court's ruling. See In re G.C., 136 So. 3d 616, 617 (Fla. 2d DCA 2013) ; cf. State v. Glatzmayer, 789 So. 2d 297, 301 n.7 (Fla. 2001).
Section 39.6221, Florida Statutes (2019), sets forth the standard for the trial court to apply in deciding whether to place a dependent child in a permanent guardianship. Among other things, the trial court must determine that "reunification or adoption is not in the best interest of the child." § 39.6221(1). Further, in a written order, the court must "[l]ist the circumstances or reasons why the child's parents are not fit to care for the child and why reunification is not possible." § 39.6221(2)(a). As for DCF, it has the burden to present competent, substantial evidence supporting the findings required by section 39.6221. See T.J. v. Dep't of Child. & Fams., 193 So. 3d 1091, 1092 (Fla. 1st DCA 2016).
Here, in granting the guardianship motion, the trial court relied heavily on the special condition of probation, the perceived lack of a suitable safety plan, and the Mother's refusal to separate from the Father. However, this evidence does not support the court's ruling.
As recognized by the trial court, the special condition of probation prohibits the Father from being present with minors unsupervised. However, the case manager conceded that the special condition itself posed no danger to A.H. and H.H., Jr., and DCF presented no evidence as to what danger might befall the children should they be left with the Father contrary to the order of probation. The case manager's speculation that A.H. and H.H., Jr. might be left unsupervised with the Father, in violation of his probationary restriction, does not constitute competent, substantial evidence of prospective harm to the children. See G.V. v. Dep't of Child. & Fams., 985 So. 2d 1243, 1246 (Fla. 4th DCA 2008) (recognizing that unsupported assertions of prospective harm do not amount to competent, substantial evidence of endangerment to a child).
Similarly, the evidence does not support the court's findings as to the lack of a suitable safety plan. DCF presented no evidence as to the standards governing safety plans. Although the case manager noted the lack of an "appropriate" monitor, she did not explain how the proposed safety monitors did not meet DCF's criteria or why an approved monitor was necessary to ensure the Father's compliance with a probationary requirement imposed by the criminal court. Moreover, the uncontradicted evidence established that the Mother had already taken concrete steps in order to ensure that the daughter did not have unsupervised contact with the Father. And, DCF presented no evidence why those steps would be inadequate as to A.H. and H.H., Jr.
Finally, the court's emphasis on the Mother's unwillingness to separate from the Father is misplaced. The Mother and Father are married. Notably, there was no evidence that the Father currently presented a risk to the safety and well-being of A.H. and H.H., Jr. This is especially so in light of DCF's concession that the Mother and Father had substantially complied with their case plans. See § 39.01(84), Fla. Stat. (2019) (" ‘Substantial compliance’ means that the circumstances which caused the creation of the case plan have been significantly remedied to the extent that the well-being and safety of the child will not be endangered upon the child's remaining with or being returned to the child's parent."). Thus, the Mother's desire to remain with the Father did not demonstrate an inability or unwillingness to protect the children from harm.
Accordingly, for the reasons given above, we reverse the permanent guardianship orders and remand to the trial court for further proceedings consistent with this opinion.
REVERSED and REMANDED.
EVANDER, C.J., EISNAUGLE and GROSSHANS, JJ., concur.