Opinion
No. 1D22-466 No. 1D22-468
08-04-2022
J.J.Z., Former Mother of X.R.S.-Z., Minor Child, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES and Guardian Ad Litem for X.R.S.-Z., Appellees. J.S.-N., Former Father of X.R.S.-Z., Minor Child, Appellant, v. Department of Children and Families and Guardian Ad Litem for X.R.S.-Z., Appellees.
Kevin C. Colbert, Miami, for Appellant J.J.Z. Michelle R. Walsh of Law Offices of Michelle R. Walsh, P.A., Miami, for Appellant J.S.-N. Sarah J. Rumph, Children's Legal Services, Tallahassee, for Appellee Department of Children and Families. Sara Goldfarb and Samantha C. Valley, Tallahassee, for Appellee Guardian ad Litem.
Kevin C. Colbert, Miami, for Appellant J.J.Z.
Michelle R. Walsh of Law Offices of Michelle R. Walsh, P.A., Miami, for Appellant J.S.-N.
Sarah J. Rumph, Children's Legal Services, Tallahassee, for Appellee Department of Children and Families.
Sara Goldfarb and Samantha C. Valley, Tallahassee, for Appellee Guardian ad Litem.
On appeal from the Circuit Court for Okaloosa County.
Mary Polson, Judge.
Per Curiam.
In these two related appeals, a former mother and father challenge the trial court's termination of their parental rights. Both parents testified, but neither could credibly explain away the compound fracture to their eleven-week-old's arm or the infant's nineteen rib fractures at varying degrees of healing. These unwed parents live together in a two-bedroom trailer along with the maternal grandmother, but no one at home is gainfully employed. There was competent, substantial evidence showing that the parents were the exclusive caregivers and that the grandmother watched the child only briefly on a few occasions while the parents went to the store. The parents’ own testimony established that they were with the child almost all the time, and no one else had an opportunity to cause the many fractures the child suffered.
Once the trial court rejected the parents’ explanations for how the injuries could have happened accidentally—and there was sufficient evidence to support that the infant's injuries resulted from extreme abuse—there was clear and convincing evidence to pin it on the parents and support termination based on one parent's "egregious conduct" and "aggravated child abuse" and the other parent's allowing the abuse to happen. See § 39.806(1)(f), (g), Fla. Stat. (establishing both as independent grounds for termination). It is of no moment that the evidence was less than clear on which parent did the physical abusing and which parent stood idly by. Paragraph (f) states that rights may be terminated even if a parent simply 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." Id. (1)(f). Paragraph (g) provides for termination if a parent has "subjected the child ... to aggravated child abuse," id. (1)(g) (emphasis supplied), which is broad enough to account for a parent who allows the abuse to happen.
The trial court also had sufficient evidence to support its findings regarding the factors enumerated in section 39.810 and determining that termination is in the child's manifest best interest. That leaves the question of whether termination "is the least restrictive means of protecting the child from serious harm." Padgett v. Dep't of Health & Rehab. Servs. , 577 So. 2d 565, 571 (Fla. 1991). The purpose of this prong ordinarily is "to ensure that the parent is afforded due process by the State before his or her fundamental right to be a parent to his or her children is terminated." S.M. v. Fla. Dep't of Child. & Fams. , 202 So. 3d 769, 781 (Fla. 2016). In "extraordinary circumstances" like severe or egregious abuse, "the termination of parental rights without the use of plans or agreements is the least restrictive means." In re T.M. , 641 So. 2d 410, 413 (Fla. 1994). When, as here, clear and convincing evidence supports a determination that the parent has caused or allowed a child to be the victim of the egregious conduct described in section 39.806(f) or the aggravated abuse described in paragraph (g), "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." E.K. v. Dep't of Child. & Fams. , 326 So. 3d 149, 153 (Fla. 1st DCA 2021).
We do not reweigh the evidence before the trial court. There was sufficient evidentiary support for the trial court's factual findings, and the trial court properly applied the law to those facts. We can find no legal error in the trial court's termination of the parents’ rights to the severely abused child. The parents’ appeal of the denial of their ineffective assistance of counsel claims has no merit.
AFFIRMED .
Roberts, Winokur, and Tanenbaum, JJ., concur.