Department of Children & Family Services v. S.H.

49 So. 3d 846, 2010 Fla. App. LEXIS 19079
CourtDistrict Court of Appeal of Florida
DecidedDecember 15, 2010
DocketNo. 2D09-3785
StatusPublished
Cited by13 cases

This text of 49 So. 3d 846 (Department of Children & Family Services v. S.H.) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Department of Children & Family Services v. S.H., 49 So. 3d 846, 2010 Fla. App. LEXIS 19079 (Fla. Ct. App. 2010).

Opinion

MORRIS, Judge.

The Department of Children and Family. Services (DCF), the attorney ad litem appointed for the children, E.R. and A.R., and the guardian ad litem appeal the order denying DCF’s petition to terminate the parental rights of S.H. (the mother) and F.R. (the father). For the reasons set forth herein, we reverse and remand.

I. Background

A. Facts leading up to the termination (TPR) petition

In June 2007, thirteen-month-old M.B. died under suspicious circumstances. The evidence suggested he had been beaten to death while in the care of the mother and father. The mother claimed she left M.B. in the father’s care while she went to another ,room. After hearing the father yell, she returned and discovered that M.B. was having trouble breathing. The father claimed M.B. had fallen off the bed. M.B. was taken to a hospital, where he died shortly after arrival.

[849]*849The autopsy revealed only one small external bruise around M.B.’s hairline. However, the medical examiner found numerous internal injuries, including ringed areas of hemorrhage consistent with multiple blows to the head. The medical examiner also found hemorrhaging to both of M.B.’s retinas, on the optic nerve sheath connecting the eyes to the brain, and on the muscles around the eyes. The medical examiner concluded that these injuries were consistent with shaken baby syndrome, that M.B. died from cranial cerebral trauma, and that the injuries occurred no more than two hours before M.B.’s death. Hospital records also indicate that M.B. had marijuana in his system.

The children who are the subject of the TPR petition were born in July 2008 and April 2009, subsequent to M.B.’s death. Both children were promptly taken from the parents and sheltered based on the death of M.B., as well as the parents’ drug use, lack of financial stability, and lack of adequate housing. DCF filed its petition to terminate parental rights in April 2009. As to both of the parents, DCF alleged (1) that they had engaged in conduct toward the children which demonstrated that their continuing involvement in the parent/child relationship threatened the life or well-being of the children without regard to provision of services by DCF, pursuant to section 39.806(l)(c), Florida Statutes (2008); (2) that they had engaged in egregious conduct which endangered the life, health, or safety of the child or child’s siblings or had the opportunity and capability to prevent egregious conduct that threatened the life, health, or safety of the child or child’s siblings and knowingly failed to do so, pursuant to section 39.806(l)(f); and (3) that they had committed murder or manslaughter of another child, aided or abetted such murder, or conspired or solicited to murder that child, pursuant to section 39.806(l)(h). Based on the fact that the parents were still in a relationship and did not have any concerns about the children being left unsupervised with each other, DCF argued that the children were at risk of imminent harm.

B. Circumstances surrounding the TPR trial

In relation to M.B.’s death, the mother has maintained her innocence as well as the innocence of the father.. Neither parent has cooperated with the investigation, and at the time of the TPR trial, neither parent had been charged in connection with M.B.’s death. Both parents invoked their Fifth Amendment right not to incriminate themselves during the criminal investigation and refused to testify about-the circumstances of M.B.’s death at the TPR trial. They also have refused to talk about the incident with mental health professionals.1

At the TPR trial, Dr. Alexander, the statewide director for the Child Protection Team and a child-abuse expert, testified that the number of blows to M.B.’s head and the evidence of shaken baby syndrome indicated that the perpetrator of the abuse was angry and out of control. Consequently, he concluded that E.R. and A.R. were at a high risk of harm because perpetrators in shaken baby syndrome cases have a high risk of recidivism and because children subjected to shaken baby syndrome have usually been injured in some other manner. When asked about the parents’ propensity to commit future harm to E.R. and A.R., he replied that “the biggest [850]*850predictor of serious injury or death of a child is prior injury to a child.”

A psychologist, Dr. Johnson, testified that because the mother refused to discuss the circumstances of M.B.’s death and because she “faked good” on a child abuse inventory test, he could not complete his psychological evaluation and that, therefore, the evaluation was essentially invalid. Dr. Johnson commented on the mother’s claimed ignorance about what happened to M.B. by stating that it “suggests a level of either neglect or complicity that’s very disturbing.” Dr. Johnson opined that the mother suffered from an adjustment disorder with a depressed mood. Dr. Johnson testified that the father had a “moderate pathology” which evidenced an adjustment disorder with mixed disturbance of emotion and a personality disorder. Dr. Johnson explained that both parents could suffer from additional underlying mental health issues but that without being able to discuss M.B.’s death with them, he could not complete his evaluation. He also opined that the risk to E.R. and A.R. was equal to, if not greater than, the risk to M.B. because the parents were living in circumstances identical to those that existed at the time of M.B.’s death.

Both the mother and father testified at the TPR trial that they were still in a relationship and were not concerned about leaving the children in each other’s care. They both admitted to daily drug use. The father admitted he had a serious criminal history and that at the time of the TPR trial, he was incarcerated on other unrelated charges.

C. The trial court’s order

In the order denying DCF’s petition, the trial court made separate findings as to each parent. Regarding the mother, the trial court found that the mother knew the father committed acts of abuse which led to M.B.’s death and that she was choosing to remain silent to protect herself and the father from criminal charges, yet the trial court determined that DCF failed to prove grounds for termination by clear and convincing evidence.

The trial court rejected a request by DCF, the attorney ad litem, and the guardian ad litem to find the parents jointly responsible for M.B.’s death. While the trial court acknowledged that DCF could proceed in an “up-front TPR” without offering the parents a case plan, the trial court went on to find that DCF was required to provide services to the parents until termination was granted but that, in this case, no services had been provided. The trial court noted that the mother had taken “significant steps to prove her fitness to mother” E.R. and A.R., such as completing an intensive parenting program. Ultimately, the trial court held that the mother’s invocation of her Fifth Amendment right did not provide a basis for termination and that DCF failed to prove (1) that her continuing involvement threatened the life or well-being of the children, (2) that she engaged in egregious conduct, or (3) that she was involved in the murder of another child.

Turning to the father, the trial court found that DCF proved that he engaged in egregious conduct and committed the murder of M.B.

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Cite This Page — Counsel Stack

Bluebook (online)
49 So. 3d 846, 2010 Fla. App. LEXIS 19079, Counsel Stack Legal Research, https://law.counselstack.com/opinion/department-of-children-family-services-v-sh-fladistctapp-2010.