D.O. v. S.M.

981 So. 2d 11, 2007 Fla. App. LEXIS 20114
District Court of Appeal of Florida·Decided December 19, 2007·No. Nos. 4D07-2663, 4D07-2813·Published·Cited by 13 cases

Opinion

TAYLOR, J.

In these cases consolidated for opinion purposes only, S.M., the mother, appeals an order terminating her parental rights to her infant son, J.P. The Department of Children and Family Services (DCF), Guardian Ad Litem, and Attorney Ad Li-tem for the older child, D.O., appeal the order denying their petition to terminate the mother’s parental rights to D.O. We affirm the order terminating the mother’s parental rights to J.P. based on the severe abuse he suffered while in the mother’s care. The trial court’s finding of clear and convincing evidence that the mother engaged in egregious conduct, or had the opportunity and capability to prevent the egregious conduct and knowingly failed to do so, is not clearly erroneous or lacking in evidentiary support. We also affirm the order denying termination of the mother’s parental rights to the older child, D.O., because the petitioners failed to prove by clear and convincing evidence that termination of parental rights was the least restrictive means to protect the child from harm.

Background

J.P. was born on August 28, 2006 by caesarian section delivery. He was pronounced a healthy newborn with high Ap-gar scores. Although the mother suffered no complications during the delivery, she was instructed to refrain from any strenuous activity, heavy lifting, or driving for the first six to eight weeks. J.P.’s father, the mother’s husband, became his primary caregiver. The father assumed responsibility for J.P.’s feedings and diaper changes and attended to his needs at night. On September 11, 2006, when J.P. was two weeks old, the mother and father took J.P. for his first doctor visit. His pediatrician, Alexandria Niewiadomski, examined him and found him healthy.

On October 4, 2006, when J.P. was just over five weeks old, the mother noticed that his eye and arm were twitching and that he had a high fever. The parents took him to the Palm Beach Gardens Medical Center emergency room. Upon his arrival, the baby had to be intubated and placed on a ventilator due to respiratory failure. A nurse informed the parents that J.P. was having a seizure.

J.P. was transferred to St. Mary’s Hospital. There, he was treated by Dr. Roman Pena, a pediatric critical care specialist. Dr. Pena reviewed reports from CAT scans, bone scans, skeletal x-rays, and MRI’s, which showed that J.P. suffered extensive injuries: bilateral subdural he-matomas, or bleeding in the brain; retinal hemorrhages; and multiple bone fractures. The pediatrician concluded these injuries were intentionally inflicted and consistent with Shaken Baby Syndrome. J.P. remained hospitalized until he was placed into a shelter facility for medically fragile children.

Dr. Phillip Colaizzo, a board-certified pediatrician and medical director of the Child Protection Team in Palm Beach County, examined J.P. in the hospital. He conferred with Dr. Pena, reviewed hospital medical records and x-rays, and spoke with both parents. Based on his examination and review of the records, Dr. Colaiz-zo concluded that J.P. had subdural hema-tomas, which were of two different ages. In addition, he had multiple long bone fractures which showed evidence of healing, indicating that they were of different ages. The baby also had a left-sided mul-ti-layered retinal hemorrhage, which was consistent with a shaking impact.

Dr. Colaizzo testified that there were new injuries and old injuries. Some of the injuries were possibly two to three weeks old. The neurosurgeons believed that all of the injuries were acute, meaning within [13]*1324 to 72 hours; the radiologists felt that some injuries were acute and some were chronic, meaning one to two weeks old. The fractures were to the left leg, both lower legs, and both wrists. Dr. Colaizzo described the leg fractures as those which generally occur from grabbing and twisting. The fractures were not obvious upon visual inspection and could be detected only after x-rays, bone scans, and MRI’s were performed.

Because of the age of the child and the extent, severity, and life-threatening nature of his injuries, Dr. Colaizzo concluded that this was a case of inflicted brain injury and battered child syndrome. He ruled out the possibility that the injuries resulted from any birth-related injury. Dr. Co-laizzo testified that when he interviewed the parents, they said that they had been with J.P. “every minute of the time since he was born.” According to Dr. Colaizzo, one or both parents should have known something was wrong with the baby because “this was not a one-time event.” Because of the child’s extensive head injuries and multiple fractures of his arms and legs, he opined that the child would have shown some indication of stress. He considered it highly improbable that a caregiver who may not have created these injuries would not have known that something was wrong or amiss with the baby. Dr. Colaizzo concluded that the child would be in an extremely high risk situation if he were returned to the parents, because the child was subjected to repeated abuse at a very young age and the parents stated that they were the only ones who had kept the child since his birth.

Dr. Pena also believed that the child would have shown some signs of stress. He testified that shaken babies tend to have symptoms such as seizures and uncontrollable high-pitched crying. Dr. Pena testified that when the older injuries were inflicted the child would have cried out and that his high-pitched cry should have alerted the parents that something was seriously wrong. He further testified that if a body part were broken the child would have cried out any time the broken part was touched.

Dr. Colaizzo also examined the mother’s other child, D.O., who was eleven months older, and took x-rays of her bones and a CAT scan of her head. He found no evidence of physical abuse or neglect as to her. She was a healthy child, who had visited her pediatrician regularly for routine check-ups. However, Dr. Colaizzo said that D.O. might also be at a substantial risk if returned home because of the abuse perpetrated on the younger child and the fact that D.O. was just one-and-a-half years old.

Palm Beach Gardens Detective John Boyle, along with a DCF investigator, briefly met with the mother and father at their residence the morning after J.P. was hospitalized. They lived with the maternal grandmother. Detective Boyle testified that the parents had no clue about what was wrong with the baby. They were unaware of the cause and extent of the baby’s injuries. As the detective continued his investigation, the parents provided multiple explanations as to how the injuries could have occurred. One explanation was that during a scuffle between the parents, the mother pushed the father down and caused him to fall on the baby. A second suggestion was that the injuries occurred during the child’s birth. A third theory was that the father’s sister or her boyfriend could have injured the baby during a visit with the father’s family.1

[14]*14The mother and father told the detective that they had been the baby’s only caregivers and that the father was the primary caregiver. Both parents denied hurting the baby.

As part of his investigation, Detective Boyle reviewed prior offense reports involving the family. He testified that there had been several domestic dispute calls to the maternal grandmother’s home over the past two years involving the mother, the maternal grandmother, and the father. There had also been reports of domestic violence between the mother and the father at other residences.

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D.O. v. S.M., 981 So. 2d 11, 2007 Fla. App. LEXIS 20114 (Fla. Ct. App. 2007).

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