GV v. Department of Children and Families

795 So. 2d 1043, 2001 WL 1093027
CourtDistrict Court of Appeal of Florida
DecidedSeptember 19, 2001
Docket3D00-1147
StatusPublished
Cited by5 cases

This text of 795 So. 2d 1043 (GV v. Department of Children and Families) 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
GV v. Department of Children and Families, 795 So. 2d 1043, 2001 WL 1093027 (Fla. Ct. App. 2001).

Opinion

795 So.2d 1043 (2001)

G.V., Appellant/Cross-Appellee,
v.
DEPARTMENT OF CHILDREN AND FAMILIES and The Guardian Ad Litem Program, Appellees/Cross-Appellants.

No. 3D00-1147.

District Court of Appeal of Florida, Third District.

September 19, 2001.

*1044 Steven Grossbard, for appellant/cross-appellee.

Robin Greene and Nancy Schleifer, Miami, for appellees/cross-appellants.

Before COPE, FLETCHER and SORONDO, JJ.

SORONDO, J.

G.V. (mother) appeals the lower court's order adjudicating her child, F.G., dependent as to her.

I. FACTS[1]

On September 29, 1997, the Department of Children and Families (Department) took F.G., a two-month old child at the time, into custody after receiving a report from Miami Children's Hospital that F.G. had suffered a fracture of the right femur, which the hospital characterized as a non-accidental injury consistent with child abuse. The case history related by F.G.'s father was that F.G. had fallen from his arms, and in an effort to break the child's fall, he had grabbed F.G. by the thigh, causing the femur fracture. The hospital also noted that F.G. had old healing fractures.

The Department petitioned the trial court for a detention order based on allegations of abuse and neglect by the parents,[2] which the court entered following a hearing on the matter.[3]

On January 12, 1998, the Department filed a petition to terminate the mother and father's parental rights. The day before the adjudicatory hearing, the father executed a voluntary surrender of his parental rights.[4] The case proceeded to be heard on the adjudication of dependency and termination of parental rights as to the mother only. The trial court heard testimony from the child protective investigator, the parents' former roommate, a service counselor for the Department, the termination of parental rights counselor serving as petitioner and custodian of records, proffer testimony from the Guardian Ad Litem representative, and testimony from medical experts and the mother.

The evidence revealed that the father had been baby-sitting F.G. when the injury to the femur occurred. The father took F.G. to the mother who was at work. After a series of delays, the parents sought the aid of a pediatrician, who advised them to take F.G. to Miami Children's Hospital for a more comprehensive examination. At the hospital, the staff conducted various procedures, including x-rays, a skeletal survey and a bone scan. The doctors interpreting the results of those procedures concluded that F.G. had a fracture of the right femur and several old healing fractures. The child protective investigator *1045 testified that both parents denied knowing how or when F.G. sustained the old fractures. When he questioned them about the femur fracture, the father stated he was nurturing F.G. when it happened.

The parents' former roommate, Petra Gonzalez, testified that the parents resided in her apartment from the time F.G. was over a month old until the femur fracture occurred. During that time, she did not see any injuries on F.G. The father took care of F.G while the mother worked. Ms. Gonzalez testified that F.G. cried a great deal, at times for one or two hours. At night, she frequently heard the parents use a vacuum cleaner while F.G. cried. On the morning of the incident, Ms. Gonzalez heard the father telling F.G. to shut up several times.

During the time they lived together, Ms. Gonzalez observed the parents smoking marijuana. She also saw that the father manipulated the mother. For instance, the father would keep the mother in their room when he did not wish for her to see other people in the apartment. The mother had confided in Ms. Gonzalez that the father used to break her belongings when he was angry with her. Ms. Gonzalez identified the father as the one who typically got physical—as when he slammed a door in anger. In contrast, the mother was mellow and would follow the father's orders.

According to Ms. Gonzalez, the parents were living together a few months before the adjudicatory hearing on LeJeune Road and 29 or 30 Street. She would see their cars parked together at night at that location.

The service counselor for the Department, Constance Nesbitt Wilson, testified that the mother and child bonded well together. She did not think it would be in the manifest best interest of F.G to terminate the mother's rights. However, she felt it was important that the mother get some services, including family counseling relating to domestic violence, to gain some insight as to what happened to F.G. Ms. Nesbitt-Wilson also thought the mother would need individual counseling. She believed that with services the mother could protect F.G.

Albert Linzner, the petitioner and custodian of records, testified that the Department took custody of F.G. based on doctors' findings that the child had a femur fracture and old healing fractures.

Based on the testimony and review of the file, it seemed to him that the mother should be provided with some necessary services, and in the future, there might be some reunification. He did not think it would be in the manifest best interest of F.G. to terminate the mother's rights.

The Guardian Ad Litem representative agreed with the positions taken by Ms. Nesbitt-Wilson and Mr. Linzner, and opined that it was in the manifest best interest of the child that the mother be given a case plan and that she be offered services to proceed with reunification, if feasible.[5]

The Department also called Dr. Walter Lambert, a pediatrician with the Child Protection Team. Dr. Lambert reviewed the x-ray reports, which included the acute right femur fracture and the skeletal survey.[6] In his opinion, the father's version *1046 of events was inconsistent with bio-mechanical forces necessary to break the femur, the strongest bone in the body.

As to the old healing fractures, Dr. Lambert testified that the x-ray reports revealed three definite fractures of different ages and episodes.[7] He removed all causes of metabolic illness because F.G. did not have any other fractures. Moreover, he noted that there was no mechanism of normal injury to explain the three fractures, including the hand fractures. In Dr. Lambert's opinion, the fractures were inflicted over a period of time. He estimated the oldest was about a month old, and indicated that the three definite fractures occurred on three separate injury episodes.

Defense counsel raised hearsay objections to Dr. Lambert's testimony, arguing that it was based on a review of the x-ray reports submitted by another doctor. The court overruled the objection, subject to a motion to strike.[8]

The defense presented testimony from the mother and Dr. Robert Elias, her radiologist expert. The mother testified that she believed the father had caused the fracture of the femur. She first became aware that F.G. had suffered an injury when she returned to work from lunch to find the father with F.G., who seemed to be in a great deal of pain. The father told the mother he had caused the injury on that same day, when he picked her up at her work. In response to how she felt about that, the mother stated that based on what everyone had told her, she did not want to take any risks. She was willing to protect F.G. from anyone, including the father.[9]

Once F.G. was examined at Miami Children's Hospital, the mother was told that the right femur had been fractured and that the injury was consistent with child abuse.

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Cite This Page — Counsel Stack

Bluebook (online)
795 So. 2d 1043, 2001 WL 1093027, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gv-v-department-of-children-and-families-fladistctapp-2001.