In Re Dad II

903 So. 2d 1034, 2005 WL 1412052
CourtDistrict Court of Appeal of Florida
DecidedJune 17, 2005
Docket2D04-4623
StatusPublished

This text of 903 So. 2d 1034 (In Re Dad II) 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
In Re Dad II, 903 So. 2d 1034, 2005 WL 1412052 (Fla. Ct. App. 2005).

Opinion

903 So.2d 1034 (2005)

In the Interest of D.A.D. II and R.E.D., minor children.
D.A.D., Appellant,
v.
Department of Children and Family Services, Appellee.

No. 2D04-4623.

District Court of Appeal of Florida, Second District.

June 17, 2005.

*1036 Norman A. Palumbo, Jr., Tampa, for Appellant.

Charles J. Crist, Jr., Attorney General, Tallahassee, and Tanya E. DiFilippo, Assistant Attorney General, Tampa, for Appellee.

WALLACE, Judge.

D.A.D. (the Father) appeals the order terminating his parental rights to his children, D.A.D. II, a four-year-old boy, and R.E.D., a girl who turned three years old just before the order was entered. Although we disagree with the trial court's conclusions in some respects, we commend the trial court's thorough consideration of this troubling case and affirm the order terminating parental rights.

SECTION 39.806(1)(f)

Among the grounds for termination of parental rights alleged in the Department of Children and Family Services' petition was section 39.806(1)(f), Florida Statutes (2003), which authorizes termination of parental rights when "the parent or parents engaged in egregious conduct or 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 or the child's sibling." In a nine-day adjudicatory hearing, the Department presented testimony by the children's mother (the Mother), who testified in detail about her and her children's long, harrowing relationship with the Father. Neighbors of the family testified, as did the Department's child protective investigator.

The Department also presented evidence that the Father strangled a man to death in the family home while the Mother and the children were visiting relatives in another state. At the time of the adjudicatory hearing, the Father's murder trial had not yet commenced. Those testifying about the killing included the lead detective in the investigation, the medical examiner, the victim's mother, and the principle inculpatory witness, to whom the Father had confided details about the crime. This witness also testified about a separate incident in which the Father had shot his brother-in-law in an unsuccessful murder-for-hire plot. The police questioned the Father but did not charge him in connection with this separate incident. At the adjudicatory hearing, the Father testified on his own behalf regarding his version of events on the night of the killing as well as his conduct toward his family.

The trial court found that the Father committed egregious conduct under section 39.806(1)(f) in two circumstances. First, the court ruled that the Father's act of murder was "a legally sufficient basis to find the [F]ather unfit to parent these small children." Second, the Father's participation in the murder-for-hire plot to kill his brother-in-law, "coupled with the [F]ather's chronic drug abuse, alcoholism, lengthy criminal history, chronic abuse, and domestic violence, also constitutes `egregious conduct' and is, apart from the murder of [the victim], sufficient evidence of [the Father's] unfitness to parent."

To terminate parental rights on the ground of egregious conduct, "there must be a nexus between the conduct and the abuse, neglect, or specific harm to the *1037 child." C.B. v. Dep't of Children & Families, 874 So.2d 1246, 1254 (Fla. 4th DCA 2004); see K.R. v. Dep't of Children & Family Servs. (In re C.V.T., Jr.), 843 So.2d 366, 368 (Fla. 2d DCA 2003) (holding that the parent's past drug use did not support a finding of egregious conduct "without connecting the drug use to any abuse, neglect, or specific harm to the child"); P.S. v. Dep't of Children & Family Servs., 863 So.2d 392, 393 (Fla. 3d DCA 2003) (holding that the parent's arrest on drug charges while the children were present did not support a finding of egregious conduct because "[w]ithout connecting the arrest to any abuse, neglect or specific harm to the child that was present at the arrest or to her other children, this conduct alone cannot be the basis for a termination of parental rights").

In support of its finding of egregious conduct, the trial court relied on M.S. v. D.C., Jr., 763 So.2d 1051 (Fla. 4th DCA 1999), in which the father murdered his girlfriend in the family home while the children were in the house. The victim had become a "mother figure" to the children following the father's divorce from the natural mother. Id. at 1052. The M.S. court held: "Notwithstanding that the children may not have seen the shooting, the murder of their mother figure in their home and while they were present in the house certainly qualifies as egregious conduct that endangered the life, health, or safety of the children." Id. at 1053. The M.S. court demonstrated the nexus between the father's egregious conduct and the specific harm to the children by explaining in detail how the children suffered posttraumatic stress syndrome, anxiety disorders, behavioral problems, fear, flashbacks, and nightmares all linked to the events on the night of the murder. Id. at 1052-53.

In this case, the trial court did not find that the Father's murderous act was connected to specific harm to the children. Although the killing occurred in the family home, the children were in another state with the Mother at the time. The trial court made no finding that the children were even aware of the incident. Similarly, the court did not find that the Father's participation in the plot to kill his brother-in-law was connected to specific harm upon the children. Instead, the trial court made a finding of generalized harm: "Clearly, the [F]ather's extreme violence and callous disregard for the lives of others poses a significant danger to the life, safety, [and] mental and emotional health of these small children." Even though the Father's homicidal conduct was deplorable and outrageous, the trial court's generalized finding of harm was not enough to establish a sufficient nexus between the conduct and the specific harm to the children to support a finding of egregious conduct within the meaning of section 39.806(1)(f).[1]

Nevertheless, the record contains clear and convincing evidence that the Father's other conduct justified termination under section 39.806(1)(f). "Egregious conduct" means "abuse, abandonment, neglect, or any other conduct of the parent or parents that is deplorable, flagrant, or outrageous by a normal standard of conduct." § 39.806(1)(f)(2).[2] Because it would unduly lengthen this opinion to recount the *1038 findings of the trial court's thirty-page order, the following facts are merely representative of the totality of the Father's conduct.

The Father was an alcoholic and cocaine-abuser with an extensive criminal record who was frequently jailed after the birth of his son. He seldom worked and never contributed money for the household expenses. Rather, he spent whatever money he had on drugs, and failing that, he harassed the Mother for drug money. If she refused, he would threaten the Mother, play loud music, and keep the lights on all night to prevent her from sleeping so that she would be unable to work the next day. Using a cane, he would strike the bed where the Mother had gathered the children to protect them. The Father often badgered the Mother for drug money, and the resulting financial strain eventually caused the family's financial ruin and the loss of the family home to foreclosure.

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Cite This Page — Counsel Stack

Bluebook (online)
903 So. 2d 1034, 2005 WL 1412052, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-dad-ii-fladistctapp-2005.