In Re DLH

990 So. 2d 1267, 2008 WL 4482579
CourtDistrict Court of Appeal of Florida
DecidedOctober 3, 2008
Docket2D07-715
StatusPublished

This text of 990 So. 2d 1267 (In Re DLH) 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 DLH, 990 So. 2d 1267, 2008 WL 4482579 (Fla. Ct. App. 2008).

Opinion

990 So.2d 1267 (2008)

In the Interest of D.L.H., a child.
T.L., Appellant,
v.
Department of Children and Family Services and Guardian Ad Litem Program, Appellees.

No. 2D07-715.

District Court of Appeal of Florida, Second District.

October 3, 2008.

*1269 Cary A. Cliff of Cary Alan Cliff, P.A., Naples, for Appellant.

William Byrne Isaacs, Children's Legal Services, Port Charlotte, for Appellee Department of Children and Family Services.

Annette M. Lizardo, Appellate Counsel, Orlando, for Appellee Guardian ad Litem Program.

WALLACE, Judge.

T.L. (the Father) appeals a final judgment that terminated his parental rights to his son, D.L.H. Because the Department of Children and Family Services (DCF) failed to establish (1) a nexus or predictive relationship between the past abuse of D.L.H.'s sibling and any prospective abuse of D.L.H. and (2) that termination was the least restrictive means to protect D.L.H. from harm, we reverse the final judgment of termination and remand for further proceedings.

I. THE FACTS

DCF sought to terminate the Father's parental rights to D.L.H., born September 22, 2005. The Father and H.H. (the Mother) are the unmarried parents of D.L.H. DCF also sought to terminate the Mother's parental rights to D.L.H. and to two of the Mother's other children—D.K.H., born May 25, 2002, and D.L.R., born October 8, 2003. T.L. is not the parent of either D.K.H. or D.L.R.; those two children each have different fathers.

The events that led to the filing of the termination petition began when D.L.R., one of D.L.H.'s older siblings, was brought to the emergency room at Lee Memorial Hospital in January 2006. On admission to the hospital, D.L.R. was found to be suffering from multiple bruises and dehydration. D.L.R. also showed signs of sexual abuse. The emergency room physician testified at trial that D.L.R.'s condition was so serious that it could have been fatal without prompt medical treatment. The doctor also testified that the age of D.L.R.'s bruises was indicative of a delay in seeking treatment for his injuries.

The Father and the Mother were residing together with the three children at the time that the injuries to D.L.R. occurred. At trial, both the Father and the Mother denied any knowledge concerning how D.L.R. had sustained his injuries. There was no evidence establishing the identity of the perpetrator of the abuse to D.L.R. In the absence of such evidence, the trial court held both the Mother and the Father responsible:

It is not known and it was not established by clear and convincing evidence which parent was the actual perpetrator on [D.L.R.]. The entire evidence in the case suggests that the mother, [H.H.], or the caregiver paramour, [T.L.], or both of them are at fault. Although it is possible that both persons inflicted the harm, the evidence more strongly suggests that one person was inflicting the harm while the other person, with knowledge that the child was being harmed, allowed it to continue by failing to remove the child from harm's way even though he or she had the opportunity and capability to do so.

Thus the trial court declined to rule out either the Father or the Mother as the perpetrator and found that both of them had engaged in egregious conduct toward the Mother's child, D.L.R. Despite the severity of the abuse inflicted on D.L.R., *1270 there was no evidence that D.L.H. had been abused.[1]

At the time of the hearing, the Mother had a total of five children and already had a history with DCF. The trial court found that DCF had offered the Mother services in the past but that the Mother had failed to take advantage of the services or to benefit from them. On the other hand, the Father had no prior history with DCF and had never been offered services. Nevertheless, DCF elected to proceed immediately with proceedings to terminate the Father's parental rights to D.L.H.

DCF never obtained a psychological evaluation of the Father. Although DCF presented the testimony of a psychologist at trial, the psychologist had never even spoken with the Father or the Mother. Instead, the psychologist based his testimony on a review of the children's medical records and DCF's case file. In addition, DCF failed to present any evidence at trial that the Father suffered from a mental illness, drug addiction, pedophilia, or some other mental or emotional condition that would make it likely that he would abuse or neglect his son.

In the absence of any evidence that the Father suffered from such a mental or emotional condition, the trial court expressly declined to find that the Father would not benefit from services:

[T]he Court cannot find by clear and convincing evidence that this father, who has never had services, would not benefit from services to the extent that he would not pose a threat to his own son. The Court does not know if he is an untreatable sociopath or sexual deviant or is someone amenable to some kind of treatment.

Despite finding that DCF had failed to prove that the Father could not benefit from services, the trial court elected to terminate the Father's parental rights under section 39.806(1)(f), Florida Statutes (2006).

The trial court summarized the reasons for its decision in favor of termination as follows:

In summary[,] the Court finds both parents have a demonstrated capacity to do great harm to a very small child and not enough capacity, even with provision of reunification services, to rehabilitate themselves within the time provided by law. Assuming neither parent has an incurable mental defect which forever makes them a threat of harm to children, these parents have too far to go with their rehabilitation. [D.L.H.] deserves permanency within the time prescribed by law. Denying the petition will deny him permanency for an [un]acceptable length of time.

Thus the trial court did not base its decision in favor of termination on evidence demonstrating that the Father posed a threat of prospective harm to D.L.H. Instead, the trial court ordered termination of the Father's parental rights based on its view that offering services to the Father would result in an unwarranted delay in achieving permanency for the child.

II. THE LEGAL BACKGROUND

To grant a petition for termination of parental rights, the circuit court must find that DCF proved the allegations supporting termination by clear and convincing evidence. E.E.A. v. Dep't of Children & Family Servs. (In re D.A.), 846 So.2d 1250, 1251-52 (Fla. 2d DCA 2003). The circuit court must first find grounds for termination of parental rights under section 39.806 and then must consider the manifest best interests of the child under *1271 section 39.810. Rathburn v. Dep't of Children & Families, 826 So.2d 521, 523 (Fla. 4th DCA 2002). When termination of parental rights is based on the abuse of a sibling, the court must also find a nexus between the abuse of the sibling and the prospective abuse of the child. A.D. v. Dep't of Children & Family Servs. (In re G.D.), 870 So.2d 235, 238 (Fla. 2d DCA 2004). In addition, DCF must establish that termination of parental rights is the least restrictive means of protecting the child from harm. E.E.A., 846 So.2d at 1252. On appeal, the circuit court's ruling should be upheld if, upon the evidence presented to the circuit court, there is any principle or theory of law that would support the circuit court's judgment terminating parental rights. G.W.B. v. J.S.W. (In re Adoption of Baby E.A.W.), 658 So.2d 961, 967 (Fla.1995).

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Bluebook (online)
990 So. 2d 1267, 2008 WL 4482579, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-dlh-fladistctapp-2008.