In Re KA

880 So. 2d 705, 2004 WL 902345
CourtDistrict Court of Appeal of Florida
DecidedApril 28, 2004
Docket2D03-866, 2D03-876
StatusPublished
Cited by3 cases

This text of 880 So. 2d 705 (In Re KA) 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 KA, 880 So. 2d 705, 2004 WL 902345 (Fla. Ct. App. 2004).

Opinion

880 So.2d 705 (2004)

In the Interest of K.A., K.A., and K.A., Minor children.
K.A., father, Appellant,
v.
Department of Children and Family Services, Appellee.
S.A., mother, Appellant,
v.
Department of Children and Family Services, Appellee.

Nos. 2D03-866, 2D03-876.

District Court of Appeal of Florida, Second District.

April 28, 2004.

*706 Jean Marie Henne, Winter Haven, for Appellant K.A.

Michael S. Farrell of Dodds & Farrell, P.A., Lakeland, for Appellant S.A.

Douglas Sherman, Department of Children and Family Services, Bartow, for Appellee.

ALTENBERND, Chief Judge.

K.A. and S.A. appeal a judgment terminating their parental rights to three children. We affirm that portion of the judgment that terminates the parents' rights to the youngest child, an infant who suffered abuse as a result of egregious conduct when he was in the custody of one or both of the parents. See § 39.806(1)(f), Fla. Stat. (2002). We reverse the order terminating the parents' rights to the two older children because the Department of Children and Family Services failed to present clear and convincing evidence that termination was in the manifest best interests of these two children and that termination was the least restrictive means to protect them.

K.A. and S.A. are the unmarried parents of three minor children. On May 19, 2001, when the children were ages four years, two years, and two months, the mother brought the infant to the emergency room. When an examination of the baby revealed severe injuries, the Department was notified and began an abuse investigation. The Department immediately placed all three children with a maternal aunt. On August 15, 2001, the Department filed a "petition alleging dependency and for termination of parental rights" against both parents, seeking termination of the parents' rights to all three children based upon the abuse of the infant. The Department did not offer the parents a case plan.

At the termination trial in November 2002, the Department sought to terminate the parents' rights to all three children pursuant to section 39.806(1)(f), which permits termination when a parent engages in egregious conduct or has the opportunity and capability to prevent and knowingly fails to prevent egregious conduct that threatens the life, safety, or physical, mental or emotional health of the child or the child's siblings. The evidence presented by the Department focused primarily on the infant: the extent of the infant's injuries, who may have inflicted the injuries, and how the injuries may have occurred. There was little evidence presented that related to the other two children.

*707 According to the evidence at trial, on May 19, 2001, the mother brought her two-month-old infant to the emergency room because his leg was swollen. She told emergency room personnel that she thought the baby might be having a reaction to ant bites. According to the emergency room physician, the baby did not initially appear uncomfortable and the leg was only mildly to moderately swollen; however, the child would cry in pain when his leg was moved. A series of diagnostic tests revealed the infant had a spiral fracture of his femur, a skull fracture, and three rib fractures. These injuries were in various stages of healing, leading the medical experts to opine that they occurred on at least three separate occasions. The pediatrician concluded the injuries were consistent with shaken baby syndrome.

It is not clear how the baby suffered these injuries or who specifically inflicted them. However, the testimony was undisputed that the infant was always in the care of the mother or father, with the exception of one time when the baby was left with the mother's sister while the mother watched a movie, and a second time when the baby was left with a family friend for twenty minutes while the mother went to the grocery store. Both of the babysitters denied inflicting any abuse on the child, and there was no evidence to suggest they were responsible for any of the child's injuries.

The parents also denied intentionally inflicting the abuse. They presented various hypotheses as to how the injuries might have occurred, but these theories were rejected by the medical experts based upon the types of injuries the child had sustained. The parents also denied knowing about the baby's injuries until the date the child was brought to the emergency room. However, a medical expert who reviewed the baby's medical records opined that anyone changing the child's diaper should have been aware of the femur fracture.

As to the two older children, there was no evidence that these children had been abandoned, abused, or neglected. When these two children were initially sheltered, a full medical examination of them revealed no injuries with the exception of some minor scarring of unknown origin on the middle child's buttocks.

The eldest child was in a Head Start program for two years in 2000 and 2001. The manager of the program testified on behalf of the mother. According to the manager, she saw the mother and the children five days a week when the mother dropped off the eldest child at the Head Start program and also saw them during home visits. The eldest child rarely, if ever, missed a day of preschool. The mother often talked to the manager to see how the eldest child was progressing in the program. The mother consistently brought the other two children into the Head Start facility. All three children were neatly and appropriately dressed, with the eldest child in clothes that were often ironed and starched. The children's hair was groomed. The manager described the mother as a good parent who was concerned about her children.

While these proceedings were pending, the parents were permitted supervised visitation with the children at the home of the maternal aunt who was caring for them. The mother visited with the children daily during the year and a half before trial and provided significant assistance in the children's care, in the hopes that she could provide stability for them and minimize the disruption in their lives. The father also visited regularly, as often as three times per week.

The child protective services caseworker visited the children's home on a monthly *708 basis and often saw the mother there. The caseworker testified the maternal aunt's home was well kept and the children were "very well taken care of." She was aware that the mother visited the children daily. She described the mother's interaction with the children as "very positive" and related how the mother would play with the children, eat with them, and braid their hair. She knew the mother sometimes brought over clothing for the children or other things they might need.

The guardian ad litem, who had investigated the case for over a year and who had significant experience working with handicapped children and "at-risk moms," opposed the termination of the parents' rights to the three children. Rather, the guardian recommended readjudicating the children dependent, retaining their placement with the maternal aunt, and permitting the parents to enter into a case plan with the Department with a goal of reunification. The guardian noted that the parents adequately provided for the children's housing, clothing, health, and nutritional needs. The guardian was mainly concerned that the parents receive education and support regarding child development, i.e., help in determining what level of supervision and interaction was appropriate for children in different developmental stages.

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Bluebook (online)
880 So. 2d 705, 2004 WL 902345, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-ka-fladistctapp-2004.