M.S. v. D.C.

763 So. 2d 1051, 1999 Fla. App. LEXIS 7289, 1999 WL 346123
CourtDistrict Court of Appeal of Florida
DecidedJune 2, 1999
DocketNos. 98-3296, 98-3453
StatusPublished
Cited by16 cases

This text of 763 So. 2d 1051 (M.S. v. D.C.) 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
M.S. v. D.C., 763 So. 2d 1051, 1999 Fla. App. LEXIS 7289, 1999 WL 346123 (Fla. Ct. App. 1999).

Opinion

STONE, C.J.

We reverse an order denying the natural mother’s petitions for termination of the natural father’s parental rights and granting the paternal grandparents’ request for visitation.

The father was initially given custody of the three minor children by stipulation in a 1990 Connecticut divorce. In 1993, the father shot his girlfriend twice with a shotgun and killed her in their Connecticut home while the children were in the house. The father was arrested the evening of the shooting, and was eventually found guilty of murder. He was sentenced to 60 years imprisonment by a Connecticut court and will not be eligible for release for at least twenty to thirty years, perhaps consider[1052]*1052ably longer. In the murder trial, the father’s defense was based on a claim that he was delusional. In that trial, psychiatrists testified that he suffers from paranoid schizophrenia.

The paternal grandparents had temporary custody of the children for several months after the murder until the mother was given sole custody by a stipulated modification, which provided for grandparent visitation. The children visited the father in jail several times before the mother moved to Florida. The petitions for termination, filed by the mother and children, allege outrageous conduct by the father constituting abuse and abandonment. The paternal grandparents filed a separate petition for visitation, based on the Connecticut modification of judgment, that was considered with the mother’s petitions.

In this action, the father testified that Sue, the victim of the homicide, lived in their home, acting as caretaker of the home and children. The children called her by her first name, and also occasionally called her “Mommy.” The father acknowledged that they loved her.

The trial court received testimony from two psychiatrists, several social workers and a nurse who treated and examined the children. Each testified to the children’s extensive functioning problems and disorders which they linked, based upon treatment and observation, to the events on the night of the murder. All of these witnesses diagnosed the children as suffering, among other conditions, from post-traumatic stress syndrome. One was diagnosed with fear and anxiety disorders and a speech disorder. That child’s symptoms included flashbacks, nightmares, regressed behavior, aggressiveness and destructiveness, socialization troubles, and significant developmental delay.

A social worker testified that she provided therapy for one of the other children, who had behavioral problems including tantrums, aggression, bed-wetting, nightmares, and mood swings. Another social worker testified that she provided.therapy for the eldest child, who was eight years old at the. time. He had nightmares, was significantly angry, had complaints of headaches and stomach problems, and was very anxious. During play therapy, the child would play out or talk about his fear that the father would get out of prison and hurt him or his brothers.

One of the psychiatrists testified that each child has symptoms of post-traumatic stress disorder from the murder, which include flashbacks, nightmares, outbursts, angry outbursts, irritable behavior, and mood swings. The children have expressed fear of the father, and no other feelings about him. He related that the children also are afraid of the paternal grandparents. He opined that allowing the father contact with the children would add more trauma to that already experienced by the children.

Another social worker had seen the three children in Connecticut before custody was transferred to the mother. That witness also found the children to be suffering from post-traumatic stress disorder. Although the children did not tell her that they were afraid of the grandparents, they did say that the grandmother often yelled and screamed. The children did, however, say positive things about the grandfather.

Another psychiatrist testified that he saw the eldest child in 1995. The child’s mood vacillated between sadness, rage, and fear. He also diagnosed the child with post-traumatic stress disorder, major depression with suicidal ideations, and a learning disability. That doctor also evaluated the youngest child as having a generalized anxiety disorder. The child was fearful and experienced bed-wetting and nightmares which the doctor related to fears involving the father and the grandparents.

A large part of the social worker and psychiatrist testimony dealt with whether, and how, the children had related their experience on the night of the murder and [1053]*1053their feelings about their father and the victim. As to some of this, the children’s statements, years after the fact, were conflicting.

The guardian ad litem for the children recommended that the father’s rights be terminated because it was in the children’s best interests. The guardian did recommend in favor of grandparent visitation. The children’s mother, who suffers from multiple sclerosis, testified that her husband, their stepfather, loves and wants to adopt the children.

The mother and stepfather terminated the grandparent visitation upon a counsel- or’s advice. The mother testified to incidents in which the children indicated that they feared and did not want to visit the grandparents. She testified that after visiting the grandparents, the children exhibited many problems and anxieties. She also testified to the grandparents’ interference with her parenting. On the other hand, the grandparents denied the mother’s allegations, denied that the incidents testified to by the mother and doctors had occurred, and there was testimony that they had a good relationship with the children.

In its order, the trial court concluded that the mother had not proven that the children saw or heard the murder as she claimed. The trial court determined that it was probably the mother’s pressure that caused the children to dwell on the incident and to believe that they witnessed things that they did not witness; and that it is more likely that she was the cause of the children’s mental health problems. The court also found that the lives of the children were never physically endangered on the night of the murder by the father’s acts. The court granted the paternal grandparents’ motion for visitation based on the Connecticut decree.

We have reviewed the record and conclude that the trial court erred in denying the petition to terminate parental rights, in failing to find egregious abuse and abandonment by the father in the facts surrounding the murder, and in failing to determine the issues under section 39.464, Florida Statutes, adversely to the father.

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. The trial court’s finding that the mother’s conduct and not the father’s acts was the cause of the children’s multiple symptoms (that all of the experts deemed to be the result of post-traumatic stress syndrome) is not supported by the evidence.

Section 39.464(l)(e), Florida Statutes (1997),1 provides that a person may petition for termination .of parental rights where:

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Bluebook (online)
763 So. 2d 1051, 1999 Fla. App. LEXIS 7289, 1999 WL 346123, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ms-v-dc-fladistctapp-1999.