S.M.O., THE MOTHER v. DEPARTMENT OF CHILDREN AND FAMILIES

• Court: District Court of Appeal of Florida
• Decided: March 1, 2023
• Docket: 22-1822
• Status: Published

Opinion

Third District Court of Appeal State of Florida

Opinion filed March 1, 2023. Not final until disposition of timely filed motion for rehearing.

________________

No. 3D22-1822 Lower Tribunal No. 21-15503 ________________

S.M.O., the mother, Appellant,

vs.

Department of Children and Families, et al., Appellees.

An Appeal from the Circuit Court for Miami-Dade County, Scott M. Bernstein, Judge.

Eugene F. Zenobi, Criminal Conflict and Civil Regional Counsel, Third Region, and Kevin Coyle Colbert, Assistant Regional Counsel, for appellant.

Karla Perkins, for appellee Department of Children & Families; Sara Elizabeth Goldfarb, and Laura J. Lee (Tallahassee), for appellee Guardian ad Litem.

Before SCALES, LINDSEY, and BOKOR, JJ.

LINDSEY, J. Appellant S.M.O. (the “Mother”) appeals from a final order terminating

parental rights to her four minor children based on her failure to protect her

child D.G.C. from significant and persistent sexual abuse by her live-in

boyfriend, A.A. Because there is competent substantial evidence supporting

the trial court’s findings that the Mother knowingly failed to prevent egregious

conduct and because the trial court did not err in terminating the parental

rights to D.G.C.’s younger siblings, we affirm.

I. BACKGROUND

In October 2021, Appellee the Department of Children and Families

(the “Department”) took the Mother’s four minor children into custody due to

allegations of sexual abuse. The children were sheltered with other family

members, and Appellee the Guardian ad Litem was appointed to represent

the children’s best interests. In November 2021, the Department filed the

underlying Petition to terminate the Mother’s parental rights to D.G.C. (a 15-

year-old female child), A.M.A. (a six-year-old female child), A.M.A. (a four-

year-old male child), and A.I.O.A. (a one-year-old male child). The Petition

also sought to terminate A.A.’s parental rights. A.A. is D.G.C.’s stepfather

and the legal father of the three younger children (collectively, the “Three

Siblings”). As grounds for termination, the Petition alleged that the Mother

had failed to protect D.G.C. from A.A.’s ongoing and prolonged sexual

2 abuse, which began when D.G.C. was nine years old and lasted at least six

years.

The adjudicatory hearing was conducted over the course of four days.

At the hearing, D.G.C. testified that A.A. started sexually abusing her when

she was nine years old and that it happened “very often.” Shortly after the

abuse started, D.G.C. told the Mother that A.A. was touching her

inappropriately “every day.” Afterwards, the Mother had an argument with

A.A., and the abuse stopped for 2-3 months before starting again. D.G.C.

testified that the abuse was frequent and occurred mostly when her younger

siblings were home. The abuse continued for at least six years until D.G.C.

turned fifteen years old and moved out to live with her adult sister (the

“Sister”).

D.G.C.’s Sister testified that A.A. also abused her while she was a

minor living with the Mother. According to the Sister, before A.A. moved in,

he lived across the street. The Sister was 15 years old at the time and could

tell A.A. “was up to no good” because of the way he would watch her and

her siblings play outside. She told the Mother this, and the Mother dismissed

it as nothing. After A.A. moved in, the Sister testified that he began sexually

abusing her. She left the Mother a note about what was happening, and,

according to the Sister, the Mother told her it was her fault because she was

3 looking for attention by the clothes she was wearing. The Sister testified that

the abuse “never stopped” and that every time she said something, the

Mother told her it was her fault or did not believe her.

The Sister also described an incident that occurred when she was

sixteen years old. She fell asleep on the sofa with her baby sister and was

woken up by the Mother’s screams, brought on by the Mother catching A.A.

in an attempted act of sexual abuse. After the Sister ran into the bathroom

with her baby sister, she heard “smashing, fighting, [and] arguing.” The next

day, the Mother blamed the Sister for what happened.

The Mother testified that D.G.C. never told her about the abuse. She

also denied that the Sister told her about the abuse and likewise denied ever

catching A.A. in an attempted sexual act with the Sister. After hearing

D.G.C. and the Sister describe in detail what A.A. had done to them, the

Mother concluded they were lying.

Following the hearings, the trial court entered a final judgment

terminating the Mother’s and A.A.’s parental rights. The court accepted

D.G.C.’s and the Sister’s testimony as credible. The court also found “that

4 the Mother’s testimony denying any knowledge of her daughters’ sexual

abuse not to be credible.” The Mother timely appealed. 1

II. ANALYSIS

The Mother raises four arguments on appeal. She argues the trial

court erred in terminating her parental rights to D.G.C. because (1)

termination was based on an unpled statutory ground and (2) there was no

competent substantial evidence that she knowingly failed to prevent

egregious conduct. The Mother further argues the trial court erred in

terminating her parental rights to the Three Siblings because (3) there was

no proof of a nexus between the Mother’s egregious conduct to D.G.C. and

the potential harm to the Three Siblings and (4) the court failed to make an

individualized analysis of the statutory manifest best interest factors as

applied to each of the Three Siblings. We address each argument in turn.

1. Unpled Statutory Ground (§ 39.806(1)(g))

“[B]efore terminating parental rights, ‘the trial court must find that the

Department established by clear and convincing evidence the following: (1)

the existence of at least one statutory ground for terminating parental rights

set forth in section 39.806(1); (2) termination is in the manifest best interest

1 A.A. also appealed. His appeal has been dismissed for failure to prosecute. A.A. v. Dep’t of Child. & Fams., 3D22-1820, 2023 WL 380409 (Fla. 3d DCA Jan. 5, 2023).

5 of the child; and (3) termination is the least restrictive means to protect the

child from serious harm.’”2 D.M. v. Dep’t of Child. & Fams., 315 So. 3d 90,

93 (Fla. 3d DCA 2020) (quoting L.Q. v. Dep’t of Child. & Fams., 282 So. 3d

958, 962 (Fla. 3d DCA 2019)). We review the trial court’s findings under the

highly deferential competent substantial evidence standard of review. See,

e.g., C.G. v. Dep’t of Child. & Fams., 67 So. 3d 1141, 1143 (Fla. 3d DCA

2011).

The trial court relied on two statutory grounds for terminating the

Mother’s rights: § 39.806(1)(f) and § 39.806(1)(g). Relevant here is

subsection (g), which provides as follows:

(g) The parent or parents have subjected the child or another child to aggravated child abuse as defined in s. 827.03, sexual battery or sexual abuse as defined in s. 39.01, or chronic abuse.

§ 39.806(1)(g), Fla. Stat. (2022).

2 This case involves egregious conduct under § 39.805(1)(f). “[I]n cases involving egregious conduct by a parent, ‘the termination of parental rights without the use of plans or agreements is the least restrictive means.’” In re C.E., 263 So. 3d 202, 213 (Fla. 2d DCA 2019) (quoting In re T.M., 641 So. 2d 410, 413 (Fla. 1994)). “As to the siblings, the legislature has abrogated the least restrictive means inquiry for ‘egregious conduct’ cases, among others.” V.S. v. Dep’t of Child. & Fams., 322 So. 3d 1153, 1163 (Fla. 4th DCA 2021). The Mother does not challenge the trial court’s least restrictive means findings.

6 The Mother argues the trial court erred in relying on subsection (g)

because the Department did not assert this statutory ground in its Petition. 3

We agree. 4 See L.A.G. v. Dep’t of Child. & Fam. Servs., 963 So. 2d 725,

726 (Fla. 3d DCA 2007) (“The termination order violates due process

because it is based on grounds not asserted in DCF’s petition.”). But

because the existence of only one statutory ground is necessary, this does

not amount to reversible error unless the trial court’s reliance on subsection

(f) was also erroneous. See § 39.806(1) (“Grounds for the termination of

parental rights may be established under any of the following circumstances

. . . .” (emphasis added)); cf. M.M.W. v. J.W., 47 Fla. L. Weekly D1633 (Fla.

3d DCA Aug. 3, 2022), reh’g denied (Oct. 7, 2022) (“[W]e conclude that

terminating parental rights solely on a statutory ground not pled in the petition

constitutes a denial of due process.” (emphasis added)).

2. Egregious Conduct (§ 39.806(1)(f))

The only statutory ground the Department relied on against the Mother

was § 39.806(1)(f), Florida Statutes (2022), which provides as follows:

(f) The parent or parents engaged in egregious conduct or had the opportunity and capability to prevent and knowingly failed to prevent egregious

3 The Department asserted subsection (g) against A.A. but not against the Mother. 4 The Department commendably concedes error on this point.

7 conduct that threatens the life, safety, or physical, mental, or emotional health of the child or the child’s sibling. Proof of a nexus between egregious conduct to a child and the potential harm to the child’s sibling is not required.

Egregious conduct is defined as “abuse, abandonment, neglect, or any other

conduct that is deplorable, flagrant, or outrageous by a normal standard of

conduct. Egregious conduct may include an act or omission that occurred

only once but was of such intensity, magnitude, or severity as to endanger

the life of the child.” § 39.806(1)(f)(2).

The Mother contends that competent substantial evidence does not

support termination pursuant to subsection (f). We disagree. There was

ample testimony below by both D.G.C. and the Sister, which the trial court

explicitly found was credible, that the Mother knew about the sexual abuse.

See I.D. v. Dep’t of Child. & Fams., 13 So. 3d 1117, 1120 (Fla. 3d DCA 2009)

(“[I]t is within the province of the trial court to weigh the evidence presented

and to make credibility determinations.”). This is sufficient to support the trial

court’s conclusion that “the Mother 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 [D.G.C.].” Therefore,

because termination of the Mother’s parental rights to D.G.C. is supported

8 by at least one statutory ground, we affirm the termination order as to D.G.C.

We turn now to the remaining two issues involving the Three Siblings.

3. Proof of a Nexus of Harm (§ 39.806(1)(f))

Section 39.806(1)(f) permits termination of parental rights to siblings,

even if there is no nexus between the egregious conduct and the potential

harm to the siblings: “Proof of a nexus between egregious conduct to a child

and the potential harm to the child’s sibling is not required.” This language

was added in 2014. Even before the 2014 amendment, this Court held that

“[s]ection 39.806(1)(f) provides a mechanism for protecting children from the

threat of abuse [and] permits the trial court to terminate parental rights to a

child who has suffered egregious abuse, and to any siblings of such

child.” T.P. v. Dep’t of Child. & Fam. Servs., 935 So. 2d 621, 624 (Fla. 3d

DCA 2006). This Court further explained that “[t]he statute does not require

additional proof to establish a likelihood that an abused child’s sibling will

also be abused. Furthermore, in some cases, a parent’s conduct toward one

child may demonstrate a ‘substantial risk of significant harm’ to another

child.” Id. at 625 (citing Dep’t of Child. & Fams. v. B.B., 824 So. 2d 1000,

1007 (Fla. 5th DCA 2002)) (quoting Fla. Dept. of Child. & Fams. v. F.L., 880

So. 2d 602, 608 (Fla. 2004)).

9 The Mother argues that terminating her rights to the Three Siblings

without proof of a nexus between her knowing failure to prevent egregious

harm to D.G.C. and the potential harm to the Three Siblings violates her

constitutional rights as a parent. Consequently, the Mother claims that §

39.806(1)(f) is unconstitutional. 5 We disagree.

It is firmly established that “[p]arents have a fundamental liberty

interest, protected by both the Florida and federal constitutions, in

determining the care and upbringing of their children.” F.L., 880 So. 2d at

607. However, these rights are not absolute. T.P., 935 So. 2d at 624

(“Although parental rights are fundamental, we emphasize that they are not

absolute, as they are subject to the overriding principle that the best interests

of the children must prevail.”).

Because a fundamental liberty interest is involved, we subject §

39.806(1)(f) to strict scrutiny. “To withstand strict scrutiny, a law must be

necessary to promote a compelling governmental interest and must be

narrowly tailored to advance that interest.” N.B. v. Fla. Dep’t of Child. &

5 Below, the Mother only argued § 39.806(1)(f) was facially unconstitutional. Her as-applied challenge on appeal is therefore not preserved. See B.C. v. Dep’t of Child. & Fams., 864 So. 2d 486, 491 (Fla. 5th DCA 2004) (“A distinction is drawn between challenges to the facial unconstitutionality of a statute and the unconstitutionality of the application of the statute to the facts of a particular case. The former may be raised for the first time on appeal; the latter must first have been raised at the trial level.”).

10 Fams., 183 So. 3d 1186, 1188 (Fla. 3d DCA 2016) (quoting State v. J.P.,

907 So. 2d 1101, 1109 (Fla. 2004)). It is undisputed that the statute serves

a compelling government interest by protecting children.

As for being narrowly tailored, we note that § 39.806(1) lists several

grounds for termination of parental rights. Subsection (f) is unlike many of

the other statutory grounds in that it permits termination of parental rights to

unharmed siblings. 6 Importantly, subsection (f) narrowly applies in situations

where there is “egregious conduct,” which is clearly defined in the statute as

“conduct that is deplorable, flagrant, or outrageous by a normal standard of

conduct.” § 39.806(f)(2). As this Court explained in T.P., “[s]ection

39.806(1)(f) ‘represents a legislative expression that parents who have

committed egregious acts of abuse against one child pose an unacceptable

risk that they will abuse their remaining children.’” 935 So. 2d at 625 (quoting

B.B., 824 So. 2d at 1007).

The Mother heavily relies on two Florida Supreme Court cases that do

not involve egregious conduct under § 39.806(1)(f): Padgett and F.L. We

6 Section 39.806(1)(h), which has to do with “murder, manslaughter, aiding or abetting the murder, or conspiracy or solicitation to murder the other parent or another child, or a felony battery that resulted in serious bodily injury to the child or to another child” similarly does not require proof of a nexus between the conduct and potential harm to another child.

11 agree with the Fourth District that these cases do not undermine the

constitutionality of § 39.806(1)(f):

Neither opinion dealt with section 39.806(1)(f) as amended in 2014, nor with a “no nexus required” provision inserted by the legislature. Moreover, Padgett states that “the permanent termination of a parent’s rights in one child under circumstances involving abuse or neglect may serve as grounds for permanently severing the parent’s rights in a different child.” 577 So. 2d at 571 (emphasis added and footnote omitted). F.L. buttresses this point: “Implicit in our decision in Padgett is the recognition that in some cases, but not in all cases, a parent’s conduct toward another child may demonstrate a substantial risk of significant harm to the current child.” 880 So. 2d at 608 (emphasis added). “Egregious conduct” would appear to fall into the narrow “some cases” category. Thus, the “no nexus required” amendment is not incompatible with Padgett and F.L. or with the “narrowly tailored” prerequisite.

V.S. v. Dep’t of Child. & Fams., 322 So. 3d 1153, 1161–62 (Fla. 4th DCA

2021).7

We therefore conclude that § 39.806(1)(f) survives strict scrutiny

because it promotes the compelling government interest of protecting

7 The Fourth District has certified the constitutionality of § 39.806(1)(f) as a question of great public importance at least four times. See V.S. v. Dep’t of Child. & Fams., 322 So. 3d 1229 (Fla. 4th DCA 2021); R.S. v. Dep’t of Child. & Fams., 328 So. 3d 305 (Fla. 4th DCA 2021); K.A. v. Dep’t of Child. & Fams., 332 So. 3d 501 (Fla. 4th DCA 2021); E.A. v. Dep’t of Child. & Fams., 332 So. 3d 493 (Fla. 4th DCA 2021). So far, the Florida Supreme Court has declined review.

12 children and it narrowly applies in situations where there is egregious

conduct.

4. Manifest Best Interests of the Three Siblings (§ 39.810)

Although proof of a nexus between egregious conduct and potential

harm to a sibling is not required for termination under section 39.806(1)(f),

the trial court must still engage in a manifest best interests inquiry pursuant

to § 39.810. “The ‘manifest best interests’ inquiry ensures the continuation

of an individualized approach and the consideration of all relevant

circumstances with respect to sibling terminations, even in circumstances in

which the trial court has determined that the parent ‘[e]ngaged in egregious

conduct . . . that threatens the life, safety, or physical, mental, or emotional

health of the child or the child's sibling.’” V.S., 322 So. 3d at 1160 (quoting

§ 39.806(1)(f), Fla. Stat. (2020)).

The Mother, relying on V.S., argues the trial court failed to make an

individualized analysis of the eleven factors in § 39.810 as to each of the

Three Siblings. In V.S., the trial court sufficiently addressed the factors as

to the abused child but failed to evaluate the factors as to the siblings “stating

that proof of a nexus between the conduct against [the abused child] and the

potential harm to his siblings was not required.” 322 So. 3d at 1163. The

Department likewise failed to offer proof of the factors listed in § 39.810

13 “apparently taking the same position as the trial court that proof of substantial

risk of significant harm to the siblings was unnecessary. Id.

Here, by contrast, the trial court made detailed findings as to each of

the eleven factors in § 39.810. While it is true that some of the trial court’s

findings refer to the Three Siblings collectively, this is not reversible error

because their interests were aligned. For example, the first factor looks at

whether there is “[a]ny suitable permanent custody arrangement with a

relative of the child.” Here, all Three Siblings were living with their paternal

grandmother.

Importantly, proof of the factors in § 39.810 was presented below and

support the trial court’s findings. The Mother does not challenge any of these

findings as unsupported. “Here the trial court made full findings on all eleven

factors and found that overall, termination of the mother’s parental rights was

in the child’s manifest best interest. The findings were sufficient for appellate

review, and there was evidence to support the findings. Reweighing the

evidence at the appellate level would violate the highly deferential standard

we must apply.” J.P. v. Fla. Dept. of Child. & Fams., 183 So. 3d 1198, 1204

(Fla. 1st DCA 2016).

III. CONCLUSION

14 Although the trial court erred when it terminated the Mother’s parental

rights based on § 39.806(1)(g), a statutory ground that was never pled, we

nevertheless affirm the termination order because there is competent

substantial evidence supporting termination of the Mother’s parental rights

to D.G.C. under § 39.806(1)(f). We also conclude that § 39.806(1)(f) is

constitutional and that the trial court did not err in terminating the Mother’s

parental rights to the Three Siblings.

Affirmed.