To v. Department of Children and Families

21 So. 3d 173, 2009 Fla. App. LEXIS 17242, 2009 WL 3837159
District Court of Appeal of Florida·Decided November 18, 2009·No. 4D09-686, 4D09-687·Published·Cited by 8 cases

Opinion

DAMOORGIAN, J.

This appeal arises from the trial court’s termination of T.O.’s (the father) and E.R.’s (the mother) parental rights to their four children, S.O., R.O., E.O., and M.O. These appeals have been consolidated for purposes of this opinion. Because there is competent, substantial evidence in the record to support the trial court’s order, we affirm the termination as to both parents. We write to address two of the issues raised by the parents in their appeals.

On April 21, 2006, Department of Children and Families (DCF) filed a petition for adjudication of dependency for the four girls and their older brother, R.R. 1 In support of the petition, DCF alleged that, on or about March 19, 2006, the father held a rifle to the mother’s head and threatened to “blow [her] head off.” The father also threatened to kill R.R. When law enforcement arrived at the home, the mother stated that she was fearful for her own and her son’s safety because the father had been violent in the past. Soon after he was released from jail for this incident, the father resumed living with the mother and the children. The mother refused to obtain a restraining order against him because she needed his financial support. The family has a history of domestic violence, and both parents have criminal histories.

On May 4, 2006, the trial court adjudicated the children dependent with the parents’ consent, and ordered the parents to enter into a case plan with DCF. DCF created a case plan with concurrent goals of reunification and adoption for the four girls. The plan included, among other things, psychological evaluations, parent effectiveness training, substance abuse evaluations, random drug testing, and domestic violence counseling for the parents. It also included assessments, therapy and counseling for the children.

During the course of the case plan, E.O. began making statements that her father had sexually abused her and began exhibiting sexual behavior. As a result, the trial court ordered that the parents and children submit to psychosexual evaluations. The parents were also required to attend psychosexual counseling and the father was ordered to take a lie detector examination for therapeutic purposes. Through no fault of their own, it appears that the parents never received the psy- *175 chosexual counseling. They completed the rest of the tasks in their case plans.

On December 14, 2007, DCF filed a petition for termination of both parents’ rights to the four girls. The petition reiterated the allegations of domestic violence, and added allegations that the father had sexually abused E.O. and that the mother was aware of the abuse.

Prior to the trial on the petition to terminate parental rights, DCF moved to admit E.O.’s and S.O.’s hearsay statements pursuant to section 90.803(28), Florida Statutes (2008). 2 The trial court conducted a pretrial hearing on the motion, as required by the statute. Various witnesses who had contact with E.O. and S.O. testified that the girls described violence between their parents and between their father and R.R. According to the girls, many of their father’s violent episodes occurred when he was drinking alcohol. S.O. stated that her father threatened to hit her when he was drunk, and that she was scared of him. The witnesses also testified that E.O. made statements indicating that her father had sexually abused her and displayed highly sexualized behavior for her young age. S.O. denied any sexual abuse.

Two of the witnesses testified about E.O.’s reaction to seeing her father during a scheduled visit with her mother. E.O. screamed, could not talk, and clinched her fists. E.O. had a similar reaction when she saw her father at another visit with her mother.

At the conclusion of the hearing, the parents’ attorneys conceded all of the requirements for admitting S.O.’s and E.O.’s hearsay statements except for the reliability of the statements. The trial court found the statements to be reliable and from trustworthy sources, and ruled them admissible.

Both parents testified at the trial. The mother testified that she made up the story about the father holding the gun to her head because she was angry with him for refusing to give her money. After learning the signs of abuse in her domestic violence counseling, she did not believe she had been abused. Although she and the father had loud arguments, they never involved physical violence, and she was usually at fault for starting the arguments. She did not believe that the father had sexually abused E.O. She testified that someone, possibly one of E.O.’s counselors or case workers, was forcing E.O. to make the statements about sexual abuse.

The father also denied threatening the mother with a gun. He testified that E.O. and S.O. were making up the allegations of abuse. He felt that he benefitted from the domestic violence counseling.

E.O. and S.O. were allowed to testify in camera. E.O. answered a few questions about school, and stated that she knew the difference between a truth and a lie, but refused to answer any questions about her parents. S.O. stated that she felt sad and afraid while living with her parents because “they were always hitting each other.” She described physical violence between her parents and between her father and R.R. She believed that E.O. was her father’s favorite child. S.O. also described witnessing her father take out a gun and try to shoot her mother. Her mother’s cell phone was broken because her father stomped on it, so S.O. had to run to a neighbor’s house to call the police.

Dawn Sheehan, a psychologist, testified that she performed psychosexual evaluations on the whole family. She concluded that the father’s psychosexual makeup pre *176 sented a number of areas of concern because of his pervasive history of violence and aggression and criminal history, but he was not a pedophile. He had a difficult time explaining to Dr. Sheehan the services he had engaged in as part of his case plan. He was not able to relate what groups he was attending and the purposes of those groups. Dr. Sheehan concluded that the father did not have as much investment in the services as one would hope.

Dr. Sheehan was also concerned with the mother’s failure to be forthcoming about the problems in her home. The mother denied any violence in the home, and had difficulty acknowledging personal faults or shortcomings that may have led to her children being removed.

Finally, Dr. Sheehan testified that E.O. had been sexually exposed or abused and that her clinical presentation appeared to be within the spectrum of post-traumatic stress disorder.

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To v. Department of Children and Families, 21 So. 3d 173, 2009 Fla. App. LEXIS 17242, 2009 WL 3837159 (Fla. Ct. App. 2009).

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