Opinion
3D23-2139
05-29-2024
A.P., the Father, Appellant, v. Department of Children and Families, et al., Appellees.
Law Offices of Roger Ally, P.A., and Roger Ally, for appellant. Karla Perkins, for appellee Department of Children & Families; GrayRobinson, P.A., and Julie M. Zolty (Orlando); and Sara Elizabeth Goldfarb and Laura J. Lee (Tallahassee), for appellee Guardian ad Litem.
Not final until disposition of timely filed motion for rehearing.
An Appeal from the Circuit Court for Miami-Dade County, Lower Tribunal No. 11-15616, Jason Emilios Dimitris, Judge.
Law Offices of Roger Ally, P.A., and Roger Ally, for appellant.
Karla Perkins, for appellee Department of Children & Families; GrayRobinson, P.A., and Julie M. Zolty (Orlando); and Sara Elizabeth Goldfarb and Laura J. Lee (Tallahassee), for appellee Guardian ad Litem.
Before EMAS, LINDSEY and BOKOR, JJ.
EMAS, J.
Following a five-day bench trial, the trial court granted the petition of the Department of Children and Families and entered a final judgment terminating the parental rights of the Father, A.P., to his child, Z.P.
Z.P.'s mother ("the Mother") surrendered her parental rights to Z.P. before the commencement of the Father's trial for termination of his parental rights.
The Father raises two issues on appeal: (1) the trial court erred in terminating the Father's parental rights under section 39.806(1)(c), Florida Statutes (2011) because the Department failed to present expert testimony that the Father presented a risk of harm to Z.P. irrespective of services, thereby rendering the trial court's determination "speculative" and not supported by competent, substantial evidence; and (2) the trial court erred in terminating the Father's parental rights under section 39.806(1)(j), Florida Statutes (2011) because the Department did not present evidence that it provided services to the Father three (3) years prior to the petition for termination of parental rights.
Section 39.806(1)(j) provides in pertinent part:
(1) Grounds for the termination of parental rights may be established under any of the following circumstances:
...
(j) The parent or parents have a history of extensive, abusive, and chronic use of alcohol or a controlled substance which renders them incapable of caring for the child, and have refused or failed to complete available treatment for such use during the 3-year period immediately preceding the filing of the petition for termination of parental rights.
We find no merit in either claim, but write to address the first issue raised by the Father. In doing so, we afford great deference to the trial court's findings of fact and review the record to determine whether the trial court's order is supported by competent, substantial evidence. F.A.F. v. Dep't of Child. &Fam. Servs., 804 So.2d 616 (Fla. 3d DCA 2002). We will affirm the trial court's ruling "unless clearly erroneous or lacking in evidentiary support." S.H. v. Dep't of Child &Fam. Servs., 366 So.3d 1120, 1124 (Fla. 3d DCA 2022) (quoting N.L. v. Dep't of Child. &Fam. Servs., 843 So.2d 996, 999 (Fla. 1st DCA 2003)).
The Father asserts that termination of parental rights pursuant to section 39.806(1)(c) requires the presentation of expert testimony to establish a risk to Z.P. irrespective of the provision of services. Because no expert testimony was presented on this issue, the Father contends the evidence is insufficient to establish a basis for termination under this subsection, and that we must therefore reverse.
Section 39.806(1)(c), Florida Statutes (2011) provides:
Grounds for the termination of parental rights may be established under any of the following circumstances: ...
(c) When the parent or parents engaged in conduct toward the child or toward other children that demonstrates that the continuing involvement of the parent or parents in the parentchild relationship threatens the life, safety, well-being, or physical, mental, or emotional health of the child irrespective of the provision of services. Provision of services may be evidenced by proof that services were provided through a previous plan or offered as a case plan from a child welfare agency.
To terminate A.P.'s parental rights under this subsection, the Department is required to prove, and the trial court must find, by clear and convincing evidence, that 1) the parent's continued involvement "threatens the life, safety, well-being, or physical, mental, or emotional health of the child," irrespective of services, see section 39.806(1)(c), Fla. Stat.; In re C.W.W., 788 So.2d 1020, 1023 (Fla. 2d DCA 2001) ("In essence, the trial court must find that any provision of services would be futile or that the child would be threatened with harm despite any services provided to the parent."), and 2) there is no reasonable basis to believe the parent will improve. S.H., 366 So.3d at 1124.
By its express terms, the statute does not require expert testimony to establish a risk of harm to the child. Nevertheless, the Father purports to rely for this requirement on the decision of our sister court in Q.L. v. Dep't of Children and Families, 280 So.3d 107, 115 (Fla. 4th DCA 2019). In addressing what must be proven for termination under this subsection, Q.L. noted that the trial court must "look at the parent's current medical condition or past behavior" and "predict whether the parent will likely harm the child in the future." Q.L., 280 So.3d at 113-14. It is this "prediction" of likely harm to the child in the future that Q.L. observed is typically established through expert testimony. See also S.H., 366 So.3d at 1124 (acknowledging Q.L.'s observation that "this requirement is typically established through expert testimony").
However, neither the statute nor Q.L. imposes an evidentiary requirement under this subsection that can be met only by expert testimony. While the Department arguably proceeds at its own peril in seeking to meet its evidentiary burden without expert testimony to establish termination under section 39.806(1)(c), expert testimony is not a sine qua non of termination of parental rights under this section. Indeed, our review of the record in the instant case reveals the Department introduced competent, substantial evidence (including the Father's own testimony) to meet its burden in this case, including, inter alia:
(1) the Father acknowledged his more than 30-year-long history of substance abuse and alcohol abuse, and admitted he has serious mental health issues, including diagnoses of schizophrenia, bipolar disorder, and depression;
(2) the Father acknowledged chronic domestic violence between himself and the Mother, committed in the presence of the child and resulting in the removal of the child;
(3) the Father and the Mother engaged in acts of domestic violence in 2016, 2021 and most recently in 2023, fueled in part by alcohol and controlled substances, and committed in the presence of the child;
(4) the Father and Mother used controlled substances in the presence of the child, and kept those controlled substances (cocaine and marijuana) in the house;
(5) the psychotherapist testified the Father downplayed and minimized the incidents of domestic violence and substance abuse;
(6) the Department provided the Father with a case plan and referral for services after the 2016 incident. While the Father completed the services, he relapsed shortly after the dependency case was closed in 2017;
(7) the Department offered additional services to the Father in 2021, by which he could receive substance abuse treatment, but the Father declined those services, and continued to use and abuse alcohol, marijuana and cocaine;
(8) in 2023, the Mother and the Father were fighting and engaged in domestic disputes about three times a week. During one of those domestic incidents, the Father said he wanted to kill the Mother in front of the child. During another, the Father tried to push the Mother out of the car, and the child began screaming; during the 2023 incident that led to the child's second removal, the Mother and Father were engaged in domestic violence witnessed by the child;
(9) the Father has failed to engage in available services since the 2023 incident, despite acknowledging he needs help, and despite being advised of available resources and no-cost services;
(10) Although the Father asserted at trial that he was (now) willing to undergo drug treatment, the trial court concluded this assertion was not credible, observing: "If he were in fact willing, he would have enrolled during any of the approximately seven months the case was open before trial started."
In its order terminating the Father's parental rights, the trial court found there was clear and convincing evidence to terminate parental rights under 39.806(1)(c) because the Father "has admittedly had an approximately 34-year-long history of substance abuse [and] admitted to serious mental health issues and chronic domestic violence between himself and [the] Mother."
Further, the Court found that the "totality of the Father's decades-long dangerous pattern of behaviors, including substance abuse, battering the Mother, and inconsistent adherence to mental health medication . . . and his low commitment to services post-shelter, makes it unreasonable to believe there is anything additional that can be provided to him."
We conclude the trial court's order terminating the Father's parental rights under section 39.806(1)(c), Florida Statutes is supported by competent, substantial evidence, and the Father has failed to establish error in the trial court's findings and determinations.
Affirmed.