Opinion
No. 1D21-3170
06-24-2022
D.W., mother of J.J., K.F., M.P., and M.P., minor children, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
Tanya White of TW Law Group, PLLC, Winter Park, for Appellant. Ward L. Metzger, Children's Legal Services, Tallahassee, for Appellee Department of Children and Families. Sara Elizabeth Goldfarb and Laura J. Lee, Tallahassee; and Cody L. Frank, Pro Bono, Defending Best Interests Project, Coral Gables, for Appellee Guardian ad Litem.
Tanya White of TW Law Group, PLLC, Winter Park, for Appellant.
Ward L. Metzger, Children's Legal Services, Tallahassee, for Appellee Department of Children and Families.
Sara Elizabeth Goldfarb and Laura J. Lee, Tallahassee; and Cody L. Frank, Pro Bono, Defending Best Interests Project, Coral Gables, for Appellee Guardian ad Litem.
Ray, J. D.W., the mother, challenges the trial court's decision adjudicating her four children dependent and in need of protection and services. She contends the evidence does not support the trial court's determination that she abused and neglected her children and put them at substantial risk of imminent harm. But in essence, she asks us to reweigh the evidence and substitute our judgment for that of the trial court. That is not our role. Instead, we must determine whether the trial court's factual determinations are supported by competent, substantial evidence when viewed in a light most favorable to sustaining the order of dependency. Having done so, we affirm.
I.
This case was prompted by an anonymous tip to the child abuse hotline that the mother had been physically abusing her children, J.J., K.F., M.P., and M.P. The two youngest children, M.P. and M.P., are twin girls, and we will distinguish them as M.Ka. and M.Ku. (collectively, "the twins"). The children had been sheltered in the past but reunified with the mother in November 2020. Supervision was terminated in that Orange County case two weeks before the hotline tip was made in this case in July 2021.
An examination of the children by the Child Protective Team (CPT) revealed extensive scarring, patterned bruising, looped abrasions, and other marks on the bodies, arms, legs, or faces of all four children consistent with being repeatedly hit with an object. Based on the CPT's findings, the Department of Children and Families (DCF) filed an emergency shelter petition for all four children. At the time, the three fathers could not be located. The trial court granted the shelter petition, placing the children with DCF and ordering the mother to have no contact with them. By then, she was being prosecuted for aggravated child abuse based on this incident.
Two weeks later, DCF petitioned for dependency based on these events. The petition recounted the mother's history of untreated mental health issues, failure to comply with DCF services, and her criminal record. The fathers still had not supported their children or bonded with them. The mother denied the allegations and requested a full adjudicatory hearing.
At the dependency hearing, Dr. Cameron Rosenthal testified about the children's extensive injuries. She examined the twins and reviewed the evaluations of the two boys that another physician performed. The mother did not object to Dr. Rosenthal's credentials or qualifications as an expert witness.
J.J.’s examination revealed multiple scars on his legs that pointed to abuse because of their pattern and size. Some marks were linear and parallel, suggesting they were caused by an object such as a belt or switch. He was ten years old but could not explain how he got the injuries. Dr. Rosenthal testified that, to her knowledge, the child had not received medical treatment for his injuries. She also said that any caregiver would notice the injuries because they were so obvious.
K.F.’s examination revealed evidence of abuse, burns, and coaching by the mother to hide the abuse from others. He was six years old and had scars in a loop pattern on his back and legs, and a circular burn on his upper back consistent with branding from a car's cigarette lighter. He also had abrasions all over his back, arms, and legs consistent with being hit with a belt or cord. In all, he had about a half-dozen scars or bruises on his body, some of which were several months old, and it did not appear that he had received any medical treatment for his injuries. K.F. said that his mother hit him and his siblings with a stick and told him that he would get in trouble or be "whooped" if he told anyone about it. Dr. Rosenthal testified that his statements were a logical explanation for the children's injuries, and their injuries were not caused by eczema (an excuse given by the mother). She also explained how coaching by a caregiver can be emotionally and psychologically traumatizing for a child.
M.Ka.’s examination revealed extensive abrasions, scars, and patterned bruises on her face and body, numbering well over a hundred. Her injuries pointed to being hit with an object. She also had a burn mark on her leg that resembled the pattern of steam vents on an iron and many abrasions on her body consistent with being scratched by fingernails. She was two years old. Dr. Rosenthal testified that, to her knowledge, the child had not received medical treatment for her injuries. The injuries were at different stages of healing, with some being months old and others inflicted only several days before the exam. Dr. Rosenthal said M.Ka.’s exam was positive for physical abuse, failure to thrive, and failure to protect by her current caregiver and the one caring for her months ago. She also confirmed that the child's injuries fit with being hit by a stick, as claimed by K.F., and they were not caused by eczema, as claimed by the mother. In her view, no reasonable caregiver could overlook the child's injuries or deny that they exist.
M.Ku.’s examination revealed evidence of physical abuse, burns, failure to thrive, and failure to protect by the current caregiver and the one caring for the child months ago. Dr. Rosenthal also discovered the child had a heart murmur that could cause long-term problems if left untreated, and she was unaware of any prior medical treatment for the condition. M.Ku. had extensive patterned bruises and abrasions all over her face and body, and an old burn scar on her buttocks. She had about two-dozen of the larger marks and over a hundred of the other marks. And she had a loop-pattern mark on her face consistent with being hit with an object. The burn mark on her buttocks resembled being burned with an iron. Dr. Rosenthal testified that the injuries had been inflicted repeatedly over time (from days to months) and, to her knowledge, the child had not received any medical treatment for her injuries.
Dr. Rosenthal testified that she matched objects seized by law enforcement from the mother's home to some of the patterned or distinctively shaped markings on the children's bodies. She concluded that the children could not self-inflict their injuries based on their appearance and location. The twins’ injuries were among the worst Dr. Rosenthal had seen.
Officer Luis Forero questioned the mother at the sheriff's office. He testified that she admitted spanking the children and hitting them with a wooden back scratcher, but she denied the burn marks existed or claimed they were caused by spanking. She said she had not disciplined the children for over a month, and she did not know about the scarring or marks on their bodies even though they were extensive and very visible. She seemed surprised when she saw the pictures taken during their CPT exams. Officer Forero also described the evidence collected from the mother's home, including the objects used to hit or whip the children.
The mother began her testimony by claiming that the child abuse hotline tip was reported by someone who held a grudge against her. She also claimed that she did not have actual custody of the children until April 2021 (rather than November 2020, when the court ordered reunification in her Orange County case). According to the mother, the children were with their maternal grandparents for about six months, and the plan was for the grandparents to adopt them. But when pressed on cross-examination, she was evasive and could not remember when she "actually" got them back.
The mother said that J.J. cut his leg on a bed spring while playing at a friend's house when he was two years old. She thought the CPT exam pictures were misleading because the children had just showered and had ashy skin. She gave a variety of reasons for the marks on their bodies, including eczema, bed bugs, the children playing with each other and jumping off the bunk bed, and medical tape applied when the twins were in the hospital for six months at birth. She also claimed that the twins got the marks on their buttocks from diaper rash and medical tape she used after they were discharged home. And she said that the children could not get any medical treatment for their eczema because of COVID-19.
The mother testified that she disciplined her children by taking their electronic devices away, putting them in time out, and spanking them. But she denied burning them or hitting them with anything besides a back scratcher, which did not leave any marks, and claimed that the last time she hit one of the boys was two months earlier.
Recounting this and other evidence, the trial court adjudicated the children dependent under section 39.01(14)(a) and (f), Florida Statutes (2021), based on the mother's abuse, abandonment, or neglect of the children, and their substantial risk of imminent abuse, abandonment, or neglect. In support of its ruling, the court found that the mother had harmed the children by inflicting or allowing injuries to be inflicted on them ( section 39.01(34)(a) ); by failing to provide them with adequate medical care ( section 39.01(34)(f) ); by exposing them to a controlled substance or alcohol ( section 39.01(34)(g) ); by using a mechanical device to control them ( section 39.01(34)(h) ); and by negligently failing to protect them from injuries caused by others ( section 39.01(34)(j) ). The court found Dr. Rosenthal's unrebutted testimony "extremely credible" and rejected the mother's argument that the children's injuries resulted from reasonable corporal punishment.
II.
On appeal, the mother mainly argues that there was insufficient evidence to find her children dependent. She also questions Dr. Rosenthal's veracity and contends that she was not qualified to render an opinion on eczema, burns, or bruises. The mother asserts that she lawfully exercised her parental right to use corporal punishment to discipline her children. And if we viewed this case through her "lens," we would conclude that she was denied due process.
To be clear, the purpose of a dependency proceeding is not to punish the parents but to protect the children. § 39.501(2), Fla. Stat. Since the trial court is in the best position to evaluate the credibility of witnesses and the weight of the evidence, "we simply look for whether there is evidence supporting the trial court's factual determinations that is both substantive and competent, and we make all necessary inferences from that evidence in favor of sustaining the dependency adjudication." T.H. v. Fla. Dep't of Child. & Fams. , 308 So. 3d 678, 682–83 (Fla. 1st DCA 2020).
A child can be found dependent if the parent has abandoned, abused, or neglected the child, § 39.01(14)(a), Fla. Stat., or if the child is at substantial risk of imminent abuse, abandonment, or neglect, § 39.01(14)(f).
In turn, "abuse" is "any willful act or threatened act that results in any physical, mental, or sexual abuse, injury, or harm that causes or is likely to cause the child's physical, mental, or emotional health to be significantly impaired." § 39.01(2), Fla. Stat. "Neglect" occurs when:
a child is deprived of, or is allowed to be deprived of, necessary ... medical treatment or a child is permitted to live in an environment when such deprivation or environment causes the child's physical, mental, or emotional health to be significantly impaired or to be in danger of being significantly impaired.
§ 39.01(50), Fla. Stat. ("Neglect of a child includes acts or omissions.").
And "harm" to a child's health or welfare can occur in many ways, such as when a person "[i]nflicts or allows to be inflicted upon the child physical, mental, or emotional injury." § 39.01(34)(a), Fla. Stat. The totality of the circumstances must be considered when determining whether harm has occurred, including factors such as the child's age, any history of injuries, the location of the injury on the child's body, the number of injuries, and the type of trauma inflicted. Id. "Physical injury" includes "permanent or temporary disfigurement." § 39.01(63), Fla. Stat.
Harm caused by neglect "means that the parent or other person responsible for the child's welfare fails to supply the child with adequate ... health care," even though they can financially afford to do so. § 39.01(34)(f), Fla. Stat.
A person can also cause harm by negligently failing "to protect a child in his or her care from inflicted physical, mental, or sexual injury caused by the acts of another." § 39.01(34)(j), Fla. Stat.
Finally, a person harms a child when they use "mechanical devices ... to control a child." § 39.01(34)(h), Fla. Stat. Corporal punishment may be considered excessive or abusive when it causes burns or scalding, permanent or temporary disfigurement, or significant bruises or welts. § 39.01(34)(a) 4.g., i., k., Fla. Stat. Although a parent has a fundamental right to raise her child, that right "is subject to the overriding principle that it is the ultimate welfare or best interest of the child which must prevail." P.B. v. Fla. Dep't of Child. & Fams. , 335 So. 3d 804, 807 (Fla. 1st DCA 2022) (quoting In re Camm , 294 So. 2d 318, 320 (Fla. 1974) ).
III.
Here, there was sufficient evidence to support the trial court's determination that the children were abused or neglected by the mother. At a minimum, her behavior puts them at substantial risk of imminent abuse or neglect. To conclude otherwise would require us to exceed our limited role by reweighing evidence or reevaluating testimony given at the trial court. See Lahodik v. Lahodik , 969 So. 2d 533, 535 (Fla. 1st DCA 2007) (reaffirming that an "appellate court does not assess whether it is possible to recite contradictory record evidence which supports arguments rejected below, nor does it retry the case or substitute its judgment for the trial court's on factual matters supported by competent, substantial evidence").
The children have multiple scars, patterned bruising, and other marks on their bodies, arms, legs, or faces consistent with being hit with an object. The three youngest have scars from being burned with a hot iron or car cigarette lighter. Their injuries qualify as temporary, if not permanent, disfigurement. The abuse was inflicted repeatedly over a long time, with new wounds being opened on top of those that were healing. There was no evidence that the children received medical treatment for their injuries, and one of the twins also has a heart murmur that could cause serious health problems if left untreated.
At first, the mother denied the injuries existed and seemed surprised when she saw the photographs from the children's CPT exams. Then she claimed the scarring was caused by various accidents or health conditions. But she did not provide any medical evidence to contradict Dr. Rosenthal or show that the children had received medical treatment for their injuries or alleged eczema. Instead, she tried to hide or minimize the injuries, even threatening one of her children if he told anyone. To the extent that the mother disagrees with Dr. Rosenthal's opinions, the trial court was free to believe her unrebutted expert testimony. See Dep't of Agric. & Consumer Servs. v. Bogorff , 35 So. 3d 84, 88 (Fla. 4th DCA 2010) (reaffirming that the factfinder can assess expert opinions as the finder sees fit); see also F.R. v. Dep't of Child. & Fams. , 826 So. 2d 449, 450 (Fla. 5th DCA 2002) (reaffirming that when "evidence is conflicting or turns on credibility of the witnesses, all credence and presumption of correctness must be given to the trial court"); and see D. Child. v. Dep't of Child. & Fam. Servs. , 820 So. 2d 980, 982 (Fla. 4th DCA 2002) (affirming a finding of dependency when considering the unlikelihood of the severe injury occurring naturally or by accident, and the parents’ lack of credibility).
The mother failed to preserve her arguments questioning Dr. Rosenthal's qualifications or her ability to assess the injuries. See Duckett v. State , 568 So. 2d 891, 895 (Fla. 1990) (refusing to reweigh an expert's credibility when the appellant failed to object to the witness's qualifications at trial and then challenged the expert during cross-examination).
Either the mother inflicted the abuse herself, or she allowed someone else to hurt and neglect her children. At the very least, she was negligent in failing to recognize the signs of abuse because their injuries were so extensive and would be obvious to any reasonable caregiver. She admitted hitting them with a back scratcher but denied or minimized their injuries, claiming that she used only lawful corporal punishment on the children. But corporal punishment becomes child abuse when the injuries are as extensive and severe as they are in this case. Each of the children suffered either burns, scarring, disfigurement, significant bruising, or a combination of those injuries. See O.S. v. Dep't of Child & Fams. , 821 So. 2d 1145, 1148–49 (Fla. 4th DCA 2002) (affirming a finding of dependency based on repeated disciplinary beatings with a wooden paddle leaving bruises still visible after several weeks, because such abuse was excessive and likely to be repeated).
Finally, the evidence above shows that the children are also at substantial risk of imminent abuse or neglect. Some of their injuries were inflicted only days before their CPT exam, while others were several months old. The type of harm and number of wounds were great, suggesting serious criminal conduct. And the mother tried to hide or deny their injuries existed rather than provide them with medical care. Thus, there is an ongoing pattern of abuse and neglect, not an isolated incident that occurred long ago. In that regard, this case is like the decision in R.M. v. Department of Children & Families , 886 So. 2d 329 (Fla. 5th DCA 2004), where the court affirmed an order adjudicating the child dependent based on incidents of abuse by the father against the mother and daughter. Id. at 332. There, the child was at a substantial risk of imminent abuse due to the father's propensity for violent behavior toward family members and his disregard for the safety of others, causing his child to be caught in the crossfire. Id. ; see also M.W. v. Dep't of Child. & Fam. Servs. , 881 So. 2d 734, 736–37 (Fla. 3d DCA 2004) (holding that under the totality of the circumstances, the siblings of a sexual abuse victim were at risk of abuse even though an expert testified that the father's likelihood of abusing them was low, especially when he denied responsibility and blamed the victim).
By contrast, this case is unlike the decision in A.D. v. Department of Children and Families , 315 So. 3d 63, 66 (Fla. 3d DCA 2020), where the court reversed a finding of dependency because the evidence failed to show the child needed any medicine his mother might deprive him of, and her abuse of his siblings twelve years ago did not show he was at imminent risk of abuse now.
IV.
Considering the totality of the circumstances with deference to the trial court's findings, we conclude that competent, substantial evidence supports the order finding the children dependent based on their abuse or neglect, or because the mother's behavior places them at substantial risk of imminent abuse or neglect. The judgment of dependency is therefore affirmed.
M.K. Thomas and Tanenbaum, JJ., concur.