Guardian ad Litem Program ex rel. J.H. v. K.H.

Full title: Guardian ad Litem Program o/b/o J.H., Child, Appellant, v. K.H., the…

Court: Third District Court of Appeal State of Florida

Date published: Jun 26, 2019

No. 3D19-24 (Fla. Dist. Ct. App. Jun. 26, 2019)

Opinion

No. 3D19-24

06-26-2019

Guardian ad Litem Program o/b/o J.H., Child, Appellant, v. K.H., the Mother, and Department of Children and Families, Appellees.

Thomasina Moore and Laura J. Lee (Tallahassee), for appellant. Karla Perkins, for Department of Children & Families; Kevin G. Thomas, for K.H., the Mother, for appellees.

GORDO, J.

Not final until disposition of timely filed motion for rehearing. Lower Tribunal No. 14-15790 An Appeal from the Circuit Court for Miami-Dade County, Laura Stuzin, Judge. Thomasina Moore and Laura J. Lee (Tallahassee), for appellant. Karla Perkins, for Department of Children & Families; Kevin G. Thomas, for K.H., the Mother, for appellees. Before SCALES, LINDSEY, and GORDO, JJ. GORDO, J.

This appeal arises from a trial court order denying a petition by the Department of Children and Families ("the Department") for termination of parental rights of K.H. ("the Mother") as to her child, J.H.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

J.H., one of the Mother's fourteen children, was born on November 10, 2005, and was removed from the Mother's custody when he was a year old. He has had scarce contact with the Mother since that time and they have no parent-child relationship. The Mother is diagnosed with a lifelong psychotic condition that renders her unable to parent. She is presently committed to the Department and undergoing treatment for her mental illness. She is incapable of functioning alone and incapable of safely providing supervision and care for the child.

When J.H. was a year old, a Georgia court placed him with his adult sister, Tiffany. The Georgia court found that efforts to reunify J.H. with the Mother would be detrimental to the child and therefore reunification was not in his best interest. Thereafter, J.H. resided with Tiffany, who he refers to as his mom. In 2014, Tiffany consented to a withhold of adjudication of dependency as to J.H. and his twin sister following allegations of physical abuse. In March 2015, the court removed him from Tiffany's custody and placed him in the Department's legal custody. The court found it was in the child's best interest to be placed in foster care. In March 2017, the court again modified J.H.'s placement finding it was in his best interest to be placed with a pre-adoptive non-relative. However, after eighteen months, the non-relative caregiver requested J.H. be removed from the home due to continuous aggressive and concerning behavior. J.H. was again placed in foster care.

In October 2017, the Department filed a petition for termination of parental rights as to the Mother, which was amended in November 2018, five days before the trial. The amended petition proceeded under section 39.806(1)(c), Florida Statutes, which provides: "Grounds for the termination of parental rights may be established . . . [w]hen the parent . . . engaged in conduct toward the child . . . that demonstrates that the continuing involvement of the parent . . . in the parent-child relationship threatens the life, safety, well-being, or physical, mental, or emotional health of the child irrespective of the provision of services." § 39.806(1)(c), Fla. Stat. (2018).

In November 2018, the trial court held an adjudicatory hearing on the Department's petition for termination of parental rights of the Mother. During the trial, the Department presented testimony from Dr. Michael DiTomasso, a licensed forensic psychologist, Ermine Brooks, the guardian ad litem ("GAL"), Diana Barker, the Mother's mental health case manager, and from the deposition of Dr. Indu Senapati, a board certified psychiatrist.

Dr. Senapati was the Mother's treating psychiatrist at the South Florida State Hospital for more than six months.¹ Dr. Senapati conducted a comprehensive evaluation of the Mother's history of mental illness, medical history, psychiatric history, family history, and history of drug use. She continued to meet with her frequently for treatment. The Mother reported she was diagnosed with mental illness in her twenties and has been repeatedly hospitalized. Dr. Senapati testified the Mother's diagnosis is schizoaffective disorder (depressive type), which causes her to have hallucinations, delusions, disorganized thoughts, depressive mood, and suicidal thoughts. The Mother admitted having a history of suicide attempts and hearing voices that tell her to do bad things. Dr. Senapati testified the Mother has borderline intellectual functioning. Dr. Senapati declared the Mother suffers from a lifelong condition and is incapable of functioning on her own. She recommended the Mother continue to reside in a residential facility where her compliance with medication and treatment can be monitored.

1 The mother was admitted to the South Florida Evaluation and Treatment Center and later to the South Florida State Hospital after a trial court adjudicated her incompetent to proceed on aggravated battery charges in 2016 and 2017.

Dr. DiTomasso, an expert in psychological evaluations of parents in dependency proceedings, testified regarding his evaluation of the Mother. He reviewed all pertinent documents relating to the Mother, conducted a clinical interview, and performed psychological testing. Dr. DiTomasso concluded the Mother suffers from a psychotic condition that renders her unable to parent. Dr. DiTomasso testified she cannot meet J.H.'s needs and is likely to physically harm him. He testified she lacks empathy toward children, lacks nurturing skills, and sees independence in children as threatening. She does not have a good grasp of children's developmental abilities and needs. Moreover, the Mother has a history of substance abuse. Dr. DiTomasso fears she could revert to cocaine abuse and pose a higher risk of harm to J.H. Due to the Mother's severe chronic mental illness, she is unable to think correctly and lacks appropriate judgment. As a result, Dr. DiTomasso opined no treatment could render her able to safely raise J.H.

The GAL testified the Mother is incapable of providing for J.H.'s basic needs. J.H. also has medical and behavioral issues requiring care and attention, which she is unable to provide. The GAL explained that there is no emotional tie between J.H. and the Mother. He met her once in recent years as if meeting her for the first time. He refers to his sister, Tiffany, as his mom and never asks about his biological mother. Further, the GAL testified about J.H.'s desire for an adoptive family and his ability to bond. She unequivocally opined that termination of parental rights was in J.H.'s manifest best interest and recommended no contact with the Mother.

The Mother's mental health case manager provides case management and medication management services to the Mother in a residential treatment facility. The Mother is currently in a "level one" program requiring a high level of supervision where her medication is tracked and observed. The case manager testified the Mother is doing well in the program and is working on a discharge plan with the goal of re-integration into the community. However, the Mother will continue to need services. The case manager testified the Mother is not capable of living alone or managing her own daily needs.

At the conclusion of the trial, the trial judge correctly adjudicated J.H. dependent as to the Mother. The judge found that, based on the credible evidence presented, the Mother's mental illness may harm J.H., she is currently incapable of caring for him, and he is at a substantial risk of imminent abuse, abandonment, or neglect due to her mental illness. However, the court determined the Department failed to prove its case by clear and convincing evidence because no case plan had ever been offered to the Mother in order to reunify her with J.H. and the record was silent as to any services offered. Thus, the court concluded the Department did not prove termination was the least restrictive means as a matter of law. The court also found the Department failed to prove termination was in the child's manifest best interest because J.H. is not in a current permanent custody arrangement and resides in a group foster home. Ultimately, the court granted an involuntary dismissal and denied the petition for termination of parental rights. The court further ordered the Department to provide a case plan for the Mother and to find a pre-adoptive home for J.H.

The Guardian Ad Litem Program appeals the trial court's denial of the petition.

STANDARD OF REVIEW

"An appellate court may reverse the trial court's order denying a petition to terminate parental rights when the denial is not supported by competent substantial evidence and is not in the best interests of the children." Fla. Dep't of Children & Family Servs. v. A.Q., 937 So. 2d 1156, 1158 (Fla. 3d DCA 2006) (quoting Dep't of Children & Families v. K.F., 916 So. 2d 948, 950 (Fla. 4th DCA 2005)). Our review of a termination of parental rights case is "highly deferential." C.G. v. Dep't of Children & Families, 67 So. 3d 1141, 1143 (Fla. 3d DCA 2011) (citing D.P. v. Dep't of Children & Families, 930 So. 2d 798, 801 (Fla. 3d DCA 2006)). "However, an appellate court is not required to defer to the trial court where there is no theory or principle of law that would support the trial court's conclusions of law concerning its least restrictive means findings." Statewide Guardian Ad Litem Program v. A.A., 171 So. 3d 174, 177 (Fla. 5th DCA 2015) (citing In re Baby E.A.W., 658 So. 2d 961, 967 (Fla. 1995)). The standard of review for questions of law is de novo. C.R. v. Dep't of Children & Family Servs., 53 So. 3d 240, 242 (Fla. 3d DCA 2010).

LEGAL ANALYSIS

Before a trial court can grant a petition for termination of parental rights, the court must consider whether: (1) grounds exist for termination of parental rights under section 39.806, Florida Statutes; (2) termination is in the manifest best interest of the child pursuant to section 39.810, Florida Statutes; and (3) termination is the least restrictive means of protecting the child from harm. C.T. v. Fla. Dep't of Children & Families, 22 So. 3d 852, 854 (Fla. 3d DCA 2009).

To grant termination pursuant to section 39.806, the Department must establish the statutory grounds by clear and convincing evidence. Section 39.806(1)(c) provides for termination:

When the parent . . . engaged in conduct toward the child . . . that demonstrates that the continuing involvement of the parent . . . in the parent-child 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.

§ 39.806(1)(c), Fla. Stat. (2018) (emphasis added).

Here, the uncontroverted evidence presented by the Department is that the Mother poses an enduring threat of harm to J.H. Expert testimony, which was neither impeached nor contradicted,² established that the Mother suffers from a lifelong mental disorder and that no treatment could render her able to safely raise J.H.

2 "[W]here the testimony on the pivotal issues of fact is not contradicted or impeached in any respect, and no conflicting evidence is introduced, these statements of fact can not be wholly disregarded or arbitrarily rejected." Duncanson v. Serv. First, Inc., 157 So. 2d 696, 699 (Fla. 3d DCA 1963). "A court must accept evidence which . . . is neither impeached, discredited, controverted, contradictory within itself, or physically impossible." State v. Fernandez, 526 So. 2d 192, 193 (Fla. 3d DCA 1988) (citing Flowers v. State, 143 So. 612, 613 (Fla. 1932); Brannen v. State, 114 So. 429, 430-31 (Fla. 1927); Harris v. State, 104 So. 2d 739, 742-43 (Fla. 2d DCA 1958)). See State v. Dickson, 35 So. 3d 1027 (Fla. 3d DCA 2010); State v. Wong, 990 So. 2d 1154, 1156 (Fla. 3d DCA 2008); State v. Casey, 821 So. 2d 1187 (Fla. 3d DCA 2002).

The plain language of section 39.806(1)(c), signaled by the word "may," allows, but does not require, proof that a case plan or services have been offered in order to demonstrate that the Mother would threaten the child irrespective of services. In fact, the termination of parental rights statute dictates that, "[r]easonable efforts to preserve and reunify families are not required if a court of competent jurisdiction has determined that any of the events described in [paragraph (1)(c)] have occurred." § 39.806(2), Fla. Stat. (2018). See R.W. v. Dep't of Children & Families, 228 So. 3d 730, 733 (Fla. 5th DCA 2017) ("[T]he Legislature has specifically provided that no case plan is required where the trial court determines . . . that termination is proper pursuant to [section 39.806(1)(c)], Florida Statutes."). Moreover, where the Department establishes that "there is no reasonable basis to believe a parent will improve" and that "any provision of services would be futile or that the child[] would be threatened with harm despite any services provided to the parent," termination of parental rights is appropriate. J.P. v. Fla. Dep't of Children & Families, 183 So. 3d 1198, 1203 (Fla. 1st DCA 2016) (quoting In re C.W.W., 788 So. 2d 1020, 1023 (Fla. 2d DCA 2001)).

In the instant case, the evidence clearly and convincingly established that the Mother is not amenable to services and would pose a continuing threat of harm to J.H. regardless of the provision of services. Thus, the Department did not have to offer a case plan prior to terminating the Mother's parental rights because doing so would be futile. See D.B. v. Dep't of Children & Families, 87 So. 3d 1279 (Fla. 4th DCA 2012) (holding that where the evidence clearly and convincingly established that the Father was not amenable to services the Department did not have to offer a case plan prior to terminating parental rights under section 39.806(1)(c)).

Additionally, "[t]o terminate parental rights, the Department must prove that termination is the 'least restrictive means of protecting the child from serious harm.' " R.W., 228 So. 3d at 733 (quoting A.A., 171 So. 3d at 177). "[C]onstitutional principles and case law require that DCF demonstrate that some action short of termination of parental rights could have been undertaken by the State before filing a petition to terminate the parent's right." S.M. v. Fla. Dep't of Children & Families, 202 So. 3d 769, 777 (Fla. 2016) (citing Padgett v. Dep't of Health & Rehab. Servs., 577 So. 2d 565, 570 (Fla. 1991)). However, the least restrictive means test "is not intended to preserve a parental bond at the cost of a child's future." S.M., 202 So. 3d at 778 (quoting Dep't of Children & Families v. B.B., 824 So. 2d 1000, 1009 (Fla. 5th DCA 2002)).

The Supreme Court has found that in "extraordinary circumstances . . . the termination of parental rights without the use of plans or agreements is the least restrictive means." In re T.M., 641 So. 2d 410, 413 (Fla. 1994). In R.W., the Fifth District reversed the trial court's denial of a petition for termination based on the lower court's reasoning that "[t]he purpose of the least restrictive means analysis is to ensure that parents have an opportunity to rehabilitate and parent prior to the court terminating their fundamental rights." R.W., 228 So. 3d at 733. The Fifth District held that this conclusion of law was in conflict with the court's finding that there was "NO reasonable basis" to believe the mother would improve. Id. The District Court clarified that "requiring 'an opportunity to rehabilitate' the [mother] is inconsistent with the Legislature's mandate in section 39.806(2), given the statutory grounds proven for termination." Id. at 733-34. Here, the uncontroverted evidence adduced at trial is that the Mother's lifelong mental illness is too grave for her to ever be able to parent. As in R.W., requiring the Mother to participate in a case plan prior to granting a termination of parental rights conflicts with the evidence and the trial court's finding that the Mother's mental illness may harm J.H.

Finally, "Florida Statutes . . . require that the trial court shall consider 'the manifest best interests of the child' by evaluating the relevant factors listed under section 39.810, Florida Statutes." S.M., 202 So. 3d at 776 (quoting § 39.802(4)(c), Fla. Stat. (2016)). More specifically, section 39.809(5), requires the trial court to enter a written order containing "specific findings of fact and conclusions of law" that support its decision. Fla. R. Juv. Pro 8.260(a). See § 39.809(5), Fla. Stat. (2018). "[T]he trial court's written order must establish that the court considered and evaluated each of the eleven statutory factors in reaching its decision as to the manifest best interests of the child." In re A.C., 751 So. 2d 667, 668 (Fla. 2d DCA 2000). The lack of findings may warrant reversal. See J.S. v. Fla. Dep't of Children & Families, 18 So. 3d 1170, 1178 (Fla. 1st DCA 2009) ("[W]here a trial court's failure to make adequate factual findings interferes with an appellate court's ability to determine whether an abuse of discretion occurred, reversal is necessary.").

Here, the trial court's order only addressed the lack of a permanent custody arrangement for J.H. as a basis to conclude termination was not in his best interest. The court failed to evaluate many of the applicable factors, including: the ability of the parent to provide the child with food, clothing, medical care or other remedial care; the capacity of the parent to care for and ensure the child's safety, well-being, and physical, mental, and emotional health; the mental and physical needs of the child; the emotional ties existing between the child and the parent; the child's ability to form a significant relationship with a parental substitute or enter more stable or permanent family; the reasonable preferences and wishes of the child; and the recommendations of the guardian ad litem. § 39.810, Fla. Stat. (2018). Instead, the court disregarded the required statutory findings and concluded that, absent a permanency option, the termination of parental rights was not in the child's manifest best interest.

CONCLUSION

The record before us demonstrates that the Department clearly and convincingly established grounds for termination of parental rights because the Mother's mental condition is such that provision of services would be futile and she is a danger to the safety of the child. The trial court's conclusion of law requiring the Department to provide a case plan or services in this case, where doing so could pose harm to the child, is not supported by Florida law regarding the least restrictive means test. Moreover, the trial court failed to consider the statutory factors regarding manifest best interest as required by the Legislature. This failure led to the improper conclusion that termination was not in the best interest of the child absent a permanent custody arrangement. We find the denial of the petition for termination of parental rights is not supported by competent, substantial evidence and is not in the best interest of the child. Accordingly, we affirm the trial court's finding of dependency without discussion and reverse the trial court's involuntary dismissal and denial of the petition.

Affirmed in part; reversed in part; and remanded.