Opinion
No. 1D21-3155
08-04-2022
L.F., former mother of L.M., K.J., and L.J., minor children, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
L.F., pro se, Appellant. Stephanie C. Zimmerman, Children's Legal Services, Tallahassee, for Appellee Department of Children and Families. Sara Elizabeth Goldfarb, Tallahassee, for Appellee Guardian ad Litem.
L.F., pro se, Appellant.
Stephanie C. Zimmerman, Children's Legal Services, Tallahassee, for Appellee Department of Children and Families.
Sara Elizabeth Goldfarb, Tallahassee, for Appellee Guardian ad Litem.
Per Curiam.
The judgment on review terminated L.F.’s parental rights to her three children: L.M., K.J., and L.J. After a thorough review, we affirm on all issues and write only to address the now-former mother's sufficiency of the evidence argument.
The former mother's appellate counsel filed a motion to withdraw and certified that after a conscientious review of the record, there were no meritorious issues for appeal. No objections were received regarding the motion to withdraw, and counsel provided a copy of the record on appeal to the former mother. Counsel's motion was granted, and the former mother filed her own brief.
On February 4, 2021, J.J., a minor child in L.F.’s care, was brought to the hospital. J.J. was unconscious and had bruises and abrasions on her face and body and chunks of hair missing from her head. One of her eyes was swollen shut. The child's heart rate, respiratory rate, and body temperature were all extremely low; one of her fingers was broken ; she had swelling in her lungs; her bloodwork and urinalysis showed signs of a stress response, blunt trauma, and muscle breakdown; she had whole-body dilution; she had suffered a seizure; and she appeared to have endured either a submersion injury or forced free water ingestion. The injuries she sustained could not all have been accidental and because of her condition, she was placed on a ventilator.
L.F. is the biological mother of the three children in this case: L.M., K.J., and L.J. Immediately prior to J.J.’s hospitalization, L.F. was living with J.J. and J.J.’s father, who shares two children in common with L.F. (K.J. and L.J.). To be clear, the former mother is not the biological mother of J.J., she was never married to J.J.’s father, and she otherwise did not have legal custody of J.J.
As a result of J.J.’s admission to the hospital, the Department of Children and Families investigated and found four children living in the home with L.F.: J.J., L.M., K.J., and L.J. All four children were sheltered, and termination proceedings were initiated. L.F. eventually was criminally charged with aggravated child abuse and child neglect.
After holding an adjudicatory hearing on the termination petition, the trial court rendered a judgment terminating L.F.’s parental rights to her three children. The final order was nearly fifty pages long and contained detailed findings of fact. The court concluded there was clear and convincing evidence establishing the following statutory grounds for termination: section 39.806(1)(d)1., Florida Statutes (the parent's expected incarceration term will constitute a significant portion of the child's minority); section 39.806(1)(d)3., Florida Statutes (continuing the parental relationship with the incarcerated parent would be harmful to the child); and section 39.806(1)(f), Florida Statutes (the parent engaged in egregious conduct that threatens the life, safety, or physical, mental, or emotional health of the child). In addition, the trial court made findings of fact pertaining to its conclusion that termination was in the manifest best interests of the children, reaching that conclusion after considering the factors mandated by section 39.810, Florida Statutes. Finally, the trial court recognized that L.F.’s conduct made termination—without the department's first offering services—the least restrictive means to protect the children.
The former mother argues in her brief that the grounds for termination and the children's manifest best interests were not proven by clear and convincing evidence. The department urges this court to affirm based, at a minimum, on proof establishing section 39.806(1)(f), since only one statutory ground needs to have been met. The department also urges affirmance because the former mother fails to argue with specificity how the trial court fell short in its findings regarding the manifest best interests of the children and the least restrictive means.
As part of her argument regarding proof of the children's manifest best interests, the former mother complains that neither services nor an evaluation was offered. We treat this point as challenging the trial court's determination of the "least restrictive means" prong, even though, as the department notes, the point on appeal is inadequately made.
At the adjudicatory hearing, the department presented a broad array of testimony, reports, recorded statements, and medical records describing J.J.’s life-threatening injuries and the physical abuse she endured prior to the incident that resulted in her hospitalization. The trial court found there to be credible evidence showing that J.J. had been abused on multiple occasions and that the former mother specifically had previously hit, struck, kicked, beaten, and "whooped" J.J. with her hands, a belt, and flipflops. Further testimony described both the psychologically damaging effects of children witnessing abuse in the household and the increased risk posed that L.M., K.J., or L.J. would become the next target of the former mother's abuse. The trial court did not find the testimony of the former mother or any of her witnesses at all reliable or credible, and we as an appellate court cannot second-guess that. We do not reweigh the evidence on appeal. To establish egregious conduct as a basis for termination, the department had to prove the following:
The parent or parents engaged in egregious conduct or 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 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.
§ 39.806(1)(f), Fla. Stat. "Sibling" is defined to include "another child who resides with or is cared for by the parent or parents regardless of whether the child is related legally or by consanguinity." Id. (1)(f)1. "Egregious conduct" can be "abuse," and it can be "any other conduct that is deplorable, flagrant, or outrageous by a normal standard of conduct." Id. (1)(f)2. The conduct could even be a single act that "was of such intensity, magnitude, or severity as to endanger the life of the child." Id. As a matter of law, we can say without doubt that the trial court reasonably concluded there was clear and convincing evidence establishing that the former mother engaged in egregious conduct, sufficient for termination under section 39.806(1)(f), Florida Statutes.
Because this Court need only consider whether "at least one of the grounds listed in s. 39.806 has been met," we next turn to the manifest best interests of the children, to the extent the former mother attempted to raise this issue in her brief. § 39.802(4)(a), Fla. Stat.; see § 39.810, Fla. Stat. ("In a hearing on a petition for termination of parental rights, the court shall consider the manifest best interests of the child."). Before concluding that the department proved by clear and convincing evidence that termination was in the children's manifest best interests, the trial court properly considered the factors enumerated in section 39.810, Florida Statutes. The trial court's findings are supported by competent, substantial evidence.
Although a trial court ordinarily must also find that termination is the least restrictive means, "in a case like this, where there is clear and convincing evidence of the parent having engaged in the egregious conduct described in section 39.806(f), a TPR is warranted and constitutional upon sufficient proof of the other statutory element—manifest best interest of the child—without the need to judicially imply the extra, least-restrictive-means element into the text." E.K. v. Dep't of Child. & Fams ., 326 So. 3d 149, 153 (Fla. 1st DCA 2021). At all events, the trial court was justified in its conclusion on this front that there were no services that could be provided to "increase the parent's protective capacities" or otherwise to ensure the safety of the children under the circumstances.
AFFIRMED.
Roberts, Winokur, and Tanenbaum, JJ., concur.