DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
M.P., the Mother,
Appellant,
v.
DEPARTMENT OF CHILDREN AND FAMILIES and
GUARDIAN AD LITEM PROGRAM,
Appellees.
No. 4D21-1127
[September 1, 2021]
Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Yael Gamm, Judge; L.T. Case No. 18-1694DP.
Sean Conway of Sean Conway Law Firm, P.A., Fort Lauderdale, for
appellant.
Ashley Moody, Attorney General, Tallahassee, and Carolyn Schwarz,
Assistant Attorney General, Fort Lauderdale, for appellee Department of
Children and Families.
Thomasina F. Moore, Statewide Director of Appeals, and Samantha C.
Valley, Senior Attorney, Tallahassee, for appellee Guardian Ad Litem.
CIKLIN, J.
The mother of three children appeals the order terminating her parental
rights, which was based on a finding of egregious conduct. 1 She disputes
that she engaged in egregious conduct by allowing the father of two of the
children to have contact with the oldest child, N., after his parental rights
were terminated for sexually abusing N. She also asserts that the trial
court erred in finding termination was in the manifest best interests of the
children and the least restrictive means of protecting them from harm.
The record before us belies the mother’s arguments and we affirm.
1“Egregious conduct” is defined as “abuse, abandonment, neglect, or any other
conduct that is deplorable, flagrant, or outrageous by a normal standard of
conduct.” § 39.806(1)(f)2., Florida Statutes (2020).
In 2018, the Department of Children and Families (DCF) filed a shelter
petition, alleging that N. had reported sexual abuse by her father. The
children remained in the mother’s custody under DCF’s protective
supervision. The trial court entered a final injunction for protection
against child abuse or domestic violence, which barred the father from
having any contact with the children and from being within 500 feet of
their residence. DCF then petitioned to terminate the father’s parental
rights. During the adjudicatory hearing, DCF presented substantial
evidence establishing that the father molested the child on numerous
occasions, and the court terminated the father’s parental rights. The
termination judgment required the mother to enroll N. in counseling and
to ensure her attendance. The judgment further required the mother to
attend counseling to enhance her protective capacities and for the purpose
of executing a safety plan to ensure the father had no contact with the
children.
In October 2018, the mother signed a safety plan, which provided that
the father would have no contact with the children and that N. and the
mother would attend counseling. The mother was referred to services but
made no progress initially. In response, DCF filed a dependency petition
in January 2019, alleging that the mother lacked protective capacity. The
mother consented to a withhold of adjudication of dependency based on
the allegation that her conduct subjected N. to a substantial risk of an
imminent threat of harm. The disposition order provided that “[t]he
Mother shall ensure that [the father] has no contact with [N.]” The mother
ultimately completed the case plan tasks, including therapy for herself and
for N. Based on DCF’s recommendation, the trial court terminated
supervision in June.
About one year later, in July 2020, DCF petitioned to shelter the
children, alleging a domestic violence incident involving the mother, father,
and N. The children were sheltered with their maternal grandmother, and
the mother was granted supervised visitation. Subsequently, DCF filed an
expedited petition for termination of the mother’s parental rights as to all
three children, alleging that law enforcement responded to the mother’s
home based on a 911 call. N. heard the mother and father arguing in the
middle of the night and went into the mother’s bedroom and witnessed the
father choking the mother. When N. attempted to intervene, the father
struck and choked N., and also pulled hair out of her head. N. reported
that the father was frequently visiting the children at the mother’s home.
DCF consequently alleged the mother engaged in egregious conduct or had
the opportunity and capability to prevent and knowingly failed to prevent
egregious conduct that threatened the life, safety, or physical, mental, or
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emotional health of the minor child or that child’s sibling(s), and that the
mother lacked protective capacity.
The case proceeded to an adjudicatory hearing. The evidence
established that the mother participated in domestic violence counseling
and parenting classes while the termination case was pending. Various
service providers reported that the mother had successfully completed the
programs and visited the children daily, providing the bulk of their care.
However, in addition to the domestic violence incident, there was evidence
that the father visited the home while the children were present on
numerous occasions, beginning just weeks after the father’s parental
rights were terminated. The mother acknowledged her relationship with
the father had never ended.
The trial court entered an order terminating the mother’s parental
rights based on egregious conduct, finding that the mother allowed N.’s
sexual abuser to have contact with her for two years, and observing that
the conduct was “compounded by the violence which ensued . . . at the
hands of [the father,] violence that could have, and should have, been
prevented by the Mother’s adherence to the court orders and any
semblance of protective capacity.”
The mother’s primary argument on appeal relates to the ground for
termination: egregious conduct. DCF sought termination of parental
rights based on section 39.806(1)(f), Florida Statutes (2020), which permits
termination when “[t]he parent . . . 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.” Under such
circumstances, “[p]roof of a nexus between egregious conduct to a child
and the potential harm to the child’s sibling is not required.” Id. 2
“Egregious conduct” is defined as “abuse, abandonment, neglect, or any
other conduct that is deplorable, flagrant, or outrageous by a normal
standard of conduct.” § 39.806(1)(f)2., Fla. Stat. (2020). Further,
2 This court recently certified to the Florida Supreme Court the question of
whether the 2014 amendment to section 39.806(1)(f), Florida Statutes, is
unconstitutional because it relieves the state of the burden of proving that the
egregious conduct poses a substantial risk of harm to each sibling and is the
least restrictive means protecting the siblings from serious harm. V.S. v. Dep’t of
Child. & Fams., No. 4D20-1833,
2021 WL 3377501, at *1 (Fla. 4th DCA Aug. 4,
2021). The mother does not argue in this appeal that the amendment is
unconstitutional.
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“[e]gregious conduct may include an act or omission that occurred only
once but was of such intensity, magnitude, or severity as to endanger the
life of the child.”
Id.
The mother frames the termination as based on her mere violation of
court orders and the single domestic violence incident, which she believes
is not sufficient to establish egregious conduct. But the mother’s reading
of the final judgment is disingenuous. The trial court based termination
on the mother’s conduct of allowing the father continued access to the
children despite her knowledge of the father’s sexual abuse of N. The
evidence supported termination on this ground. The mother testified
during the adjudicatory hearing that she believed N.’s allegations of abuse.
But while the mother was completing her case plan tasks in her
dependency case, she was simultaneously allowing the father to have
contact with the children. This was not a one-time occurrence and, in fact,
the father visited often. In essence, the mother repeatedly placed N. in
harm’s way in order to satisfy herself. This amounts to conduct that is
“outrageous by a normal standard of conduct.”
The mother asserts no evidence showed that the father’s visits to the
home resulted in any mental or psychological harm to N. or any of the
children. However, the statute doesn’t require actual harm. Rather, it
requires that the egregious conduct “threatens the . . . mental, or emotional
health of the child or the child’s sibling.” § 39.806(1)(f), Fla. Stat. (2020)
(emphasis added). Despite the mother’s assertion to the contrary, there
was testimony in this case as to how the abuse negatively impacted the
child’s emotional health.
The mother also argues less restrictive measures other than could have
been utilized, such as the trial court’s contempt powers. “[B]ecause
parental rights constitute a fundamental liberty interest, the state must
establish in each case that termination of those rights is the least
restrictive means of protecting the child from serious harm.” Padgett v.
Dep’t of Health & Rehab. Servs.,
577 So. 2d 565, 571 (Fla. 1991). To satisfy
this requirement, DCF “must ordinarily show that it has made a good faith
effort to rehabilitate the parent and reunite the family, such as through a
current performance agreement or other such plan.” C.S. v. Dep’t of Child.
& Fams.,
178 So. 3d 937, 941 (Fla. 4th DCA 2015). However, “[i]n cases
of egregious conduct toward a child . . . the concept of least restrictive
means does not require that a parent be given a case plan.” Id.; see also
In re: S.V.B.,
93 So. 3d 340, 343 (Fla. 2d DCA 2012) (“Because [the parent]
engaged in egregious conduct, DCF is not required to make efforts to
reunify the family.”). As this court recently recognized, “[a]s to the siblings,
the legislature has abrogated the least restrictive means inquiry for
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‘egregious conduct’ cases, among others.” V.S. v. Dep’t of Child. & Fams.,
46 Fla. L. Weekly D1329,
2021 WL 2346077, at *8 (Fla. 4th DCA June 9,
2021) (citing § 39.806(2), Fla. Stat. (2020)).
While the mother suggests that the trial court could have protected the
children by exercising its contempt powers, nothing indicates the mother
would have changed her behavior based on potential findings of contempt.
Here, competent substantial evidence supported the trial court’s finding
that termination of parental rights was the only way to protect the
children.
Finally, the mother contends that termination was not in the manifest
best interests of the children, as they have a strong bond with the mother,
who is very involved in the children’s care. Pursuant to section 39.810,
Florida Statutes (2020), the trial court made detailed findings on the
factors relevant to the manifest best interests of the children, including
the bond between the mother and the children. The mother does not
challenge any of the trial court’s findings. Rather, she seems to assert that
the bond between herself and the children is a dispositive factor. She is
wrong and her position is not supported by the law. See Dep’t of Child. &
Fam. Servs. v. M.J.,
889 So. 2d 986, 988 (Fla. 4th DCA 2004) (holding trial
court erred in denying termination “because some of the children did not
want to sever all ties to the mother,” and explaining that “the fact that
some of the children were against termination” was not sufficient cause to
deny termination “in light of the findings of the trial court that the father’s
sexual deviancy places the children at extreme risk and the mother refuses
to protect the children from him”). Additionally, we decline the mother’s
apparent invitation to reweigh the manifest best interests factors. See J.P.
v. Fla. Dep’t of Child. & Fams.,
183 So. 3d 1198, 1204 (Fla. 1st DCA 2016)
(“Reweighing the evidence at the appellate level would violate the highly
deferential standard we must apply.”).
Based on the foregoing, we affirm.
Affirmed.
GERBER and FORST, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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