Guardian Ad Litem Program v. C.H. , 204 So. 3d 122 ( 2016 )

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
In the Interest of J.H., Le.H., and La.H., )
children. )
___________________________________)
)
GUARDIAN AD LITEM PROGRAM, )
)
Appellant, )
)
v. ) Case No. 2D16-2200
)
C.H. and N.H.; and DEPARTMENT OF )
CHILDREN AND FAMILES, )
)
Appellees. )
)
Opinion filed November 16, 2016.
Appeal from the Circuit Court for Lee
County; Lee Ann Schreiber, Judge.
Laura J. Lee, Sanford, for Appellant.
Michael Mummert, Naples, for Appellees
C.H. and N.H.
Stephanie C. Zimmerman, Children's Legal
Services, Bradenton, for Appellee
Department of Children and Families.
MORRIS, Judge.
The Department of Children and Families (DCF) filed a petition for
dependency of the appellees' three young children: Le.H., his twin brother La.H., and
their toddler sister, J.H. The trial court adjudicated Le.H. dependent but denied the
petition as to La.H. and J.H. The Guardian Ad Litem Program (GAL) appeals, asserting
that the trial court abused its discretion by finding that La.H and J.H. are not at
substantial risk of imminent harm. We agree. Because the trial court failed to recognize
the nexus between the severe abuse of Le.H. and the substantial risk of significant
harm to his siblings, we reverse.
BACKGROUND
When Le.H. was two months old, his mother brought him to the hospital
emergency room for a fever and cough. An x-ray of the infant showed multiple rib
fractures in several locations and at different stages of healing. DCF was notified and
filed a shelter petition as to all three children; however, the trial court granted the
petition as to Le.H. but denied the petition as to his siblings. The GAL filed a petition for
writ of certiorari to review this order, and this court granted the petition and quashed the
order to the extent that it failed to shelter La.H. and J.H. We held that because the trial
court found probable cause to shelter Le.H. based on his parents' alleged physical
abuse through the unexplained rib fractures, the trial court departed from the essential
requirements of law when it failed to shelter his similarly situated siblings who were
equally susceptible to the kind of physical abuse inflicted upon Le.H. N.H. v. Dep't of
Children & Families, 192 So. 3d 592, 594-95 (Fla. 2d DCA 2016).
While the certiorari proceeding was pending in this court, the trial court
held an adjudicatory hearing on DCF's dependency petition. In an April 2016 order—
just one month shy of this court's issuance of the opinion quashing the shelter order—
the trial court granted the dependency petition as to Le.H., finding that his parents had
abused or had not protected him. The trial court denied the dependency petition as to
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La.H. and J.H., finding that they are not at imminent risk of substantial harm. We hold
that the trial court's finding is not supported by substantial competent evidence.
Numerous witnesses testified at the dependency adjudicatory hearing
concerning Le.H.'s injuries. An image screening taken in September 2015 showed no
evidence that Le.H. had any fractures. But x-rays performed on Le.H. at the emergency
room in November 2015 revealed multiple rib fractures in different locations and at
different stages of healing. Le.H.'s mother and father denied harming him.
A physician working with the Child Protective Team (CPT) who examined
Le.H.'s November x-ray results testified that Le.H. suffered several different rib fractures
with at least one or two different stages of healing. The physician ordered additional x-
rays, which were taken on November 21, 2015. This set of x-rays indicated that the
initial fractures were still present and revealed an additional fracture on the left tenth rib
that was not initially visible. The physician opined that the fractures occurred on three
or four different occasions and were indicative of physical abuse. Le.H. suffered from
no underlying medical conditions. The physician explained that an infant suffering from
rib fractures would experience pain, discomfort, and fussiness.
Law enforcement officers testified that neither the mother nor the father
could explain the injuries. Additionally, a detective related that when speaking about
Le.H.'s injuries, the mother seemed more concerned about potential consequences at
work than the actual injuries themselves. He explained that while law enforcement had
not established probable cause to arrest anyone for Le.H.'s injuries, the investigation
revealed that only the mother, the father, and the maternal grandmother have cared for
the children. The Child Protective Supervisor and Child Welfare Case Manager testified
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that their concerns for all three children have not been alleviated; in their opinions, La.H.
and J.H. remain in immediate danger based on Le.H.'s unexplained, significant injuries
and the mother's inability to care for her three, very young children.
DISCUSSION
A child may be adjudicated dependent if the court finds by a
preponderance of the evidence that the child is abused, abandoned, or neglected or
that the child is "at substantial risk of imminent abuse, abandonment, or neglect." See §
39.01(15)(a), (f), Fla. Stat. (2015). We review a dependency adjudication as a mixed
question of law and fact and will affirm the trial court's findings if they are supported by
competent, substantial evidence. See S.T. v. Dep't of Children & Family Servs., 87 So.
3d 827, 833 (Fla. 2d DCA 2012). Abuse is defined as "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). With regard to potential abuse, the questions become whether
future behavior (1) will adversely affect the child and (2) can be clearly as well as
certainly predicted. See F.S.G. v. Dep't of Children & Family Servs., 825 So. 2d 530,
531 (Fla. 2d DCA 2002).
In our opinion quashing the order that failed to shelter La.H. and J.H., we
recognized that "the connection between the unexplained abuse of a child and the
substantial risk of significant harm to a sibling can warrant the removal of both children,
even though one child has yet to be abused." N.H., 192 So. 3d at 595; see also Dep't of
Children & Family Servs. v. K.D., 88 So. 3d 977 (Fla. 2d DCA 2012), superseded on
other grounds by § 39.806(1)(f), Fla. Stat. (2014); H.B. v. Dep't of Children & Family
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Servs., 971 So. 2d 187 (Fla. 2d DCA 2007). In determining whether a connection or
nexus exists, the inquiry is whether DCF proved that there is a substantial risk of harm
to the sibling stemming from the abuse of the child. K.D., 88 So. 3d at 984. To that
end, courts must examine the totality of the circumstances surrounding the dependency
or termination petition. See, e.g., R.F. v. Fla. Dep't of Children & Families, 770 So. 2d
1189, 1194 (Fla. 2000) (holding that a ruling of dependency cannot be based solely on
the fact that the parent committed a sex act on a different child; instead, the decision
must focus on all of the circumstances).
When we quashed the initial shelter order for failing to shelter La.H. and
J.H, we relied largely upon the reasoning outlined in K.D., in which we reviewed an
order terminating the parental rights to identical twins—one of whom suffered fractures
to his leg, skull, and ribs during the first two weeks of his life. K.D., 88 So. 3d at 980.
We found that although K.D.'s sibling did not suffer any abuse, "he was identically
situated to his injured twin and equally susceptible to the same unexplained abuse."
N.H., 192 So. 3d at 595 (citing K.D., 88 So. 3d at 986). Even though a termination of
parental rights case is subject to a higher standard of proof than the preponderance of
the evidence standard used in a dependency proceeding, the fact remains that in this
case, as in K.D., an infant suffered significant injuries—characterized as physical
abuse—that are unexplained.
Likewise, although La.H and J.H. had suffered no abuse as of the date of
the dependency hearing, both young children are identically situated to Le.H. based on
age, vulnerability, and proximity. Because Le.H.'s unexplained injuries were inflicted on
multiple occasions and competent substantial evidence shows that Le.H.'s similarly
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situated siblings are at risk of suffering the same kind of physical abuse, the trial court's
finding that both La.H. and J.H. are not at risk of imminent danger is contrary to our
holding in K.D. and is not supported by competent substantial evidence.
DCF proved that there is a nexus between Le.H.'s unexplained injuries
and the significant risk of harm to his siblings. Thus, we affirm the order adjudicating
Le.H. dependent but reverse the order to the extent that the trial court failed to
adjudicate La.H. and J.H. dependent.
Affirmed in part, reversed in part, and remanded.
CASANUEVA and SALARIO, JJ., concur.
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