R.D.S. and T.D.S. v. Dept. of Children and Families

Third District Court of Appeal
State of Florida
Opinion filed October 31, 2018.
Not final until disposition of timely filed motion for rehearing.
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Nos. 3D18-988, 3D18-984, 3D18-839
Lower Tribunal No. 16-15359
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R.D.S., the Father, and T.D.S., the Mother,
Appellants,
vs.
The Department of Children and Families, et al.,
Appellees.
Appeals from the Circuit Court for Miami-Dade County, Jason E. Dimitris,
Judge.
Eugene F. Zenobi, Criminal Conflict and Civil Regional Counsel, Third
Region, and Kevin Coyle Colbert, Assistant Regional Counsel, for the Father;
Roger Ally; Lori Black Ogene, for the Mother, for appellants.
Karla Perkins, for Dept. of Children & Families; Laura J. Lee (Tallahassee),
for Guardian ad Litem Program, for appellees.
Before SALTER, EMAS and FERNANDEZ, JJ.
SALTER, J.
We review three consolidated cases, all relating to a single dependency case
in the circuit court, and all commenced here by the parents of S.D.S., born in
October 2007 (the “Child”). The “Final Judgment Denying Termination of
Parental Rights and Order of Adjudication,” entered April 16, 2018 (the “Final
Judgment”), denied a petition for the termination of parental rights (“TPR”) of the
Mother, T.D.S., and Father, R.D.S., by the Department of Children and Families
(“DCF”), joined by the Guardian Ad Litem Program (“GAL Program”). The cases
present difficult, mixed questions of law and fact: when is a minor’s chronic
medical condition—in this case, insulin-dependent diabetes—more than the
parents can manage, and if so, what level of State intervention is appropriate?
In Case No. 3D18-988, the Father appeals the adjudication that the Child is
dependent as to him. He also contends that the trial court reversibly erred in
permitting counsel for a non-party hospital to be present during the closed
proceedings. The GAL Program cross-appeals the denial of the petition for TPR as
to the Father.
In Case No. 3D18-984, the Mother appeals the adjudication of dependency
as to her, as well as certain case plan directives within the Final Judgment. The
GAL Program cross-appeals the denial of TPR as to the Mother. And in Case No.
3D18-839, the Father petitions this Court for a writ of certiorari to review and
quash a non-final order entered at the same time as the Final Judgment, requiring
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the Father to submit to a psychological evaluation, to include a determination “if
the parents suffer from any mental health disorders (including Munchausen by
Proxy) which may have contributed to the issues which caused the case to come
into care.”1
For the reasons which follow, we affirm the trial court’s adjudications of
dependency as to each parent and the denial of the petition for TPR as to each
parent. We conclude that the trial court was required to sustain the objections of
the parents to exclude the non-party hospital’s attorney from the courtroom as the
trial was conducted (though we find no reversible error attendant to this ruling).
We grant the Father’s petition for certiorari to a limited extent, quashing that
portion of the order for psychological evaluation of the parents requiring a specific
assessment for Munchausen syndrome by proxy.
I. Facts and Procedural History
At the age of 7, in 2014, the Child was diagnosed with insulin-dependent
diabetes. In May 2015, the Child was hospitalized with hypoglycemia, a
dangerously low blood sugar level characteristic of diabetes. Hypoglycemia can,
in an extreme case, culminate in a diabetic coma or even death.
1 The online medical site “Medline” defines this disorder as:
“Munchausen syndrome by proxy is a mental illness and a form of child abuse.
The caretaker of a child, most often a mother, either makes up fake symptoms or
causes real symptoms to make it look like the child is sick.” See
https://medlineplus.gov/ency/article/001555.htm (site last visited October 22,
2018).
3
In April 2016, the Child was sheltered following another hospitalization and
reports of abuse, abandonment, or neglect on the part of her parents. The parents
were allowed supervised visitation at the hospital, and about two weeks later the
Child was allowed by DCF to reside with her maternal aunt. The Child’s aunt was
allowed to supervise visitation by the parents.
In July 2016, DCF filed a petition for TPR as to both parents, alleging that
the parents engaged in egregious conduct threatening the life, safety, or physical
health of the Child.2 The Child had additional hospitalizations for diabetic
hypoglycemia in March and April of 2017. The Child’s treating endocrinologist
contacted DCF to report that the parents were not administering insulin properly.
When the petition for TPR came to trial, an attorney from non-party
Nicklaus Children’s Hospital was in the courtroom. A physician and other
witnesses were subpoenaed for testimony at trial. The parents objected to the
presence of the attorney. Counsel for DCF acknowledged that the proceedings
were closed, but advised that it had no objection to the presence of the hospital’s
attorney. The trial court overruled the objection.
After hearing seven days of testimony, the trial court prepared a proposed
judgment and conducted a further hearing to allow the parties and their attorneys to
review and comment on the proposed judgment. The parents objected to the
2 § 39.806(1)(f), Fla. Stat. (2016).
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provision relating to a mandatory mental health evaluation for “Munchausen by
proxy,” and the court agreed on the record that “There was, as I recall, not a single
mention of Munchausen by Proxy in the trial, nor any specific allegation of it.”
The medical testimony included, however, opinions by the Child’s treating
physician and doctors who observed the parents during the Child’s March 2016
hospital stay, that the Parents may have administered insulin to the Child against
the direct medical advice of the physicians.
II. Analysis
Our standard of review in the consolidated appeals is de novo with respect to
the application of the controlling dependency statutes. D.R. v. J.R., 203 So. 3d
952, 954 (Fla. 5th DCA 2016). As to factual determinations by the trial court, our
review is for competent substantial evidence supporting the findings. T.P. v. Dep’t
of Children & Family Servs., 935 So. 2d 621, 624 (Fla. 3d DCA 2006).
In the case of the related petition for certiorari, we must determine whether
the challenged ruling is a departure from the essential requirements of the law,
resulting in a material injury for the remainder of the case, such that the injury
cannot be corrected in a post-judgment appeal. M.M. v. Florida Dep’t of Children
& Families, 189 So. 3d 134 (Fla. 2016).
A. Denial of the Petition for TPR
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The trial court in this case engaged in conscientious and painstaking
deliberations regarding the nature of, and intentions behind, the parents’ problems
with the management of their Child’s diabetes. The court ultimately found that
“the State failed to prove by clear and convincing evidence that the Parents
engaged in egregious conduct and therefore, a termination of parental rights would
not be the least restrictive means of protecting the Child from future harm.”
While the trial court concluded that there was sufficient evidence for an
adjudication of dependency under section 39.811(1)(a), Florida Statutes (2018),3 it
also found that the Parents’ problems in following medical instructions regarding
the administration of insulin were not shown to be intentional and “were likely due
to miscommunication with the Child’s physicians” resulting in faulty management
of the Child’s diabetes.
The trial court credited “persuasive testimony from witnesses that the
Parents kept meticulous medication logs; continually and timely brought the Child
in for medical treatment and assistance; brought the Child to school and
communicated regularly with the school and school nurse, and even slept with the
Child so they could monitor her health continually through the night.” The trial
court balanced the Parents’ demonstrated care for the Child with their problems in
3 The trial court concluded that the Parents failed to follow the medical direction
of the Child’s treating physicians at the hospital, and that the Parents did not
properly manage the Child’s insulin intake.
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understanding and applying the medical directives for the management of type I
diabetes, a chronic and potentially life-threatening medical condition if not kept
under tight control.
As pertinent here, section 39.01(47), Florida Statutes (2018), defines
“medical neglect” as:
the failure to provide or the failure to allow needed care as
recommended by a health care practitioner for a[n] . . . illness
[or] medical condition . . . . Medical neglect does not occur if
. . . the immediate health condition giving rise to the allegation
of neglect is a known and expected complication of the child's
diagnosis or treatment and:
...
(b) The parent or legal guardian received conflicting medical
recommendations for treatment from multiple practitioners and
did not follow all recommendations.
The trial court observed that it had to “consider the possibility that this is a
case of a lack of clear communication with the medical professionals perhaps due
to a language barrier or a case of some other complex mental health issue that was
left unexplored by the Department of Children and Families.” We conclude that
the trial court relied on competent, substantial evidence in declining to find
“egregious conduct” on the part of the parents. Such conduct is one of the fourteen
enumerated grounds for TPR, paragraphs 39.806(1)(a) through (m), Florida
Statutes (2018).
“Egregious conduct,” paragraph (f) of section 39.806(1), includes conduct
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that “threatens the life, safety, or physical, mental, or emotional health of the child
. . . .” The term is further defined in subparagraph 39.806(1)(f)2 to mean “abuse,
abandonment, neglect, or any other conduct that is deplorable, flagrant, or
outrageous by a normal standard of conduct. Egregious 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.”
The GAL Program argues on cross-appeal that the physicians’ testimony
established that the Child experienced “repeated incidents of severe, life-
threatening hypoglycemia (low blood sugar).” Although there is evidence in the
record in support of the GAL Program’s contention, there is also competent,
substantial evidence supporting the trial court’s finding that “the Child’s condition
has drastically improved and stabilized since she has been using an insulin pump.”
The trial court also found a failure by DCF and the GAL Program to prove
by clear and convincing evidence that TPR would be the “least restrictive means of
protecting the Child from future harm.” The court concluded that “grounds for
dependency have been established by a preponderance of the evidence,” such that
the Child should remain in the care of the maternal aunt4 while the parents are
placed in a case plan for rehabilitation and reunification with the Child.5
4 DCF and the GAL Program acknowledge that the Child was not hospitalized for
further hypoglycemic episodes while under the care of the maternal aunt.
5 § 39.811(1)(a), Fla. Stat. (2018).
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We find no reversible error in the trial court’s careful assessment of the
evidence and law relating to the Child’s medical condition and future treatment
plan, in the court’s adjudication of dependency, or in the denial of the petition for
TPR.
B. Hospital Counsel’s Attendance at Trial
Section 39.809(4), Florida Statutes (2018), includes this clear directive: “All
hearings involving termination of parental rights are confidential and closed to the
public.” As the trial began, the parents objected to the presence of an attorney for
the doctors, hospital, and nurses who were to testify. DCF acknowledged that the
proceedings were closed, but told the trial court DCF had no objections to
counsel’s presence. The trial court overruled the parents’ objection.
In Natural Parents of J.B. v. Florida Department of Children & Family
Services, 780 So. 2d 6, 11 (Fla. 2001), the Florida Supreme Court upheld the
constitutionality of the special closure provision applicable to TPR proceedings. In
the present case, the trial court erred in overruling the parents’ objection to the
presence of the independent attorney for the medical witnesses.
Applying any existing standard of harmfulness or harmlessness to the error
in the light of the record in this case, however, we are unable to discern any degree
of harm that would necessitate a new trial or otherwise alter our review of the trial
court’s findings and adjudication.
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C. The Father’s Consolidated Petition for Certiorari
We have approved, without comment, the trial court’s inclusion of a
directive that the case plan for the parents must include “mental health evaluation
by a qualified professional who will be able to assess conditions the Parents may
have that led to child’s lack of proper medical treatment.” We have done so
because the trial court, DCF, and the GAL Program have recognized the harm to
the Child that could follow if they are unable, after additional training with the
infusion pump and further education regarding insulin and hypoglycemia, to
understand their daughter’s disease and the dangers of hypoglycemia.
The Father’s petition for certiorari in consolidated Case No. 3D18-839,
however, addresses a specific element of the mental health examination directed by
the trial court. The trial court included a requirement that the mental health
professional evaluate “the possibility of the condition of Munchausen Syndrome
by Proxy.” No medical professional suggested such a diagnosis or possibility at
trial, and the trial court conceded on the record that there was “not a single mention
of Munchausen by Proxy in the trial, nor any specific allegation of it.”
This specific mental health assessment requirement lacks “good cause
shown” and notice. J.B. v. M.M., 92 So. 3d 888, 889 (Fla. 4th DCA 2012). The
directive, in isolation, meets the standards we have enumerated for certiorari relief
in M.M., above, or this Court’s decision in J.G. v. Department of Children &
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Families, 220 So. 3d 555, 556 n.1 (Fla. 3d DCA 2017). We quash the specific
provision of the trial court’s order requiring the mental health examination of the
parents to include “the possibility of the condition of Munchausen Syndrome by
Proxy” (though the examining mental health professional’s discretion and
professional judgment are not precluded from reaching such a diagnosis, to the
extent the professional’s evaluation is based on other facts and occurrences related
in the trial court’s order and this opinion).
III. Conclusion
We affirm the adjudication of dependency and the denial of the petition for
TPR as to both parents. We grant the consolidated petition for certiorari and quash
the specific requirement within the Final Judgment and related order that the
mental health evaluation of the parents address “the possibility of the condition of
Munchausen Syndrome by Proxy.” The case is remanded to the circuit court for
the implementation of the case plan and other provisions detailed in the Final
Judgment and related order.
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