S.M.O., THE MOTHER v. DEPARTMENT OF CHILDREN AND FAMILIES

Third District Court of Appeal
State of Florida
Opinion filed March 1, 2023.
Not final until disposition of timely filed motion for rehearing.
________________
No. 3D22-1822
Lower Tribunal No. 21-15503
________________
S.M.O., the mother,
Appellant,
vs.
Department of Children and Families, et al.,
Appellees.
An Appeal from the Circuit Court for Miami-Dade County, Scott M.
Bernstein, Judge.
Eugene F. Zenobi, Criminal Conflict and Civil Regional Counsel, Third
Region, and Kevin Coyle Colbert, Assistant Regional Counsel, for appellant.
Karla Perkins, for appellee Department of Children & Families; Sara
Elizabeth Goldfarb, and Laura J. Lee (Tallahassee), for appellee Guardian
ad Litem.
Before SCALES, LINDSEY, and BOKOR, JJ.
LINDSEY, J.
Appellant S.M.O. (the “Mother”) appeals from a final order terminating
parental rights to her four minor children based on her failure to protect her
child D.G.C. from significant and persistent sexual abuse by her live-in
boyfriend, A.A. Because there is competent substantial evidence supporting
the trial court’s findings that the Mother knowingly failed to prevent egregious
conduct and because the trial court did not err in terminating the parental
rights to D.G.C.’s younger siblings, we affirm.
I. BACKGROUND
In October 2021, Appellee the Department of Children and Families
(the “Department”) took the Mother’s four minor children into custody due to
allegations of sexual abuse. The children were sheltered with other family
members, and Appellee the Guardian ad Litem was appointed to represent
the children’s best interests. In November 2021, the Department filed the
underlying Petition to terminate the Mother’s parental rights to D.G.C. (a 15-
year-old female child), A.M.A. (a six-year-old female child), A.M.A. (a four-
year-old male child), and A.I.O.A. (a one-year-old male child). The Petition
also sought to terminate A.A.’s parental rights. A.A. is D.G.C.’s stepfather
and the legal father of the three younger children (collectively, the “Three
Siblings”). As grounds for termination, the Petition alleged that the Mother
had failed to protect D.G.C. from A.A.’s ongoing and prolonged sexual
2
abuse, which began when D.G.C. was nine years old and lasted at least six
years.
The adjudicatory hearing was conducted over the course of four days.
At the hearing, D.G.C. testified that A.A. started sexually abusing her when
she was nine years old and that it happened “very often.” Shortly after the
abuse started, D.G.C. told the Mother that A.A. was touching her
inappropriately “every day.” Afterwards, the Mother had an argument with
A.A., and the abuse stopped for 2-3 months before starting again. D.G.C.
testified that the abuse was frequent and occurred mostly when her younger
siblings were home. The abuse continued for at least six years until D.G.C.
turned fifteen years old and moved out to live with her adult sister (the
“Sister”).
D.G.C.’s Sister testified that A.A. also abused her while she was a
minor living with the Mother. According to the Sister, before A.A. moved in,
he lived across the street. The Sister was 15 years old at the time and could
tell A.A. “was up to no good” because of the way he would watch her and
her siblings play outside. She told the Mother this, and the Mother dismissed
it as nothing. After A.A. moved in, the Sister testified that he began sexually
abusing her. She left the Mother a note about what was happening, and,
according to the Sister, the Mother told her it was her fault because she was
3
looking for attention by the clothes she was wearing. The Sister testified that
the abuse “never stopped” and that every time she said something, the
Mother told her it was her fault or did not believe her.
The Sister also described an incident that occurred when she was
sixteen years old. She fell asleep on the sofa with her baby sister and was
woken up by the Mother’s screams, brought on by the Mother catching A.A.
in an attempted act of sexual abuse. After the Sister ran into the bathroom
with her baby sister, she heard “smashing, fighting, [and] arguing.” The next
day, the Mother blamed the Sister for what happened.
The Mother testified that D.G.C. never told her about the abuse. She
also denied that the Sister told her about the abuse and likewise denied ever
catching A.A. in an attempted sexual act with the Sister. After hearing
D.G.C. and the Sister describe in detail what A.A. had done to them, the
Mother concluded they were lying.
Following the hearings, the trial court entered a final judgment
terminating the Mother’s and A.A.’s parental rights. The court accepted
D.G.C.’s and the Sister’s testimony as credible. The court also found “that
4
the Mother’s testimony denying any knowledge of her daughters’ sexual
abuse not to be credible.” The Mother timely appealed. 1
II. ANALYSIS
The Mother raises four arguments on appeal. She argues the trial
court erred in terminating her parental rights to D.G.C. because (1)
termination was based on an unpled statutory ground and (2) there was no
competent substantial evidence that she knowingly failed to prevent
egregious conduct. The Mother further argues the trial court erred in
terminating her parental rights to the Three Siblings because (3) there was
no proof of a nexus between the Mother’s egregious conduct to D.G.C. and
the potential harm to the Three Siblings and (4) the court failed to make an
individualized analysis of the statutory manifest best interest factors as
applied to each of the Three Siblings. We address each argument in turn.
1. Unpled Statutory Ground (§ 39.806(1)(g))
“[B]efore terminating parental rights, ‘the trial court must find that the
Department established by clear and convincing evidence the following: (1)
the existence of at least one statutory ground for terminating parental rights
set forth in section 39.806(1); (2) termination is in the manifest best interest
1
A.A. also appealed. His appeal has been dismissed for failure to prosecute.
A.A. v. Dep’t of Child. & Fams., 3D22-1820, 2023 WL 380409 (Fla. 3d DCA
Jan. 5, 2023).
5
of the child; and (3) termination is the least restrictive means to protect the
child from serious harm.’”2 D.M. v. Dep’t of Child. & Fams., 315 So. 3d 90,
93 (Fla. 3d DCA 2020) (quoting L.Q. v. Dep’t of Child. & Fams., 282 So. 3d
958, 962 (Fla. 3d DCA 2019)). We review the trial court’s findings under the
highly deferential competent substantial evidence standard of review. See,
e.g., C.G. v. Dep’t of Child. & Fams., 67 So. 3d 1141, 1143 (Fla. 3d DCA
2011).
The trial court relied on two statutory grounds for terminating the
Mother’s rights: § 39.806(1)(f) and § 39.806(1)(g). Relevant here is
subsection (g), which provides as follows:
(g) The parent or parents have subjected the
child or another child to aggravated child abuse as
defined in s. 827.03, sexual battery or sexual abuse
as defined in s. 39.01, or chronic abuse.
§ 39.806(1)(g), Fla. Stat. (2022).
2
This case involves egregious conduct under § 39.805(1)(f). “[I]n cases
involving egregious conduct by a parent, ‘the termination of parental rights
without the use of plans or agreements is the least restrictive means.’” In re
C.E., 263 So. 3d 202, 213 (Fla. 2d DCA 2019) (quoting In re T.M., 641 So.
2d 410, 413 (Fla. 1994)). “As to the siblings, the legislature has abrogated
the least restrictive means inquiry for ‘egregious conduct’ cases, among
others.” V.S. v. Dep’t of Child. & Fams., 322 So. 3d 1153, 1163 (Fla. 4th
DCA 2021). The Mother does not challenge the trial court’s least restrictive
means findings.
6
The Mother argues the trial court erred in relying on subsection (g)
because the Department did not assert this statutory ground in its Petition. 3
We agree. 4 See L.A.G. v. Dep’t of Child. & Fam. Servs., 963 So. 2d 725,
726 (Fla. 3d DCA 2007) (“The termination order violates due process
because it is based on grounds not asserted in DCF’s petition.”). But
because the existence of only one statutory ground is necessary, this does
not amount to reversible error unless the trial court’s reliance on subsection
(f) was also erroneous. See § 39.806(1) (“Grounds for the termination of
parental rights may be established under any of the following circumstances
. . . .” (emphasis added)); cf. M.M.W. v. J.W., 47 Fla. L. Weekly D1633 (Fla.
3d DCA Aug. 3, 2022), reh’g denied (Oct. 7, 2022) (“[W]e conclude that
terminating parental rights solely on a statutory ground not pled in the petition
constitutes a denial of due process.” (emphasis added)).
2. Egregious Conduct (§ 39.806(1)(f))
The only statutory ground the Department relied on against the Mother
was § 39.806(1)(f), Florida Statutes (2022), which provides as follows:
(f) The parent or parents engaged in egregious
conduct or had the opportunity and capability to
prevent and knowingly failed to prevent egregious
3
The Department asserted subsection (g) against A.A. but not against the
Mother.
4
The Department commendably concedes error on this point.
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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.
Egregious conduct is defined as “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.” § 39.806(1)(f)(2).
The Mother contends that competent substantial evidence does not
support termination pursuant to subsection (f). We disagree. There was
ample testimony below by both D.G.C. and the Sister, which the trial court
explicitly found was credible, that the Mother knew about the sexual abuse.
See I.D. v. Dep’t of Child. & Fams., 13 So. 3d 1117, 1120 (Fla. 3d DCA 2009)
(“[I]t is within the province of the trial court to weigh the evidence presented
and to make credibility determinations.”). This is sufficient to support the trial
court’s conclusion that “the Mother 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 [D.G.C.].” Therefore,
because termination of the Mother’s parental rights to D.G.C. is supported
8
by at least one statutory ground, we affirm the termination order as to D.G.C.
We turn now to the remaining two issues involving the Three Siblings.
3. Proof of a Nexus of Harm (§ 39.806(1)(f))
Section 39.806(1)(f) permits termination of parental rights to siblings,
even if there is no nexus between the egregious conduct and the potential
harm to the siblings: “Proof of a nexus between egregious conduct to a child
and the potential harm to the child’s sibling is not required.” This language
was added in 2014. Even before the 2014 amendment, this Court held that
“[s]ection 39.806(1)(f) provides a mechanism for protecting children from the
threat of abuse [and] permits the trial court to terminate parental rights to a
child who has suffered egregious abuse, and to any siblings of such
child.” T.P. v. Dep’t of Child. & Fam. Servs., 935 So. 2d 621, 624 (Fla. 3d
DCA 2006). This Court further explained that “[t]he statute does not require
additional proof to establish a likelihood that an abused child’s sibling will
also be abused. Furthermore, in some cases, a parent’s conduct toward one
child may demonstrate a ‘substantial risk of significant harm’ to another
child.” Id. at 625 (citing Dep’t of Child. & Fams. v. B.B., 824 So. 2d 1000,
1007 (Fla. 5th DCA 2002)) (quoting Fla. Dept. of Child. & Fams. v. F.L., 880
So. 2d 602, 608 (Fla. 2004)).
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The Mother argues that terminating her rights to the Three Siblings
without proof of a nexus between her knowing failure to prevent egregious
harm to D.G.C. and the potential harm to the Three Siblings violates her
constitutional rights as a parent. Consequently, the Mother claims that §
39.806(1)(f) is unconstitutional. 5 We disagree.
It is firmly established that “[p]arents have a fundamental liberty
interest, protected by both the Florida and federal constitutions, in
determining the care and upbringing of their children.” F.L., 880 So. 2d at
607. However, these rights are not absolute. T.P., 935 So. 2d at 624
(“Although parental rights are fundamental, we emphasize that they are not
absolute, as they are subject to the overriding principle that the best interests
of the children must prevail.”).
Because a fundamental liberty interest is involved, we subject §
39.806(1)(f) to strict scrutiny. “To withstand strict scrutiny, a law must be
necessary to promote a compelling governmental interest and must be
narrowly tailored to advance that interest.” N.B. v. Fla. Dep’t of Child. &
5
Below, the Mother only argued § 39.806(1)(f) was facially unconstitutional.
Her as-applied challenge on appeal is therefore not preserved. See B.C. v.
Dep’t of Child. & Fams., 864 So. 2d 486, 491 (Fla. 5th DCA 2004) (“A
distinction is drawn between challenges to the facial unconstitutionality of a
statute and the unconstitutionality of the application of the statute to the facts
of a particular case. The former may be raised for the first time on appeal;
the latter must first have been raised at the trial level.”).
10
Fams., 183 So. 3d 1186, 1188 (Fla. 3d DCA 2016) (quoting State v. J.P.,
907 So. 2d 1101, 1109 (Fla. 2004)). It is undisputed that the statute serves
a compelling government interest by protecting children.
As for being narrowly tailored, we note that § 39.806(1) lists several
grounds for termination of parental rights. Subsection (f) is unlike many of
the other statutory grounds in that it permits termination of parental rights to
unharmed siblings. 6 Importantly, subsection (f) narrowly applies in situations
where there is “egregious conduct,” which is clearly defined in the statute as
“conduct that is deplorable, flagrant, or outrageous by a normal standard of
conduct.” § 39.806(f)(2). As this Court explained in T.P., “[s]ection
39.806(1)(f) ‘represents a legislative expression that parents who have
committed egregious acts of abuse against one child pose an unacceptable
risk that they will abuse their remaining children.’” 935 So. 2d at 625 (quoting
B.B., 824 So. 2d at 1007).
The Mother heavily relies on two Florida Supreme Court cases that do
not involve egregious conduct under § 39.806(1)(f): Padgett and F.L. We
6
Section 39.806(1)(h), which has to do with “murder, manslaughter, aiding
or abetting the murder, or conspiracy or solicitation to murder the other
parent or another child, or a felony battery that resulted in serious bodily
injury to the child or to another child” similarly does not require proof of a
nexus between the conduct and potential harm to another child.
11
agree with the Fourth District that these cases do not undermine the
constitutionality of § 39.806(1)(f):
Neither opinion dealt with section 39.806(1)(f)
as amended in 2014, nor with a “no nexus required”
provision inserted by the legislature. Moreover,
Padgett states that “the permanent termination of a
parent’s rights in one child under circumstances
involving abuse or neglect may serve as grounds for
permanently severing the parent’s rights in a different
child.” 577 So. 2d at 571 (emphasis added and
footnote omitted). F.L. buttresses this point: “Implicit
in our decision in Padgett is the recognition that in
some cases, but not in all cases, a parent’s conduct
toward another child may demonstrate a substantial
risk of significant harm to the current child.” 880 So.
2d at 608 (emphasis added). “Egregious conduct”
would appear to fall into the narrow “some cases”
category. Thus, the “no nexus required” amendment
is not incompatible with Padgett and F.L. or with the
“narrowly tailored” prerequisite.
V.S. v. Dep’t of Child. & Fams., 322 So. 3d 1153, 1161–62 (Fla. 4th DCA
2021).7
We therefore conclude that § 39.806(1)(f) survives strict scrutiny
because it promotes the compelling government interest of protecting
7
The Fourth District has certified the constitutionality of § 39.806(1)(f) as a
question of great public importance at least four times. See V.S. v. Dep’t of
Child. & Fams., 322 So. 3d 1229 (Fla. 4th DCA 2021); R.S. v. Dep’t of Child.
& Fams., 328 So. 3d 305 (Fla. 4th DCA 2021); K.A. v. Dep’t of Child. &
Fams., 332 So. 3d 501 (Fla. 4th DCA 2021); E.A. v. Dep’t of Child. & Fams.,
332 So. 3d 493 (Fla. 4th DCA 2021). So far, the Florida Supreme Court has
declined review.
12
children and it narrowly applies in situations where there is egregious
conduct.
4. Manifest Best Interests of the Three Siblings (§ 39.810)
Although proof of a nexus between egregious conduct and potential
harm to a sibling is not required for termination under section 39.806(1)(f),
the trial court must still engage in a manifest best interests inquiry pursuant
to § 39.810. “The ‘manifest best interests’ inquiry ensures the continuation
of an individualized approach and the consideration of all relevant
circumstances with respect to sibling terminations, even in circumstances in
which the trial court has determined that the parent ‘[e]ngaged in egregious
conduct . . . that threatens the life, safety, or physical, mental, or emotional
health of the child or the child's sibling.’” V.S., 322 So. 3d at 1160 (quoting
§ 39.806(1)(f), Fla. Stat. (2020)).
The Mother, relying on V.S., argues the trial court failed to make an
individualized analysis of the eleven factors in § 39.810 as to each of the
Three Siblings. In V.S., the trial court sufficiently addressed the factors as
to the abused child but failed to evaluate the factors as to the siblings “stating
that proof of a nexus between the conduct against [the abused child] and the
potential harm to his siblings was not required.” 322 So. 3d at 1163. The
Department likewise failed to offer proof of the factors listed in § 39.810
13
“apparently taking the same position as the trial court that proof of substantial
risk of significant harm to the siblings was unnecessary. Id.
Here, by contrast, the trial court made detailed findings as to each of
the eleven factors in § 39.810. While it is true that some of the trial court’s
findings refer to the Three Siblings collectively, this is not reversible error
because their interests were aligned. For example, the first factor looks at
whether there is “[a]ny suitable permanent custody arrangement with a
relative of the child.” Here, all Three Siblings were living with their paternal
grandmother.
Importantly, proof of the factors in § 39.810 was presented below and
support the trial court’s findings. The Mother does not challenge any of these
findings as unsupported. “Here the trial court made full findings on all eleven
factors and found that overall, termination of the mother’s parental rights was
in the child’s manifest best interest. The findings were sufficient for appellate
review, and there was evidence to support the findings. Reweighing the
evidence at the appellate level would violate the highly deferential standard
we must apply.” J.P. v. Fla. Dept. of Child. & Fams., 183 So. 3d 1198, 1204
(Fla. 1st DCA 2016).
III. CONCLUSION
14
Although the trial court erred when it terminated the Mother’s parental
rights based on § 39.806(1)(g), a statutory ground that was never pled, we
nevertheless affirm the termination order because there is competent
substantial evidence supporting termination of the Mother’s parental rights
to D.G.C. under § 39.806(1)(f). We also conclude that § 39.806(1)(f) is
constitutional and that the trial court did not err in terminating the Mother’s
parental rights to the Three Siblings.
Affirmed.
15