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In re I.N.

Florida Court of Appeals, Second District

August 23, 2017

In the Interest of I.N., a child.
v.
DEPARTMENT OF CHILDREN AND FAMILIES, GUARDIAN AD LITEM PROGRAM, and K.O., Respondents. E.N., Petitioner,

         NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

         Petition for Writ of Certiorari to the Circuit Court for Collier County; Mary C. Evans, Judge.

          Susan M. Bodden and Alexander Peterson (withdrew after briefing) of Family First Legal Group, Naples; Susan M. Bodden of Bodden Law Firm, Mediation & Arbitration, Naples (substituted as counsel of record) (withdrew after briefing), for Petitioner.

          E.N., pro se.

          Meredith K. Hall, Bradenton, for Respondent Department of Children and Families. Sara E. Goldfarb, Sanford, for Respondent Guardian ad Litem Program.

          Beverly L. Brennan, Naples, for Respondent K.O.

          BLACK, Judge.

         E.N., the Mother of the minor child, I.N., petitions for certiorari review of the Order on Mother's Motion for Evidentiary Hearing Prior to Reunification, which appointed a reunification therapist and directed the parties to follow the therapist's directives about how reunification between I.N. and K.O., the Father, should be initiated and implemented. Because the order departs from the essential requirements of the law and causes irreparable harm, we grant the petition and quash the order on review.

         I. Background

         After I.N.'s birth in 2011, the Mother and the Father, who were never married, ended their relationship. The Mother and the Father shared custody of I.N. equally until I.N. was sheltered from the Father in January 2015. About a month later, the Department of Children and Families filed a petition for the dependency of I.N. solely as to the Father. The petition alleged that I.N. had been sheltered due to the Father's alleged sexual abuse of I.N.'s "half siblings." The "half siblings" were the Father's girlfriend's two children, who had been living with the Father, the girlfriend, and I.N. when I.N. was in the Father's custody.[1]

         The Father denied the allegations in the petition but consented to I.N.'s dependency. I.N. remained in the Mother's care, and the Father initially had supervised visits with I.N. twice a week. But the visits were halted when I.N.'s treating psychologist, Dr. Mary Ellen Frazier, wrote a letter indicating that I.N. demonstrated anxiety and engaged in hypervigilant and aggressive behavior after visiting the Father. I.N. had indicated in therapy sessions that she did not want to visit the Father and consistently avoided the topic of the Father. In Dr. Frazier's opinion, supervised visitation between the Father and I.N. was not in I.N.'s best interest at that time. The dependency court entered a no contact order, and prior to the entry of the order on review, the Father had not seen I.N. since March 2015.

         The Father was given a case plan with a goal of reunification. The case plan required that the Father complete a comprehensive behavioral health assessment and follow all recommendations; complete a forensic psychological assessment and follow all recommendations; complete a mental health assessment and follow all recommendations; participate in random drug screens twice a month and be clean of any substances; complete a substance abuse evaluation and follow all recommendations; and complete parenting education classes. Although the case plan originally included a psychosexual evaluation, this task was changed to a forensic psychological assessment at the Father's request due to pending criminal charges against the Father based on the alleged sexual abuse of I.N.'s siblings.[2]

         Following resolution of the criminal proceedings and after the Father was released from jail, he sought reunification. The Mother filed a motion for evidentiary hearing prior to reunification to determine if reunification was in I.N.'s best interest. A hearing was held over three days in November 2016 and January 2017.

         At the hearing, Dr. Frazier testified that she provided therapy to I.N. between January 2015 and April 2016. Due to I.N.'s age, Dr. Frazier primarily engaged in play therapy with I.N., but she had conversations with I.N. to the extent tolerated by I.N.

         Dr. Frazier testified that I.N. had been experiencing behavioral problems, including aggressiveness with peers, sleep disturbances, discomfort with herself, intense avoidance of the topics of the shower-where the alleged sexual abuse occurred-and of the Father, hypervigilant behavior, and behavior that Dr. Frazier described as being frequently employed by children for relief of anxiety caused by exposure to sexual activity beyond their developmental stage. Dr. Frazier diagnosed I.N. with posttraumatic stress disorder (PTSD), with the Father being the trigger for her symptoms.

         Dr. Frazier explained that as I.N. became more comfortable in therapy, she began to talk about some of her experiences in the Father's home. She reported that the Father washed her and her siblings "inside out" and that they all took turns washing the Father "as far up as they could reach." It was apparent that I.N. was uncomfortable talking about these incidents. I.N. also reported that the Father would cuddle with her while naked and that he was frequently naked. Although I.N. was too young to discuss the difference between the truth and a lie, Dr. Frazier found her to be "believable and credible."

         As a result of the information that came out during therapy, Dr. Frazier wrote a letter to the court, which was introduced into evidence at the hearing. In the letter, Dr. Frazier advised the court that new information had come to light that showed that I.N. had not merely tangentially experienced these incidents but that she had individually experienced them. Dr. Frazier explained that I.N.'s status changed "from just having observed perhaps something happening to other children to actually experiencing what happens not only to the other children, but to herself and the absorption of that stress and trauma of the experience."

         Dr. Frazier testified that from a clinical standpoint, I.N. "credibly talked about things that were sexually developmentally inappropriate that she experienced both personally and observationally." Based upon what I.N. told her about her experiences, Dr. Frazier believed that I.N. was a victim of inappropriate sexual behavior by the Father, which caused her PTSD. I.N.'s symptoms were at their worst when I.N. was having supervised visits with the Father. Once visitation stopped, the symptoms improved with therapy.

         Although Dr. Frazier testified that having no contact with the Father was necessary during the early stages of I.N.'s treatment, she did not have an opinion about whether I.N. should have contact with the Father at the time of the hearing. But she testified that if I.N. were exposed to the Father, that contact would trigger I.N.'s PTSD symptoms for a period of time. If the court decided to permit reunification, I.N. would probably need counseling again to help her cope with the symptoms.

         Dr. Robert D. Silver, a licensed psychologist, testified that he performed a psychological evaluation of the Father. Dr. Silver described the Father as trying to portray that he was a normal person without pathological tendencies and prove that the sexual abuse allegations were simply misunderstandings about innocent behavior. The Father declined to answer Dr. Silver's questions about the alleged sexual abuse, as the Father's criminal case was pending at the time. The Father also declined to undergo a psychosexual evaluation.

         Dr. Silver testified that sexual abuse of children is "highly persistent and recurrent, and remains a lifelong possibility, " such that if the Father did engage in sexual behavior with a child, he would pose a substantial and continual risk to that child. Dr. Silver explained that if it were found that I.N.'s siblings had been sexually abused by the Father, I.N. would also be at risk for sexual abuse. Dr. Silver stated that if the allegations of sexual abuse were supported, the Father's contact with I.N. should cease for her protection and the Father should participate in treatment to address his psychosexual proclivities. Dr. Silver further explained that "grooming is a pattern of behavior individuals who sexually abuse children use to try to make the child comfortable with the abuse by engaging in small steps of sexual behavior." Cuddling naked with a child and routinely showering with a child could be, but are not necessarily, examples of grooming.[3]

         In Dr. Silver's opinion, the Father's "alleged sexual behavior could not be explained by [his] having psychopathology such as being depressed, [or suffering from] manic depress[ion], schizophreni[a], [or] a personality disorder." The only other possible explanation for the alleged behavior would be sexual deviation, but Dr. Silver had insufficient information to reach a conclusion about that. Such a conclusion would require Dr. Silver to evaluate information from other sources about observed inappropriate sexual behavior by the Father. His ability to evaluate the Father for sexual deviance was also limited by the Father's refusal to complete a psychosexual assessment.

         The guardian ad litem (GAL) testified at the hearing. Based upon the reports generated by the child protection team, Dr. Frazier's testimony, and the other information the GAL learned at the various hearings in the case, she did not believe it was in I.N.'s best interest to have contact with the Father. She did not believe there should be contact until a psychosexual evaluation had been performed on the ...


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