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Florida Department of Children and Families v. A.R.

Florida Court of Appeals, Third District

August 3, 2018

Florida Department of Children and Families and the Guardian Ad Litem Program o/b/o P.R., child, Appellants,
v.
A.R. and R.L., parents, Appellees.

         Not final until disposition of timely filed motion for rehearing.

          Appellees. Appeals from the Circuit Court for Miami-Dade County, Mark Blumstein, Judge.

          Karla Perkins, and Sarah J. Rumph (Tallahassee), Department of Children and Families; Laura J. Lee (Sanford), Guardian ad Litem Program; Robert Latham, UM Children & Youth Law Clinic, and Robert Latham, for appellants.

          Thomas Butler, P.A., and Thomas J. Butler; Kevin Coyle Colbert; Ilene F. Tuckfield, P.A., and Ilene F. Tuckfield, for appellees.

          Before ROTHENBERG, C.J., and SALTER, and LINDSEY, JJ.

          LINDSEY, J.

         The Florida Department of Children and Family Services ("DCF") and the Guardian ad Litem Program (the "GAL") appeal a final judgment dismissing the petition for termination of parental rights of the mother, denying the petition for termination of parental rights of the father, and adjudicating the child dependent as to the father only. Because the trial court incorrectly applied the statutes defining sexual abuse, we reverse the adjudication of dependency as to the father and remand for entry of an order finding the father sexually abused the child and for further consideration of the best interests of the child and whether termination is the least restrictive means of protecting the child. Because there is competent substantial evidence to support the trial court's finding that there was no credible testimony that the mother failed to protect the child we affirm, without further elaboration, the dismissal as to the mother.

         I. PROCEDURAL AND FACTUAL BACKGROUND

         In 2012, A.R. (the "father") and L.R. (the "mother") (collectively, "the "parents") adopted P.R. (the "child"), whose date of birth is 03/19/2003, from China when she was nine years old. At the time of adoption, she was in a placement and had previously been in an orphanage.

         The triggering event for this case occurred during a regularly scheduled therapy session between the child and her therapist. The child's therapist had been chosen by the parents and had been seeing the child for almost a year prior to address issues unrelated to this case, associated with school and peer relations. The child, who was at that time thirteen years old, purportedly spontaneously disclosed to her therapist that she and her father were "doing the S thing." When the therapist asked the child for clarification, the child allegedly spelled out the word "s-e-x." Upon questioning, the child purportedly explained that her father had been touching her breasts and genital area. According to her therapist, the child did not want for her to tell anyone because she loves her father very much, does not want him to get into trouble and "was getting used to it." The therapist further reported that the child was "crying hysterically" at the time of this alleged conversation. Based on this conversation, the therapist placed a call to the State of Florida abuse hotline and an investigation commenced. Thereafter, the child made similar disclosures to five other people.

         A. Proceedings Leading up to the Termination of Parental Rights Trial

         DCF filed a petition to shelter the child based on allegations of sexual abuse by the father and failure to protect by the mother. On that same day, the trial court held a hearing, found probable cause and entered an order sheltering the child. Pursuant thereto, the trial court released the child to the temporary custody of the parents' friends (the "previous caregivers").[1] The trial court ordered therapeutic visitation with the mother and no contact with the father. A guardian from the GAL was appointed to represent the child's best interests (the "guardian").

         DCF also filed a petition for termination of parental rights as to both parents. DCF alleged the parents "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 [c]hild." § 39.806(1)(f), Fla. Stat. (2017). The parents purportedly "subjected the [c]hild to sexual battery or sexual abuse as defined in Section 39.01, or chronic abuse." § 39.806(1)(g), Fla. Stat. (2017).

         In addition to the allegations of egregious conduct, sexual battery or sexual abuse, and chronic abuse by the father, DCF contended the mother failed to protect the child after the child disclosed the abuse. DCF claimed the mother "not only knew of the molestation, she also facilitated ongoing contact between the perpetrator and victim [c]hild in an attempt to manipulate or pressure the [c]hild while investigation into the allegations was pending." In the petition, the GAL recommended the termination of parental rights as to both parents.

         B. The Termination of Parental Rights Trial

         The termination of parental rights trial took place over eight days. A total of eighteen witnesses testified at trial, including the father, the mother and the child. In addition, among others, the following exhibits were admitted: (1) a transcript of the testimony given by the mother at the father's bond hearing; (2) a recording of the father's interview at the Doral Police Department held on January 11, 2017; (4) the child's forensic interview; (5) postings from the father's Facebook account depicting the child; and, (5) messages and video sent from the father to the mother which were located on the child's electronic devices.

         C. Proceedings Following the Termination of Parental Rights Trial

         At the conclusion of the trial, the trial court entered an unelaborated order denying the petition for termination of parental rights as to both parents and adjudicating the child dependent as to the father. On that same date, the trial court entered two visitation orders. One order granted the mother unrestricted visitation with the child and the other order granted the father supervised weekly visitation. The trial court denied DCF's and the GAL's motion for stay pending review.

         DCF, later joined by the GAL, filed an emergency petition for writ of certiorari regarding two visitation orders and an emergency motion for review of the denied stay. The GAL filed an amended motion for review of the two visitation orders. This Court granted the amended motion for review and entered a stay pending further order of this Court for all purposes, except the trial court's entry of findings of fact and conclusions of law relating to its summary denial of the petition for termination of parental rights.[2]

         Subsequently, the trial court entered the final judgment on appeal here. The final judgment references only the testimony of the child, the parents, Ms. Pena, and Dr. Klein.

         In the final judgment, the trial court made the following findings:

a. [A]ny touching around the chest or breast area of the Child was incidental, resulting from horseplay, wrestling and/or tickling between the Child and Father.
b. As for contact, touching or patting between Father and Child around the lower abdomen area of the Child, the Child first described it on a teddy bear named Emma, given to her by her Father, and then later described it on herself with her counsel present.
c. The Child and the Father were always clothed. No skin to skin contact occurred. The Child never reported such contact with the Father when the Child was alone with the Father on a cross country road trip spanning days.
d. Prior to Department involvement, the Mother and Father provided food, shelter, care, tutoring, therapy and martial arts training for the Child.
e. After hearing and seeing the described contact by the Child on two different occasions, and considering all the other evidence presented, including family photos and videos that a therapist concludes is evidence of grooming the Child by the Father for sexual purposes, which the Court does not deem credible, the Court cannot conclude by clear and convincing evidence that said contact is egregious, sexual battery, sexual abuse or chronic abuse.

         In addition, the trial court found that: "Both parents testified that the Father and Child regularly engage in horseplay, wrestling and tickling, which the Mother would discourage by telling the Father and Child to 'stop roughhousing', or words to that effect." Further, the trial court found that "[t]he Mother's testimony, which is corroborated by the Child's therapist, Ms. Pena, a licensed clinical social worker, among others, establishes that the Mother was completely surprised by and unaware of the allegations set forth in the Petition." The trial court concluded:

At most, and consistent with Dr. Klein's testimony, a licensed psychologist, the evidence and testimony demonstrate, by the preponderance of the evidence, that there was uncomfortable and/or inappropriate contact, touching or patting between the Father and Child, but not in a sexual way. Moreover, no credible testimony was presented indicating that the Father touched the child in or on her vagina or under her clothes, or engaged in egregious conduct toward the child as defined in section 39.806(f) and/or (g). Likewise, there was no credible testimony indicating that the Mother was aware of and/or failed to protect the Child from any conduct alleged in the Petition.

(Emphasis added). In so doing, the trial court held that "[t]he grounds for termination of parental rights set forth in the Petition have not been established by clear and convincing evidence as to both parents" and granted the mother's motion for judgment of dismissal and denied DCF and the ...


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