Florida Department of Children and Families and the Guardian Ad Litem Program o/b/o P.R., child, Appellants,
A.R. and R.L., parents, Appellees.
final until disposition of timely filed motion for rehearing.
Appellees. Appeals from the Circuit Court for Miami-Dade
County, Mark Blumstein, Judge.
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.
Butler, P.A., and Thomas J. Butler; Kevin Coyle Colbert;
Ilene F. Tuckfield, P.A., and Ilene F. Tuckfield, for
ROTHENBERG, C.J., and SALTER, and LINDSEY, JJ.
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.
PROCEDURAL AND FACTUAL BACKGROUND
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.
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.
Proceedings Leading up to the Termination of Parental Rights
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"). 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
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).
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.
The Termination of Parental Rights Trial
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
Proceedings Following the Termination of Parental Rights
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.
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.
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.
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.
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 ...