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Guardian ad Litem Program v. K.H.

Florida Court of Appeals, Third District

June 26, 2019

Guardian ad Litem Program o/b/o J.H., Child, Appellant,
K.H., the Mother, and Department of Children and Families, Appellees.

         Not final until disposition of timely filed motion for rehearing.

          An Appeal from the Circuit Court for Miami-Dade County Lower Tribunal No. 14-15790, Laura Stuzin, Judge.

          Thomasina Moore and Laura J. Lee (Tallahassee), for appellant.

          Karla Perkins, for Department of Children & Families; Kevin G. Thomas, for K.H., the Mother, for appellees.

          Before SCALES, LINDSEY, and GORDO, JJ.

          GORDO, J.

         This appeal arises from a trial court order denying a petition by the Department of Children and Families ("the Department") for termination of parental rights of K.H. ("the Mother") as to her child, J.H.


         J.H., one of the Mother's fourteen children, was born on November 10, 2005, and was removed from the Mother's custody when he was a year old. He has had scarce contact with the Mother since that time and they have no parent-child relationship. The Mother is diagnosed with a lifelong psychotic condition that renders her unable to parent. She is presently committed to the Department and undergoing treatment for her mental illness. She is incapable of functioning alone and incapable of safely providing supervision and care for the child.

         When J.H. was a year old, a Georgia court placed him with his adult sister, Tiffany. The Georgia court found that efforts to reunify J.H. with the Mother would be detrimental to the child and therefore reunification was not in his best interest. Thereafter, J.H. resided with Tiffany, who he refers to as his mom. In 2014, Tiffany consented to a withhold of adjudication of dependency as to J.H. and his twin sister following allegations of physical abuse. In March 2015, the court removed him from Tiffany's custody and placed him in the Department's legal custody. The court found it was in the child's best interest to be placed in foster care. In March 2017, the court again modified J.H.'s placement finding it was in his best interest to be placed with a pre-adoptive non-relative. However, after eighteen months, the non-relative caregiver requested J.H. be removed from the home due to continuous aggressive and concerning behavior. J.H. was again placed in foster care.

         In October 2017, the Department filed a petition for termination of parental rights as to the Mother, which was amended in November 2018, five days before the trial. The amended petition proceeded under section 39.806(1)(c), Florida Statutes, which provides: "Grounds for the termination of parental rights may be established . . . [w]hen the parent . . . engaged in conduct toward the child . . . that demonstrates that the continuing involvement of the parent . . . in the parent-child relationship threatens the life, safety, well-being, or physical, mental, or emotional health of the child irrespective of the provision of services." § 39.806(1)(c), Fla. Stat. (2018).

         In November 2018, the trial court held an adjudicatory hearing on the Department's petition for termination of parental rights of the Mother. During the trial, the Department presented testimony from Dr. Michael DiTomasso, a licensed forensic psychologist, Ermine Brooks, the guardian ad litem ("GAL"), Diana Barker, the Mother's mental health case manager, and from the deposition of Dr. Indu Senapati, a board certified psychiatrist.

         Dr. Senapati was the Mother's treating psychiatrist at the South Florida State Hospital for more than six months.[1] Dr. Senapati conducted a comprehensive evaluation of the Mother's history of mental illness, medical history, psychiatric history, family history, and history of drug use. She continued to meet with her frequently for treatment. The Mother reported she was diagnosed with mental illness in her twenties and has been repeatedly hospitalized. Dr. Senapati testified the Mother's diagnosis is schizoaffective disorder (depressive type), which causes her to have hallucinations, delusions, disorganized thoughts, depressive mood, and suicidal thoughts. The Mother admitted having a history of suicide attempts and hearing voices that tell her to do bad things. Dr. Senapati testified the Mother has borderline intellectual functioning. Dr. Senapati declared the Mother suffers from a lifelong condition and is incapable of functioning on her own. She recommended the Mother continue to reside in a residential facility where her compliance with medication and treatment can be monitored.

         Dr. DiTomasso, an expert in psychological evaluations of parents in dependency proceedings, testified regarding his evaluation of the Mother. He reviewed all pertinent documents relating to the Mother, conducted a clinical interview, and performed psychological testing. Dr. DiTomasso concluded the Mother suffers from a psychotic condition that renders her unable to parent. Dr. DiTomasso testified she cannot meet J.H.'s needs and is likely to physically harm him. He testified she lacks empathy toward children, lacks nurturing skills, and sees independence in children as threatening. She does not have a good grasp of children's developmental abilities and needs. Moreover, the Mother has a history of substance abuse. Dr. DiTomasso fears she could revert to cocaine abuse and pose a higher risk of harm to ...

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