final until disposition of timely filed motion for rehearing.
Consolidated appeal from the Circuit Court for the
Seventeenth Judicial Circuit, Broward County; Yael Gamm,
Judge; L.T. Case No. 2018-1743 CJ DP.
J. Butler of Thomas Butler, P.A., Miami Beach, for appellant.
Moody, Attorney General, Tallahassee, and Carolyn Schwarz,
Assistant Attorney General, Fort Lauderdale, for Appellee
Department of Children and Families.
Thomasina F. Moore, Statewide Director of Appeals, and Sara
Elizabeth Goldfarb, Senior Attorney, Appellate Division,
Tallahassee, for Appellee Guardian ad Litem.
an appeal by the Mother, D.N., from the trial court's
judgment terminating her parental rights to her minor
daughters, D.A.N. and S.N., after the death of her infant
son, A.N. The Father of the children was criminally charged
with A.N.'s homicide. Because competent substantial
evidence does not support the trial court's finding that
the Department of Children and Families ("the
Department") proved grounds for terminating the
Mother's parental rights by clear and convincing
evidence, we reverse the judgment and remand for further
13, 2018, the Father was home alone with three-month-old A.N.
while the Mother was at work. During this time, the Father
fed A.N., placed him on his back, and later realized that
formula was coming from the infant's mouth and nose. He
also noticed that A.N. had become limp and unresponsive. At
around 9:00 p.m., the Father called the Mother, who in turn
called 911 and directed emergency medical personnel (EMS) to
their home. When paramedics arrived, they noted that
A.N.'s vitals were normal, but they offered to transport
him to the hospital for further examination. The Father
refused a transport and signed a waiver declining
the Mother arrived home from work later that night, she
noticed that the baby was listless and appeared to be gasping
for air. She asked the Father why EMS did not transport the
baby to the hospital. He responded that "they made
him" sign the waiver. The Mother insisted they take the
baby to the hospital themselves. When they arrived at about
10:40 p.m., the Father reported to the hospital staff that he
accidently bumped A.N.'s head when he was removing him
from the vehicle. The Mother said she never saw this happen.
was unresponsive and lethargic. He was examined and intubated
before he was transported to a children's hospital.
Initial tests returned normal results, but by the next
morning, A.N. had "a significant change in mental
status," including a bulging fontanelle and sluggish
pupils. A CT scan revealed that A.N. was bleeding in his
brain and behind his retina. Additional tests indicated that
A.N. had two fractured ribs that had begun healing. Medical
professionals concluded that A.N.'s injuries were
consistent with "suspected abusive head injury,"
and "Shaken Baby Syndrome."
16, 2018, the trial court ordered the Mother's three
children to be placed in shelter care after the report of
abuse to A.N. Days later, on May 24, 2018, A.N. died from the
injuries he had suffered. Police arrested the Father on
criminal charges stemming from the reported abuse.
2018, the Department filed a petition for termination of the
Mother's and Father's parental rights to the
surviving children, D.A.N. and S.N. The Department alleged
grounds for termination of each parent's rights under
sections 39.806(1)(f) and 39.806(1)(h), Florida Statutes.
termination of parental rights hearing, the Department called
several witnesses, including the Mother and Father. The
Mother maintained that she was not aware of any abuse by the
Father and she implored the court not to lump her parental
rights with those of the Father. When called to testify, the
Father asserted his Fifth Amendment right against
hospital emergency pediatrician, who also assists the Child
Protection Team as a child abuse medical provider and medical
director, testified. He reviewed A.N.'s medical records
and examined him on May 15 and 16. He testified that the rib
fractures were callused, which indicated that they were
healing and had occurred two to three weeks before A.N.
underwent tests related to the May 13 incident. The
pediatrician concluded that A.N. had been violently shaken on
at least two occasions to cause the rib and brain injuries.
He conceded that the Mother was not present for the most