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D.N. v. Department of Children And Families

Florida Court of Appeals, Fourth District

July 24, 2019

D.N., the mother, Appellant,

         Not 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.

          Thomas J. Butler of Thomas Butler, P.A., Miami Beach, for appellant.

          Ashley 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.

          Taylor, J.

         This is 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 proceedings.

         On May 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 transportation.

         When 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.

         A.N. 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."

         On May 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.

         In June 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.

         At the 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 self-incrimination.

         A 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 recent ...

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