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J. H. v. Department of Children and Families

Florida Court of Appeals, Fourth District

September 11, 2019

J.H., the mother, Appellant,
v.
DEPARTMENT OF CHILDREN AND FAMILIES and GUARDIAN AD LITEM, Appellees. Y.H.B., the grandmother, Appellant,
v.
DEPARTMENT OF CHILDREN AND FAMILIES and GUARDIAN AD LITEM, Appellees.

         Not final until disposition of timely filed motion for rehearing.

          Appeals from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Yael Gamm, Judge; L.T. Case Nos. 2018-2717-CJ-DP and 2018-2718-CJ-DP.

          Denise E. Kistner of the Law Offices of Denise E. Kistner, P.A., Fort Lauderdale, for appellant J.H.

          Kathleen K. Peña, Fort Lauderdale, for appellant Y.H.B.

          Ashley Moody, Attorney General, Tallahassee, and Carolyn Schwarz, Assistant Attorney General, Office of the Attorney General, Children's Legal Services, Fort Lauderdale, for appellee Department of Children and Families.

          Thomasina Moore, Statewide Director of Appeals, and Laura J. Lee, Senior Attorney of Florida Statewide Guardian ad Litem Office, Tallahassee, for appellee Guardian ad Litem.

          Warner, J.

         A mother, J.H., appeals the termination of her parental rights to her children O.H. and J.W.H. In a consolidated case, the children's grandmother appeals the denial of her request for the minor children to be placed in her care. We address both appeals in this opinion. We affirm because competent substantial evidence supports the trial court's conclusion that one of the children suffered egregious abuse, and that J.H. failed to protect her child from that abuse. We also affirm the trial court's conclusion that termination is the least restrictive means of assuring the protection of the children. As to the grandmother's appeal, she lacks standing to challenge the termination of J.H.'s rights. Further, even if there were standing to contest the termination of J.H.'s rights, the trial court did not abuse its discretion in denying placement of the children with the grandmother.

         J.H. was the biological parent of J.W.H, born in January of 2018, and the legal parent of O.H., born in December of 2017. Her partner, B.D. was the biological parent of O.H. and the legal parent of J.W.H. The two mothers' names appear on each child's birth certificate. Subsequently their relationship ended but they continued living together and co-parenting.

         On July 21, 2018, J.W.H. was taken to the hospital and was observed to have catastrophic injuries, including an acute brain bleed, two older brain bleeds, retinal hemorrhages and several bone fractures of varying ages. He was diagnosed with "Shaken Baby Syndrome." The other child, O.H., was examined but no injuries were found. A shelter petition was filed as to both children, and the court found probable cause to shelter due to the parents' inability to provide a safe home for the children. The children were placed with their grandmother, Y.H.B., J.H.'s mother.

         Four days after placement with Y.H.B., at the very first supervised visitation, during which both mothers were with the children and present with the grandmother, J.W.H. again suffered a skull fracture and brain bleed. The children were removed from the grandmother, and DCF moved for a no contact order for both mothers and both children in October 2018. Subsequently, DCF sought an expedited termination of parental rights of J.H. and B.D. as to both children on two grounds: egregious abuse (violation of section 39.806(1)(f), Florida Statutes (2018)) and aggravated child abuse (violation of section 39.806(g), Florida Statutes (2018)). The grandmother also filed a private petition to terminate B.D.'s parental rights to the children and requested that the children be placed in either J.H.'s care or the grandmother, Y.H.B.'s, care.

         B.D. failed to appear at the advisory hearing, and the court entered a consent on her behalf to termination of her rights. The final hearing proceeded as to both DCF's petition to terminate J.H.'s rights as well as Y.H.B.'s petition.

         At the hearing, a doctor from the Child Protection Team testified as an expert, relying on the medical records of J.W.H.'s admissions to the hospital. He concluded that J.W.H.'s injuries resulted from intentional physical abuse. Scans revealed three different brain bleeds of varying ages, a partial herniation of the brain, and multiple broken bones, all of which were consistent with Shaken Baby Syndrome. They were not consistent with physical playing by or with a child. On the second hospitalization, the mothers reported that J.W.H. had fallen on a toy, but the doctor's review showed a new fracture and a brain bleed which would not have been consistent with falling. These injuries were also sustained as a result of physical abuse and were inconsistent with "falling on a toy."

         The doctor from the Child Protection Team also opined that the July injuries were severe and would have been fatal but for intervening surgery on the baby's brain. The August injuries were serious but not fatal. Nevertheless, he recommended that neither mother nor anyone else caring for the child in August have contact with the child, as ...


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