T.O., the Father and E.R., the Mother v. Department of Children and Families
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DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
July Term 2009
T.O., the Father and E.R., the Mother,
Appellants,
v.
DEPARTMENT OF CHILDREN AND FAMILIES,
Appellee.
Nos. 4D09-686 & 4D09-687
[November 18, 2009]
DAMOORGIAN, J.
This appeal arises from the trial court’s termination of T.O.’s (the
father) and E.R.’s (the mother) parental rights to their four children, S.O.,
R.O., E.O., and M.O. These appeals have been consolidated for purposes
of this opinion. Because there is competent, substantial evidence in the
record to support the trial court’s order, we affirm the termination as to
both parents. We write to address two of the issues raised by the
parents in their appeals.
On April 21, 2006, Department of Children and Families (DCF) filed a
petition for adjudication of dependency for the four girls and their older
brother, R.R.1 In support of the petition, DCF alleged that, on or about
March 19, 2006, the father held a rifle to the mother’s head and
threatened to “blow [her] head off.” The father also threatened to kill
R.R. When law enforcement arrived at the home, the mother stated that
she was fearful for her own and her son’s safety because the father had
been violent in the past. Soon after he was released from jail for this
incident, the father resumed living with the mother and the children.
The mother refused to obtain a restraining order against him because
she needed his financial support. The family has a history of domestic
violence, and both parents have criminal histories.
On May 4, 2006, the trial court adjudicated the children dependent
with the parents’ consent, and ordered the parents to enter into a case
plan with DCF. DCF created a case plan with concurrent goals of
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R.R., the mother’s teenage son, was not subject to the termination order.
reunification and adoption for the four girls. The plan included, among
other things, psychological evaluations, parent effectiveness training,
substance abuse evaluations, random d r u g testing, and domestic
violence counseling for the parents. It also included assessments,
therapy and counseling for the children.
During the course of the case plan, E.O. began making statements
that her father had sexually abused her and began exhibiting sexual
behavior. As a result, the trial court ordered that the parents and
children submit to psychosexual evaluations. The parents were also
required to attend psychosexual counseling and the father was ordered
to take a lie detector examination for therapeutic purposes. Through no
fault of their own, it appears that the parents never received the
psychosexual counseling. They completed the rest of the tasks in their
case plans.
On December 14, 2007, DCF filed a petition for termination of both
parents’ rights to the four girls. The petition reiterated the allegations of
domestic violence, and added allegations that the father had sexually
abused E.O. and that the mother was aware of the abuse.
Prior to the trial on the petition to terminate parental rights, DCF
moved to admit E.O.’s and S.O.’s hearsay statements pursuant to section
90.803(23), Florida Statutes (2008).2 The trial court conducted a pretrial
hearing on the motion, as required by the statute. Various witnesses
who had contact with E.O. and S.O. testified that the girls described
violence between their parents and between their father a n d R.R.
According to the girls, many of their father’s violent episodes occurred
when he was drinking alcohol. S.O. stated that her father threatened to
hit her when he was drunk, and that she was scared of him. The
witnesses also testified that E.O. made statements indicating that her
father had sexually abused her and displayed highly sexualized behavior
for her young age. S.O. denied any sexual abuse.
Two of the witnesses testified about E.O.’s reaction to seeing her
father during a scheduled visit with her mother. E.O. screamed, could
not talk, and clinched her fists. E.O. had a similar reaction when she
saw her father at another visit with her mother.
At the conclusion of the hearing, the parents’ attorneys conceded all
of the requirements for admitting S.O.’s and E.O.’s hearsay statements
except for the reliability of the statements. The trial court found the
2
DCF did not seek to admit any statements made by M.O. or R.O.
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statements to be reliable and from trustworthy sources, and ruled them
admissible.
Both parents testified at the trial. The mother testified that she made
up the story about the father holding the gun to her head because she
was angry with him for refusing to give her money. After learning the
signs of abuse in her domestic violence counseling, she did not believe
she had been abused. Although she and the father had loud arguments,
they never involved physical violence, and she was usually at fault for
starting the arguments. She did not believe that the father had sexually
abused E.O.
She testified that someone, possibly o n e of E.O.’s
counselors or case workers, was forcing E.O. to make the statements
about sexual abuse.
The father also denied threatening the mother with a gun. He
testified that E.O. and S.O. were making up the allegations of abuse. He
felt that he benefitted from the domestic violence counseling.
E.O. and S.O. were allowed to testify in camera. E.O. answered a few
questions about school, and stated that she knew the difference between
a truth and a lie, but refused to answer any questions about her parents.
S.O. stated that she felt sad and afraid while living with her parents
because “they were always hitting each other.” She described physical
violence between her parents and between her father and R.R. She
believed that E.O. was her father’s favorite child. S.O. also described
witnessing her father take out a gun and try to shoot her mother. Her
mother’s cell phone was broken because her father stomped on it, so
S.O. had to run to a neighbor’s house to call the police.
Dawn Sheehan, a psychologist, testified that she performed
psychosexual evaluations on the whole family. She concluded that the
father’s psychosexual makeup presented a number of areas of concern
because of his pervasive history of violence and aggression and criminal
history, but he was not a pedophile. He had a difficult time explaining to
Dr. Sheehan the services he had engaged in as part of his case plan. He
was not able to relate what groups he was attending and the purposes of
those groups. Dr. Sheehan concluded that the father did not have as
much investment in the services as one would hope.
Dr. Sheehan was also concerned with the mother’ s failure to be
forthcoming about the problems in her home. The mother denied any
violence in the home, and had difficulty acknowledging personal faults or
shortcomings that may have led to her children being removed.
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Finally, Dr. Sheehan testified that E.O. had been sexually exposed or
abused and that her clinical presentation appeared to be within the
spectrum of post-traumatic stress disorder.
Francis Crosby, a licensed clinical psychologist, testified that he
evaluated the father in 2006 and in December 2007. In 2006, the father
presented a moderate to significant risk for future maltreatment. In
December 2 0 0 7 , Dr. Crosby concluded that the father h a d not
progressed and that the risk for future maltreatment had not been
lowered, and might have increased. He diagnosed the father with antisocial personality disorder and found that it was highly unlikely that the
father’s risk to the children would ever decrease. Dr. Crosby also
evaluated the mother in 2006, although he did not re-evaluate her in
2007. In 2006, she presented a moderate to significant risk of future
maltreatment.
Lauren Zieman, one of the family’s case managers, testified that she
was concerned that the children’s therapy would lapse if they were
returned to their parents. She believed that there would be no harm to
the children if they were adopted, and that it was in the children’s
manifest best interest for the parents’ rights to be terminated. Although
the children seem to miss their mother, Zieman did not believe it would
be safe for them to return to their mother while she is living with their
father.
Charlotte Goode, the children’s guardian ad litem, testified that the
allegations of domestic violence and sexual abuse continued to concern
her even after the parents completed the tasks in the case plan. She did
not believe that the father had benefitted from the tasks in the case plan.
She testified that the parents continued to lack insight and concern
about what is in the best interest of the children. She recommended
termination of the parents’ rights.
Goode also testified about E.O.’s reaction to seeing her father during a
visit with her mother. E.O. stopped dead, got a vacant stare, became
rigid, and would not talk to anyone. Goode tried to talk to the mother
about ending her relationship with the father, but the mother became
belligerent and accused Goode of stalking her.
On behalf of the parents, several witnesses testified that they were not
aware of any violence in the family’s home and that the children all
appeared to be well cared-for.
The trial court granted the petition and terminated both parents’
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rights to all four girls under section 39.806(1)(c), Florida Statutes (2008).
The court found, by clear and convincing evidence, that any further
services to the parents would be futile, that there is a high likelihood of
harm by the parents if the children were returned to their care, and that
there is a high likelihood that the parents’ continuing involvement
threatens the life, safety, or well-being of the children. The court relied
heavily on Dr. Crosby’s testimony that the parents continued to pose a
substantial risk of harm to the children, and that they would not benefit
from any future services. From this testimony and the other evidence
presented in the case, the court concluded that the parents had not
complied with the more psychologically meaningful reason for the
services in their case plans, despite technical compliance with the plans.
The court also found that the parents’ testimony lacked any credibility
and was unworthy of belief.
In addition to the ground stated above, the trial court terminated the
parents’ rights to E.O. based on section 39.806(1)(f) and (g), Florida
Statutes (2008). Finally, the court found that it was in the manifest best
interest of all four children that the parents’ rights be terminated in all
respects, a n d that termination was the least restrictive means of
protecting the children from further serious harm or abuse.
The parents contest the termination of their parental rights, raising
two major arguments. First, they argue that the trial court improperly
admitted E.O.’s hearsay evidence because E.O. did not testify at trial.
We agree, but hold that the error was not fundamental because there
was sufficient corroborating evidence to support the admission of this
evidence. Second, the parents argue that DCF did not show a nexus
between the father’s sexual abuse of E.O. and any future risk of harm to
S.O., R.O., and M.O. We do not have to reach this issue because there is
competent, substantial evidence to support termination of the parents’
rights to all four children under section 39.806(1)(c). Thus, we affirm.
Admission of Child Victim Hearsay Evidence
Section 90.803(23), Florida Statutes (2008), allows for the admission
of child victim hearsay statements where the statements describe an act
of child abuse or neglect. Before these statements are admissible, the
trial court must conduct a hearing and make a preliminary
determination that they come from a trustworthy source and are reliable.
§ 90.803(23), Fla. Stat. (2008). Then, the child must either testify at trial
or be declared unavailable as a witness. Id. If the child is unavailable,
the hearsay statements are admissible only if the trial court determines
that there is other corroborating evidence of the abuse or neglect. Id.
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In this case, the trial court conducted a hearsay hearing prior to trial,
as required b y the statute, and determined that E.O.’s hearsay
statements were reliable and from trustworthy sources. The parties
expected E.O. to testify at trial to meet the second requirement of section
90.803(23). When she refused to testify about her parents, neither party
objected or asked the court to find E.O. unavailable as a witness.
The parents argue that the trial court erred b y admitting E.O.’s
hearsay statements because she did not testify to the subject-matter of
her hearsay statements at trial. This issue was not preserved for review
because neither parent objected to E.O.’s failure to testify to the subjectmatter of her hearsay statements. And, for the reasons discussed below,
we do not find any fundamental error.
The parties disagree about whether the child victim must testify to the
subject-matter of the hearsay statements to satisfy the requirement in
section 90.803(23), or whether testimony on any matter is sufficient.
The Second District dealt with this issue in L.W. v. Department of Health
& Rehabilitative Services, 681 So. 2d 1181 (Fla. 2d DCA 1996). There,
the child victim was unable to testify to any facts relevant to the alleged
sexual assault. Id. at 1182. She stated that she did not remember the
events. Id. The court held that she was unavailable as a witness
because of her lack of memory, and that her hearsay statements were
admissible only if other corroborative evidence was presented. Id. at
1183. The court referenced section 90.804(1)(c), Florida Statutes, which
states that a witness is unavailable if he “[h]as suffered a lack of memory
of the subject matter of his or her statement so as to destroy the
declarant’s effectiveness as a witness during the trial.”
Similarly in this case, E.O. was unavailable u n d e r section
90.804(1)(b), Florida Statutes, which states that a witness is unavailable
if he or she “[p]ersists in refusing to testify concerning the subject-matter
of the declarant’s statement despite an order of the court to do so.” E.O.
refused to testify about her parents, despite several attempts to elicit
such testimony in different ways, and a court order would have served no
purpose under these circumstances. See Peterson v. State, 810 So. 2d
1095, 1099 (Fla. 5th DCA 2002).
Because E.O. was unavailable to testify, her hearsay statements were
admissible only if there was sufficient corroborating evidence of the
sexual abuse. Other corroborating evidence is “‘evidence other than the
alleged child victim’s out-of-court statements which tends to confirm that
the charged offense occurred.’” Ghelichkhani v. State, 765 So. 2d 185,
190 (Fla. 4th DCA 2000). Here, there was sufficient evidence that E.O.
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displayed overly-sexualized behavior for her age and that she suffered
from post-traumatic stress disorder.
Moreover, several witnesses
testified that, upon seeing her father during scheduled visits with her
mother, E.O. displayed concerning behavior.
This combination of
evidence tends to confirm E.O.’s hearsay statements that her father
sexually abused her.
Accordingly, E.O. was unavailable as a witness a n d there was
sufficient evidence to corroborate her hearsay statements. Th e trial
court did not commit fundamental error by admitting those statements
at trial.
Termination of the Parents’ Rights
The parents further argue that the trial court erred by terminating
their parental rights to the other three children, S.O., R.O., and M.O.,
based on E.O.’s sexual abuse. They assert that DCF did not establish a
nexus between the sexual abuse inflicted on E.O. by her father and
potential abuse to the other three children.
Parents have a fundamental liberty interest in the care, custody and
companionship of their children.
Padgett v. Dep’t. of Health &
Rehabilitative Servs., 577 So. 2d 565, 570 (Fla. 1991). Thus, “before
parental rights in a child can be permanently and involuntarily severed,
the state must show by clear and convincing evidence that reunification
with the parent poses a substantial risk of significant harm to the child.”
Id. at 571; see also R.E. v. Dep’t of Children & Families, 996 So. 2d 929,
930 (Fla. 4th DCA 2008). In addition, termination must be the least
restrictive means of protecting the child, and it must be in the child’s
manifest best interest. D.B. Sr. v. Dep’t of Children & Families, 993 So.
2d 1159, 1160 (Fla. 4th DCA 2008). Where the trial court’s finding is
supported b y competent, substantial evidence o n th e record, the
appellate court must affirm. D.S. v. Dep’t of Children & Families, 842 So.
2d 1071, 1072 (Fla. 4th DCA 2003).
First, we note that the trial court’s decision to terminate both parents’
rights to E.O. is supported by competent, substantial evidence that the
father sexually abused E.O. and that the mother refused to end her
relationship with the father despite this abuse.
We conclude that it is not necessary to reach the issue raised by the
parents as to the other three children because DCF presented sufficient
evidence to terminate the parents’ rights to all four children under
section 39.806(1)(c), Florida Statutes (2008), based on the continued
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threat of domestic violence in the home. Section 39.806(1)(c) allows a
court to terminate parental rights under the following circumstances:
When the parent or parents engaged in conduct toward the
child or toward other children that demonstrates that the
continuing involvement of the parent or parents in the
parent-child relationship threatens the life, safety, wellbeing, or physical, mental, or emotional health of the child
irrespective of the provision of services. Provision of services
may b e evidenced by proof that services were provided
through a previous plan or offered as a case plan from a
child welfare agency.
There are three evidentiary requirements for terminating parental
rights under this section: (1) that the child’s life, safety, or health would
be threatened by continued interaction with the parent, regardless of the
provision of services; (2) that there is no reasonable basis to believe the
parent will improve; and (3) that termination is the least restrictive
means of protecting the child from serious harm. L.D. v. Dep’t of
Children & Family Servs., 957 So. 2d 1203, 1205 (Fla. 3d DCA 2007).
There must be a nexus between the parent’s conduct and the abuse,
neglect, or specific harm to the child. See id. (quoting D.P. v. Dep’t of
Children & Family Servs., 930 So. 2d 798, 801 (Fla. 3d DCA 2006)).
The evidence at trial showed that the parents had a long-standing
domestic violence problem that escalated to the point that the father held
a gun to the mother’s head and threatened to kill both the mother and
R.R. This violence occurred in front of S.O. While the parents denied the
violence, there was sufficient evidence from other sources that this
incident, and other instances of violence, occurred. Both S.O. and E.O.
testified to witnessing their parents engage in violence, and witnessing
their father act violently toward R.R. Although these events happened
before the children were adjudicated dependent, they are a cause for
much concern. DCF’s case plan was designed to remedy this violent
situation to make the family’s home safe for the children.
Despite technical compliance with the case plan, however, the
evidence showed that the parents did not meaningfully benefit from the
services that were provided to them. Dr. Crosby and Charlotte Goode
both recommended that the parents’ rights be terminated to protect the
children from future harm. Dr. Crosby testified that it was highly
unlikely the father’s risk to the children would decrease with any future
services. He diagnosed the father with anti-social personality disorder,
and testified that this disorder, combined with his other personality
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traits, make him a continued risk to the children. Goode also testified
that the father had not benefitted from the services provided to him, and
that both parents lacked insight and concern about the children’s best
interest, even after participating in therapy. From this evidence, the trial
court concluded that any future provision of services to the parents
would be futile and that it was in the children’s manifest best interest to
terminate their rights to all four children. We agree. Although the
parents were provided with several opportunities to truly remedy the
dangerous situation in their home, they merely went through the
motions of their case plan without making any significant effort toward
improvement.
We note that there was very little evidence presented at trial with
regard to M.O. and R.O. It is not clear whether M.O. and R.O. witnessed
the violence in the home, although S.O. indicated that all of the girls
were crying during the episode where their father threatened to kill their
mother and R.R. As a result of this lack of evidence, the case for
terminating the parents’ rights to M.O. and R.O. was primarily one of
prospective abuse. “In prospective abuse cases, the Department must
prove a nexus between the act of abuse and any prospective abuse. The
issue in these types of cases is whether future behavior, which will
adversely affect the child, can be clearly and certainly predicted. Or,
stated another way, whether it is likely to happen or expected.’” J.F. v.
Dep’t of Children & Families, 890 So. 2d 434, 440 (Fla. 4th DCA 2004)
(citations omitted). In this case, there is ample evidence that the father
will continue to be a risk to all of the children in the future, and that it is
highly unlikely that he will ever improve. See L.B. v. Dep’t of Children &
Families, 835 So. 2d 1189, 1195 (Fla. 1st DCA 2002) (A court may find
prospective abuse where “the parent is so afflicted that no reasonable
basis exists for improvement.”). The trial court properly terminated the
parents’ rights to all four children.
Finally, although the mother presented less of a direct risk to the
children than the father, the trial court properly terminated her rights
because she refused to separate herself and the children from the father.
She demonstrated that she cannot provide a safe environment for the
children, a n d that termination of her parental rights is the least
restrictive means to protecting the children from future harm.
In sum, the trial court properly terminated the parents’ rights to S.O.,
E.O., M.O., and R.O. under section 39.806(1)(c), Florida Statutes (2008).
We agree with the trial court that the parents continually put their own
relationship ahead of their children’s best interest, and that DCF did all
it could to try to rehabilitate the parents, to no avail. As such, we affirm.
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Affirmed.
GERBER and LEVINE, JJ., concur.
*
*
*
Consolidated appeals from the Circuit Court for the Fifteenth Judicial
Circuit, Palm Beach County; Moses Baker, Jr., Judge; L.T. Case No.
2006 DP 300238 JM.
Jennifer Labbe of The Labbe Law Firm, P.A., West Palm Beach, for
appellant, T.O., the father.
Philip J. Massa, Regional Counsel, J. Patrick Reynolds, Assistant
Regional Counsel, and Debbie Maken, Legal Intern, Office of Criminal
Conflict and Civil Regional Counsel, West Palm Beach, for appellant,
E.R., the mother.
Patricia M. Propheter of Children's Legal Services, West Palm Beach,
for appellee.
Not final until disposition of timely filed motion for rehearing.
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