               NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
                      MOTION AND, IF FILED, DETERMINED

                                               IN THE DISTRICT COURT OF APPEAL

                                               OF FLORIDA

                                               SECOND DISTRICT

In the Interest of B.F.(1), E.F., B.F.(2), )
and W.F., children.                        )
________________________________ )
                                           )
J.F.,                                      )
                                           )
               Appellant,                  )
                                           )
v.                                         )     Case No. 2D15-2434
                                           )
DEPARTMENT OF CHILDREN AND                 )
FAMILIES and GUARDIAN AD LITEM )
PROGRAM,                                   )
                                           )
               Appellees.                  )
________________________________ )

Opinion filed January 15, 2016.

Appeal from the Circuit Court for
Manatee County; Scott Brownell,
Judge.

Patrick R. Cunningham, Bradenton,
for Appellant.

Pamela Jo Bondi, Attorney General,
Tallahassee, and Meredith K. Hall,
Assistant Attorney General, Tampa,
for Appellee Department of Children
and Families.

David Krupski, Sanford, for Appellee
Guardian ad Litem Program.
ALTENBERND, Judge.

              J.F., the mother, appeals the order terminating her parental rights to her

four children. Because there was competent, substantial evidence supporting

termination as to each child on at least one of the grounds enumerated in section

39.806, Florida Statutes (2014), we affirm. See § 39.802(4)(a) (requiring the trial court

to find by clear and convincing evidence that at least one of the statutory grounds for

termination exists). We write to reiterate our concern that, with the elimination of the

"nexus" requirement in 39.806(1)(f), trial courts may wish to take extra care in the

application of this statute until any questions concerning its constitutionality have been

resolved. See N.W. v. Dep't of Children & Families, 40 Fla. L. Weekly D2794, D2795

nn.1-2 (Fla. 2d DCA Dec. 18, 2015).

              The evidence in this case establishes that the father committed repeated

sexual abuse on one of the three older children, who are daughters. The youngest child

is a son. The father voluntarily surrendered his rights to all four children. The children

now range in age from thirteen to sixteen.

              The Department elected not to offer the mother a case plan. It filed a

petition for expedited termination, alleging three grounds: (1) pursuant to section

39.806(1)(c), that the continuing involvement of the mother in the parent-child

relationship threatens the life, safety, well-being, or physical, mental, or emotional

health of each child; (2) pursuant to section 39.806(1)(f), that the mother engaged in

egregious conduct or had the opportunity and capability to prevent and knowingly failed

to prevent egregious conduct that threatens the life, safety, or physical, mental, or

emotional health of a child, warranting the termination of her rights to all children; and




                                             -2-
(3) pursuant to section 39.806(1)(g), that the mother subjected the victimized child to

sexual battery or abuse by the father, warranting the termination of her rights only as to

that child.

              The Department presented extensive testimony at the final hearing, which

we will not detail in this opinion. Suffice it to say, as to the child who was the victim of

the repeated sexual abuse by the father, the trial court did not err in finding that clear

and convincing evidence supported termination of parental rights under all three

grounds and that termination was in the manifest best interests of this child.

              As to the other three children, we have carefully reviewed the evidence

and conclude that it supports the termination of parental rights as to each child under

section 39.806(1)(c) because the continuing involvement of the mother in the parent-

child relationship threatens the well-being and the mental health of each child. The

evidence also established that termination is in the manifest best interest of each child.

As a result of our conclusion as to this ground, we do not need to determine whether

termination was authorized under section 39.806(1)(f).

              Unlike the circumstances in N.W., the amendment to section 39.806(1)(f),

which became effective on July 1, 2014, is applicable to this termination proceeding.

The proceeding was commenced in January 2015 due to the father's misconduct in

November 2014. The amendment to the statute adds the sentence: "Proof of a nexus

between egregious conduct to a child and the potential harm to the child's sibling is not

required." Prior to the amendment, the case law required proof of nexus, which was

often provided by expert testimony. See K.A. v. Dep't of Children & Family Servs., 880

So. 2d 705, 707 (Fla. 2d DCA 2004); Dep't of Children & Family Servs. v. K.D., 88 So.




                                             -3-
3d 977, 984-86 (Fla. 2d DCA 2012); T.L. v. Dep't of Children & Family Servs., 990 So.

2d 1267, 1272 (Fla. 2d DCA 2008) ("Before a court terminates parental rights to a child

under section 39.806(1)(f), DCF must demonstrate that there is a nexus or predictive

relationship between the past abuse of the injured child and any prospective abuse of

siblings.").

               In this case, as in N.W., there was some concern raised below as to the

authority for this amendment. Nonetheless, no one challenged its constitutionality on

the ground that it could not withstand the strict scrutiny required for statutes that impact

a fundamental right. As the supreme court explained in Florida Dep't of Children &

Families v. F.L., 880 So. 2d 602, 607 (Fla. 2004):

               When a statute impinges on a fundamental liberty interest,
               we analyze the statute's constitutionality under a strict
               scrutiny standard. Beagle v. Beagle, 678 So. 2d 1271, 1276
               (Fla. 1996). Parents have a fundamental liberty interest,
               protected by both the Florida and federal constitutions, in
               determining the care and upbringing of their children. See,
               e.g., Beagle, 678 So. 2d at 1275; Padgett v. Dep't of Health
               & Rehab. Servs., 577 So. 2d 565, 570 (Fla. 1991); see also
               Santosky v. Kramer, 455 U.S. 745, 753, 102 S. Ct. 1388, 71
               L. Ed. 2d 599 (1982) (holding that parents have a
               constitutionally protected liberty interest in the "care, custody
               and management" of their children). Because section
               39.806(1)(i) impinges on fundamental parental rights, the
               strict scrutiny standard applies. To survive a constitutional
               challenge under this test, the statute must serve a
               compelling state interest through the least intrusive means
               possible. Beagle, 678 So. 2d at 1276.

Given that the evidentiary method required to establish a nexus for each child under this

statutory ground prior to the amendment, at least from the limited discussion in case

law, seemed workable, there may be reason to be cautious about the prospective

application of this statute, especially in cases where the Department seeks termination




                                             -4-
of a parent's right to a sibling on this basis alone without proof of a nexus. See, e.g.,

A.J. v. Dep't of Children & Families, 97 So. 3d 985, 987-88 (Fla. 4th DCA 2012) (finding

that the Department failed to present sufficient evidence to terminate parents' rights as

to sons based on father's alleged sexual abuse of his two daughters). Until the

constitutionality of this amended statute is resolved by binding precedent, trial courts

might be prudent in these time-sensitive cases involving the lives of young children to

continue to allow the Department to present evidence comparable to the evidence

received prior to this amendment.

              Affirmed.



LUCAS and BADALAMENTI, JJ., Concur.




                                            -5-
