       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                            FOURTH DISTRICT

                            D.N., the mother,
                               Appellant,

                                    v.

             DEPARTMENT OF CHILDREN AND FAMILIES and
                   GUARDIAN AD LITEM PROGRAM,
                            Appellees.

                      Nos. 4D19-103 & 4D19-357

                            [ July 24, 2019 ]

   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.


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   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 shaking episode on May 13, but he
could not say with certainty whether the Mother or the Father or both had
done the previous shaking that resulted in the rib injuries.

    The pediatrician testified that A.N.’s medical records showed that the
Mother had brought A.N. to see a pediatrician about every two weeks from
the time he was born on February 7, 2018 until April 12, 2018. He noted
that the child’s primary care pediatrician had not previously observed any
symptoms of rib injuries or retinal bleeding or identified any signs of
abuse. He added that A.N. could have been shaken multiple times between
April 12, when he last saw his pediatrician, and May 13. He also conceded
that it is possible for a parent who does not inflict the injury to not know
that a child with rib fractures is injured. He noted there was no bruising
to A.N. and no findings of any rib injuries during A.N.’s regular medical
visits to his pediatrician before May 13.

   The pediatrician, however, expressed concerns for the safety and
welfare of the children in the care and custody of the parents because of
two reports of domestic violence between the parents in 2015 and 2017
and a 2009 Orange County dependency case in which D.A.N., who was six
months old at the time, had suffered skull, rib, and arm fractures. In that
case, the parents completed a court-ordered case plan and maintained
custody of D.A.N.

    D.A.N. and S.N., ages 10 and 7 respectively, testified at the termination
of parental rights hearing. They both stated that they missed their parents
and wanted to return home to live with them. The girls added that neither
had ever been physically abused by their parents and neither had observed
the parents hurting any of the other siblings. The trial court expressed
“significant concern” that the girls had been coached because their
testimony and that of their maternal grandmother were similar.

   In January 2019, the trial court entered a corrected final judgment, in
which it terminated both parents’ parental rights, based on the criteria
and allegations in the termination petition. The trial court expressed its
concern for the safety and well-being of the children in the care and

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custody of their Mother because the Mother demonstrated a “lack of
protective capacity.” In support of this finding, the trial court stated the
following:

      There is a logical reason the Father called the Mother, and not
      911, upon determining [A.N.] was unresponsive. The logical
      inference from the evidence is the Mother knew or should have
      known of the Father’s propensity toward family violence, but
      would undoubtedly continue in her loyalty toward him and
      protection of him.

                                       [. . .]

      This Court is further cognizant of the fact the Mother did not
      present the child for any medical evaluations or visits in the
      month preceding his hospitalization, nor did she present the
      child to his own grandmother for observation during that
      period of time, despite the fact that the maternal grandmother
      was seeing the siblings almost daily.

   The trial court found that termination was in the manifest best interest
of the surviving children and was the least restrictive means to protect
them.

   The Mother now appeals the termination of her rights and argues that
the Department failed to present clear and convincing evidence that she
had: (1) engaged in or failed to prevent egregious conduct, contrary to
section 39.806(1)(f), and (2) committed, aided, abetted, conspired, or
solicited the murder or manslaughter of A.N., contrary to section
39.806(1)(h). 1

   A trial court’s decision to terminate parental rights enjoys heightened
deference. N.L. v. Dep’t of Children & Family Servs., 843 So. 2d 996, 999
(Fla. 1st DCA 2003). When a trial court finds that there is clear and
convincing evidence to support the termination of parental rights, that
finding carries a presumption of correctness and will not be overturned
unless it is clearly erroneous or lacking in evidentiary support. Id. The
appellate court does not reweigh the evidence to determine if the clear and
convincing standard was met. Id. at 999–1000. Instead, the appellate
court determines “whether the record contains competent substantial

1 The Father appealed the judgment terminating his parental rights and we
affirmed the termination. See D.N. v. Dep’t of Children & Families, No. 4D19-203,
2019 WL 2225374, at *1 (Fla. 4th DCA May 23, 2019).

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evidence to meet the clear and convincing evidence standard.” Id.

   The first step in the decision to terminate parental rights requires a
court to find by clear and convincing evidence that at least one statutory
ground under section 39.806, Florida Statutes, has been established. J.G.
v. Dep’t of Children & Families, 22 So. 3d 774, 775 (Fla. 4th DCA 2009).
Next, the court must evaluate relevant factors, including those
enumerated in section 39.810, Florida Statutes, to determine whether
termination is in the manifest best interest of the child. Id. Once the court
finds termination appropriate, the court must determine whether the
Department established that termination is the least restrictive means to
protect the child from harm. Id.

                  Termination Under Section 39.806(1)(f)

    “A parent’s knowing failure to prevent egregious conduct where he
has an opportunity to prevent it is a sufficient basis to terminate parental
rights under section 39.806(1)(f).” A.H. v. Fla. Dep’t of Children & Family
Servs., 85 So. 3d 1213, 1216–17 (Fla. 1st DCA 2012). “A finding of
‘egregious’ abuse allows the court to terminate a parent’s rights without
any further proceedings, and provides for termination of a parent who does
not inflict the injuries but had the opportunity to prevent the injury and
knowingly failed to prevent egregious conduct toward the child.” K.R.L. v.
Dep’t of Children & Family Servs., 83 So. 3d 936, 938 (Fla. 3d DCA 2012)
(citing § 39.803(2), Fla. Stat. (2010)). Egregious conduct is defined as
“abuse, abandonment, neglect, or any other conduct that is deplorable,
flagrant, or outrageous by a normal standard of conduct” and “may include
an act or omission that occurred only once but was of such intensity,
magnitude, or severity as to endanger the life of the child.” § 39.806(1)(f)2.,
Fla. Stat.

    Florida courts have declined to terminate the parental rights of a parent
where the facts fail to establish that the parent was involved in the abuse
of a child or knew about the abuse but failed to prevent it. See A.H., 85
So. 3d at 1216–17 (reversing the termination of the Father’s rights where
the Department failed: (1) to present evidence the Father was suspicious
or had reason to be suspicious of the Mother before the child’s brain injury
and (2) to show that the Father knew the Mother had abused the children;
or that the Father should have known that the Mother was likely to abuse
them in the future); see also A.H. v. Dep’t of Children & Families, 77 So. 3d
232 (Fla. 3d DCA 2011) (finding the Department’s evidence insufficient to
establish that the Mother’s continued interaction with the children
threatened their life, safety, or health, and that the provision of services
could not remedy the threat where there were no allegations that the

                                      5
Mother had harmed the children or had failed to provide for their care and
where the Father was no longer a threat to the children); M.C. v. Dep’t of
Children & Families, 186 So. 3d 74 (Fla. 3d DCA 2016) (reversing
termination of Mother’s parental rights where the finding of egregious
abuse by the Mother was based on speculation; there was no direct
evidence that the Mother caused the injury to the child and she
immediately sought care for the child when the injuries appeared).

    The Third District Court of Appeal’s decision in K.R.L. v. Department of
Children & Family Services, 83 So. 3d 936 (Fla. 3d DCA 2012), is
instructive in the instant case. In K.R.L., the trial court had terminated
the Mother’s parental rights based on an alleged failure to prevent the
injuries her child suffered as a result of egregious conduct on the part of
the Father. Id. at 938-39. On appeal, the Third District reversed the
termination, finding that there was no evidence that the Mother knowingly
failed to prevent the child’s injuries and noting that the trial court’s order
reflected the trial court’s uncertainty about who perpetrated the abuse. Id.
at 939. In addition, the Third District noted that there was affirmative
record evidence that the Mother had taken the child to the doctor each
time the child had registered discomfort. Id. The Third District also
expressed its concern that the Department did not consider a plan of
reunification for the Mother after the Father had no longer been a threat.
Id.

   Here, competent substantial evidence does not support the trial court’s
finding of clear and convincing evidence that the Mother participated in
the prior incidences of abuse of A.N., knew or should have known about
them, or knowingly failed to prevent A.N.’s injuries. On the contrary, the
evidence demonstrated that the Department, the court, and the medical
professionals were uncertain of the Mother’s role in the abuse.

                  Termination Under Section 39.806(1)(h)

   “Section 39.806(1)(h) provides for termination of parental rights where
a parent has committed murder or manslaughter, aided and abetted the
murder, or conspired or solicited the murder of another child.” In re E.R.,
49 So. 3d 846, 852 (Fla. 2d DCA 2010).

   The record is utterly devoid of competent substantial evidence to
support a finding by clear and convincing evidence that the Mother
caused, conspired to cause, or solicited A.N.’s death by murder or
manslaughter. The evidence shows that the Mother was at work and not
present in the home on May 13, when A.N. suffered the fatal injuries and
that she immediately sought emergency care for the child when the Father

                                      6
called her and described the baby’s condition.

                                Conclusion

    Because we find insufficient competent substantial evidence to support
a finding that the Department proved by clear and convincing evidence
any ground for terminating the Mother’s parental rights, we need not reach
the issues of whether termination was in the manifest best interest of the
children and was the least restrictive means to protect them. Accordingly,
we reverse the termination of the Mother’s parental rights and remand for
further proceedings consistent with this opinion.

   Reversed and Remanded for further proceedings.

MAY and FORST, JJ., concur.

                           *        *        *

   Not final until disposition of timely filed motion for rehearing.




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