       Third District Court of Appeal
                               State of Florida

                         Opinion filed January 4, 2017.

                              ________________

                        Nos. 3D16-1306 & 3D16-1304
                   Lower Tribunal Nos. 15-15570 & 14-16099
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                              S.D., the Father,
                                   Appellant,

                                       vs.

              Department of Children and Families, et al.,
                                   Appellees.


     Appeals from the Circuit Court for Miami-Dade County, Maria I.
Sampedro-Iglesia, Judge.

      Herscher & Herscher, P.A. and Ilene Herscher, for appellant.

      Karla Perkins, for the Department of Children and Families; Laura J. Lee
(Sanford), for the Guardian ad Litem Program, for appellees.


Before SUAREZ, C.J., and LAGOA, J., and SHEPHERD, Senior Judge.

      SUAREZ, C.J.

                    ON MOTION FOR CLARIFICATION

      This cause is before us on Appellees’ Motion for Clarification. We grant the

Department of Children and Families and the Guardian ad Litem Program’s
motions for clarification, withdraw our previous opinion filed November 30, 2016,

and replace it with the following clarifying opinion.

      The Father, S.D., appeals from the termination of his parental rights as to

Jo.D., J.D. and S.D. We find no merit in any of the points of error raised on

appeal, and affirm.

      Prior to the trial, both parties sought the testimony of S.D.’s adult daughter,

who lives in Connecticut.1 S.D. initially agreed to the adult daughter testifying at

the trial telephonically or via Skype but revoked his consent three days prior to the

trial. At a February 2016 pretrial hearing on the matter, the court heard argument

from the parties and concluded that S.D. had not shown good cause to revoke his

consent so close to trial, that he had waived his right to object to the witness

testifying by Skype. The trial court ruled the testimony had to occur via

Skype to protect any confrontation right enjoyed by the father. The adult

daughter testified via Skype to S.D.’s sexual abuse of her when she was a child.

The trial court found the adult daughter’s testimony to be credible and substantial,

and concluded DCF proved by competent substantial evidence that S.D. sexually

abused the adult daughter when she was a minor. The court found the adult

daughter’s abuse was evidence the three minor children at issue here would be at

substantial risk of significant harm. The court also found S.D.’s failure to remedy


1 It appears from the record that the subpoena requiring the adult daughter to
appear telephonically was originally sent by S.D.’s counsel, to which appearance
all parties agreed.
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the situation by his failure to complete sex offender treatment meant the children

could not be safely reunified with him. Further, although the trial court found the

minor child D.D.’s testimony to be troubling,2 the trial court ultimately found that

clear and convincing evidence supported terminating S.D.’s parental rights as to

Jo.D., J.D., and D.D.3

      The Father asserts three bases for error: his alleged lack of consent to the

adult daughter testifying via electronic means;       the lack of a notary to

administer the oath to the adult daughter prior to her electronic testimony as

required by Florida Rule of Judicial Administration 2.530(d) and Florida Rule of

Civil Procedure 1.451; and alleged violation of his confrontation right.

      We agree with the trial court that S.D. waived his right to object to the adult

daughter’s Skype testimony prior to trial. Further, we agree with the Appellees

that dependency proceedings are civil in nature, not criminal, and the constitutional

right to confront witnesses is not implicated in a civil dependency proceeding. See

S.B. v. Dept. of Children & Families, 851 So. 2d 689 (Fla. 2003); A.B. v. Dept. of

2 When asked if the father ever did anything inappropriate, D.D. replied, “When
my eyes open, I never seen him do anything to me.” D.D. denied the father ever
touched her in a bad way. However, when asked if the father ever touched her in a
sexual way, she responded, “No. Not with my eyes open for me to see.” When
asked to clarify, D.D. stated, “Like with me, and like with my eyes open, like when
I’m awake, and I’ve never seen anything. Him putting his hands on me. I can’t
say no, I can’t say yes.” The court found there was no reason for D.D. to use those
words unless they implied she could not be certain about what the father had done
when her eyes were closed.
3 D.D. is in a group home and wishes to be reunited with her mother. DCF’s plan
is to reunite all three children with their mother.
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Children & Family Servs., 901 So. 2d 324 (Fla. 3d DCA 2005). The adult

daughter’s testimony via Skype afforded the Father ample opportunity to cross-

examine the witness.

       S.D. finally claims fundamental error occurred because there was no notary

present in Connecticut to swear in the adult daughter prior to her Skype testimony,

and where S.D. did not contemporaneously object to the lack of a notary at the

time of the witness’s testimony.4 Any error was cured, however, when the court

granted DCF’s motion to reopen the case and subsequently had a notary swear in

the adult daughter by telephone from Connecticut.

      “In a hearing on a petition for termination of parental rights, the court shall

consider the elements required for termination. Each of these elements must be

established by clear and convincing evidence before the petition is granted.” See §

39.809(1), Fla. Stat. (2016). See also In re Adoption of Baby E.A.W., 658 So. 2d

961, 967 (Fla. 1995) (“To terminate a parent's right in a natural child, the evidence

must be clear and convincing.”); Kingsley v. Kingsley, 623 So. 2d 780, 787 (Fla.

5th DCA 1993), review denied, 634 So. 2d 625 (Fla. 1994) (“[W]e will uphold the

trial court's finding if, upon the pleadings and evidence before the trial court, there

is any theory or principle of law which would support the trial court's judgment in

favor of terminating ... parental rights.”). Based on the record and the trial court’s



4The clerk of the trial court administered the oath to the adult daughter prior to her
Skype testimony.
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findings by clear and convincing evidence, we affirm the orders terminating S.D.’s

parental rights as to Jo.D., J.D. (3D16-1304) and D.D. (3D16-1306).

      Affirmed.




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