       Third District Court of Appeal
                               State of Florida

                          Opinion filed August 3, 2018.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                         Nos. 3D17-2003 & 3D17-1942
                         Lower Tribunal No. 17-15083
                              ________________


        Florida Department of Children and Families and the
           Guardian Ad Litem Program o/b/o P.R., child,
                                   Appellants,

                                        vs.

                          A.R. and R.L., parents,
                                    Appellees.


      Appeals from the Circuit Court for Miami-Dade County, Mark Blumstein,
Judge.

      Karla Perkins, and Sarah J. Rumph (Tallahassee), Department of Children
and Families; Laura J. Lee (Sanford), Guardian ad Litem Program; Robert Latham,
UM Children & Youth Law Clinic, and Robert Latham, for appellants.

      Thomas Butler, P.A., and Thomas J. Butler; Kevin Coyle Colbert; Ilene F.
Tuckfield, P.A., and Ilene F. Tuckfield, for appellees.

Before ROTHENBERG, C.J., and SALTER, and LINDSEY, JJ.

      LINDSEY, J.
      The Florida Department of Children and Family Services (“DCF”) and the

Guardian ad Litem Program (the “GAL”) appeal a final judgment dismissing the

petition for termination of parental rights of the mother, denying the petition for

termination of parental rights of the father, and adjudicating the child dependent as

to the father only. Because the trial court incorrectly applied the statutes defining

sexual abuse, we reverse the adjudication of dependency as to the father and

remand for entry of an order finding the father sexually abused the child and for

further consideration of the best interests of the child and whether termination is

the least restrictive means of protecting the child. Because there is competent

substantial evidence to support the trial court’s finding that there was no credible

testimony that the mother failed to protect the child we affirm, without further

elaboration, the dismissal as to the mother.

I.    PROCEDURAL AND FACTUAL BACKGROUND

      In 2012, A.R. (the “father”) and L.R. (the “mother”) (collectively, “the

“parents”) adopted P.R. (the “child”), whose date of birth is 03/19/2003, from

China when she was nine years old. At the time of adoption, she was in a

placement and had previously been in an orphanage.

       The triggering event for this case occurred during a regularly scheduled

therapy session between the child and her therapist. The child’s therapist had been

chosen by the parents and had been seeing the child for almost a year prior to



                                          2
address issues unrelated to this case, associated with school and peer relations.

The child, who was at that time thirteen years old, purportedly spontaneously

disclosed to her therapist that she and her father were “doing the S thing.” When

the therapist asked the child for clarification, the child allegedly spelled out the

word “s-e-x.” Upon questioning, the child purportedly explained that her father

had been touching her breasts and genital area. According to her therapist, the

child did not want for her to tell anyone because she loves her father very much,

does not want him to get into trouble and “was getting used to it.” The therapist

further reported that the child was “crying hysterically” at the time of this alleged

conversation. Based on this conversation, the therapist placed a call to the State of

Florida abuse hotline and an investigation commenced. Thereafter, the child made

similar disclosures to five other people.

    A. Proceedings Leading up to the Termination of Parental Rights Trial

      DCF filed a petition to shelter the child based on allegations of sexual abuse

by the father and failure to protect by the mother. On that same day, the trial court

held a hearing, found probable cause and entered an order sheltering the child.

Pursuant thereto, the trial court released the child to the temporary custody of the

parents’ friends (the “previous caregivers”).1 The trial court ordered therapeutic

1 Thereafter, the trial court entered an order granting DCF’s motion to modify
custody. The trial court placed the child with a different non-relative individual
(the “current caregiver”), finding that the child was not believed, nor emotionally
supported by the previous caregivers who were inappropriately interfering with the

                                            3
visitation with the mother and no contact with the father. A guardian from the

GAL was appointed to represent the child’s best interests (the “guardian”).

        DCF also filed a petition for termination of parental rights as to both parents.

DCF alleged the parents “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 the [c]hild.” §

39.806(1)(f), Fla. Stat. (2017). The parents purportedly “subjected the [c]hild to

sexual battery or sexual abuse as defined in Section 39.01, or chronic abuse.” §

39.806(1)(g), Fla. Stat. (2017).

        In addition to the allegations of egregious conduct, sexual battery or sexual

abuse, and chronic abuse by the father, DCF contended the mother failed to protect

the child after the child disclosed the abuse. DCF claimed the mother “not only

knew of the molestation, she also facilitated ongoing contact between the

perpetrator and victim [c]hild in an attempt to manipulate or pressure the [c]hild

while investigation into the allegations was pending.” In the petition, the GAL

recommended the termination of parental rights as to both parents.

   B. The Termination of Parental Rights Trial

        The termination of parental rights trial took place over eight days. A total of

eighteen witnesses testified at trial, including the father, the mother and the child.


case.

                                            4
In addition, among others, the following exhibits were admitted: (1) a transcript of

the testimony given by the mother at the father’s bond hearing; (2) a recording of

the father’s interview at the Doral Police Department held on January 11, 2017; (4)

the child’s forensic interview; (5) postings from the father’s Facebook account

depicting the child; and, (5) messages and video sent from the father to the mother

which were located on the child’s electronic devices.

   C. Proceedings Following the Termination of Parental Rights Trial

      At the conclusion of the trial, the trial court entered an unelaborated order

denying the petition for termination of parental rights as to both parents and

adjudicating the child dependent as to the father. On that same date, the trial court

entered two visitation orders. One order granted the mother unrestricted visitation

with the child and the other order granted the father supervised weekly visitation.

The trial court denied DCF’s and the GAL’s motion for stay pending review.

      DCF, later joined by the GAL, filed an emergency petition for writ of

certiorari regarding two visitation orders and an emergency motion for review of

the denied stay.    The GAL filed an amended motion for review of the two

visitation orders. This Court granted the amended motion for review and entered a

stay pending further order of this Court for all purposes, except the trial court’s

entry of findings of fact and conclusions of law relating to its summary denial of

the petition for termination of parental rights.2



                                           5
      Subsequently, the trial court entered the final judgment on appeal here. The

final judgment references only the testimony of the child, the parents, Ms. Pena,

and Dr. Klein.

      In the final judgment, the trial court made the following findings:

         a. [A]ny touching around the chest or breast area of the
            Child was incidental, resulting from horseplay, wrestling
            and/or tickling between the Child and Father.

         b. As for contact, touching or patting between Father and
            Child around the lower abdomen area of the Child, the
            Child first described it on a teddy bear named Emma,
            given to her by her Father, and then later described it on
            herself with her counsel present.

         c. The Child and the Father were always clothed. No skin
            to skin contact occurred. The Child never reported such
            contact with the Father when the Child was alone with
            the Father on a cross country road trip spanning days.

         d. Prior to Department involvement, the Mother and Father
            provided food, shelter, care, tutoring, therapy and martial
            arts training for the Child.

         e. After hearing and seeing the described contact by the
            Child on two different occasions, and considering all the

2 The emergency petition for writ of certiorari and the amended motion for review
were filed in case no.: 3D17-1942. The appeal of the final judgment was filed in
case no.: 3D17-2003. This Court consolidated the cases for all appellate purposes.
In addition, DCF filed an emergency petition for writ of certiorari and emergency
review for stay, requesting this Court to quash a portion of an omnibus order
entered by the trial court. Three days later, DCF filed a notice of voluntary
dismissal of its emergency petition because the trial court had amended and
removed the challenged portions of the omnibus order. The following day, this
Court entered an order recognizing the voluntary dismissal and dismissing the
emergency petition.

                                         6
             other evidence presented, including family photos and
             videos that a therapist concludes is evidence of grooming
             the Child by the Father for sexual purposes, which the
             Court does not deem credible, the Court cannot conclude
             by clear and convincing evidence that said contact is
             egregious, sexual battery, sexual abuse or chronic abuse.

In addition, the trial court found that: “Both parents testified that the Father and

Child regularly engage in horseplay, wrestling and tickling, which the Mother

would discourage by telling the Father and Child to ‘stop roughhousing’, or words

to that effect.” Further, the trial court found that “[t]he Mother's testimony, which

is corroborated by the Child's therapist, Ms. Pena, a licensed clinical social worker,

among others, establishes that the Mother was completely surprised by and

unaware of the allegations set forth in the Petition.” The trial court concluded:

             At most, and consistent with Dr. Klein’s testimony, a
             licensed psychologist, the evidence and testimony
             demonstrate, by the preponderance of the evidence, that
             there was uncomfortable and/or inappropriate contact,
             touching or patting between the Father and Child, but
             not in a sexual way. Moreover, no credible testimony
             was presented indicating that the Father touched the child
             in or on her vagina or under her clothes, or engaged in
             egregious conduct toward the child as defined in section
             39.806(f) and/or (g). Likewise, there was no credible
             testimony indicating that the Mother was aware of and/or
             failed to protect the Child from any conduct alleged in
             the Petition.

(Emphasis added).     In so doing, the trial court held that “[t]he grounds for

termination of parental rights set forth in the Petition have not been established by

clear and convincing evidence as to both parents” and granted the mother’s motion


                                          7
for judgment of dismissal and denied DCF and the GAL’s petition to terminate the

parental rights of the father.

      The trial court, however, further held that “[g]rounds for dependency [] have

been established by a preponderance of the evidence as to the Father only.” As

such, the trial court found that “[t]he Child is dependent within the meaning and

intent of Chapter 39, including sections 39.01(2), 39.01(15)(a), and/or

39.01(15)(f), such that the Child and Father are in need of services to address their

interactions, communications and any resulting trauma, which left untreated would

place the Child at risk of harm.”

      Lastly, the trial court determined that “[i]t is in the best interest of the Child,

and the Child’s expressed intent, to be returned to her home to reside with her

Mother upon the Court’s imposed condition that Father not reside in nor visit said

home when the Child is present until further Order of the Court.”3

II.   JURISDICTION

3 During the pendency of this appeal, this Court granted DCF’s and the GAL’s
motions to relinquish jurisdiction. Jurisdiction was relinquished to the trial court to
hold an evidentiary hearing on newly discovered evidence, to hold a hearing on the
child’s attorney’s motion to withdraw as counsel for the child, and to address the
visitation issues with the mother. This Court ordered that the stay shall remain in
effect as to contact with the father. Upon relinquishment, the successor trial court
entered an order on the hearing regarding newly discovered evidence wherein it
concluded that DCF and the GAL failed to meet their burden of establishing, by a
preponderance of the evidence, that the new evidence would likely change the
result in the event of a new trial. This Court thereafter granted the parents’ motion
to relinquish jurisdiction to the trial court for an evidentiary hearing on the child’s
placement and needs.

                                           8
       This is an appeal of a final order subject to review pursuant to Florida Rule

of Appellate Procedure 9.030(b)(1)(A).

III.   STANDARD OF REVIEW

       “Appellate review of a termination of parental rights case is ‘highly

deferential.’ That is, a ‘finding that evidence is clear and convincing enjoys a

presumption of correctness and will not be overturned on appeal unless clearly

erroneous or lacking in evidentiary support.’” C.G. v. Dep’t of Children &

Families, 67 So. 3d 1141, 1143 (Fla. 3d DCA 2011) (internal citations omitted)

(quoting D.P. v. Dep’t of Children & Family Servs., 930 So. 2d 798, 801 (Fla. 3d

DCA 2006)). “With this in mind, the standard of review is whether the trial court's

judgment is supported by substantial and competent evidence.”          Id. (citation

omitted).

       We recognize it is not the role of an appellate court to substitute its

judgment for that of a trial court. G.C. v. Dep't of Children & Families, 791 So. 2d

17, 21 (Fla. 5th DCA 2001). “Rather, it is [the appellate court's] responsibility to

search the record for ‘competent, substantial evidence’ which supports the trial

court's findings and conclusions. Nowhere is this responsibility greater than in a

dependency case, where the testimony is so often confusing and conflicting.” Id.

(quotation marks in original).       However, we review issues involving the

interpretation of statutes de novo. See B.Y. v. Dep't of Children & Families, 887



                                         9
So. 2d 1253, 1255 (Fla. 2004); Dep't of Children & Family Servs. v. P.S., 932 So.

2d 1195, 1198 (Fla. 1st DCA 2006) (“We have de novo review of issues involving

the interpretation of statutes.”).

IV.    ANALYSIS

       In order to terminate parental rights, the Department must prove: (1) at least

one of the statutory grounds for termination; (2) termination is in the child’s

manifest best interest; and (3) termination is the least restrictive means of

protecting the child from harm. See C.T. v. Dep’t of Children & Families, 22 So.

3d 852, 854 (Fla. 3d DCA 2009) (citations omitted). “To justify termination of

parental rights, [DCF] bears the burden of proof to present clear and convincing

evidence that a parent has abused, neglected or abandoned a child, or that the child

is at substantial risk of future abuse, neglect, or abandonment.” T.V. v. Dep't of

Children & Family Servs., 905 So. 2d 945, 946 (Fla. 3d DCA 2005). Here, the

only statutory ground DCF plead in its petition for termination of parental rights

was sexual abuse. Thus, we limit our review solely to whether the trial court’s

findings are supported by competent substantial evidence and whether the trial

court correctly applied the law to those findings.

   A. Sexual Abuse under Chapter 39 of the Florida Statutes

       Chapter 39 of the Florida Statutes entitled, “Proceedings Relating to

Children,” provides the statutory framework for our review. Under Chapter 39,



                                         10
DCF establishes a basis for the termination of parental rights when it proves that:

             (f) The parent or parents 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 the child or the child's sibling. . . .

             ....

                    2. As used in this subsection, the term “egregious
                    conduct” means abuse, abandonment, neglect, or
                    any conduct that is deplorable, flagrant, or
                    outrageous by a normal standard of conduct.
                    Egregious conduct 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.

             (g) The parent or parents have subjected the child or
             another child to aggravated child abuse as defined in s.
             827.03, sexual battery or sexual abuse as defined in s.
             39.01, or chronic abuse.

§ 39.806(1)(f)-(g), Fla. Stat. (2017). In Florida, the definition of “sexual abuse”

for purposes of establishing a basis for termination of parental rights is drawn from

the definitions found in section 39.01. More specifically, the definition of “abuse”

found therein encompasses “sexual abuse.” § 39.01(2), Fla. Stat. (2017) (“‘Abuse’

means any willful act or threatened act that results in any physical, mental, or

sexual abuse, injury, or harm that causes or it is likely to cause the child’s physical,

mental, or emotional health to be significantly impaired.”).

      Similarly, under section 39.01(71), “‘[s]exual abuse of a child’ for purposes



                                          11
of finding a child to be dependent” includes “[t]he intentional touching of the

genitals or intimate parts, including the breasts, genital area, groin, inner thighs,

and buttocks, or the clothing covering them, of either the child or the perpetrator . .

. .” § 39.01(71)(d), Fla. Stat. (2017). Further, this Court, and others, have held

that “[a] parent’s sexual abuse of a child is ‘egregious conduct.’” I.D. v. Dep’t of

Children & Families., 13 So. 3d 1117, 1120 (Fla. 3d DCA 2009) (first citing

N.R.R. v. Dep't of Children & Families, 959 So. 2d 359, 359-60 (Fla. 3d DCA

2007) (finding there was substantial competent evidence supporting termination of

parental rights based on the parent’s “egregious abuse” – specifically, sexual

abuse of the child’s half-sibling – and incarceration for a substantial portion of the

child’s majority); and then citing Dep't of Children & Families. v. B.B., 824 So. 2d

1000, 1007 (Fla. 5th DCA 2002) (finding sexual abuse of siblings sufficient to

terminate father's parental rights to other children for "egregious conduct")).

      Finally, “sexual abuse does not require penetration and can occur without

any physical manifestations.” Id.; see also G.C., 791 So. 2d at 19-20 (holding that

there was competent, substantial evidence supporting the trial court’s finding that

the father sexually abused the child by touching her over her clothing in her vagina

area, notwithstanding that there was no physical evidence of sexual abuse); A.B. v.

Fla. Dep’t of Children & Family Servs., 901 So. 324, 325-26 (Fla. 3d DCA 2005)

(affirming the trial court’s adjudication of dependency as to the mother for failing



                                          12
to protect the child from her stepfather’s physical and sexual abuse although there

was no penetration alleged).

   B. Application of the Statutory Definition of Sexual Abuse to the Facts

      While great deference is given to a trial court’s findings in a termination of

parental rights case, no deference is owed if the findings were induced by an

erroneous view of the law. See, e.g. Holland v. Gross, 89 So. 2d 255, 258 (Fla.

1956) (holding that decision is clearly erroneous where a trial court has misapplied

the law to the established facts); In re Estate of Donner, 364 So. 2d 742, 748 (Fla.

3d DCA 1978) (“We are not however bound by the trial court's legal conclusions

where those conclusions conflict with established law.” (citing Holland, 89 So. 2d

255)); Fito v. Attorneys' Title Ins. Fund, Inc., 83 So. 3d 755, 757-58 (Fla. 3d DCA

2011) (citation omitted) (applying a de novo standard to the trial court's

conclusions of law and application of law to the facts); Oceanic Int'l Corp. v.

Lantana Boatyard, 402 So. 2d 507, 511 (Fla. 4th DCA 1981) (An appellate court is

not “bound by the trial court's legal conclusions where those conclusions conflict

with established law.” (citing Holland, 89 So. 2d 255)).

      Here, the trial court found that any touching around the child’s breast area

was incidental, resulting from horseplay, wrestling or tickling between the child

and the father. Further, as for the contact, touching or patting between the father

and the child around the child’s lower abdomen area, the trial court found that they



                                        13
“were always clothed” and “[n]o skin to skin contact occurred.” Moreover, the

trial court found “no credible testimony was presented indicating that the [f]ather

touched the child in or on her vagina or under her clothes, or engaged in egregious

conduct.” These findings demonstrate the trial court’s misapplication of the law.

The definition of sexual abuse expressly includes the touching of clothing covering

the child’s genitals, genital area, or groin. See § 39.01(71)(d). Testimony about

whether the touching was over or under the child’s clothing was therefore

irrelevant.

      The trial court’s misapplication of the law is further demonstrated by its

finding that “[a]t most . . . there was uncomfortable and/or inappropriate contact,

touching or patting between the Father and Child, but not in a sexual way.”

Whether the touching was done “in a sexual way” was, likewise, irrelevant, as

neither section 39.806(1)(g) nor section 39.01(71) require such proof. Rather, the

intentional touching of a child’s genitals, genital area, or groin constitutes sexual

abuse. Whether the person doing the touching intended the touching to be sexual,

playful, mean-spirited, or otherwise, is not contemplated by the statute.

      The trial court’s questions to the child about whether she meant there was

touching of her “butt” when she said “vagina” were similarly irrelevant and, again,

demonstrate the trial court’s misapplication of the law, as the definition of sexual

abuse includes touching of the buttocks. See § 39.01(71)(d). Further, the trial



                                         14
court’s questions posed to the child about where exactly on the vagina the touching

occurred, including whether it was at the opening of the vagina and where her

pubic hair was, were irrelevant given the statutory definition of sexual abuse. The

touching of the child’s pubic hair, above the actual opening of the vagina, falls

within the definition of sexual abuse that includes touching the genitals, genital

area, or groin. See § 39.01(71)(d). The trial court’s additional questioning of the

child to ascertain where her pubic hair started and whether her underwear extended

past her belly button was similarly irrelevant.

      The child consistently testified that the father touched her vagina above the

pubic hair and over her underwear. However, the trial court failed to recognize

that pubic hair is undoubtedly located in the genital area and the touching of pubic

hair necessarily constitutes touching the genital area.       Instead, the trial court

appears to have construed the child’s pubic hair on top of her vagina not to be part

of her vagina, based on its repeated questioning of the child as to whether her

pubic hair was by her vaginal opening.

      “Neither physical evidence nor expert testimony is required to establish

sexual abuse or egregious conduct by clear and convincing evidence.”          I.D., 13

So. 3d at 1120 (affirming the trial court's termination of parental rights on the basis

of egregious conduct under subsection (1)(f), and sexual abuse under subsection

(1)(g) based primarily on evidence introduced through the child, who understood



                                          15
the difference between the truth and a lie and whose credible testimony was

unrebutted and consistent). Moreover, as previously stated above, “sexual abuse

does not require penetration and can occur without any physical manifestations.”

Id.

      Further, despite the testimony of six witnesses that the child reported that the

father had been touching her breasts and genital area, the trial court relied only on

the testimony of Dr. Sandra Klein in finding that “[a]t most . . . the evidence and

testimony demonstrate, by the preponderance of the evidence, that there was

uncomfortable and/or inappropriate contact, touching or patting between the Father

and Child, but not in a sexual way.” However, even Dr. Klein’s testimony does

not support this finding. Rather, Dr. Klein testified that her role was to assess only

the child’s ability to testify and any potential resulting harm. Dr. Klein testified

that she did not discuss the specifics of the allegations with the child and did not

pay attention to whether the allegations were true or verified. And, in that regard,

Dr. Klein evaluated the child for only one hour on only one occasion.

      Thus, the trial court erred in finding that it “cannot conclude by clear and

convincing evidence that said contact is egregious, sexual battery, sexual abuse or

chronic abuse” because the testimony of the witness on which the trial court relied

does not support this finding. See Dep’t of Children & Families v. C.F., 788 So.

2d 988, 988 (Fla. 3d DCA 1998) (reversing the denial of a termination petition



                                         16
where “the evidence was overwhelmingly in favor of termination[] and the trial

court's contrary decision was an abuse of discretion.”).

   C. The Trial Court’s Findings are Irreconcilable

       Finally, the trial court’s finding that DCF failed to prove sexual abuse under

sections 39.806(1)(f)-(g) is irreconcilable with its finding of dependency under

Chapter 39, including sections 39.01(2), 39.01(15)(a), and 39.01(15)(f).         The

definition of “‘[s]exual abuse of a child’ for purposes of finding a child to be

dependent” includes:

              (d) The intentional touching of the genitals or intimate
              parts, including the breasts, genital area, groin, inner
              thighs, and buttocks, or the clothing covering them, of
              either the child or the perpetrator, except that this does
              not include:

                     1. Any act which may reasonably be construed to
                     be a normal caregiver responsibility, any
                     interaction with, or affection for a child; or

                     2. Any act intended for a valid medical purpose.

§ 39.01(71)(d). Further, section 39.01(15) states that a “‘[c]hild who is found to be

dependent’ means a child who, pursuant to this chapter, is found by the court: (a)

[t]o have been abandoned, abused, or neglected by the child’s parent or parents or

legal custodians; . . . [or] (f) [t]o be a substantial risk of imminent abuse,

abandonment, or neglect by the parent or legal custodians; . . . .” § 39.01(15)(a),

(f), Fla. Stat. (2017).



                                          17
      Here, the trial court found the child was dependent as to the father under

section 39.01 “such that the [c]hild and [the] [f]ather are in need of services to

address their interactions, communications and any resulting trauma, which left

untreated would place the [c]hild at risk of harm.” As such, the trial court ordered

the child be returned to the mother on the condition that the father not reside in or

visit the home when the child is present. Yet, as to the termination of parental

rights, the trial court found that any touching by the father around the child’s breast

area was incidental and that no credible testimony indicated that the father touched

the child on her vagina or engaged in egregious conduct. Rather, the trial court

determined that at most, there was uncomfortable or inappropriate contact,

touching or patting between the father and child, but not in a sexual way.

However, for any contact, touching, or patting to have been uncomfortable or

inappropriate under these circumstances, such contact, touching or patting

necessarily had to have been because of its sexual nature. Touching, patting or

coming into contact with a child’s genital area in a way that is undisputedly

uncomfortable and/or inappropriate is sexual abuse irrespective of whether the

person doing the touching intended it to be in a sexual way.

      Accordingly, the trial court’s finding that there was no egregious conduct

under section 39.806(1)(f) or sexual abuse under section 39.806(1)(g), but that

there was abuse under section 39.01, is irreconcilable. See J.S. v. Florida Dep’t of



                                          18
Children & Families, 18 So. 3d 1170, 1177 (Fla. 1st DCA 2009) (reversing the

trial court’s denial of a petition for termination of parental rights where the court’s

findings that the father was in substantial compliance with the case plan, but the

mother was not, based on the hazardous conditions of the home they lived in

together, were irreconcilable).

   D. The Manifest Best Interests of the Child

      Reversal of the denial of a termination petition is warranted when the denial

is not in the child’s best interest. See C.F., 788 So. 2d at 988; Fla. Dep’t of

Children & Family Servs. v. A.Q., 937 So. 2d 1156, 1158 (Fla. 3d DCA 2006).

Section 39.810, Florida Statutes (2017), sets out eleven factors for the trial court to

consider in determining whether termination of parental rights is in the manifest

best interest of the child. Specifically,

             [f]or the purpose of determining the manifest best
             interests of the child, the court shall consider and
             evaluate all relevant factors, including, but not limited
             to:

             (1) Any suitable permanent custody arrangement with a
             relative of the child. However, the availability of a
             nonadoptive placement with a relative may not receive
             greater consideration than any other factor weighing on
             the manifest best interest of the child and may not be
             considered as a factor weighing against termination of
             parental rights. If a child has been in a stable or
             preadoptive placement for not less than 6 months, the
             availability of a different placement, including a
             placement with a relative, may not be considered as a
             ground to deny the termination of parental rights.


                                            19
(2) The ability and disposition of the parent or parents to
provide the child with food, clothing, medical care or
other remedial care recognized and permitted under state
law instead of medical care, and other material needs of
the child.

(3) The capacity of the parent or parents to care for the
child to the extent that the child’s safety, well-being, and
physical, mental, and emotional health will not be
endangered upon the child’s return home.

(4) The present mental and physical health needs of the
child and such future needs of the child to the extent that
such future needs can be ascertained based on the present
condition of the child.

(5) The love, affection, and other emotional ties existing
between the child and the child’s parent or parents,
siblings, and other relatives, and the degree of harm to
the child that would arise from the termination of
parental rights and duties.

(6) The likelihood of an older child remaining in long-
term foster care upon termination of parental rights, due
to emotional or behavioral problems or any special needs
of the child.

(7) The child’s ability to form a significant relationship
with a parental substitute and the likelihood that the child
will enter into a more stable and permanent family
relationship as a result of permanent termination of
parental rights and duties.

(8) The length of time that the child has lived in a stable,
satisfactory environment and the desirability of
maintaining continuity.

(9) The depth of the relationship existing between the
child and the present custodian.


                            20
             (10) The reasonable preferences and wishes of the child,
             if the court deems the child to be of sufficient
             intelligence, understanding, and experience to express a
             preference.

             (11) The recommendations for the child provided by the
             child’s guardian ad litem or legal representative.

§ 39.810(1)-(11) (emphasis added). In finding that it is in the best interest of the

child and that the child’s expressed intent was to be returned to her home to reside

with the mother, the trial court overlooked that the child wished to live with the

mother “later.” This was, according to the child’s testimony, because the parents

were living together and the child conditioned her desire to return home upon the

father being honest about the touching and receiving therapy to control himself and

stop touching her. See § 39.810(10). However, “the reasonable preferences and

wishes of the child” are not dispositive. See Dep't of Children & Family Servs. v.

M.J., 889 So. 2d 986, 988 (Fla. 4th DCA 2004) (reversing the denial of termination

despite the children’s testimony that they loved the parents and were against

termination, where the trial court found that the father's sexual deviancy placed

them at extreme risk and the mother refused to protect them from him).

      While the record clearly supports the trial court’s finding that the parents

can provide for the child’s material needs, including food, shelter, tutoring, therapy

and martial arts training, the language of the statute is mandatory. Section 39.810

states that “the court shall consider and evaluate all relevant factors, including, but


                                          21
not limited to” the enumerated eleven factors. § 39.810 (emphasis added). Yet,

the trial court did not. As this Court explained in K.R.L. v. Dep't of Children &

Family Services:

             Full and accurate fact finding is essential not only on the
             question whether DCF has authority to terminate parental
             rights but also on the question whether it is in the child's
             best interests to do so. See § 39.809(5), Fla. Stat. (2009);
             In re L.H., 647 So. 2d 311, 311-12 (Fla. 5th DCA 1994);
             see also In re K.M., 788 So. 2d 306, 306 (Fla. 2d DCA
             2001) (noting that when at least one of the grounds for
             termination of parental rights has been established, the
             "issue then is whether the DCF proved by clear and
             convincing evidence the additional requirement that
             termination is in the manifest best interests of the
             children"); L.J.R. v. T.T., 739 So. 2d 1283, 1287 (Fla. 1st
             DCA 1999) (stating that in termination of parental rights
             proceedings, even when statutory requirements are
             proven, a trial court still must determine whether
             termination of parental rights is in the child's manifest
             best interests).

83 So. 3d 936, 939 (Fla. 3d DCA 2012). Here, the trial court neither considered all

of the eleven statutory factors required for a determination of the manifest best

interests of the child nor made factual findings with respect thereto.

   E. The Least Restrictive Means Test

      Although parental rights are fundamental, they are not absolute, as they are

subject to the overriding principle that the best interests of the children must

prevail. See Padgett v. Dep’t of Health & Rehab. Servs., 577 So. 2d 565, 570-71

(Fla. 1991). As stated by the Florida Supreme Court:



                                          22
            While the parent's interest in maintaining parental ties is
            essential, the child's entitlement to an environment free
            of physical and emotional violence at the hands of his or
            her most trusted caretaker is more so. The state has a
            compelling interest in protecting all its citizens –
            especially its youth – against the clear threat of abuse,
            neglect and death.

Id. at 570. Furthermore,

            to protect the rights of the parents and children, the state
            bears the burden of showing “by clear and convincing
            evidence that reunification with the parent poses a
            substantial risk of significant harm to the child.” The
            state must also establish that the termination of parental
            rights “is the least restrictive means of protecting the
            child from serious harm.”

T.P. v. Dep't of Children & Family Servs., 935 So. 2d 621, 624 (Fla. 3d DCA

2006) (quoting Padgett, 577 So. 2d at 571). Thus, the "least restrictive means" test

“requires that measures short of termination should be utilized if such measures

can permit the safe re-establishment of the parent-child bond.” Dep't of Children

& Families v. B.B., 824 So. 2d 1000, 1009 (Fla. 5th DCA 2002); see also D.M. v.

Dep't of Children & Families, 79 So. 3d 136, 139-40 (Fla. 3d DCA 2012) ("DCF

must proceed in a narrowly tailored manner and must prove that, in addition to the

statutory requirements for termination of parental rights, termination is the least

restrictive means of protecting the child from serious harm.") (quoting N.S & D.R.

v. Dep't of Children & Families, 36 So. 3d 776, 778 (Fla. 3d DCA 2010)).

      However, termination of parental rights without a case plan with a goal of



                                        23
reunification is permitted when based on sections 39.806(1)(f)-(g).              See §

39.802(5), Fla. Stat. (2017) (“When a petition for termination of parental rights is

filed under s. 39.806(1), . . . the department need not offer the parents a case plan

with a goal of reunification, but may instead file with the court a case plan with a

goal of termination of parental rights . . . .”); § 39.806(2), Fla. Stat. (2017)

(“Reasonable efforts to preserve and reunify families are not required if a court of

competent jurisdiction has determined that any of the events described in . . .

paragraphs (1)(f)-(m) have occurred.”); § 39.806(3), Fla. Stat. (2017) (“If a petition

for termination of parental rights is filed under subsection (1), . . . . the department

need not offer the parents a case plan having a goal of reunification, but may

instead file with the court a case plan having a goal of termination of parental

rights . . . .”).

        Here, because the trial court found that there was no egregious conduct

under section 39.806(1)(f) or sexual abuse under section 39.806(1)(g), it

necessarily made no factual findings as to whether termination of parental rights is

the least restrictive means of protecting the child from serious harm.

V.      CONCLUSION

        Because the trial court incorrectly applied the statutes defining sexual abuse

and because the trial court’s finding that DCF failed to prove sexual abuse under

sections 39.806(1)(f)-(g) is irreconcilable with its finding of dependency within the



                                          24
meaning of Chapter 39, including sections 39.01(2), 39.01(15)(a) and 39.01(15)(f),

we reverse the adjudication of dependency as to the father and remand for entry of

an order finding that the father sexually abused the child. Further, we remand for

an evidentiary hearing and for entry of an order, within thirty days, addressing the

manifest best interests of the child and including factual findings in accordance

with the eleven factors set forth section 39.810 as well as whether the termination

of parental rights as to the father is the least restrictive means of protecting the

child from serious harm.

      Because there is competent substantial evidence to support the trial court’s

finding that there was no credible testimony that the mother failed to protect the

child we affirm, without further elaboration, the dismissal as to the mother.

      Affirmed in part; reversed in part; and remanded.

      This decision shall take effect immediately, notwithstanding the filing of any

post-opinion motions.




                                         25
