                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 I.N., a child.  )
___________________________________)
                                   )
E.N.,                              )
                                   )
               Petitioner,         )
                                   )
                                   )
v.                                 )                    Case No. 2D17-1066
                                   )
DEPARTMENT OF CHILDREN AND         )
FAMILIES, GUARDIAN AD LITEM        )
PROGRAM, and K.O.,                 )
                                   )
               Respondents.        )
___________________________________)

Opinion filed August 23, 2017.

Petition for Writ of Certiorari to the Circuit
Court for Collier County; Mary C. Evans,
Judge.

Susan M. Bodden and Alexander Peterson
(withdrew after briefing) of Family First
Legal Group, Naples; Susan M. Bodden of
Bodden Law Firm, Mediation & Arbitration,
Naples (substituted as counsel of record)
(withdrew after briefing), for Petitioner.

E.N., pro se.

Meredith K. Hall, Bradenton, for
Respondent Department of Children and
Families.

Sara E. Goldfarb, Sanford, for Respondent
Guardian ad Litem Program.
Beverly L. Brennan, Naples, for
Respondent K.O.

BLACK, Judge.

              E.N., the Mother of the minor child, I.N., petitions for certiorari review of

the Order on Mother's Motion for Evidentiary Hearing Prior to Reunification, which

appointed a reunification therapist and directed the parties to follow the therapist's

directives about how reunification between I.N. and K.O., the Father, should be initiated

and implemented. Because the order departs from the essential requirements of the

law and causes irreparable harm, we grant the petition and quash the order on review.

I. Background

              After I.N.'s birth in 2011, the Mother and the Father, who were never

married, ended their relationship. The Mother and the Father shared custody of I.N.

equally until I.N. was sheltered from the Father in January 2015. About a month later,

the Department of Children and Families filed a petition for the dependency of I.N.

solely as to the Father. The petition alleged that I.N. had been sheltered due to the

Father's alleged sexual abuse of I.N.'s "half siblings." The "half siblings" were the

Father's girlfriend's two children, who had been living with the Father, the girlfriend, and

I.N. when I.N. was in the Father's custody.1

              The Father denied the allegations in the petition but consented to I.N.'s

dependency. I.N. remained in the Mother's care, and the Father initially had supervised




              1
              Unrefuted testimony at the evidentiary hearing concerning reunification
established that I.N. lived with these children and referred to them as her siblings. See
§ 39.01(73), Fla. Stat. (2016). We will refer to them throughout this opinion as I.N.'s
siblings.


                                            -2-
visits with I.N. twice a week. But the visits were halted when I.N.'s treating psychologist,

Dr. Mary Ellen Frazier, wrote a letter indicating that I.N. demonstrated anxiety and

engaged in hypervigilant and aggressive behavior after visiting the Father. I.N. had

indicated in therapy sessions that she did not want to visit the Father and consistently

avoided the topic of the Father. In Dr. Frazier's opinion, supervised visitation between

the Father and I.N. was not in I.N.'s best interest at that time. The dependency court

entered a no contact order, and prior to the entry of the order on review, the Father had

not seen I.N. since March 2015.

              The Father was given a case plan with a goal of reunification. The case

plan required that the Father complete a comprehensive behavioral health assessment

and follow all recommendations; complete a forensic psychological assessment and

follow all recommendations; complete a mental health assessment and follow all

recommendations; participate in random drug screens twice a month and be clean of

any substances; complete a substance abuse evaluation and follow all

recommendations; and complete parenting education classes. Although the case plan

originally included a psychosexual evaluation, this task was changed to a forensic

psychological assessment at the Father's request due to pending criminal charges

against the Father based on the alleged sexual abuse of I.N.'s siblings.2



              2
              On March 2, 2015, the State brought criminal charges against the Father.
The State charged the Father with three counts of capital sexual battery of a child less
than twelve, one count of lewd or lascivious conduct, and two counts of lewd or
lascivious molestation with respect to one of I.N.'s siblings. About a year later, the
Father pleaded no contest to two counts of child neglect. See § 827.03(2)(d), Fla. Stat.
(2014). The other charges were nolle prossed. In accordance with his plea agreement,
adjudication was withheld and the Father was sentenced to six months' county jail
followed by four years' probation on one count and to a consecutive two years'
probation on the second count.


                                            -3-
              Following resolution of the criminal proceedings and after the Father was

released from jail, he sought reunification. The Mother filed a motion for evidentiary

hearing prior to reunification to determine if reunification was in I.N.'s best interest. A

hearing was held over three days in November 2016 and January 2017.

              At the hearing, Dr. Frazier testified that she provided therapy to I.N.

between January 2015 and April 2016. Due to I.N.'s age, Dr. Frazier primarily engaged

in play therapy with I.N., but she had conversations with I.N. to the extent tolerated by

I.N.

              Dr. Frazier testified that I.N. had been experiencing behavioral problems,

including aggressiveness with peers, sleep disturbances, discomfort with herself,

intense avoidance of the topics of the shower—where the alleged sexual abuse

occurred—and of the Father, hypervigilant behavior, and behavior that Dr. Frazier

described as being frequently employed by children for relief of anxiety caused by

exposure to sexual activity beyond their developmental stage. Dr. Frazier diagnosed

I.N. with posttraumatic stress disorder (PTSD), with the Father being the trigger for her

symptoms.

              Dr. Frazier explained that as I.N. became more comfortable in therapy,

she began to talk about some of her experiences in the Father's home. She reported

that the Father washed her and her siblings "inside out" and that they all took turns

washing the Father "as far up as they could reach." It was apparent that I.N. was

uncomfortable talking about these incidents. I.N. also reported that the Father would

cuddle with her while naked and that he was frequently naked. Although I.N. was too




                                             -4-
young to discuss the difference between the truth and a lie, Dr. Frazier found her to be

"believable and credible."

              As a result of the information that came out during therapy, Dr. Frazier

wrote a letter to the court, which was introduced into evidence at the hearing. In the

letter, Dr. Frazier advised the court that new information had come to light that showed

that I.N. had not merely tangentially experienced these incidents but that she had

individually experienced them. Dr. Frazier explained that I.N.'s status changed "from

just having observed perhaps something happening to other children to actually

experiencing what happens not only to the other children, but to herself and the

absorption of that stress and trauma of the experience."

              Dr. Frazier testified that from a clinical standpoint, I.N. "credibly talked

about things that were sexually developmentally inappropriate that she experienced

both personally and observationally." Based upon what I.N. told her about her

experiences, Dr. Frazier believed that I.N. was a victim of inappropriate sexual behavior

by the Father, which caused her PTSD. I.N.'s symptoms were at their worst when I.N.

was having supervised visits with the Father. Once visitation stopped, the symptoms

improved with therapy.

              Although Dr. Frazier testified that having no contact with the Father was

necessary during the early stages of I.N.'s treatment, she did not have an opinion about

whether I.N. should have contact with the Father at the time of the hearing. But she

testified that if I.N. were exposed to the Father, that contact would trigger I.N.'s PTSD

symptoms for a period of time. If the court decided to permit reunification, I.N. would

probably need counseling again to help her cope with the symptoms.




                                             -5-
              Dr. Robert D. Silver, a licensed psychologist, testified that he performed a

psychological evaluation of the Father. Dr. Silver described the Father as trying to

portray that he was a normal person without pathological tendencies and prove that the

sexual abuse allegations were simply misunderstandings about innocent behavior. The

Father declined to answer Dr. Silver's questions about the alleged sexual abuse, as the

Father's criminal case was pending at the time. The Father also declined to undergo a

psychosexual evaluation.

              Dr. Silver testified that sexual abuse of children is "highly persistent and

recurrent, and remains a lifelong possibility," such that if the Father did engage in sexual

behavior with a child, he would pose a substantial and continual risk to that child. Dr.

Silver explained that if it were found that I.N.'s siblings had been sexually abused by the

Father, I.N. would also be at risk for sexual abuse. Dr. Silver stated that if the

allegations of sexual abuse were supported, the Father's contact with I.N. should cease

for her protection and the Father should participate in treatment to address his

psychosexual proclivities. Dr. Silver further explained that "grooming is a pattern of

behavior individuals who sexually abuse children use to try to make the child

comfortable with the abuse by engaging in small steps of sexual behavior." Cuddling

naked with a child and routinely showering with a child could be, but are not necessarily,

examples of grooming.3

              In Dr. Silver's opinion, the Father's "alleged sexual behavior could not be

explained by [his] having psychopathology such as being depressed, [or suffering from]

manic depress[ion], schizophreni[a], [or] a personality disorder." The only other



              3
                  The Father admitted to Dr. Silver that he routinely showered with I.N.


                                              -6-
possible explanation for the alleged behavior would be sexual deviation, but Dr. Silver

had insufficient information to reach a conclusion about that. Such a conclusion would

require Dr. Silver to evaluate information from other sources about observed

inappropriate sexual behavior by the Father. His ability to evaluate the Father for

sexual deviance was also limited by the Father's refusal to complete a psychosexual

assessment.

              The guardian ad litem (GAL) testified at the hearing. Based upon the

reports generated by the child protection team, Dr. Frazier's testimony, and the other

information the GAL learned at the various hearings in the case, she did not believe it

was in I.N.'s best interest to have contact with the Father. She did not believe there

should be contact until a psychosexual evaluation had been performed on the Father

and she had received some assurance that there would be no detriment to I.N. if she

had contact with the Father.

              Likewise, the case manager testified that reunification was not in I.N.'s

best interest. She believed that I.N. would be at risk of sexual abuse if reunified with the

Father. When I.N. was in contact with the Father, she displayed concerning behaviors.

Since that contact was eliminated, I.N. had improved immensely and had not

demonstrated any behavioral issues.

              The case manager testified that the Father had completed his case plan

tasks. And although she was not aware of the Father displaying any behavior that

showed that he had not benefited from his case plan tasks, she did not believe that the

tasks addressed the allegations that caused I.N. to be sheltered. She recommended

that the Father undergo a psychosexual evaluation. She believed that a psychosexual




                                           -7-
evaluation was necessary to determine whether the Father should have contact with

I.N. because it would indicate the risk to I.N. and the Father's risk of violating his

probation. She could not say that the Father had actually benefited from services when

the services provided did not address the allegations of sexual abuse.

              The Mother testified that she began to notice concerning behavior in I.N.

in August 2014. I.N. became increasingly afraid of and resistant to going to the Father's

house. Once, when the Mother told I.N. that she was going to see the Father the next

day, I.N. punched her in the face. I.N. would refuse to get into the car if she knew that

she was going to the Father's house. When I.N. talked about the Father, she would

lower her voice and get teary-eyed. I.N. had begun picking her lips until they bled and

having nightmares about monsters coming after her. The Mother testified that I.N.'s

behavior had improved but that she still had nightmares. The Mother did not believe

that contact between the Father and I.N. was appropriate or in I.N.'s best interest. She

believed that the Father had sexually abused I.N. and her siblings, and she was

concerned for I.N.'s safety.

              The Father testified that he believed it was in I.N.'s best interest to resume

contact with him. He could not understand why contact with him would not be good for

I.N. He disagreed with Dr. Frazier's diagnosis that I.N. had PTSD as a result of trauma

caused by him, but he indicated that he would follow the therapist's advice regarding

reunification. He stated that he understood that reunification might be difficult for I.N.

because she had not seen him in two years.

              Following the hearing, the dependency court entered a written order

appointing a reunification therapist and ordering the parties to begin reunification




                                             -8-
therapy. Thereafter, the Mother filed a petition for certiorari review of the dependency

court's order.4

II. Discussion

              "There is generally no right to review by appeal of nonfinal orders in child

dependency proceedings. However, common law certiorari provides a remedy under

appropriate circumstances . . . ." A.A. v. Dep't of Children & Families, 147 So. 3d 621,

623 n.2 (Fla. 3d DCA 2014) (citations omitted). "Certiorari review of a nonfinal order is

limited to errors that constitute a departure from the essential requirements of the law,

causing irreparable injury, for which there is no adequate remedy on direct appeal."

Dep't of Children & Families v. W.H., 109 So. 3d 1269, 1270 (Fla. 1st DCA 2013)

(quoting A.W.P. v. Dep't of Children & Family Servs., 10 So. 3d 134, 135 (Fla. 2d DCA

2009)).

              The effect of the order at issue is to grant reunification and to begin the

reunification process in accordance with the recommendations of the reunification

therapist. Cf. J.C. v. Dep't of Children & Family Servs., 83 So. 3d 883, 887-88 (Fla. 2d

DCA 2012) ("The order, which has the effect of prohibiting the grandfather from residing

with his wife, results in an injury that cannot be remedied on postjudgment appeal."

(emphasis added)). The potential harm to I.N. from that reunification cannot be undone

by direct appeal. Therefore, we must determine whether the dependency court's order

departs from the essential requirements of the law.

              A. The applicable law on reunification




              4
                This court on its own motion stayed all actions directed by the order on
review until further order of this court or final disposition of this proceeding.


                                            -9-
              At the time the dependency court considered the request for reunification

in this case, the law required that the court consider the parent's compliance with the

case plan, whether reunification would be detrimental to the child, and whether

reunification would be in the child's best interest. See § 39.522(3), Fla. Stat. (2016);

see also W.H., 109 So. 3d at 1270. The version of section 39.522(3) applicable for our

review in this case provided:

              In cases where the issue before the court is whether a child
              who is placed in the custody of a parent should be reunited
              with the other parent upon a finding of substantial
              compliance with the terms of the case plan, the standard
              shall be that the safety, well-being, and physical, mental, and
              emotional health of the child would not be endangered by
              reunification and that reunification would be in the best
              interest of the child.

Id. (emphasis added).5 Prior to July 1, 2013, courts were required to grant reunification

absent a finding of endangerment if the parent seeking reunification had substantially

complied with his case plan. T.N.L. v. Dep't of Children & Families, 132 So. 3d 319, 323

(Fla. 4th DCA 2014). However, the 2013 amendment to section 39.522, which added

subsection (3), elevated the best-interest determination to a status at least equal to that

of the question of endangerment. Id. at 324. Thus, a court may deny reunification if it is

not in the child's best interest even if the court does not find that reunification would

endanger the child. Id.; see ch. 2013-21, § 3, at 216, Laws of Fla.



              5
                Effective July 1, 2017, the text of section 39.522(3) has been amended.
Now, "upon a finding that the circumstances that caused the out-of-home placement
and issues subsequently identified have been remedied to the extent that the return of
the child to the home of the other parent . . . will not be detrimental to the child," the
court must determine "that the safety, well-being, and physical, mental, and emotional
health of the child would not be endangered by reunification and that reunification would
be in the best interest of the child." § 39.522(3), Fla. Stat. (2017); see ch. 2017-151, §
13, at 26-27, Laws of Fla.


                                            - 10 -
              Further, in any decision concerning a parent's request for reunification, the

dependency court is required to address the "best interest" factors in its written order:

              (a) The compliance or noncompliance of the parent with the
              case plan;

              (b) The circumstances which caused the child's dependency
              and whether those circumstances have been resolved;

              (c) The stability and longevity of the child's placement;

              (d) The preferences of the child, if the child is of sufficient
              age and understanding to express a preference;

              (e) The recommendation of the current custodian; and

              (f) The recommendation of the guardian ad litem, if one has
              been appointed.

§ 39.621(10).6

              Orders granting reunification in the absence of written findings addressing

the best interest factors have been held to constitute a departure from the essential

requirements of the law. A.A., 147 So. 3d at 623; W.H., 109 So. 3d at 1270; see also

Guardian Ad Litem Program v. Dep't of Children & Families, 143 So. 3d 1075, 1077

(Fla. 2d DCA 2014) (quashing order of reunification when the dependency court failed

to make any oral findings related to the child's best interest at the evidentiary hearing

and the written order failed to include a finding that modifying placement was in the

child's best interest; nothing in the record evidenced the court's consideration of the

child's best interest in modifying placement). Orders granting reunification which are not

supported by competent substantial evidence also constitute a departure from the



              6
              Effective July 1, 2017, the best interest factors have been renumbered
from subsection (10) to subsection (11) of section 39.621. Ch. 2017-151, § 18, at 31,
Laws of Fla. The factors themselves have not changed.


                                            - 11 -
essential requirements of the law. M.N. v. Dep't of Children & Families, 120 So. 3d 3, 6

(Fla. 1st DCA 2012); cf. E.H. v. Dep't of Children & Family Servs., 979 So. 2d 363, 364

(Fla. 2d DCA 2008) (granting petition for writ of certiorari where supervised visitation

order was not supported by competent substantial evidence).

              Here, the dependency court's failure to expressly determine not only

whether I.N. would be endangered by reunification but also whether reunification was in

I.N.'s best interest was a departure from the essential requirements of the law. The

court also departed from the essential requirements of the law because, while its written

order addresses the best interest factors of section 39.621, its findings are not

supported by competent substantial evidence.

              B. The dependency court's order

              In its order, after noting the then-applicable requirements of section

39.522(3), the dependency court addressed the best interest factors. Under the

circumstances of this case the most pertinent factors are (a), (b), (e), and (f), and thus

we focus on the evidence as to each of those factors.

              First, the dependency court concluded that the Father had complied with

his case plan because he completed the tasks therein. See § 39.621(10)(a). However,

the court did not address this factor in conjunction with the then-applicable language of

section 39.522(3), requiring a finding of "substantial compliance with the terms of the

case plan." " 'Substantial compliance' means that the circumstances which caused the

creation of the case plan have been significantly remedied to the extent that the well-

being and safety of the child will not be endangered upon the child's remaining with or




                                           - 12 -
being returned to the child's parent." § 39.01(77).7 Thus, substantial compliance

means more than simply completing tasks. Whether a parent has substantially

complied with a case plan "bears directly on the behavior that endangered the child's

safety or well-being," N.F. v. Dep't of Children & Family Servs., 82 So. 3d 1188, 1192

(Fla. 2d DCA 2012), such that best interest factors (a) and (b) are interrelated. This

conclusion is further supported by the amendment to section 39.522(3) and its focus on

remediation of the circumstances which caused the out-of-home placement.

              In considering factor (b), resolution of the circumstances causing the

child's dependency, the court summarized the allegations of sexual abuse in the petition

for dependency. It then focused on the statement in the petition that the Father's

girlfriend's children were I.N.'s half siblings, finding that the children were not I.N.'s

siblings. This finding was made despite the unrefuted testimony that I.N. resided in the

same house with the children while in the Father's custody and referred to the children

as her siblings, thus meeting the definition of sibling found in section 39.01(73)(b). The

court also found that the Father was no longer involved with the girlfriend and that there

was no evidence that he had another girlfriend. Presumably the court made these

findings to show that the Father could no longer abuse I.N.'s siblings and that no other

children were presently in his life for him to abuse in I.N.'s presence.

              These findings do not address the behavior that endangered I.N.'s safety

or well-being, resulting in her dependency—the Father's alleged sexual abuse of I.N.'s




              7
               Effective July 1, 2017, subsections (35) through (80) of section 39.01
have been renumbered as subsections (36) through (81), respectively. Ch. 2017-151, §
2, at 5, Laws of Fla. Citations to section 39.01 in the remainder of this opinion will be to
the 2016 version.


                                             - 13 -
siblings. Nor do the findings address the Father's conduct with respect to I.N. as

reported by I.N. to Dr. Frazier—conduct which Dr. Frazier concluded changed I.N.'s

status from observer to victim.

              The court's order states that the case manager "testified [that] the Father

has not shown any behavior to suggest he has not benefitted from services" and that

"the Father's Case Plan Tasks addressed the safety issues that brought the child into

shelter but [that] 'this Case Plan' does not address 'the problem.' " The court interpreted

this testimony, "In other words, the Father benefitted from services." It then noted that "

'this Case Plan' is the only Case Plan the court has to go on" and found that "the Father

completed his tasks and benefitted from services thereby resolving the circumstances

which caused the child's dependency."

              The court has mischaracterized the case manager's testimony. The case

manager testified that although case plan tasks are generally designed to address the

safety issues that brought the child into shelter, this case plan failed to specifically

address the allegations of sexual abuse which caused I.N. to be sheltered. She also

testified that this deficiency could be remedied by requiring the Father to undergo a

psychosexual evaluation.8

              Moreover, it is illogical to find that the Father had, in fact, benefitted from

services based on the case manager's acknowledgment that she had no evidence that




              8
                In fact, at the time of the hearing, a motion to amend the case plan to
include a psychosexual evaluation was pending. And while the court took umbrage with
what it perceived as an eighteen-month delay in the filing of the motion to amend, the
court did not take into account the posture of the Father's criminal case during that
timeframe—a fact that directly bore on the Father's unwillingness to complete a
psychosexual evaluation at the outset.


                                            - 14 -
the Father had not benefited from services. It is similarly unsound to find that because

the Father had completed case plan tasks only tangentially related to the cause of the

child's dependency, the circumstances which caused I.N. to be sheltered had been

resolved. The court ignored the fact that the Father's case plan did not actually provide

the Father with any services to address his alleged sexual abuse of I.N.'s siblings.

              The court's order departs from the essential requirements of the law in

failing to address and apply the definition of substantial compliance as it relates to the

resolution of the circumstances requiring removal of the child. Further, because the

court's findings are not supported by competent substantial evidence, the order departs

from the essential requirements of the law. The record is devoid of evidence supporting

the dependency court's conclusion that the circumstances that caused I.N.'s

dependency were resolved.

              In considering best interest factor (e), the recommendation of the current

custodian, the court noted that the Mother opposed reunification, believed that the

Father had sexually abused I.N., and believed that if reunification occurred, I.N. would

be revictimized. In rejecting the Mother's recommendation, the court observed that the

Mother relied on Dr. Frazier's opinion that I.N. was a victim, not merely a witness, but

found that Dr. Frazier's testimony was that I.N. was only a victim of inappropriate sexual

behavior, such as showering with the Father and watching his girlfriend and his

girlfriend's children touch the Father's genitals in the shower, and not a victim of sexual

abuse.

              Similarly, under factor (f), the recommendation of the GAL, the court noted

that the GAL opposed reunification based upon her belief that contact with the Father




                                           - 15 -
and reunification therapy would be psychologically, emotionally, and physically harmful

to I.N. because I.N. had been sexually abused by the Father and had witnessed the

Father's sexual abuse of her siblings. The court rejected the GAL's recommendation,

again reasoning that the GAL was relying upon Dr. Frazier's testimony to support her

position and that Dr. Frazier had not characterized the Father's behavior as sexual

abuse but as inappropriate sexual behavior.

              The dependency court both misconstrued the evidence and failed to apply

the correct law in reaching its asserted reason for discrediting the Mother's and the

GAL's recommendations. The court departed from the essential requirements of the

law by not applying the statutory definitions of victim, abuse, harm, and sexual abuse of

a child within chapter 39. " 'Victim' means any child who has sustained or is threatened

with physical, mental, or emotional injury identified in a report involving child abuse,

neglect, or abandonment, or child-on-child sexual abuse." § 39.01(80). Section

39.01(2) defines "abuse" as "any willful act or threatened act that results in any physical,

mental, or sexual abuse, injury, or harm that causes or is likely to cause the child's

physical, mental, or emotional health to be significantly impaired." "Harm" is defined to

include "lewd or lascivious acts, as defined in chapter 800," § 39.01(30)(b), which

includes lewd or lascivious molestation, lewd or lascivious conduct, and lewd or

lascivious exhibition, § 800.04(5), (6), (7), Fla. Stat. (2016). And section 39.01(70)

defines "sexual abuse of a child" to include "(e) [t]he intentional masturbation of the

perpetrator's genitals in the presence of a child" and "(f) [t]he intentional exposure of the

perpetrator's genitals in the presence of a child, or any other sexual act intentionally

perpetrated in the presence of a child, if such exposure or sexual act is for the purpose




                                           - 16 -
of sexual arousal or gratification, aggression, degradation, or other similar purpose."

              Here, Dr. Frazier's testimony clearly established that I.N. was a victim of

sexual abuse under the applicable statutory definitions. Further, the nomenclature

used, sexual abuse or inappropriate sexual behavior, does not alter the substance of

Dr. Frazier's testimony. Dr. Frazier testified that I.N. told her that the Father had forced

her to wash him in the shower and that he had washed her "inside and out." This was

conduct that I.N. not only observed her siblings experiencing but which she personally

experienced. I.N.'s documented reactions to the Father's conduct suggested to Dr.

Frazier that these were not innocent behaviors, and Dr. Frazier found I.N.'s descriptions

and demeanor credible. Dr. Frazier's unrefuted testimony was that the Father's

behavior caused actual harm to I.N. in the form of PTSD with the Father being the

trigger for her symptoms. It was only after undergoing therapy and eliminating contact

between I.N. and the Father that I.N.'s symptoms improved. None of the Father's case

plan tasks served to remedy the Father's behavior, which caused I.N.'s PTSD.

Moreover, Dr. Frazier testified that if the court reunified the Father and I.N., I.N.'s

symptoms would return. This evidence established that reunification would harm I.N.

and that reunification was not in her best interest.

              In discounting the GAL's recommendation, the court also rejected—on the

incorrect basis that the children were not siblings—the suggestion that if the Father had

abused the other children, I.N. would be at risk of sexual abuse as a sibling. This is

also inconsistent with Dr. Silver's testimony, which was not isolated to siblings.

              Finally, the court found that because the Father's criminal case had been

resolved by a plea of no contest to two counts of child neglect and because he




                                            - 17 -
consented to the dependency without admitting any of the allegations in this case, there

had been no finding that the Father had committed sexual abuse of I.N.'s siblings and

thus that he posed a danger to I.N.9 These findings ignore the evidence that I.N. suffers

from PTSD as a result of the Father's conduct and would again suffer those symptoms

upon reunification. See G.V. v. Dep't of Children & Families, 985 So. 2d 1243, 1246

(Fla. 4th DCA 2008) ("A trial court's findings as to the risks to the child or children's

safety or mental or emotional health, however, must be based on objectively reasonable

grounds."); see also Dep't of Children & Families v. R.A., 980 So. 2d 578, 580 (Fla. 3d

DCA 2008) ("[T]here was no competent substantial evidence—by way of reliable expert

testimony, compliance with a case plan (which had not yet been formulated) or anything

other than the trial court's own plainly insufficient observation and assessment of the

mother during her testimony—to support her finding that the mother was 'stable' and

thus (presumably) that the danger to the children presented by her mental illness had

dissipated.").

                 After addressing the best interest factors, the court took the position that

denying the request for reunification in the absence of a "proposed alternative outcome"

would be a de facto termination of the Father's parental rights without the requisite



                 9
                 We note that it appears neither the court nor any of the parties
considered the Keeping Children Safe Act, § 39.0139(1), in regard to the Father's
request for reunification. Under the Act, where a parent has entered a plea of guilty or
nolo contendere to charges under chapter 827, there is a rebuttable presumption of
detriment to a child. § 39.0139(3)(a)(2)(f). The burden is on the parent seeking
reunification to rebut the presumption of detriment before reunification can occur. §
39.0139(4)(d). Here, there is no question that the Father pleaded to an enumerated
offense under the Act, and because the evidence adduced at the hearing established
that I.N. is a victim of sexual abuse, the Act's rebuttable presumption of detriment is
applicable. See § 39.0139(3); J.C., 83 So. 3d at 888. It does not appear that the
dependency court applied the presumption.


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support to do so.10 The court did not apply or consider the standard set forth in section

39.522(3): "the standard shall be that the safety, well-being, and physical, mental, and

emotional health of the child would not be endangered by reunification and that

reunification would be in the best interest of the child." This is a clear departure from

the essential requirements of the law.

III. Conclusion

              Because the dependency court failed to apply the standard for

reunification, among other applicable statutory provisions, and because its findings

under the best interest factors of section 39.621 are not supported by competent

substantial evidence, the court departed from the essential requirements of the law in

granting the request for reunification, causing irreparable harm to I.N. We therefore

grant the petition for writ of certiorari and quash the order on review.

              Petition granted; order quashed.



NORTHCUTT and KELLY, JJ., Concur.




              10
                Again, we note that a motion to amend the case plan to include the
requirement that the Father undergo a psychosexual evaluation was pending at the time
the court entered its order. Consideration of the motion would have obviated the court's
concern regarding de facto termination of the Father's parental rights and further
informed the court as to the decision before it. Cf. S.P. v. Dep't of Children & Family
Servs., 17 So. 3d 878, 881 (Fla. 1st DCA 2009) ("[T]he requirement to make findings
presupposes evidence from which the trial court could make an informed decision.").


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