       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

                   GUARDIAN AD LITEM PROGRAM,
                            Appellant,

                                    v.

                 M.H., the Father, and W.S., the Mother,
                               Appellees.

                             No. 4D15-3195

                           [February 17, 2016]

   Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Susan Lebow, Judge; L.T. Case No. 2014-1790 CJ DP.

   Laura E. Lawson, Sanford, for appellant.

  Jeffrey B. Levy of the Law Offices of Jeffrey B. Levy, P.A., Fort
Lauderdale, for appellee W.S.

  Denise E. Kistner of the Law Offices of Denise E. Kistner, P.A., Fort
Lauderdale, for appellee M.H.

CONNER, J.

    In this case, we are called upon to determine whether proof of a guilty
plea or conviction in a criminal proceeding is required for termination of
parental rights under section 39.806(1)(m), Florida Statutes (2014).
Section 39.806(1)(m) allows for termination of parental rights of an
offending parent when a child is conceived by the offending parent
committing a sexual battery upon the other parent. The trial court
required proof of a plea of guilty or a conviction of sexual battery by the
father as a ground to support termination of parental rights under section
39.806(1)(m). Because the trial court imposed an element not required by
law, we reverse for further proceedings.

             Factual Background and Trial Court Proceedings

   K.S. is a three-year-old boy. K.S. was conceived when M.H., who was
married to the child’s maternal grandmother, had sex with his sixteen-
year-old stepdaughter, W.S., the child’s mother, in the family home in
Kentucky. K.S.’s mother was uninvolved as a parent, began using drugs,
and eventually moved out of the family home in Kentucky. The child
continued to live with M.H. and the grandmother. M.H. actively engaged
in raising and supporting K.S. as his son. Two years after K.S. was born,
the maternal grandmother separated from M.H. and relocated to Florida,
taking K.S. with her. W.S., the mother, continuing to be uninvolved with
K.S., remained in Kentucky. M.H. did not know the whereabouts of the
grandmother and K.S. after they moved to Florida, until after dependency
proceedings were initiated to protect K.S.

    In April 2014, within a few weeks of arriving in Florida, K.S. was
sheltered by the Department of Children and Families (“DCF”). At the time
of the initial proceedings, the father was listed as “unknown.” K.S. was
adjudicated dependent and placed in foster care with DCF. A guardian ad
litem (“the GAL”) was appointed early on in the proceedings.

    Upon learning that K.S. was placed in foster care, M.H. contacted DCF,
claiming to be the father. DCF arranged a paternity test, confirming M.H.
is the biological father. M.H. promptly sought to obtain information about
K.S. and arrange for visitation, and promptly sent $100 towards the care
of K.S. However, the court ordered no contact between M.H. and K.S. due
to the fact that M.H. conceived the child with a minor.

    In December 2014, the GAL filed a petition for termination of parental
rights (“TPR”) so that K.S. could be placed for adoption. The petition
alleged that the mother abandoned K.S. and made no meaningful efforts
to communicate with him or participate in any visits. The petition
recognized M.H. as the father, but alleged that M.H. also abandoned K.S.
and asserted that his marginal efforts to communicate with K.S. were
incidental and insufficient to establish or maintain a positive relationship
with the child. The petition further alleged that pursuant to section
39.806(1)(m), K.S. was conceived as a result of a sexual battery and that
it is in the best interest of the child for M.H.’s rights to be terminated.

   The mother did not appear for the TPR trial and a default consent was
entered against her.

   The grandmother testified at trial in regards to the relationship between
M.H. and K.S., and stated she would not have any concerns for K.S.’s
safety or wellbeing if he were placed in M.H.’s care. She testified that,
while she lived with him, M.H. provided for K.S., who called him “daddy.”
He bought him diapers, clothes and food, and he spent time with K.S.,
entertained him, and never hurt him. In regards to M.H.’s sexual
encounter with her daughter, the grandmother testified that her daughter

                                     2
was almost seventeen at the time and consented to the encounter.

   M.H. testified that he was married to the grandmother and they lived
together with her seven children, including W.S., in the family home. He
testified that to his knowledge, W.S. was sixteen when they engaged in
sexual intercourse, after which she became pregnant with K.S. He testified
that he did not have sexual relations with any of the other children. He
acknowledged that when he had sex with W.S., he felt bad about it, but
“temperatures raised and then [he] didn’t think about it.” He confirmed
that this was an extraordinary lack of judgment on his part and that it did
not represent his general sexual desires. M.H. testified that he first found
out about the dependency case when W.S.’s aunt told him about it. He
testified that he then contacted ChildNet and informed them that he was
K.S.’s father. M.H. testified that he is not a citizen of the U.S., but has a
pending immigration application, and that he has not been arrested and
is not facing deportation. He confirmed that he has never been charged
with any sexual battery offense.

    After considering the evidence and the arguments, the trial court
entered a final judgment dismissing the petition for TPR. The trial court
made several findings upon clear and convincing evidence and found the
testimony of the grandmother and M.H. to be credible. It found, pursuant
to the grandmother’s testimony, that when she and K.S. lived with M.H.,
K.S. called M.H. “dad,” and M.H. provided for K.S.’s basic needs. The trial
court found that when M.H. learned that K.S. was involved with DCF, he
called and told DCF that he was the child’s father and had been attending
court hearings in Florida. The trial court found by clear and convincing
evidence that M.H. was over the age of majority when he had sex with the
mother, who was sixteen at the time. However, the trial court ruled in the
final judgment that:

      The Court finds by clear and convincing evidence that the
      father committed the act described in Florida Statute
      39.806(1)(m) that resulted in conception of the child, but is
      unwilling to make a finding that a sexual battery on a minor
      was committed as defined by the criminal code.

(emphasis added). Additionally, during the trial, the trial court noted on
the record that it could not “make that leap into the criminal statutes.”

    The trial court also found that the GAL failed to prove by clear and
convincing evidence that M.H. abandoned K.S. pursuant to section
39.806(1)(b). The trial court denied the petition for TPR as to both grounds
alleged against M.H. As to W.S., the trial court noted that a default

                                     3
consent to the petition was entered against her when she failed to appear
at trial; however, it found that it could not grant the GAL’s request to sever
one parent’s rights without severing the other parent’s, and therefore
denied the petition for TPR as to W.S. as well. In addition to finding no
grounds to terminate parental rights, the trial court commented in the
final judgment that it had not heard testimony regarding the manifest best
interest of the child. The final judgment made no findings regarding
whether TPR is the least restrictive means of protecting K.S. from harm.

   The GAL gave notice of appeal.

                             Appellate Analysis

     In a TPR case, appellate courts “will uphold the trial court’s finding[s]
‘[i]f, 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.’”
J.M. v. Dep’t of Children & Families, 9 So. 3d 34, 37 (Fla. 4th DCA 2009)
(internal quotation marks omitted) (quoting In re Adoption of Baby E.A.W.,
658 So. 2d 961, 967 (Fla. 1995)). In regards to the interpretation of
statutes, however, the standard of review is de novo. B.Y. v. Dep’t of
Children & Families, 887 So. 2d 1253, 1255 (Fla. 2004).

    “To grant a petition for termination of parental rights, the circuit court
must find that [the petitioner] proved the allegations supporting
termination by clear and convincing evidence.” In re G.C., 6 So. 3d 643,
648 (Fla. 2d DCA 2009) (citing E.E.A. v. Dep’t of Children & Family Servs.,
846 So. 2d 1250, 1251–52 (Fla. 2d DCA 2003)). “The circuit court must
first find grounds for termination of parental rights under section 39.806
and then must consider the manifest best interests of the child under
section 39.810.” Id. (citing Rathburn v. Dep’t of Children & Families, 826
So. 2d 521, 523 (Fla. 4th DCA 2002)). “In addition, [the petitioner] must
establish that termination of parental rights is the least restrictive means
of protecting the child from harm.” Id. (citing E.E.A., 846 So. 2d at 1251–
52).

    On appeal, the GAL does not challenge the trial court’s denial of
termination of M.H.’s parental rights on grounds of abandonment.
Instead, the appeal focuses on the argument that the trial court lacked the
authority to deny its petition for TPR based on its unwillingness to make
an unnecessary finding of criminal responsibility for sexual battery where
it already made a finding that the father’s conduct met the requirements
of section 39.806(1)(m), Florida Statutes (2014). We agree.

   Section 39.806(1)(m) provides:

                                      4
         39.806 Grounds for termination of parental rights.—
         (1) Grounds for the termination of parental rights may be
         established under any of the following circumstances:

         ....

         (m) The court determines by clear and convincing evidence that
         the child was conceived as a result of an act of sexual battery
         made unlawful pursuant to s. 794.011, or pursuant to a similar
         law of another state, territory, possession, or Native American
         tribe where the offense occurred.         It is presumed that
         termination of parental rights is in the best interest of the
         child if the child was conceived as a result of the unlawful
         sexual battery. A petition for termination of parental rights
         under this paragraph may be filed at any time. The court
         must accept a guilty plea or conviction of unlawful sexual
         battery pursuant to s. 794.011 as conclusive proof that the
         child was conceived by a violation of criminal law as set forth
         in this subsection.

§ 39.806(1)(m) (emphasis added). As can be seen, nothing in the statutory
provision indicates the legislature intended that a determination of guilt
(by plea or trial) under section 794.011, or any similar statute in another
jurisdiction, by a criminal court is required to support a TPR under section
39.806(1)(m). If the legislature had intended such a requirement, it would
have said so. We do not construe the requirement that a trial court must
accept a guilty plea or conviction as conclusive proof of a violation of
section 794.011 as an element requiring a guilty plea or conviction for TPR
under that ground. Instead, we construe the last sentence of section
39.806(1)(m) to avoid the necessity of direct or circumstantial proof that
the child was conceived as a result of conduct constituting a sexual battery
under section 794.011, when a plea of guilty or a conviction as to such
conduct is established.

   The GAL argues there was clear and convincing evidence that K.S. was
conceived as a result of M.H.’s conduct deemed unlawful pursuant to
section 794.011(8)(a), Florida Statutes (2014),1 as well as a similar


1   Section 794.011(8)(a) provides:

         (8) Without regard to the willingness or consent of the victim, which
         is not a defense to prosecution under this subsection, a person who

                                          5
Kentucky statute. In this case, M.H. admitted to having sexual intercourse
with the child’s mother, his stepdaughter, once when she was sixteen
years old, and that she became pregnant with K.S. thereafter. The trial
court found, by clear and convincing evidence, that K.S. was conceived as
a result of conduct proscribed by section 794.011(8)(a). Thus, we agree
that the trial court improperly interpreted and applied section
39.806(1)(m) to the facts of this case and erred by determining that the
GAL failed to prove sufficient grounds for termination of the father’s
parental rights under that statute.

    We disagree with M.H.’s argument that the trial court did not err
because it could be determined only by a criminal court proceeding that
the child was conceived as a result of an act of sexual battery made
unlawful pursuant to section 794.011 or a similar law of another state,
citing W.W. v. Department of Children & Families, 811 So. 2d 791 (Fla. 4th
DCA 2002), and A.H. v. Department of Children & Families, 63 So. 3d 874
(Fla. 1st DCA 2011). In W.W. and A.H., both courts were addressing TPR
based on a previous version2 of section 39.806(1)(d)2., Florida Statutes,
which authorized TPR when “the parent of a child is incarcerated in a state
or federal correctional institution” and “[t]he incarcerated parent has been
determined by the court to be . . . a sexual predator as defined in s.
775.21.” § 39.806(1)(d)2., Fla. Stat. (2011). As pointed out in both
decisions, the term “sexual predator,” as defined in section 775.21, is a
legal classification which results from written findings made by the
sentencing court in a criminal case. W.W., 811 So. 2d at 793; A.H., 63 So.
3d at 875–76. For that reason, both courts held the determination of
sexual predator status had to be made in a criminal proceeding and not a
juvenile dependency proceeding. W.W., 811 So. 2d at 795 (Farmer, J.,
concurring specially); A.H., 63 So. 3d at 876–77. The underlying conduct
to support the designation as a sexual predator requires a judicial
determination by a plea or trial that comports with a burden of proof
beyond a reasonable doubt. We perceive nothing in section 39.806(1)(m),
Fla. Stat. (2014), that requires proof that the child was conceived as a

      is in a position of familial or custodial authority to a person less
      than 18 years of age and who:

      (a) Solicits that person to engage in any act which would constitute
      sexual battery under paragraph (1)(h) commits a felony of the third
      degree, punishable as provided in s. 775.082, s. 775.083, or s.
      775.084.

2 The current version of section 39.806(1)(d)2., is similar to that quoted in this
opinion; however, the words “in a state or federal correctional institution” are
removed in the current version. See § 39.806(1)(d)2., Fla. Stat. (2015).

                                        6
result of conduct constituting a sexual battery under section 794.011 by
a plea or trial that comports with a burden of proof beyond a reasonable
doubt.

    Because the trial court determined there were no statutory grounds to
support termination of M.H.’s parental rights, the court made no findings
regarding the manifest best interests of K.S.3 or whether TPR was the least
restrictive means to protect K.S. from harm. We note that section
39.806(1)(m) provides for a presumption that TPR is in the best interest of
the child if the child was conceived as a result of the unlawful sexual
battery. Because of the presumption, to avoid TPR in this case, it is
incumbent on M.H. to rebut the presumption. We express no opinion as
to whether sufficient evidence was presented to rebut the presumption.
Likewise, because the trial court made no findings regarding whether TPR
is the least restrictive alternative to protect K.S. from harm, we also take
no position regarding the evidence on that issue.

   Having determined the trial court erred in its interpretation and
application of section 39.806(1)(m), we reverse. We remand for the trial
court to make appropriate determinations regarding whether TPR is in the
manifest best interest of K.S. and whether TPR is the least restrictive
means to protect K.S. from harm. The trial court has the discretion to
determine what additional trial court proceedings are needed to afford the
parties due process.

    Affirmed in part, reversed in part, and remanded.

LEVINE and FORST, JJ., concur.

                             *         *          *

    Not final until disposition of timely filed motion for rehearing.




3We do not construe the trial court’s comment in the final judgment that “the
Court . . . did not hear testimony regarding the manifest best interests of the
child,” to be a finding regarding whether TPR is in the manifest best interest of
K.S. Because of the statutory presumption, it was not necessary for the GAL to
present further evidence on the issue. The comment about the lack of testimony
could have referred to either the GAL or M.H.

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