               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 C.M.H., a child.     )
                                        )
                                        )
C.H.,                                   )
                                        )
              Appellant,                )
                                        )
v.                                      )    Case No. 2D17-4921
                                        )
DEPARTMENT OF CHILDREN and              )
FAMILIES and GUARDIAN AD LITEM          )
PROGRAM,                                )
                                        )
              Appellees.                )
                                        )

Opinion filed August 29, 2018.

Appeal from the Circuit Court for
Polk County; Michelle Pincket, Judge.

Ryan Thomas Truskoski of Ryan
Thomas Truskoski, P.A., Orlando, for
Appellant.

Meredith K. Hall of Children's Legal
Services, Bradenton, for Appellee
Department of Children and Families.

Rocco J. Carbone, III, of Guardian ad
Litem Program, Sanford, for Appellee
Guardian ad Litem Program.


CASANUEVA, Judge.
              C.H. (the Father) appeals the trial court order terminating his parental

rights to his daughter, C.M.H. (the Child), on the ground that he is incarcerated and has

been designated a sexual predator. He asserts that the portion of section

39.806(1)(d)(2), Florida Statutes (2015), providing that ground for termination is

unconstitutional both on its face and as applied to him. We observe that the decisional

law presents two legal pathways of analysis to resolve the presented issue. Upon

analysis of each, we conclude that the statute is constitutional in both respects and

affirm.

              First, we review the statute under existing Florida Supreme Court

precedent. Section 39.806(1)(d)(2) provides, in relevant part, that grounds for

termination may be established "[w]hen the parent of a child is incarcerated and . . . has

been determined by the court to be . . . a sexual predator as defined in s. 775.21,

[Florida Statutes (2015)]."1 The Father does not contest that he meets the criteria of

being incarcerated and having been designated a sexual predator.2 Rather, he argues

that the statute is unconstitutional because it does not require the Department of

Children and Families to prove that a parent poses a substantial risk of significant harm

to the child who is the subject of the termination petition.




              1Section     39.806(1)(d)(2) also provides for termination when a parent has
been designated a violent career criminal or a habitual violent felony offender or has
been convicted of first- or second-degree murder or of a sexual battery that constitutes
a capital, life, or first-degree felony. Those other grounds are not at issue in this case,
and references in this opinion to section 39.806(1)(d)(2) concern only the portion
relating to termination based on a sexual predator designation.
              2The    Father also does not contest the trial court's findings that termination
is the least restrictive means of protecting the Child from harm and is in the Child's
manifest best interests.

                                             -2-
              The Father contends that the supreme court's ruling in Florida Department

of Children & Families v. F.L., 880 So. 2d 602 (Fla. 2004), supports his argument. In

that case, the court examined whether section 39.806(1)(i), which allows for the

termination of parental rights based on the previous involuntary termination of the

parent's rights to a sibling of the child at issue, was unconstitutional because it did not

require a showing of a substantial risk of significant harm to the child who is the subject

of the termination petition. The court began its analysis by reviewing its decision in

Padgett v. Department of Health & Rehabilitation Services, 577 So. 2d 565 (Fla. 1991),

in which it held in part that "to terminate parental rights, 'the state must show by clear

and convincing evidence that reunification with the parent poses a substantial risk of

significant harm to the child.' "3 F.L., 880 So. 2d at 608 (quoting Padgett, 577 So. 2d at

571). The court explained that "[i]mplicit in our decision in Padgett is the recognition

that in some cases, but not in all cases, a parent's conduct toward another child may

demonstrate a substantial risk of significant harm to the current child." Id. Following

that precedent, the court in F.L. stated that section 39.806(1)(i) "may not constitutionally

permit a termination of parental rights without proof of substantial risk to the child" who



              3The  court in Padgett also held that the Department "must establish in
each case that termination of [parental] rights is the least restrictive means of protecting
the child from serious harm. This means that [the Department] ordinarily must show
that it has made a good faith effort to rehabilitate the parent and reunite the family . . . ."
577 So. 2d at 571. However, we note that for a number of grounds for termination,
including the ground at issue in this case, it appears that the legislature has attempted
to abrogate this requirement. See § 39.806(2), Fla. Stat. (2015) ("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)(b)-(d) or paragraphs
(1)(f)-(m) have occurred."). Although we have concerns over the constitutional validity
of that provision, see F.L. 880 So. 2d at 608 (noting that Padgett's least restrictive
means requirement is constitutional in nature), we have not been called upon to
address that issue in this case.

                                             -3-
is the subject of the termination petition. Id. at 609. Based on that statement, the

Father in this case contends that the sexual predator provision of section

39.806(1)(d)(2) should be declared unconstitutional because it does not require such

proof of a substantial risk of significant harm to the child.

              However, the court in F.L. did not end its analysis after determining that

the ground appeared to be constitutionally infirm. Because the ground had been

enacted after the court's decision in Padgett and because the legislature had not

expressed or implied a desire to abrogate Padgett's risk-of-harm requirement, the court

in F.L. read the requirement into the statute and held that "parental rights may be

terminated under section 39.806(1)(i) only if the state proves both a prior involuntary

termination of rights to a sibling and a substantial risk of significant harm to the current

child." 880 So. 2d at 609 ("The Legislature is presumed to know the judicial

constructions of a law when amending that law, and the Legislature is presumed to

have adopted prior judicial constructions of a law unless a contrary intention is

expressed." (citing City of Hollywood v. Lombardi, 770 So. 2d 1196, 1202 (Fla. 2000))).

              The grounds for termination provided in section 39.806(1)(d)(2) were

likewise enacted after the supreme court's decision in Padgett. See ch. 97-226, § 1,

at 2, Laws of Fla. As with section 39.806(1)(i), we do not see any express or implied

legislative desire to abrogate Padgett's risk-of-harm requirement for section

39.806(1)(d)(2).4 Accordingly, we interpret section 39.806(1)(d)(2) as including



              4Rather,  the 2014 amendments to the grounds for termination provided in
section 39.806(1)(f) (egregious conduct) and section 39.806(1)(h) (causing the death or
serious bodily injury of a child) indicate a desire to retain Padgett's risk-of-harm
requirement for section 39.806(1)(d)(2). In those amendments, the legislature expressly
stated that proof of a nexus between the parent's past conduct and the risk of harm to

                                             -4-
Padgett's requirement that the Department show that a parent poses a substantial risk

of significant harm to the child who is the subject of the termination petition. Cf. B.C. v.

Dep't of Children & Families, 887 So. 2d 1046, 1053 (Fla. 2004) (noting that section

39.806(1)(d)(1), which provides for termination when a parent will be incarcerated for a

significant portion of the child's minority, "must be read in light of Padgett's requirement,

reiterated in F.L., that 'the state must show by clear and convincing evidence that

reunification with the parent poses a substantial risk of significant harm to the child."

(quoting F.L., 880 So. 2d at 608)). Interpreted in such a way, the statute is

constitutional on its face and as applied to the Father. See F.L., 880 So. 2d at 609.

              Next, we undertake an analysis applying a recent decision of this court.

Accordingly, we conclude that the statute would also be constitutional if we were to

follow our decision in Department of Children & Family Services v. S.H., 49 So. 3d 846

(Fla. 2d DCA 2010), in which we held that Padgett's risk-of-harm requirement did not

apply to the ground for termination under section 39.806(1)(h), which allows for

termination when a parent has caused the death of a child, because "[t]he risk in [that]

kind of case is clear." Id. at 853. The same rationale applies in this case due to the



the child was not required. See ch.14-224, § 19, at 41, Laws of Fla. Under the doctrine
of expressiounius est exclusion alterius, the inclusion of such language in only those
two grounds indicates an intention to exclude that language from all of the other
grounds, including section 39.806(1)(d)(2). Cf. Cricket Props., LLC v. Nassau Pointe at
Heritage Isles Homeowners Ass'n, 124 So. 3d 302, 306 (Fla. 2d DCA 2013) (reasoning
that the legislature's inclusion of a caveat in one subsection of the statute, but not in
another, indicated that it intended to exclude the caveat in the other subsection). Thus,
the amendments indicate that Padgett's risk-of-harm requirement applies to section
39.806(1)(d)(2). We note that in commenting on these amendments we do not express
any opinion regarding their constitutionality, which we have previously called into
question. See J.F. v. Dep't of Children & Families, 198 So. 3d 706, 707 (Fla. 2d DCA
2016).



                                            -5-
inherent risk of harm associated with sexual predators, particularly those who have

been convicted of committing offenses against minors.

              Under either of these approaches, the Department sufficiently established

that the Father poses a substantial risk of significant harm to the Child. The record

before us is admittedly very limited on this issue. Despite raising three grounds in its

termination petition, at the adjudicatory hearing the Department proceeded only on the

sexual predator ground of section 39.806(1)(d)(2). Presumably due to the statute's

apparently limited requirement that the Department simply show that the Father was

incarcerated and had been designated a sexual predator, the Department did not

present any evidence regarding what led to the Father's conviction and sexual predator

designation in the earlier case. As a result, the only competent substantial evidence in

our record regarding the Father's crime is the Father's plea form, judgment, sentence,

and order of probation, which together establish that the Father pleaded no contest to

one count of attempted sexual battery on a minor in a familial or custodial authority, a

second-degree felony, for which he was sentenced to five years' imprisonment to be

followed by ten years' probation and for which he was designated a sexual predator.5

              Despite that limited record, based on the totality of the circumstances we

conclude that the Department has sufficiently shown that the Father poses a substantial



              5The  evidence in this case did not establish the nature of the Father's
relationship to the victim in the criminal case, nor did it establish the victim's age or
gender. The evidence only established that the victim was a minor over whom the
Father had some form of custodial or familial authority. Proof that the Child here was
the same gender and a sibling of the victim in the criminal case would be both relevant
and significant. Although we believe that the Father's conviction inherently
demonstrates a substantial risk of significant harm, in the future we encourage
petitioners in these time-sensitive cases to present more than just the most basic
information about the parent's conviction.

                                           -6-
risk of significant harm to the Child. See F.L., 880 So. 2d at 608 ("Padgett requires that

a termination decision be based on the totality of the circumstances."). The Father is

incarcerated, has repeatedly struggled with drug abuse (which was the original basis for

the initiation of dependency proceedings), and was adjudicated guilty of attempted

sexual battery of a minor child over whom he had custodial or familial authority. Given

those facts, particularly the nature of the conviction, we believe that the risk of harm is

evident. As the legislature has found, "sexual offenders who prey on children are

sexual predators who present an extreme threat to the public safety" and "are extremely

likely to use physical violence and to repeat their offenses." § 775.21(3)(a). In this case

the Father's conviction speaks for itself, and the danger that he poses to the Child is

clear.

              Affirmed.



MORRIS and BADALAMENTI, JJ., Concur.




                                            -7-
