V.S., THE MOTHER v. DEPARTMENT OF CHILDREN AND FAMILIES

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT

V.S., the Mother,
Appellant,

v.

DEPARTMENT OF CHILDREN AND FAMILIES
and GUARDIAN AD LITEM,
Appellees.

No. 4D20-1833

[June 9, 2021]

Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Alberto Ribas, Jr., Judge; L.T. Case No. 19-3330 CJ-DP.

Albert W. Guffanti of Albert W. Guffanti, P.A., Miami, for appellant.

Ashley Moody, Attorney General, Tallahassee, and Carolyn Schwarz,
Assistant Attorney General of the Office of the Attorney General, Children’s
Legal Services, Fort Lauderdale, for appellee Department of Children and
Families.

Thomasina F. Moore, Statewide Director of Appeals, and Samantha
Costas Valley, Senior Attorney of the Florida Statewide Guardian ad Litem
Office, Tallahassee, for appellee Guardian ad Litem.

PER CURIAM.

The mother appeals the termination of her parental rights to her four
children based upon egregious conduct toward her thirteen-month-old
child, egregious conduct being a ground for termination in section
39.806(1)(f), Florida Statutes (2020). She argues that the Department of
Children and Families (“the Department”) did not prove this ground for
termination by clear and convincing evidence. She also claims that the
statute is, in part, unconstitutional because it eliminates proof of a nexus
between the egregious acts to one child and substantial risk of significant
harm to the child’s siblings.

As to the mother’s first claim, because an appellate court cannot
reweigh the evidence presented, and competent substantial evidence
supported the ground for termination of parental rights to the child K.M.4,
all three panel members agree with an affirmance.

As to the second claim involving the termination of parental rights to
K.M.4’s three siblings, a two-judge panel majority determines that the
statute is not unconstitutional. The majority further determines that the
trial court properly applied the statute as amended in 2014, and concludes
that (1) the mother engaged in “egregious conduct . . . that threatens the
life, safety, or physical, mental, or emotional health of . . . the child’s
sibling[s,]” a ground for termination of parental rights found in section
39.806(1)(f), and (2) that termination of the mother’s parental rights of the
siblings is the least restrictive means of protecting them from serious
harm.

Finally, all three panel members agree that the case is to be remanded
to have the trial court decide and make findings whether it is in each
sibling’s manifest best interest to terminate the mother’s parental rights.

Background

At the time of the incident, the mother lived with her four children: a
seven-year-old girl (“K.M.1”); five-year-old boy (“K.M.2”); two-year-old boy
(“K.M.3”), and a one-year-old boy (“K.M.4”). The maternal grandmother
also lived with them.

The Department filed a verified petition for dependency and a petition
to shelter the children based upon injuries suffered by K.M.4 while in the
mother’s care: two left femur fractures, a rib fracture, and a chest injury.
These were revealed when the mother took K.M.4 to the emergency room
the morning after the alleged incident. A child protective investigator was
called to investigate. She interviewed the mother at the hospital and then
interviewed the other children.

Later, a Child Protection Team (“CPT”) nurse examined K.M.4 and
found positive indicators of physical abuse. The nurse determined that
the injuries on the child were “inflicted” and that the mother could not
“provide any explanation regarding the child’s injuries.” The trial court
granted the shelter petition, finding probable cause to believe that the
children were abused, abandoned, neglected, or facing impending danger.
The children were placed in the custody of the father, who is not married
to the mother, and the mother was given supervised visitation.

Subsequently, the Department filed an expedited termination of
parental rights petition against the mother, pursuant to section

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39.806(1)(f), Florida Statutes (2020), on the grounds that she engaged in
egregious conduct threatening the life, safety, or physical, mental or
emotional health of the child or his siblings. The mother denied the
allegations, and the case proceeded to trial.

At trial, the mother testified that on the evening of the incident she left
K.M.4 in his playpen when she went to the bathroom. While still in the
bathroom, she heard K.M.4 scream. As soon as she finished, she went
straight to the child and picked him up. She noticed a red spot on his leg
but saw no swelling or bruising. Because he was crying, she took him
downstairs, gave him a chewable Tylenol, elevated his leg, and put ice on
it. He went to sleep, and she slept on the floor next to him. He slept
through the night.

When the mother awoke the next morning, she realized that K.M.4’s leg
was swollen and decided to take him to the hospital. At the hospital, the
doctors diagnosed a fracture and then transferred the baby to Plantation
General Hospital, where a body scan revealed other injuries. The mother
testified that she did not know how the baby could have been injured. She
speculated that K.M.3, her two-year-old, may have jumped into the crib
onto K.M.4 but got out when K.M.4 cried, because she observed K.M.3
running out of the bedroom just after K.M.4 started crying.

The child protective investigator testified she commenced her
investigation after receiving a report of a bone fracture on the child. She
spoke to the mother at the hospital and confirmed that what the mother
told her at the hospital was consistent with her trial testimony as to the
occurrence. The investigator also interviewed K.M.1 and K.M.2. Their
stories were not entirely consistent, nor were they consistent with the
mother’s. However, both placed blame on K.M.2, the five-year-old. K.M.2
admitted to the investigator that he tried to pick up K.M.4 and then
dropped him, and the investigator testified that there was nothing about
his demeanor to suggest that he was not being truthful with her.

A CPT case coordinator testified she too had interviewed the mother,
whose statements were consistent with her trial testimony. Further, a CPT
nurse practitioner testified she examined K.M.4 at the hospital and
obtained his medical records. She also took a statement from the mother,
which again was consistent with the mother’s trial testimony.

The nurse practitioner’s review of K.M.4’s medical records and imaging
reports indicated physical abuse. The child had a fracture of the corner of
his left femur, which attaches to part of the hip. This fracture is indicative
of abuse. He also had a spiral fracture across the same femur. In addition,

3
he had a rib fracture, and a chest injury called a pneumomediastinum,
which is air trapped underneath the chest wall and is usually caused by a
direct impact. The nurse did not feel the mother’s explanation that one of
the other children may have jumped on top of the baby in the playpen was
consistent with his injuries. She stated that the corner fracture in
particular raised a red flag because these fractures are indicative of
intentional injuries and “are usually not accidental.” The nurse thought
that another child could not have caused the injuries by jumping on the
baby or dropping the baby, stating either scenario was “highly unlikely.”

The CPT medical director, a pediatrician, testified to his review of
K.M.4’s medical records and confirmed the child’s various injuries. He
concluded the injuries were inflicted and not accidental. The injuries were
not consistent with any of the explanations given by the mother or the
other children, nor did he think that children could exert sufficient force
to cause all the injuries. And while some of the injuries could occur
accidentally, the totality of the injuries indicated abuse.

The child advocate and guardian ad litem both testified. Each
acknowledged that the children and mother had a strong bond and that
the mother continued to visit and support the children. The child advocate
noted, “[e]very time they see Mom, they’re always in a happy mood.” The
mother had provided food and money to the father for his rent and their
care. Nevertheless, the child advocate and guardian ad litem each
recommended termination of the mother’s parental rights to the children
because of the injuries to K.M.4 and their concern that caring for all four
children overwhelmed the mother.

Testimony also revealed no prior reports of physical abuse. While the
mother and father had been involved in some domestic violence earlier,
those incidents stopped when the father moved out of the home long before
this incident. The father testified he had seen the mother “whoop” the
children, but he never observed any abuse. He was concerned, however,
for the welfare of the children because of K.M.4’s injuries.

The court entered a final judgment terminating the mother’s parental
rights as to all four children. The court found the mother’s testimony was
not credible. The mother was K.M.4’s caregiver, and neither the
grandmother nor the father was with the child at the time of the incident.
The court accepted the nurse’s and doctor’s findings that the injuries were
intentionally inflicted and were not an accident because the injuries
required a large amount of force which could only come from an adult, not
a child. Therefore, the court accepted the experts’ testimony that rejected
the explanation that the other children somehow caused the injuries.

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 Given the mother’s caretaker role, the court determined she had
engaged in “egregious conduct” threatening the child’s life, safety,
physical, mental, or emotional health. While no evidence was presented
of abuse to the other children, the court noted section 39.806(1)(f) does
not require proof of any nexus between egregious conduct toward K.M.4
and harm to his siblings.

The trial court further found that because the Department had proved
termination pursuant to section 39.806(1)(f), it was not required to use
reasonable efforts to reunify the siblings with the mother. Thus,
termination was the least restrictive means to protect the children.

Finally, in determining the children’s manifest best interests, the court
addressed the enumerated factors under section 39.810(1)–(11), Florida
Statutes (2020). The court found the children were living with the father,
who was providing them with a stable and appropriate placement.
Additionally, the court noted the mother had the ability to provide for the
children’s needs and ensure they had stable housing and a family support
system. The mother continued to provide financial assistance to the father
while the children were in his care.

However, the trial court found the mother did not have the capacity to
ensure the children’s well-being. This finding was based solely on the
egregious abuse which the court found as to K.M.4. The court specifically
stated that it did not have to evaluate potential harm to the other children
because proof of a nexus was not required by statute.

The court acknowledged the strong bond between the children and the
mother but determined this did not outweigh the fact that the children
would be in a more stable environment with the father, particularly
because the mother and father communicate effectively. The court
expected that the father would foster a relationship between the mother
and children post-termination. Despite this, the court also found little or
no evidence to support the re-establishment of a parent/child relationship,
discussing the abuse suffered by K.M.4, which threatened his life and
health. Again, the court did not make findings as to the other children
because it concluded no nexus was required.

Accordingly, the court terminated the mother’s rights to all the
children, having found termination was in the best interests of the children
and the least restrictive means of protecting them from harm. This appeal
of the final judgment followed.

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 Analysis

“The standard of review of the final judgment terminating parental
rights is whether the trial court’s finding that there is clear and convincing
evidence to terminate parental rights is supported by competent,
substantial evidence.” T.B. v. Dep’t of Child. & Fams., 299 So. 3d 1073,
1076 (Fla. 4th DCA 2020) (quoting C.S. v. Dep’t of Child. & Fams., 178 So.
3d 937, 940 (Fla. 4th DCA 2015)). “The evidence must be credible; the
memories of the witnesses must be clear and without confusion; and the
sum total of the evidence must be of sufficient weight to convince the trier
of fact without hesitancy.” J.F. v. Dep’t of Child. & Fams., 890 So. 2d 434,
439 (Fla. 4th DCA 2004).

The appellate court has no authority to reweigh testimony and find it
credible. T.M. v. Dep’t of Child. & Fams., 971 So. 2d 274, 277 (Fla. 4th
DCA 2008) (explaining that an appellate court’s “task on review is not to
conduct a de novo proceeding, reweigh the testimony and evidence given
at the trial court, or substitute [its] judgment for that of the trier of fact”
(alteration in original) (quoting In re Adoption of Baby E.A.W., 658 So. 2d
961, 967 (Fla. 1995))). Nevertheless, termination of parental rights should
not be based on speculation. See M.C. v. Dep’t of Child. & Fams., 186 So.
3d 74, 80 (Fla. 3d DCA 2016).

The termination of parental rights involves a three-step process. First,
a trial court must find by clear and convincing evidence that at least one
statutory ground under section 39.806 has been established. S.M. v. Fla.
Dep’t of Child. & Fams., 202 So. 3d 769, 776 (Fla. 2016). Next, the court
must evaluate the relevant factors enumerated in section 39.810, Florida
Statutes, to determine whether termination is in the manifest best
interests of the child. Id. at 776–77. Once the court finds termination
appropriate, the court must then determine whether the Department
established that termination is the least restrictive means to protect the
child from serious harm. Id. at 777.

A. Sufficiency of the Evidence to Prove Egregious Conduct with
respect to K.M.4

In this case, the Department alleged one ground for terminating the
mother’s parental rights to her children based on section 39.806(1)(f).
That section provides:

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

6
 ....

(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. Proof of a nexus between egregious conduct to a child
and the potential harm to the child’s sibling is not required.

....

The trial court ultimately concluded that the mother intentionally
caused K.M.4’s injuries, thus providing a ground for termination under
this section. As part of its finding, the trial court credited the mother’s
testimony that she was K.M.4’s primary caregiver at the time the injuries
occurred and that he was not left alone in the care of another adult. The
trial court otherwise found many inconsistencies in the mother’s testimony
and that her testimony was not credible. Also, given the medical testimony
regarding the extent of K.M.4’s injuries and the testimony that the injuries
could not have been caused by the other children, the trial court concluded
it was the mother who abused K.M.4.

On appeal, the mother argues she was consistent in recounting her
version of events and that the inconsistencies cited by the trial court were
unrelated to the actual incident. While her core explanation of how she
thought the incident occurred was consistent, other facts to which she
testified were not consistent with other witness testimony. And the trial
court can accept or reject her testimony in whole or in part. See
Durousseau v. State, 55 So. 3d 543, 560 (Fla. 2010) (“[T]he trial court may
accept or reject the testimony of an expert witness just as the judge may
accept or reject the testimony of any other witness.” (alteration in original)
(quoting Roberts v. State, 510 So. 2d 885, 894 (Fla. 1987))).

The mother also challenges the doctor’s opinion as based on
speculation. While the doctor did concede that dropping K.M.4 could
cause some of the injuries, he steadfastly opined that all the injuries could
not have resulted from the explanations offered by the mother or children.
This is not speculation but the application of the witness’s expertise in
evaluating the child’s injuries. It was the trial court’s role to decide the
credibility of the mother’s testimony and the reliability of the expert’s
opinion. Id.

The mother essentially asks this court to reweigh the evidence, which
is not the appellate court’s function. See T.M., 971 So. 2d at 277. “In

7
reviewing termination orders, we must affirm unless the order is not
supported by substantial competent evidence to support the trial court’s
finding of ‘clear and convincing’ evidence.” R.S. v. Dep’t of Child. & Fams.,
831 So. 2d 1275, 1277 (Fla. 4th DCA 2002) (citing In re Adoption of Baby
E.A.W., 658 So. 2d at 967). Therefore, even if we may have viewed the
evidence differently had we been the trier of fact, we must defer to the trial
court’s findings and conclusions that the mother had engaged in egregious
abuse of K.M.4. Thus, we affirm the termination of parental rights as to
K.M.4.

B. Constitutionality of the 2014 amendment to Section 39.806(1)(f),
Florida Statutes (2020), as applied to the termination of parental
rights with respect to K.M.4’s siblings.

As grounds for termination of the mother’s parental rights to her other
children, the statute provides that “[p]roof of a nexus between egregious
conduct to a child and the potential harm to the child’s sibling is not
required.” § 39.806(1)(f), Fla. Stat. (2020). The Legislature added this
sentence to the statute in 2014. Ch. 14-224, §19, at 41, Laws of Fla. The
mother contends the added language removing the nexus requirement
renders the statute unconstitutional on its face. A facial challenge to the
constitutionality of a statute may be raised for the first time on appeal.
See Trushin v. State, 425 So. 2d 1126, 1129 (Fla. 1982); In Interest of D.M.,
616 So. 2d 1192, 1192 (Fla. 4th DCA 1993). A challenge to the
constitutionality of a statute is a pure question of law, subject to de novo
review. D.M.T. v. T.M.H., 129 So. 3d 320, 332 (Fla. 2013).

The “manifest best interests” inquiry ensures the continuation of an
individualized approach and the consideration of all relevant
circumstances with respect to sibling terminations, even in circumstances
in which the trial court has determined that the parent “[e]ngaged in
egregious conduct . . . that threatens the life, safety, or physical, mental,
or emotional health of the child or the child’s sibling.” § 39.806(1)(f), Fla.
Stat. (2020); see also S.M. v. Dep’t of Child. & Fams., 202 So. 3d 769, 776–
77 (Fla. 2016) (a termination of parental rights petition must contain facts
supporting three basic elements: (a) at least one of the grounds listed in
section 39.806 has been met; (b) the manifest best interests of the child
would be served by the granting of the petition; and (c) “termination is the
least restrictive means of protecting the child from harm”). Thus, once the
petitioner establishes a statutory ground for termination (section
39.806(1)(f) here), it still must address the manifest best interests inquiry.

The mother has not established that section 39.806(1)(f), post-2014
amendment, is unconstitutional. When a statute seems to infringe on a

8
fundamental liberty interest, it is subject to strict scrutiny to determine
whether the statute serves a compelling state interest and does so through
the least intrusive means. Beagle v. Beagle, 678 So. 2d 1271, 1276 (Fla.
1996); Dep’t of Child. and Fams. v. F.L., 880 So. 2d 602, 607 (Fla. 2004).
A statute should be construed so as not to conflict with the Constitution.
F.L., 880 So. 2d at 607; see also Abdool v. Bondi, 141 So. 3d 529, 538 (Fla.
2014) (“Generally, when we review the constitutionality of a statute, we
accord legislative acts a presumption of constitutionality and construe the
challenged legislation to effect a constitutional outcome when possible.”).

Here, the challenged legislation serves a compelling state interest.
Section 39.806(1)(f)2., Florida Statutes (2020), defines egregious conduct
as “abuse, abandonment, neglect, or any other 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.” § 39.806(1)(f)2., Fla. Stat. (2020). As noted in Interest of C.E., 263
So. 3d 202 (Fla. 2d DCA 2019), for a single occurrence to constitute
“egregious conduct” under this statute, the incident must be of such
severity as to endanger the life of the child. Id. at 212. The 2014
amendment eliminating the nexus requirement embodies a legislative
recognition that egregious conduct toward one child not only threatens the
life and safety of the child’s siblings, but also threatens their “physical,
mental, or emotional health[.]” § 39.806(1)(f), Fla. Stat. (2020).

As the guardian ad litem’s brief notes, the amendment is:

eviden[ce that] the legislature has determined there is some
parental conduct that is so deplorable and so outrageous—
like, for example, numerous broken bones in a baby incapable
of walking—it poses a risk to all the parent’s children, not just
the child who happens to be the direct recipient of the abuse.

(emphasis in original).

For the statute to pass constitutional muster, it must be narrowly
tailored to implement that interest. Judge Warner’s dissenting opinion
relies heavily on pre-2014 opinions of the Florida Supreme Court: Padgett
v. Department of Health & Rehabilitative Services, 577 So. 2d 565 (Fla.
1991), and Dep’t of Child. and Fams. v. F.L., 880 So. 2d 602 (Fla. 2004).
Neither opinion dealt with section 39.806(1)(f) as amended in 2014, nor
with a “no nexus required” provision inserted by the legislature. Moreover,
Padgett states that “the permanent termination of a parent’s rights in one
child under circumstances involving abuse or neglect may serve as

9
grounds for permanently severing the parent’s rights in a different child.”
577 So. 2d at 571 (emphasis added and footnote omitted). F.L. buttresses
this point: “Implicit 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.” 880 So. 2d 608 (emphasis added). “Egregious conduct” would
appear to fall into the narrow “some cases” category. Thus, the “no nexus
required” amendment is not incompatible with Padgett and F.L. or with the
“narrowly tailored” prerequisite.

The Second District, in In Interest of C.M.H., 288 So. 3d 722 (Fla. 2d
DCA 2018), noted having earlier 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.’” 288 So.
3d at 724 (alterations in original) (citing and quoting In re E.R., 49 So. 3d
846, 853 (Fla. 2d DCA 2010)).

C.M.H. applied In re E.R.’s logic to section 39.806(1)(d)(2), which
terminates parental rights for a parent who is incarcerated and has been
designated a sexual predator. See 288 So. 3d at 724–25. The court
rejected the parent’s argument that this subchapter of section 39.806(1)
should be declared unconstitutional “because it does not require such
proof of a substantial risk of significant harm to the child.” Id. at 723. The
court found that In re E.R.’s “risk is clear” rationale applies to “the inherent
risk of harm associated with sexual predators.” Id. at 724.

Here, the mother did not argue to the trial court that the conduct could
not be considered “egregious” under the statutory definition. Moreover,
the final judgment contains a specific finding that the fracture to K.M.4’s
femur could have resulted in his death. Having determined that
competent substantial evidence supports the trial court’s finding of
egregious conduct with respect to the single episode of life-threatening
injuries to K.M.4, we see no reason to not apply the “risk is clear” rationale
to the inherent risk of harm associated with such parental behavior as
applied to parental rights of the siblings. See D.O. v. S.M., 981 So. 2d 11,
13 (Fla. 4th DCA 2007) (holding that section 39.806(1)(f) “represents a
legislative expression that parents who have committed egregious acts of
abuse against one child pose an unacceptable risk that they will abuse
their remaining children”).

C. Manifest Best Interests

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 The trial court also relied on the language eliminating the proof of a
nexus in section 39.806(1)(f) in its manifest best interests analysis.
Section 39.810(1)–(11), Florida Statutes (2020), requires the court to
consider all relevant factors before making a manifest best interests
decision. That “manifest best interests” statute does not have any
provision permitting the trial court to dispense with consideration of
factors because of the elimination of proof of a nexus between the
egregious conduct to one child and the risk of harm to the siblings of that
child. However, two statutory manifest best interests factors could involve
some analysis of the impact of egregious conduct by the parent. See §
39.810(3) and (4), Fla. Stat. (2020). 1

Although the trial court sufficiently addressed the pertinent factors in
determining that termination as to K.M.4 was in the child’s manifest best
interests, the court failed to evaluate the mother’s capacity to provide for
the safety and well-being of her other three children, stating that proof of
a nexus between the conduct against K.M.4 and the potential harm to his
siblings was not required. The court also applied this same reasoning to
find “little to no evidence to support the re-establishment of the
parent/child relationship.” The trial court merely recited the injuries to
K.M.4, and then as to his siblings, simply stated that proof of a nexus
between the conduct against K.M.4 and potential harm was not required. 2

The Department must prove all the elements listed in section 39.810
for the trial court to make the manifest best interests determination.
Interest of C.E., 263 So. 3d at 213. The Department failed to offer that
proof, apparently taking the same position as the trial court that proof of
substantial risk of significant harm to the siblings was unnecessary.

1 The elimination of the nexus requirement arguably reduces the trial court’s
scope of analysis as to section 39.810(3), Florida Statutes (2020). However,
section 39.810(4), Florida Statutes (2020), requires consideration of “[t]he 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.” Thus, recent egregious life-threatening conduct toward
one child is one of multiple considerations as to present and future physical and
mental health needs of the injured child and any siblings. Accordingly, the
elimination of a nexus requirement as to statutory grounds for termination does
not eliminate the requirement to consider multiple aspects of the present and
future physical and mental health needs of the injured child and any siblings.
2 We also note that the trial court was required to make manifest best interest

determinations as to each child individually. Here, when making the manifest
best interest determinations, the trial court continually referenced “the children,”
but made no statement confirming that it made the determinations for each child
individually, despite use of the group descriptor “the children.”

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Thus, due to the court’s improper reliance on the elimination of the nexus
requirement in section 39.806(1)(f), the court erred in failing to conduct a
complete manifest best interests analysis with respect to the siblings.

D. Least Restrictive Means

The Department “must establish in each [termination of parental rights]
case that termination of those 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 . . . .” Padgett, 577 So. 2d at 571.
“However, in cases involving egregious conduct by a parent, ‘the
termination of parental rights without the use of plans or agreements is
the least restrictive means.’” Interest of C.E., 263 So. 3d at 213 (quoting
In re. T.M., 641 So. 2d 410, 413 (Fla. 1994)).

As to the siblings, the legislature has abrogated the least restrictive
means inquiry for “egregious conduct” cases, among others. See §
39.806(2), Fla. Stat. (2020) (“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.” (emphasis added)). Accordingly, the
trial court here did not consider how the least restrictive means test
applied to the children other than K.M.4. Instead, it simply determined
that the Department did not have to provide a case plan where the
termination was based upon egregious conduct. We find no error.

Conclusion

Based on the foregoing, we affirm the termination of parental rights
with respect to K.M.4. Moreover, the panel majority does not determine
that the amendment to section 39.806(1)(f), which provides that “[p]roof of
a nexus between egregious conduct to a child and the potential harm to
the child’s sibling is not required,” is unconstitutional or in conflict with
pre-amendment precedent. However, the entire panel finds error in the
trial court’s failure to independently address the manifest best interests of
K.M.4’s siblings regarding the mother’s termination of parental rights. We
thus reverse the termination of parental rights as to K.M.1, K.M.2, and
K.M.3, and remand for further proceedings as to the manifest best
interests determination. If needed, the trial court may conduct further
evidentiary hearing(s).

Affirmed in part, reversed and remanded in part.

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CONNER and FORST, JJ., concur.
WARNER, J., concurs in part and dissents in part with opinion.

WARNER, J., concurring in part and dissenting in part.

I conclude that the 2014 legislative amendment of section 39.806(1)(f),
Florida Statutes, is unconstitutional, as it violates a parent’s fundamental
right to parent by relieving the State of its burden to show that the parent
poses a substantial risk of harm to a child, simply by proving an act of
egregious conduct towards a sibling. I would reverse on this ground. In
addition, the court erred by failing to consider the least restrictive means
analysis as to each child. Thus, I dissent in part from the majority opinion.

Facial Constitutionality of Section 36.806(1)(f)

In Padgett v. Department of Health & Rehabilitative Services, 577 So. 2d
565 (Fla. 1991), our supreme court considered the constitutionality of an
earlier version of section 39.806(1)(f), which provided that where a parent
engages in severe abuse or neglect of one child, termination of the parent’s
rights to other children was authorized. Id. at 571. The supreme court
noted that Florida courts had frequently applied the principle that a prior
termination of rights to another child can serve as grounds for
permanently severing the parental rights to the present child. Id. at 569–
70. “[T]o require a child to suffer abuse in those cases where mistreatment
is virtually assured is illogical and directly averse to society’s fundamental
policy of preserving the welfare of its youth.” Id. at 570.

The court then considered the constitutionality of such a principle. It
recognized the fundamental right to parent as:

[A] longstanding and fundamental liberty interest of parents
in determining the care and upbringing of their children free
from the heavy hand of government paternalism. The United
States Supreme Court has concluded that “freedom of
personal choice in matters of family life is a fundamental
liberty interest protected by the Fourteenth Amendment.”
Santosky v. Kramer, 455 U.S. 745, 753, 102 S. Ct. 1388,
1394, 71 L. Ed. 2d 599 (1982). This interest is especially
implicated in proceedings involving the termination of
parental rights:

The fundamental liberty interest of natural parents in
the care, custody, and management of their child does

13
 not evaporate simply because they have not been model
parents. . . .

Id. Florida courts have long recognized this fundamental
parental right, as we noted in State ex rel. Sparks v. Reeves,
97 So. 2d 18, 20 (Fla. 1957) (citation omitted): “[W]e
nevertheless cannot lose sight of the basic proposition that a
parent has a natural God-given legal right to enjoy the
custody, fellowship and companionship of his offspring. This
is a rule older than the common law itself . . . .”

In fact, “the only limitation on this rule of parental privilege is
that as between the parent and the child the ultimate welfare
of the child itself must be controlling.” Id.

Id. at 570. To satisfy constitutional concerns regarding the fundamental
rights involved, based upon abuse or termination of rights to another child,
the court held:

To protect the rights of the parent and child, we conclude that
before parental rights in a child can be permanently and
involuntarily severed, the state must show by clear and
convincing evidence that reunification with the parent poses
a substantial risk of significant harm to the child. . . . The
question before us today is whether this abuse, neglect or
abandonment must concern the present child, or whether it
can concern some other child. Based on our above analysis,
we hold that the permanent termination of a parent’s rights in
one child under circumstances involving abuse or neglect may
serve as grounds for permanently severing the parent’s rights
in a different child.

We note that because parental rights constitute a
fundamental liberty interest, the state must establish in each
case that termination of those rights is the least restrictive
means of protecting the child from serious harm.

Id. at 571 (footnotes omitted). Thus, the court created a two-part test for
terminating parental rights to a child based upon abuse of a sibling. The
State must show: 1) substantial risk of significant harm to the present
child, meaning the child whose parent’s rights are to be terminated; and
2) termination is the least restrictive means of protecting the child from
serious harm.

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 In Florida Department of Children & Families v. F.L., 880 So. 2d 602
(Fla. 2004), the court addressed another similar statute, section
39.806(1)(i), Florida Statutes (2002), that established a ground for
termination “when the parental rights of the parent to a sibling have been
terminated involuntarily.” Id. at 607. Discussing Padgett, the court noted:

Implicit 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. In all cases, we
emphasized that to pass constitutional muster, the
termination of parental rights to the current child must be the
least restrictive means of protecting that child from harm.

Id. at 608.

Based on Padgett, the court agreed that “section 39.806(1)(i) may not
constitutionally permit a termination of parental rights without proof of
substantial risk to the child.” Id. at 609. However, the statute could be
deemed constitutional by applying the Padgett factors to its operation.
Thus, the court held:

We, therefore, hold 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. Further, the state
must prove that the termination of parental rights is the least
restrictive means of protecting the child from harm.

Id. at 609–10 (emphasis supplied). Thus, F.L. also required proof of
substantial risk of significant harm to the child where the ground for
termination is based upon the termination of parental rights to a sibling.
The court further explained that such a finding must be based upon the
specific circumstances of each case:

For a trial court applying section 39.806(1)(i), the
circumstances leading to the prior involuntary termination
will be highly relevant to the court’s determination of whether
the current child is at risk and whether termination is the
least restrictive way to protect the child. Specifically, if the
parent’s conduct that led to the involuntary termination
involved egregious abuse or neglect of another child, this will
tend to indicate a greater risk of harm to the current child.

15
Id. at 610. Furthermore, in deciding F.L., the court specifically rejected
the approach of A.B. v. Department of Children & Families, 816 So. 2d 684
(Fla. 5th DCA 2002), which held that the statute created a rebuttable
presumption in favor of termination, but a parent could present evidence
of a lack of substantial risk of harm to the siblings. Id. at 608–09. “The
rebuttable presumption stated in A.B. would relieve the state of this
burden of proof. This burden shifting would violate the constitutional
requirements articulated in Padgett.” Id. at 609.

Our cases following F.L. required a nexus between the conduct of the
parent toward one child and substantial risk of significant harm to
siblings. See J.F. v. Dep’t of Child. & Fams., 890 So. 2d 434, 441 (Fla. 4th
DCA 2004) (“[I]n order for a termination of parental rights to be based
solely on the single act of committing manslaughter or a felony assault
against another child, the state must also prove that, based on the totality
of the circumstances surrounding the petition, the parent currently poses
a substantial risk of significant harm to the current child or children and
that termination of parental rights is the least restrictive means of
protecting the current child or children from harm.”); see also A.J. v. Dep’t
of Child. & Fams., 97 So. 3d 985, 987–88 (Fla. 4th DCA 2012) (holding that
trial court erred in terminating father’s rights to sons where there was
insufficient evidence of substantial risk of significant harm to sons based
upon sexual abuse of daughters and the totality of the circumstances); J.J.
v. Dep’t of Child. & Fams., 994 So. 2d 496, 502 (Fla. 4th DCA 2008)
(holding that termination based upon section 39.806(1)(i) was error where
there was no showing of substantial risk of significant harm to later born
siblings).

In contrast, the Second District held that in cases of sibling murder,
there was no requirement to show a nexus between the murder and
substantial risk of significant harm to the remaining children. See In re
E.R., 49 So. 3d 846, 853 (Fla. 2d DCA 2010) (certifying conflict with J.F.,
890 So. 2d 434). Nevertheless, in E.R., the court found that substantial
risk to the remaining children had been proven. Id. at 855. The father
apparently had killed his infant child, a victim of “shaken baby syndrome.”
This showed a lack of control by the father, and individuals who engaged
in such conduct had a high rate of recidivism, as testified to by a child
abuse expert. Thus, the court considered the totality of the circumstances
in determining that there was a substantial risk. Id. at 854.

With the amendment eliminating the nexus requirement in section
39.806(1)(f), the legislature removed the very factor that Padgett and F.L.
required to make similar statutes constitutional when seeking to terminate
parental rights to a child based upon the parent’s conduct toward a

16
sibling. The amendment violates the constitution, because it allows
termination of parental rights to a child based upon egregious abuse of the
child’s sibling without any showing of substantial risk of significant harm
to the current child. While in many cases of egregious abuse substantial
risk of significant harm may be evident, the foregoing cases show that it is
not always present.

The statute creates a presumption that harm to the other child will
occur and conflicts with principles espoused in Stanley v. Illinois, 405 U.S.
645 (1972), a parental dependency case, in which the Court said:

Procedure by presumption is always cheaper and easier than
individualized determination. But when, as here, the
procedure forecloses the determinative issues of competence
and care, when it explicitly disdains present realities in
deference to past formalities, it needlessly risks running
roughshod over the important interests of both parent and
child. It therefore cannot stand.

Id. at 656–57. While Stanley involved the preclusion of an unwed father
from a dependency hearing where his children were taken from him, it has
also been applied to hold that statutory presumptions which preclude
individual decision-making as to whether a parent will cause substantial
harm to a child are unconstitutional. In In re Swanson, 2 S.W. 3d 180
(Tenn. 1999), the court relied on Stanley in holding, “[t]he federal and state
constitutions require the opportunity for an individualized determination
that a parent is either unfit or will cause substantial harm to his or her
child before the fundamental right to the care and custody of the child can
be taken away.” Id. at 188 (citing Stanley, 405 U.S. at 658–59).

The guardian ad litem points to several cases in which the appellate
courts have found that no nexus is necessary when seeking to terminate
a parent’s rights to siblings based upon abuse of another child. Those
cases were either decided prior to F.L. or are markedly different in their
facts, which shows that each case must be based upon an individual
evaluation of all the circumstances.

For instance, in Department of Children & Families v. B.B., 824 So. 2d
1000 (Fla. 5th DCA 2002), decided prior to F.L., the trial court terminated
the rights of a father to one of his daughters, because of sexual abuse of
this daughter and his claimed religious beliefs that marriage and sex with
his daughters was divinely inspired. The trial court did not terminate his
rights to his sons or to his other daughter. Id. On appeal, the Fifth District
determined that the court erred in refusing to terminate the father’s rights

17
to his sons and the other daughter, concluding that no nexus between the
sexual acts and substantial harm to the other children was required. See
id. at 1008–09. The court relied on its prior case of A.B., which had created
a rebuttable presumption of harm, but which our supreme court rejected
in F.L. Id. at 1007–08; see F.L., 880 So. 2d at 609. However, the B.B.
court also explained that, based upon the egregious facts of the case, the
sons were also at substantial risk of harm through the father’s inculcation
of the religious tenets o he claimed allowed him to “marry” his twelve-year-
old daughter. Id. at 1008, 1002. The boys slept in the same house where
he was sleeping with his daughters and were also taught to lie about such
subjects to adults. In other words, the court found that there was
substantial risk of harm to the sons, even though it was not the same
abuse suffered by the daughters. See id. at 1008–09.

The majority cites both In Interest of C.M.H., 288 So. 3d 722 (Fla. 2d
DCA 2018) and In re E.R., 49 So. 3d 846 (Fla. 2d DCA 2010) in support of
its holding. E.R. concluded that under section 39.806(1)(h), where a
parent murdered one child, the Department did not have to prove a
substantial risk of harm to other children, because the risk was apparent.
Id. at 853. In C.M.H., however, the court applied the Padgett substantial
harm analysis to section 39.806(1)(d)(2). It concluded that the legislature
had not intended to abrogate the substantial harm requirement of Padgett,
but the harm to all the children of the father being a sexual predator and
having been convicted of sexual abuse of a minor was sufficient. Neither
opinion analyzed the constitutionality of section 39.806(1)(f), but C.M.H.
included a footnote important to explain its conclusion that the
substantial harm requirement of Padgett was not abrogated:

Rather, 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 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,

18
 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).

Id. at 724 n.4 (emphasis supplied).

Because the legislative amendment to section 39.806(1)(f) conflicts with
the constitutional analysis of Padgett and F.L., I would hold that it is
unconstitutional, as we are bound to follow supreme court precedent. To
protect the fundamental rights of parents, the State must show a
substantial risk of significant harm to a child in order to base the
termination of parental rights to that child on the abuse of the child’s
sibling. Here, the trial court relied on the statute, and it did not perform
a risk analysis for the siblings of K.M.4.

In this case it is indeed questionable whether there is a substantial risk
of significant harm to K.M.4’s siblings. How K.M.4 was injured remains
uncertain. While the experts stated that the injuries most likely were
caused by an adult, neither opined on how they could have occurred.
Unlike most other cases, these injuries occurred in one incident. They
were not in varying stages of healing, which would indicate ongoing abuse.
Furthermore, the injuries were not suggestive of anything like shaken baby
syndrome. See, e.g., In re E.R., 49 So. 3d at 849. None of the injuries in
this case were life threatening. 3 As to K.M.4’s siblings, the case workers
found no signs of abuse or inappropriate discipline. There was no evidence
that the mother had mental health issues or anger management issues
that would endanger the children. There were no ongoing issues with the
family. The siblings were strongly bonded to their mother. The evidence
was completely lacking regarding a substantial risk of significant harm to
K.M.4’s siblings. Thus, the statutory elimination of this crucial test may
have deprived the mother of her right to parent her other children without
the Department ever having to prove that they were at risk in her care.
This unconstitutionally violates her fundamental rights.

Least Restrictive Means

3 While the doctor testified that a fracture could be life threatening if it pierced
an artery, he did not testify that this fracture or any of the other injuries were life
threatening. Not every bone fracture constitutes a life-threatening event.

19
 Similarly, in applying the least restrictive means test, the court did not
consider how that test applied to K.M.4’s siblings. The court simply
determined that the Department did not have to provide a case plan where
the termination was based upon egregious conduct. Cf. In Interest of T.M.,
641 So. 2d 410, 413 (Fla. 1994). But where there is no evidence of
substantial risk of significant harm to the siblings, termination is not the
least restrictive means of protecting the other children. See, e.g., A.J., 97
So. 3d at 988; J.J., 994 So. 2d at 503. Just as with the manifest best
interest analysis, the court improperly relied on the elimination of the
nexus requirement in section 39.806(1)(f) to find that termination was the
least restrictive means to protect the siblings. The evidence suggested,
however, that the siblings were not at substantial risk of significant harm
from the mother. There had been no indications of any physical abuse of
the siblings at any time. The mother continued to visit with them, and
they were happy to see her. She provided the father with significant
financial support for them. Because the children are in the custody of the
father, they are not lacking in permanency. The court had multiple
options, including placing the children in dependency and offering the
mother a case plan. There is no showing that termination was the least
restrictive means to protect K.M.4’s siblings.

Conclusion

For these reasons, I dissent in part from majority opinion. I concur in
the majority opinion as to the termination of the mother’s parental rights
to K.M.4 and its reversal as to the manifest best interest analysis.

* * *

Not final until disposition of timely filed motion for rehearing.

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