DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
K.A., the Mother,
Appellant,
v.
DEPARTMENT OF CHILDREN AND FAMILIES
and GUARDIAN AD LITEM,
Appellees.
No. 4D21-1514
[December 8, 2021]
Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Stacey Schulman, Judge; L.T. Case No. 2020-1291DP.
Antony P. Ryan, Regional Counsel, Office of Criminal Conflict and Civil
Regional Counsel, and Richard G. Bartmon, Assistant Regional Counsel,
West Palm Beach, for appellant.
Ashley Moody, Attorney General, Tallahassee, and Carolyn Schwarz,
Assistant Attorney General, Fort Lauderdale, for appellee Department of
Children and Families.
Sara Elizabeth Goldfarb, Statewide Director of Appeals, and Sarah Todd
Weitz, Senior Attorney, Appellate Division, Tallahassee, for appellee
Guardian ad Litem.
FORST, J.
K.A. (“the Mother”) and E.A. (“the Father”) separately appeal a final
judgment terminating parental rights as to their minor children. Because
the Mother and the Father (collectively, “the Parents”) advance similar—
but not identical—argument across both appellate cases, we address the
Parents’ arguments in separate opinions. However, in recognition that the
termination stems from a common set of facts and the Parents’ briefs
contain overlapping legal analysis, the opinions contain duplicative
language where appropriate.
With respect to the Mother’s argument, she asserts both sections
39.806(1)(l) and 39.806(1)(f), Florida Statutes (2019), are facially
unconstitutional, and that the trial court’s termination under section
39.806(1)(f) was not supported by competent, substantial evidence. As
discussed below, we find no merit in the Mother’s argument and therefore
affirm.
Background
Following a six-day trial—during which seventeen witnesses testified—
the trial court entered a 110-page final judgment terminating the Parents’
parental rights. In the final judgment, the trial court terminated the
Parents’ parental rights to their two young children (E.A.1, a five-year-old
girl, and E.A.2, a two-year-old boy), as well as the Mother’s parental rights
to her twelve-year-old son, K.B., based on the Father’s near fatal beating
of K.B. (his stepson) in May 2020.
Around that time, K.B. had begun staying at the Parents’ home (rather
than at his biological father’s house) because the Mother was working from
home and was able to better monitor K.B.’s schooling. Notwithstanding
K.B. purportedly exhibiting sexually inappropriate behavior toward his
five-year-old half-sister, the Parents allowed the two children to share a
bedroom. Thereafter, K.B. apparently sexually assaulted E.A.1, and the
Father beat K.B. with a metal chair, nearly killing him and causing severe
physical and mental damage.
Consequently, as of the date of the final judgment, the Father was
incarcerated and awaiting trial on a charge of felony battery resulting in
serious bodily injury to a child. The Father’s near fatal beating of K.B.—
and the Mother’s alleged acquiescence and failure to prevent such—was
not an isolated incident as it pertained to the involvement of the
Department of Children and Families (“the Department”). It was the third
incident requiring the sheltering of the Parents’ children.
The first incident arose in 2014. That year, the Parents lost custody of
their then several-month-old child, K.M.A., following a domestic violence
episode. Soon thereafter, their parental rights with respect to K.M.A. were
terminated and K.B. remained in his biological father’s custody and was
permitted to visit with the Mother at his maternal grandmother’s home on
weekends. The Parents were ordered to complete parenting, domestic
violence, batterers’ intervention, and individual therapy case plan tasks.
Neither parent successfully completed the assigned tasks.
Subsequently, in 2018, the trial court sheltered E.A.1 and E.A.2 due to
a second domestic violence incident between the Parents which
culminated in the Father’s arrest. However, the children were returned to
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the Parents pursuant to a child safety plan, following the Parents’
successful completion of assigned tasks. The third sheltering followed the
Father’s beating of K.B. in 2020.
Ultimately, in consideration of all three shelter events, the trial court
terminated the Mother’s parental rights pursuant to sections 39.806(1)(f)
and (l), Florida Statutes (2019), and terminated the Father’s parental
rights pursuant to sections 39.806(1)(f), (g), (h), and (l), Florida Statutes
(2019). Both parents timely appealed, and the cases were consolidated for
appellate review.
Analysis
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). “To terminate a parent’s rights to his or her child, the Department
must prove: (1) at least one statutory ground for termination; (2)
termination is in the child’s manifest best interest; and (3) termination is
the least restrictive means of protecting the child from harm.” J.V. v. Dep’t
of Child. & Fams., 46 Fla. L. Weekly D1807, 2021 WL 3556436, at *1 (Fla.
4th DCA Aug. 11, 2021) (citing B.K. v. Dep’t of Child. & Fams., 166 So. 3d
866, 873 (Fla. 4th DCA 2015)).
Further, “[t]he 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.” V.S. v. Dep’t of Child. & Fams., 322 So.
3d 1153, 1159 (Fla. 4th DCA 2021) (quoting T.B. v. Dep’t of Child. & Fams.,
299 So. 3d 1073, 1076 (Fla. 4th DCA 2020)). In reviewing such, an
appellate court 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.” T.M. v. Dep’t of Child. & Fams., 971 So. 2d
274, 277 (Fla. 4th DCA 2008) (alteration in original) (quoting In re Adoption
of Baby E.A.W., 658 So. 2d 961, 967 (Fla. 1995)). “[S]o long as the trial
court’s ruling on one of the statutory grounds set forth in section 39.806,
Florida Statutes, is supported by the evidence, the [trial] court’s decision
is affirmable.” J.E. v. Dep’t of Child. & Fams., 126 So. 3d 424, 427–28 (Fla.
4th DCA 2013).
A. Constitutionality of Sections 39.806(1)(l) & (1)(f), Florida Statutes
(2019)
“When a statute impinges on a fundamental liberty interest, such as
parenting ones [sic] child, we must analyze the constitutionality of the
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statute under a strict scrutiny standard.” N.B. v. Dep’t of Child. & Fams.,
183 So. 3d 1186, 1188 (Fla. 3d DCA 2016). To withstand strict scrutiny,
“the statute must serve a compelling state interest through the least
intrusive means possible.” Fla. Dep’t of Child. & Fams. v. F.L., 880 So. 2d
602, 607 (Fla. 2004). Moreover, “[t]o succeed on a facial challenge, the
challenger must demonstrate that no set of circumstances exists in which
the statute can be constitutionally valid.” Fraternal Order of Police, Miami
Lodge 20 v. City of Miami, 243 So. 3d 894, 897 (Fla. 2018). It is the State
that bears the burden of proving the validity of a law under strict scrutiny.
Norman v. State, 215 So. 3d 18, 36 (Fla. 2017).
1. Constitutionality of Section 39.806(1)(l), Florida Statutes (2019)
Section 39.806(1)(l), Florida Statutes (2019), provides for termination
of parental rights where it is established that “[o]n three or more occasions
the child or another child of the parent or parents has been placed in out-
of-home care . . . and the conditions that led to the child’s out-of-home
placement were caused by the parent or parents.” § 39.806(1)(l), Fla. Stat.
The Mother argues termination under section 39.806(1)(l) is facially
unconstitutional because it makes a parent’s fundamental right to parent
“subject to termination by arbitrary measures and impermissibly shifts
[the] burden of proof to [the] parent.”
In N.B. v. Florida Department of Children & Families, 183 So. 3d 1186
(Fla. 3d DCA 2016), the Third District considered (and rejected) this
argument. As part of its strict scrutiny analysis, the court noted the State
of Florida “has a compelling interest in protecting the physical and
psychological well-being of children,” ultimately holding section
39.806(1)(l) was “narrowly tailored to advance that interest through the
least intrusive means.” See id. at 1188–89.
In reaching this conclusion, the court cited language from then Chief
Judge Hawkes’ concurring opinion in K.J. ex rel. A.J. v. Department of
Children & Families, 33 So. 3d 88 (Fla. 1st DCA 2010). Id. at 1188. There,
Judge Hawkes stated that section 39.806(1)(l)’s purpose is to “protect
children when parents continually engage in conduct warranting out-of-
home placement[,]” clarifying that “the Legislature [has] concluded it is
harmful for children to be removed from the same home numerous times”
and “prior instances of out-of-home placement can be relied on in
establishing grounds for the termination of parental rights.” N.B., 183 So.
3d at 1188 (quoting K.J., 33 So. 3d at 90 (Hawkes, C.J., concurring)).
We agree with the Third District’s (and Judge Hawkes’) rationale. “[T]he
legislature possesses broad discretion in determining what measures are
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necessary for the public’s protection, and [an appellate court] may not
substitute [its] judgment for that of the legislature ‘insofar as the wisdom
or policy of the act is concerned.’” Barnes v. B.K. Credit Serv., Inc., 461 So.
2d 217, 219 (Fla. 1st DCA 1984) (quoting Hamilton v. State, 366 So. 2d 8,
10 (Fla. 1979)). Here, it was clearly within the Legislature’s province to
decide that three or more out-of-home placements constitutes grounds for
termination of parental rights. Indeed, there is nothing unconstitutional
about curtailing a child’s ability to be repeatedly removed from the same
home.
To the extent the Mother argues section 39.806(1)(l) impermissibly
shifts the burden to the parent and constitutes a denial of due process,
our sister court noted in N.B. that the requirement a termination be in the
child’s manifest best interest and that the termination be the least
restrictive means of protecting the child from harm act as additional
safeguards supporting the validity of any termination under subsection
(1)(l). Id. at 1188–89. Based upon Judge Hawkes’ analysis and the
presence of additional safeguards, the court rejected the appellant’s “facial
constitutional challenge to section 39.806(1)(l).” Id. at 1189. We do so as
well in the instant case.
Although we have since noted that “the legislature abrogated the least
restrictive means inquiry” for subsection (1)(l), among others, see V.S., 322
So. 3d at 1163, the manifest best interest requirement remains an
additional safeguard. Here, the trial court considered and evaluated the
eleven factors set forth in the “manifest best interests of the child” statute,
section 39.810, Florida Statutes (2019). Moreover, the Mother’s appellate
brief does not challenge the trial court’s conclusion that termination was
in the manifest best interests of the children; as such, this issue has been
waived. See N.W. v. Dep’t of Child. & Fams., 865 So. 2d 625, 626 (Fla. 4th
DCA 2004). We can therefore discern no basis for finding section (1)(l)
impermissibly shifts the burden or constitutes a denial of due process, nor
can the Mother demonstrate that “no set of circumstances exists in which
the statute can be constitutionally valid.” Fraternal Order, 243 So. 3d at
897.
2. Constitutionality of Section 39.806(1)(f), Florida Statutes (2019)
Section 39.806(1)(f), Florida Statutes (2019), permits the termination of
parental rights if it is established that “[t]he 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.” § 39.806(1)(f), Fla. Stat. Under section 39.806(1)(f), “[p]roof of a
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nexus between egregious conduct to a child and the potential harm to the
child’s sibling is not required.” Id.
The Mother argues termination under 39.806(1)(f) is facially
unconstitutional because it permits termination of a parent’s fundamental
constitutional rights without proof that the parent’s conduct towards a
sibling creates a substantial risk of harm to the current child, and because
the statute creates an impermissible presumption of harm which
inappropriately shifts the burden to the parent to disprove.
We recently addressed 39.806(1)(f)’s constitutionality in V.S. v.
Department of Children & Families, 322 So. 3d 1153 (Fla. 4th DCA 2021).
In that case, a parent challenged the constitutionality of the 2014
amendment to (1)(f), arguing this amendment was facially unconstitutional
because “it eliminate[d] proof of a nexus between the egregious acts to one
child and substantial risk of significant harm to the child’s siblings.” Id.
at 1156. We rejected this argument, holding “the ‘no nexus required’
amendment is not incompatible with [Florida supreme court precedent]”
or with strict scrutiny analysis. See id. at 1162 (emphasis omitted). In
doing so, we specifically noted that Padgett v. Department of Health &
Rehabilitative Services, 577 So. 2d 565 (Fla. 1991) recognized a parent’s
conduct toward another child may demonstrate a substantial risk of harm
to the current child in “some cases,” and “‘[e]gregious conduct’ would
appear to fall into the narrow ‘some cases’ category.” Id. at 1161.
Subsequently, in R.S. v. Department of Children & Families, 46 Fla. L.
Weekly D2132, 2021 WL 4448768 (Fla. 4th DCA Sept. 29, 2021)—a case
where the parent raised the same burden shifting argument that the
Mother now raises—we again upheld section 39.806(1)(f)’s
constitutionality. Thus, we follow our precedent in V.S. and R.S. and reject
the Mother’s argument.
Moreover, as with section 39.806(1)(l), the Mother presents no
argument that termination under section 39.806(1)(f) was not in the
children’s manifest best interests. Accordingly, any argument pertaining
to such is waived.
B. Competent, Substantial Evidence Supported Termination Under
Section 39.806(1)(f)
As just stated, section 39.806(1)(f), Florida Statutes (2019), permits the
termination of parental rights when a parent has “the opportunity and
capability to prevent and knowingly fail[s] to prevent egregious conduct
that threatens the life, safety, or physical, mental, or emotional health of
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the child or the child’s sibling.” § 39.806(1)(f), Fla. Stat. The Mother
argues the Department failed to establish by clear and convincing evidence
(and therefore, the trial court’s finding was not supported by competent,
substantial evidence) that termination was warranted under section
39.806(1)(f).
Section 39.806(1)(f)2. defines egregious conduct as “abuse,
abandonment, neglect, or any other conduct that is deplorable, flagrant,
or outrageous by a normal standard of conduct.” § 39.806(1)(f)2., Fla.
Stat. Here, the following highly relevant evidence was presented at trial in
support of the trial court’s finding that the Mother had the opportunity
and capability but knowingly failed to prevent the Father’s egregious
conduct:
• testimony concerning the Father’s past, including domestic violence
incidents which turned physical;
• the Father’s own expert witness’ testimony, in which the expert
acknowledged an existing tension between the Father and K.B.;
• the Mother’s acknowledgment the Father did not want K.B. in the
home;
• the Mother’s actions in allowing K.B. to share a room with E.A.1
despite knowing about K.B.’s behavioral problems. While the
Mother testified K.B. was no longer exhibiting the same behavior,
the Mother also maintained she was frequently on guard and kept
the children’s bedroom door open to monitor them;
• the Mother’s testimony concerning the incident that left K.B. near-
death, noting that, while comforting E.A.1, she heard “tussling”
sounds coming from the room in which she had just left K.B., but
she was unable to give an exact timeframe for how long it took to re-
enter the bedroom and check on K.B.; and
• E.A.1’s statement during a Child Protection Team interview that she
witnessed the Father hit K.B. with a chair six times—despite the
Mother’s testimony she was in the kitchen with E.A.1 during this
assault.
Based on such evidence, it cannot be said that the trial court’s decision
to terminate the Mother’s parental rights under section 39.806(1)(f) was
not supported by competent, substantial evidence. Additionally, we may
not conduct a de novo review or “reweigh the testimony and evidence given
at the trial court, or substitute [our] judgment for that of the trier of fact.”
T.M., 971 So. 2d at 277 (quoting Baby E.A.W., 658 So. 2d at 967). In any
event, any error would be harmless in light of the termination of the
Mother’s parental rights under section 39.806(1)(l). See J.E., 126 So. 3d
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at 427–28. Thus, we affirm as to this issue.
Conclusion
Upon careful consideration, because we hold sections 39.806(1)(l) and
(1)(f), Florida Statutes (2019), are not facially unconstitutional, and
because competent, substantial evidence supports the trial court’s
termination under both statutory provisions, we affirm the trial court’s
final judgment of termination of the Mother’s parental rights as to E.A.1,
E.A.2, and K.B.
Affirmed.
CONNER, C.J., and KUNTZ, J., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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