S. T. v. Department of Children and Families, Statewide

DISTRICT COURT OF APPEAL OF FLORIDA
SECOND DISTRICT
In the Interest of K.R. and C.L., children.
S.T.,
Appellant,
v.
DEPARTMENT OF CHILDREN AND FAMILIES and
STATEWIDE GUARDIAN AD LITEM OFFICE,
Appellees.
No. 2D2025-2006
April 8, 2026
Appeal from the Circuit Court for Hillsborough County; Lisa D.
Campbell, Judge.
Thomas J. Butler of Thomas Butler, P.A., Miami Beach; and Clay W.
Oberhausen, Office of Criminal Conflict & Civil Regional Counsel,
Sarasota, for Appellant.
Mary Soorus, Appellate Counsel, Children's Legal Services, Tampa, for
Appellee Department of Children and Families.
Sara Elizabeth Goldfarb, Statewide Director of Appeals, Tallahassee; and
Jamie Billotte Moses, Statewide Guardian ad Litem Office, Defending
Best Interests, MMPO Defense, Orlando, for Appellee Statewide Guardian
ad Litem Office.
SMITH, Judge.

2
S.T. (the Mother) appeals the trial court's final judgment
terminating her parental rights to her children, K.R. and C.L., under
section 39.806(1)(f), Florida Statutes (2024). Because the evidence before
the trial court was insufficient to support termination of the Mother's
parental rights, we reverse the portion of the final judgment that pertains
to the Mother.1
On May 2, 2023, the Department of Children and Families filed an
expedited petition for the termination of parental rights as to K.R. and
C.L. against the Mother pursuant to section 39.806(1)(f) based upon
egregious conduct. The petition alleged that on December 22, 2022, the
Mother's boyfriend,2 with whom the Mother and her two children were
living, entered the children's room and began punching and strangling
C.L. while K.R. slept in the same bed.3 The petition alleged that the
Mother viewed recordings from a baby monitor showing the abuse. The
video clips are disturbing. The Mother took the children to the hospital,
but she refused the hospital's request to X-ray C.L. and left the hospital
without signing the discharge paperwork. The petition further alleged
that the Mother delayed reporting the incident for two months while she
and the children continued to live with the boyfriend. The Department
learned of the abuse when the Mother voluntarily reported the abuse to
law enforcement.
1 The final judgment also (1) terminates the parental rights of A.R.,
the father of K.R., and (2) denies the expedited petition for termination of
the parental rights of C.L.'s father. We make no comment as to the
portions of the final judgment that pertain to either father.
2 The boyfriend is not the father of either K.R. or C.L.
3 C.L. was twenty-two months old at the time of the incident; K.R.
was four years old.

3
In support of termination pursuant to section 39.806(1)(f), the
Department alleged that the Mother engaged in egregious conduct or, in
the alternative, that she had the opportunity and capability to prevent
and knowingly failed to prevent egregious conduct that threatened the
life, safety, or physical, mental, or emotional health of the children.
Specifically, the Department alleged that the Mother allowed the
boyfriend continued access to the children and failed to timely
acknowledge the danger and risk the boyfriend posed to the children.
Because the Department sought termination under subsection
39.806(1)(f), the Department did not, and was not required to, make
"[r]easonable efforts to preserve and reunify" the family. See § 39.806(2).
At the final hearing, the Mother testified that on the night in
question, she awoke from sleep upon being alerted by the baby monitor.
She saw three video clips capturing the boyfriend punching, choking,
and shaking C.L. She immediately went to check on the children and
confronted the boyfriend, who denied any wrongdoing. The boyfriend
drove the Mother and the children to the hospital because she did not
have a car. While at the hospital, C.L. was examined and it was
recommended that C.L. have an X-ray. But the Mother left the hospital
without C.L. having the X-ray because she feared that the children might
be taken from her.4 The Mother's boyfriend then took the Mother and
children back to his house.
The Mother testified that upon returning to the house, she was
worried about the children being around the boyfriend, so she packed up
4 Hospital records admitted at the hearing show that a suspected
abuse report was sent to the Department on December 22, 2022. No
records were received into evidence demonstrating that the Department
received the abuse report.

4
their things and moved the children from the house. According to the
Mother the children alternated staying with C.L.'s father5 and the
maternal grandmother. The Mother testified that the children never
moved back into the house with the boyfriend after the incident and that
she no longer allowed him access to them. However, she admitted that
she continued to live with the boyfriend after the incident.
The Mother conceded that she did not immediately notify police of
the incident; in fact, she waited almost two months before reporting the
abuse. She explained that the incident had been bothering her and that
a coworker finally convinced her to report the abuse.
The detective who investigated the abuse report testified that she
interviewed the Mother three times. The Mother showed the videos to the
detective, identified her boyfriend as the perpetrator, and voluntarily
spoke with police. During the first interview, the Mother denied that the
boyfriend went to the hospital with them. The Mother told the detective
that after they left the hospital, she took steps to have the children
removed from the boyfriend's residence and the children had not been
back to the boyfriend's house and had not seen the boyfriend since the
abuse.
The detective stated that during the second interview the Mother
maintained that she never let the children see the boyfriend again after
the incident. The recording of the second interview was played. After the
detective told the Mother that the boyfriend had been arrested and that
he admitted to abusing C.L., counsel for the Mother objected to the next
portion of the interview, in which the detective told the Mother what the
5 C.L.'s father testified that while he was not the biological father of
K.R., he treated K.R. as his own child and continued to do so after his
relationship with the Mother ended.

5
boyfriend allegedly said to law enforcement after he was arrested,
arguing the statements were hearsay. The court overruled the hearsay
objection, and the recording was played. During the interview, the
detective told the Mother that the boyfriend told law enforcement that he
took the Mother and children to the hospital, that he brought them back
to his house, and that the children had been at his house, with the
Mother, the entire time. The Mother denied that the children continued
to stay at the boyfriend's house. The detective then told the Mother that
law enforcement also confirmed with the maternal grandmother that the
children were not staying with her; the detective told the Mother this was
the last chance to tell her what really happened. The Mother insisted
that she was telling the truth—that the children never again stayed at
the boyfriend's house or had any interactions with the boyfriend. She
admitted that she and C.L.'s father continued to use the boyfriend's
house as their pick-up and drop-off location for the children pursuant to
their coparenting agreement but insisted that the children did not go
inside the house and did not see the boyfriend.
The detective then testified regarding the third interview, stating
the Mother reapproached her and admitted that the boyfriend had, in
fact, taken her and the children to the hospital and then drove them
back to his house. When the detective asked the Mother if she stayed
the night at the boyfriend's house after they returned from the hospital,
the Mother responded that she stayed because she was scared but she
was adamant that the children never slept there after that day. She told
the detective that the children went to C.L.'s father's house and then
they went to the maternal grandmother's house.
C.L.'s father testified and confirmed that he picked up and dropped
off the children outside of the boyfriend's house during the time-sharing

6
exchanges. He testified that when he arrived the children were never
inside the house but were always waiting with the Mother outside—he
has never met the boyfriend.
We note that the Mother's testimony at the hearing generally tracks
her statements to the detective: that she removed the children from the
boyfriend's home the night of the abuse and that the children never
returned to the home or had contact with the boyfriend after the
incident. Neither the boyfriend nor the maternal grandmother testified,
and there was no other evidence adduced related to where the children
were living after the incident.
In the final judgment the trial court found that "[i]n the weeks and
months in which [the] Mother continued to live with [the boyfriend], [the]
Mother was in fear of him . . . and continued to expose her children to
[the boyfriend] in some measure for a full two months after she had
witnessed the beatings on the videos." The trial court expressly rejected
the Mother's testimony that she moved the children out of the boyfriend's
house and that the children thereafter lived exclusively with C.L.'s father
and the maternal grandmother. The trial court noted that "[t]he
maternal grandmother, with whom [the] Mother claimed the children
lived, was not called as a witness to corroborate the Mother's testimony."
The trial court ultimately made an express finding that the Mother
lacked credibility.
In the final judgment, the trial court commented on the Mother's
hearsay objections noting the
Mother's defense to the Petition centers around facts and
allegations that she dismisses as just "hearsay." This
includes statements that both [the boyfriend] and [the
maternal grandmother] made to the police, confirming that
the children continued to live continuously and uninterrupted

7
in the home with [the boyfriend] following the December 2022
abuse.
The trial court's decision expressly states that "[r]egardless of
whether the children had spent any or every night at [the boyfriend's]
house after December 2022, the evidence was clear that [the] Mother
continued to expose her children in some fashion to a man who
committed a monstrous act of abuse toward her children." This
behavior, the trial court found, constitutes "egregious conduct" pursuant
to section 39.806(1)(f), supporting the termination of the Mother's
parental rights. The Mother timely appealed.
I
To grant a petition for termination of parental rights, the trial court
must find that the Department proved a statutory ground for
termination, that termination is in the manifest best interest of the child,
and that termination was the least restrictive means of protecting the
child. See R.C. v. Dep't of Child. & Fam. Servs., 33 So. 3d 710, 714 (Fla.
2d DCA 2010). It is the Department's burden to prove the allegations
supporting termination by clear and convincing evidence. Id. (citing
E.E.A. v. Dep't of Child. & Fam. Servs., 846 So. 2d 1250, 1251-52 (Fla. 2d
DCA 2003)); see also M.B. v. Dep't of Child. & Fams., 326 So. 3d 72, 74
(Fla. 4th DCA 2021) ("Termination of parental rights should not be based
on speculation."). The Florida Supreme Court has defined clear and
convincing evidence as an "intermediate level of proof [that] entails both
a qualitative and quantitative standard. 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." G.W.B. v. J.S.W., 658 So. 2d 961, 967
(Fla. 1995) (alteration in original) (quoting In re Davey, 645 So. 2d 398,
404 (Fla. 1994)).

8
We review the trial court's order to determine whether the trial
court's findings are supported by competent, substantial evidence. T.V.
v. Dep't of Child. & Fam. Servs., 905 So. 2d 945, 946 (Fla. 3d DCA 2005)
("The standard of review in a case where the trial court terminates
parental rights is whether the judgment is supported by substantial and
competent evidence."); see also R.C. v. Dep't of Child. & Fam. Servs., 33
So. 3d 710, 714 (Fla 2d DCA 2010) ("Where the trial court's finding that
there is clear and convincing evidence to terminate parental rights is
supported by competent, substantial evidence, the appellate court has no
choice but to affirm."); M.B., 326 So. 3d at 74 ("[T]he appellate court's
task is not to reweigh the evidence or make credibility determinations of
the witnesses, but rather, to ensure that competent substantial evidence
supports the trial court's ruling.").
II
In this case, the Department filed its expedited petition for
termination of the Mother's parental rights under section 39.806(1)(f),
which provides grounds for termination of parental rights when a parent
has
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 statute further provides:
As used in this subsection, the term "egregious conduct"
means 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.

9
§ 39.806(1)(f)2. "Egregious conduct" requires a connection between the
activity or conduct involved and abuse or neglect or specific harm to the
child. See K.R. v. Dep't of Child. & Fam. Servs., 843 So. 2d 366, 368 (Fla.
2d DCA 2003) (holding that "past drug use alone without connecting the
drug use to any abuse, neglect, or specific harm to the child" is
insufficient to establish "egregious conduct"); P.S. v. Dep't of Child. &
Fam. Servs., 863 So. 2d 392, 394 (Fla. 3d DCA 2003). We have held that
egregious conduct includes that situation where "a parent who was not
present during, or who did not participate in [the abuse, neglect or
specific harm], . . . knowingly failed to protect the child from egregious
abuse." T.L. v. Dep't of Child. & Fam. Servs., 990 So. 2d 1267, 1271 (Fla.
2d DCA 2008) citing K.A. v. Dep't of Child. & Fam. Servs., 880 So. 2d 705,
708 (Fla. 2d DCA 2004), superseded on other grounds by J.F. v. Dep't of
Child. & Fams., 198 So. 3d 706, 708 (Fla. 2d DCA 2016).
The issue we must decide is whether the record
contains competent substantial evidence to support the trial
court's finding that the Department established by clear and
convincing evidence that the Mother (1) engaged in egregious
conduct, or (2) 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 Children.
M.C. v. Dep't of Child. & Fams., 186 So. 3d 74, 79 (Fla. 3d DCA 2016)
(holding that a trial court's determination that clear and convincing
evidence supports the termination of parental rights will not be
overturned unless found to be clearly erroneous or lacking in evidentiary
support).
III
The Mother argues that the Department fell short of its burden to
prove that she "(1) engaged in egregious conduct, or (2) had the
opportunity and capability to prevent and knowingly failed to prevent

10
egregious conduct that threatens the life, safety, or physical, mental or
emotional health of the Children." See M.C., 186 So. 3d at 79. We agree.
Here, the Department's theory of the case is that the Mother
continued to subject her children to harm by allowing the children to
stay with her and the boyfriend. Contrary to the Department's theory,
the Department presented no such admissible evidence.
The only evidence presented as to the children's living
arrangements after the abuse was presented through the Mother's
testimony. The trial court rejected the Mother's testimony as not
credible, which is a finding the trial court has broad discretion to make
in weighing the evidence. See M.B., 326 So. 3d 74. But the fact that the
trial court did not find the Mother credible does not satisfy the
Department's burden of proving egregious conduct by the Mother. See
M.C., 186 So. 3d at 78-79 (noting that the trial court found the mother
not credible but holding that there still must be competent substantial
evidence to support the trial court's finding that the Department
established by clear and convincing evidence that the mother engaged in
egregious conduct).
Moreover, contrary to the trial court's findings, clear and
convincing evidence cannot be satisfied by inadmissible hearsay. See
Johnson v. Dep't of Health & Rehab. Servs., 546 So. 2d 741, 744 (Fla. 1st
DCA 1989) (holding that evidence was not clear and convincing where
the only documents supporting HRS's case were inadmissible hearsay).
In this case, for reasons not apparent from the record, the Department
did not call the boyfriend or the maternal grandmother as witnesses at
the hearing but instead relied upon the detective's testimony regarding
what the boyfriend and grandmother allegedly said to law enforcement to
prove that the Mother continued to expose the children to the boyfriend

11
following the abuse.6 This was classic inadmissible hearsay. See
§ 90.801(b), Fla. Stat. (2024). As such, the trial court's finding that the
Mother continued to expose the children to the boyfriend after the abuse
can be based on nothing but pure speculation. See, e.g., M.C., 186 So.
3d at 80 ("We conclude that the trial court's finding that the Mother
engaged in 'egregious conduct' is based on pure speculation. There is no
evidence as to how the injury occurred or who or what caused the
injury."). Accordingly, the record is devoid of clear and convincing
evidence that would support the trial court's termination of the Mother's
6 The fact that the Mother stayed with the boyfriend after the
incident is not, in and of itself, a basis to terminate her parental rights.
Courts have recognized that
[i]t is well-established that "extricating oneself from an
abusive relationship can pose an extremely difficult hurdle for
victims of domestic violence." [L.M. v. State], 453 P.3d 651,
653-54 (Utah Ct. App. 2019). In this vein, the victim "might
have been isolated from [his or] her family by the abuser, [he
or] she may not be able to afford to go, or [he or] she may
realize that leaving is more dangerous than staying." Weiand
v. State, 732 So. 2d 1044, 1054 (Fla. 1999) (citation omitted).
L.C.A. v. Dep't of Child. & Fams., 319 So. 3d 671, 677 (Fla. 3d DCA 2021)
(third, fourth, and fifth alterations in original) (footnote omitted). This
may be a fact that bears upon the question of whether termination of the
Mother's parental rights is the least restrictive means of protecting the
children. Id. at 677-78 (" '[T]he least restrictive means of protecting the
child[] would have been for [the Department] to assist [the mother], the
victim of domestic violence, in gaining an injunction against the [father]
under Chapter 39 (if necessary),' and offering services for her to achieve
independence from her abuser, including those designed to facilitate the
relocation process." (second, third, fourth, and fifth alterations in
original) (quoting T.B. v. Dep't of Child. & Fams., 299 So. 3d 1073, 1080
(Fla. 4th DCA 2020))). Here, because the Department sought termination
of the Mother's rights under section 39.806(1)(f), it was not required to
prove that termination was the least restrictive means.

12
parental rights.7 See Schaffer v. State, 769 So. 2d 496, 498 (Fla. 4th
DCA 2000) ("Where the implication from in-court testimony is that a non-
testifying witness has made an out-of-court statement offered to prove
the defendant's guilt, the testimony is not admissible.").
To the extent that the petition alleged and the trial court made
findings related to the Mother's admitted action of leaving the hospital
without having C.L. submit to X-rays, as recommended by hospital staff,
we recognize that the failure to obtain medical attention can constitute
egregious conduct. See P.R. v. Dep't of Child. & Fams., 337 So. 3d 456
(Fla. 1st DCA 2022) (affirming termination of parental rights where there
was expert testimony that a five-week-old presented to emergency room
with new and old fractures that occurred seven to ten days earlier but
had gone untreated; the expert also testified that infant would feel pain
from these injuries, caregiver would know that the infant was in pain or
distress, and injuries were life-threatening); J.R. v. Dep't of Child. &
Fams., 28 So. 3d 117 (Fla. 5th DCA 2010) (holding termination was
appropriate where the father knew the child was injured and virtually
nonresponsive because of head-trauma caused by the wife, the father
neglected to seek medical attention for over six hours, and the child
died); P.I. v. Dep't of Child. & Fams., 14 So. 3d 1173 (Fla. 3d DCA 2009)
(holding termination was supported by competent substantial evidence
where there was expert testimony established the child was lethargic and
7 The Mother further argues that the trial court improperly shifted
the burden of proof to the Mother to disprove the Department's case.
While the trial court made note in its final judgment that "[t]he maternal
grandmother, with whom [the] Mother claimed the children lived, was not
called as a witness to corroborate the Mother's testimony," we cannot say
that this finding alone constitutes impermissible burden shifting given
that the trial court relied heavily on the inadmissible hearsay in reaching
its determination of egregious conduct.

13
had bruises on his face and body, there was fluid on his brain resulting
from trauma that was four to six weeks old, and the mother was aware of
the continued abuse perpetrated by stepfather and failed to protect the
children); T.M. v. Dep't of Child. & Fams., 971 So. 2d 274 (Fla. 4th DCA
2008) (affirming the termination of the mother's parental rights where
the mother admitted to causing a broken femur in three-month-old and
failing to seek medical care for more than twenty-four hours; the expert
testified the broken femur was a serious, significant, and substantial
injury that would have required "very substantial force"); D.O. v. S.M.,
981 So. 2d 11 (Fla. 4th DCA 2007) (noting that the mother noticed the
baby twitch three to four days before taking him to the emergency room;
expert testimony established that the baby sustained life threatening
injuries that were inflicted on multiple occasions and that parents
should have been aware that something was wrong with the baby
because the baby would have shown signs of distress, including
uncontrollable high-pitched crying).
However, all of these cases were supported by expert testimony
establishing that the injuries sustained were life-threatening and that the
parents or caregivers must have known that the injuries were serious
and required medical attention but failed to seek the same in a timely
manner. The same does not hold true here as there was no expert
testimony that C.L. suffered life-threatening injuries.
While it is true that the Department's nurse practitioner testified at
the hearing that C.L. suffered nerve damage causing her jaw to be
crooked, she acknowledged that a lay person would not have noticed.
And there are no medical records in the record that would support the
nurse practitioner's testimony that C.L. suffers from permanent nerve

14
damage.8 The hospital records from the night the Mother took C.L. to
the hospital show the physical exam was negative for headache, mental
status changes, or a decreased level of consciousness. The exam notes
state that C.L. was "well-appearing" and that while there were two minor
abrasions noted on C.L.'s chest, the doctor told the Mother that they
"were not able to link these abrasions to the father but it is just
something that we noted." The notes state that the physical exam was
"otherwise unremarkable."
Further, neither C.L.'s father nor the Mother noticed any injuries to
C.L. Indeed, after C.L. was sheltered, an X-ray was performed, and it
revealed no acute or chronic fractures, no skeletal anomalies, no bone
lesions, and no soft tissue abnormalities. Accordingly, under the facts of
this case, the Department failed to present competent substantial
evidence that would support a finding that the Mother's leaving the
hospital after the physical exam but before an X-ray had been completed
rises to the level of egregious conduct.
Because there was no evidence to support the trial court's finding
that the Mother engaged in "egregious conduct" by continuing to expose
the children to the boyfriend after the abuse or by leaving the hospital
after the physical exam but before an X-ray could be completed, we
reverse the portion of the final judgment that terminates the Mother's
8 The record on appeal includes an August 2, 2023, motion for
medical procedure filed by the Department. That motion attached an
affidavit from Dr. Nalin Patel, which stated that C.L. had been diagnosed
with "facial nerve disorder" and required an MRI of her brain/neck. The
motion was granted by order dated August 11, 2023. More than a year
after the motion requesting permission to conduct an MRI, on October 2,
2024, the Department filed a motion for relief/extraordinary relief
requesting the court to excuse the Department from subjecting the child
to an MRI because after a subsequent evaluation of the child, the ENT in
short stated that an MRI is no longer medically necessary.

15
parental rights on an expedited basis and remand to the trial court with
instructions that the children remain dependent and that the
Department offer the Mother a case plan with a goal of reunification. We
note that if the Mother fails to comply with the case plan, the
Department may again petition to terminate the Mother's parental rights.
See R.W.W. v. Dep't of Child. & Fams., 788 So. 2d 1020, 1025 (Fla. 2d
DCA 2001).
Accordingly, we reverse the trial court's order terminating the
Mother's parental rights, and we remand for further proceedings.
SILBERMAN and SLEET, JJ., Concur.
Opinion subject to revision prior to official publication.