FIFTH DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________

Case Nos. 5D2024-1991

survived and received further treatment. The Department of Children and Families intervened and filed a shelter petition as to W.G. and his siblings, and later filed a petition to terminate Mother’s parental rights to her children based on the severe injuries suffered by W.G.

Mother consistently denied injuring W.G. herself, and there was no proof that she had. She testified that she repeatedly asked her paramour what happened, but he denied any knowledge of how the child was injured. The evidence at the adjudicatory hearing revealed that Mother and her paramour had verbal fights or arguments from time to time and that occasionally the paramour, in anger, had struck the wall of their apartment with his fist and once actually punched a hole in the wall.

According to Mother’s unrebutted testimony, the paramour had never been physically violent with her before W.G. was injured, and she had never known of him being violent with any of the children. Mother testified that a few days after W.G. was injured and hospitalized, the paramour did become physically abusive with Mother and hit her in the head with such force that she required four staples to close the wound. Mother’s testimony on this incident was also unrebutted.

After receiving all the evidence, the trial court entered an order terminating Mother’s parental rights as to W.G. and her other children based on egregious conduct that threatened the life, safety, or physical, mental, or emotional health of the children, based upon W.G.’s serious injuries. The trial court concluded that Mother knew or should have known of the paramour’s violent propensity, yet failed to protect W.G. from injury.

Section 39.806(1)(f), Florida Statutes (2023), permits termination of a parent’s rights if they “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.” Based on the evidence in the record, there is an absence of clear and convincing proof to support the trial court’s conclusion that Mother had the opportunity and capability to prevent W.G.’s injuries resulting from the egregious conduct of the paramour, yet knowingly failed to do so. That conclusion is not supported by competent

substantial evidence and thus, under our standard of review, the order terminating Mother’s parental rights cannot stand. Cf. A.H. v. Fla. Dep’t of Child. & Fam. Servs., 85 So. 3d 1213, 1217 (Fla. 1st DCA 2012) (“The Department did not show, however, that appellant then knew that S.S. had abused the children or that he should have known that she was likely to abuse the children in the future.”). Likewise, in K.R.L. v. Department of Children & Family Services, 83 So. 3d 936, 940 (Fla. 3d DCA 2012), the Third District reversed the trial court’s order terminating the mother’s parental rights to her injured child because “DCF failed to show by clear and convincing evidence that the mother caused any of the child’s injuries, or knew of the [prior] abuse and failed to protect the child from such.”

We cannot accept Appellee’s argument that Mother knew or should have known that her paramour presented a danger of harm through egregious conduct as to W.G. or any of her other children based solely on the fact that Mother witnessed him get angry and hit or punch a wall on several occasions. Based on the evidence presented below, we are compelled to reverse the order terminating Mother’s parental rights as to all her children, and we remand this matter for further proceedings consistent with this opinion.

REVERSED and REMANDED for further proceedings.

WALLIS, J., concurs. EISNAUGLE, J., concurs specially with opinion.

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Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________

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Case Nos. 5D2024-1991