M.C. v. Department of Children and Families, 2016 WL 717694 (Fla. 3rd DCA)

Mother appealed termination of her parental rights under § 39.806(1)(f). The Third District Court of Appeal (Third DCA) reversed termination.

The underlying petition for termination of Mother’s rights alleged that Mother took E.C. to the hospital with “second degree, caustic, liquid burns” on his back, buttocks, right shoulder and right side of his body. Mother reported she believed her other child caused the injuries but was not able to provide a “cohesive explanation” for how the injuries occurred.

The Third DCA examined whether the record contained substantial evidence to support finding the Department established by clear and convincing evidence that mother either engaged in egregious conduct or had the opportunity and capability to prevent egregious conduct and knowingly failed to do so. As to the trial court’s finding that mother engaged in egregious conduct, the Third DCA found that finding to be based in speculation. No evidence was presented as to how the injury occurred, who caused the injury, or what caused the injury. Two other individuals were in the residence at the time E.C. was injured. The Third DCA noted that Mother took E.C. to urgent care immediately after discovering the injury. As to whether Mother failed to prevent egregious conduct, the Third DCA found the record was devoid of any evidence that mother had the opportunity and capability to prevent the conduct or “to even suggest” that she knowingly failed to prevent the conduct.

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