Sexual Abuse and Statutory Definitions-Trial court incorrectly applied the statute defining sexual abuse in Chapter 39. Sexual abuse of a child by a parent is egregious conduct

Fla. Dep’t of Children & Families v. A.R., 2018 Fla. App. LEXIS 10977 (Fla. Dist. Ct. App. 3d Dist. August 3, 2018)

At the conclusion of a lengthy trial on the petition to terminate parental rights of mother and father based on allegations of sexual abuse by the father and failure to protect by the mother, the trial court dismissed the petition as to the mother, and denied the petition as to the father but adjudicated the child dependent as to the father only.

On appeal, the Third DCA went into great detail and analysis regarding the definition of “sexual abuse” in Chapter 39 and determined that the trial court incorrectly applied the statute defining sexual abuse in denying the petition to terminate parental rights.  The Court further found that the trial court’s finding that there was no egregious conduct under section 39.806(1)(f) or sexual abuse under section 39.806(1)(g) for termination of parental rights purposes, but that there was sexual abuse under sections 39.01(2), (15)(a) and 15(f) for a finding of dependency, was irreconcilable.

The DCA reversed the adjudication of dependency as to the father and remanded the case for the entry of an order finding the father had sexually abused the child and requiring further consideration regarding the best interests of the child and least restrictive means of protecting the child.

Practice Tip: Cases such as this, where an AAL was appointed to represent the express wishes of the child, demonstrate the critical need for our best interest advocacy in all cases. Clearly, the best interest of the child demanded vigorous advocacy both at the trial level and on appeal and the GAL program was able to provide such advocacy, resulting in a reversal of the trial court’s order.

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