In re A.W., 2015 WL 9258506 (Fla. 2nd DCA)

Mother appealed termination of her parental rights to her daughters, S.W. and A.W. The Second District Court of Appeal (Second DCA) reversed and remanded, finding that the trial court erroneously applied a statutory amendment retroactively in its findings.

N.W. lived with her long-term girlfriend T.H., T.H.’s daughter T.K.H, and N.W.’s daughters. N.W. and T.H. had a “long and violent history.” Although there was no evidence presented that N.W.’s daughters were abused by N.W. or witnessed any abuse or domestic violence by N.W., T.K.H. was abused repeatedly by N.W. Termination of N.W.’s parental rights was granted pursuant to a 2014 amendment to § 39.806(1)(f), which allows for termination when the parent engaged in “egregious conduct . . that threatens the life, safety or physical, mental or emotional health of the child or the child’s sibling. Poof of a nexus between egregious conduct to a child and the potential harm to the child’s sibling is not required” (emphasis added to note the amendment).

The trial court found that adding the language that a proof of nexus is not required merely clarified the department’s burden and was not a substantive change in the law. The trial court retroactively applied the amended statute. No findings were made as to whether there was any connection between N.W.’s abuse of T.K.H. and potential harm to N.W.’s children.

The Second DCA found that the amendment did not change the burden of proof, which remained clear and convincing evidence, but eliminated what was an underlying element of a ground for termination. This elimination of a nexus between abuse of one child and potential harm to another was a substantial change in the law and therefore cannot be applied retroactively.