Section 39.806(1)(d)(2) and Constitutional Challenge-Court rejects father’s argument that ground for termination of parental rights based on incarceration and designation as a sexual predator is unconstitutional

C.H. v. Dep’t of Children & Families (In the Interest C.M.H.), 2018 Fla. App. LEXIS 12221, 2018 WL 4100187

Father appealed the order terminating his parental rights pursuant to § 39.806(1)(d)2 which requires, in relevant part, a finding that the parent is incarcerated and has been designated a sexual predator. He did not contest these findings, but rather challenged the constitutionality of the provision both facially and as applied.  The Second DCA affirmed the order, rejecting father’s argument under two separate legal analyses.

Nexus required-under the first analysis, the DCA addressed father’s argument based on the Florida Supreme Court case of Florida Department of Children & Families v. F.L., 880 So. 2d 602 (Fla. 2004), which requires the petitioner in some termination cases to prove that a parent poses a substantial risk of significant harm to the child who is the subject of the termination petition.  In response, the DCA interpreted § 39.806(1)(d)2 to include the “risk of harm” or nexus requirement, first introduced in the seminal case of Padgett v. Department of Health & Rehabilitation Services, 577 So. 2d 565 (Fla. 1991), thereby rendering the statute constitutional on its face, and found that the Department had established such risk of harm existed to the subject child in this case, rendering the provision constitutional as applied to the father.

Nexus not required-under the second analysis, the DCA applied its rational from its own case, Department of Children & Family Services v. S.H., 49 So. 3d 846 (Fla. 2d DCA 2010), finding that Padgett’s risk-of-harm requirement did not apply to section 39.806(1)(h), which allows for termination when a parent has caused the death of a child, because the risk in that kind of case is clear.  Determining that there is a similar inherent risk of harm associated with sexual predators, particularly those convicted of committing offenses against minors, the DCA concluded that the risk of harm requirement does not apply to § 39.806(1)(d)2 and that provision is constitutional on its face and as applied under this analysis as well.

Practice Tip: Always be prepared to prove nexus to establish a link between parental conduct and actual harm or a significant risk of harm to another child, especially when Chapter 39 does not expressly state that no nexus is required as in §§ 39.806(1)(f), and (h). At times, expert testimony may be required to prove this nexus. Remember, expert testimony regarding risk assessment can be provided by a case worker or other witness qualified as an expert by knowledge, skill, experience, training, or education.

Read the Opinion