A.P., MOTHER OF J.F., F.S., M.D. AND M.D., JR., MINOR CHILDREN

v.

DEPARTMENT OF CHILDREN AND FAMILIES

FIRST DISTRICT COURT OF APPEAL

STATE OF FLORIDA

_____________________________

Nos. 1D20-3022 1D20-3693 _____________________________

A.P., mother of J.F., F.S., M.D. and M.D., JR., minor children,

Appellant,

v.

DEPARTMENT OF CHILDREN AND

FAMILIES,

Appellee. _____________________________

On appeal from the Circuit Court for Alachua County. James P. Nilon, Judge.

September², 2021

BILBREY, J.

A.P., the mother of four minor children, appeals two final orders entered by the trial court in this consolidated appeal from a termination of parental rights (TPR) action. Because the trial court properly applied the governing law to the competent, substantial evidence presented, we affirm both orders. The first order was entered on September 24, 2020, following an adjudicatory hearing spanning six days and concluding August¹⁰, 2020. See § 39.809, Fla. Stat. (2019). That first order tracked the court’s earlier oral pronouncement after the hearing which

Standard of Review Review of evidentiary determinations in TPR cases is limited to whether there is competent, substantial evidence to support the trial court’s findings. Section 39.809(1) requires that to grant TPR, the trial court must find clear and convincing evidence of:

(1) at least one of the statutory grounds for TPR;

(2) that TPR is in the children’s manifest best interests;

and

(3) that TPR is the least restrictive means of protecting the children from harm.

B.T. v. Dep’t of Child. & Fams., 300 So. 3d 1273, 1277 (Fla. 1st DCA 2020).

A trial court’s finding that the evidence is clear and convincing enjoys a presumption of correctness and will be overturned only if clearly erroneous or lacking evidentiary support. N.L. v. Fla. Dep’t of Child. & Fam. Servs., 843 So. 2d 996, 999 (Fla. 1st DCA 2003). The appellate court will not conduct a de novo proceeding, reweigh the testimony presented at final hearing, or substitute its judgment for that of the trier of fact. Dep’t of Child. & Fams. v. A.L., 307 So. 3d 978, 982–83 (Fla. 1st DCA 2020).

Proceedings and Evidence in Common By order entered in June 2018, all four children were taken into DCF custody (sheltered), as allowed by section 39.402(1)(a),

11 rights to these children. That oral pronouncement was later reduced to writing. A.P. then moved to vacate the court’s order granting DCF’s motion for rehearing and terminating her parental rights as to J.F. and F.S. See Fla. R. Juv. P. 8.270. In that motion A.P. asserted for the first time that the September 25th order was not timely entered under rule 8.265(b)(3). She therefore claimed that it was procedurally denied before the court took any evidence or rendered its order on the merits on rehearing. A.P.’s motion to vacate was denied based on the court’s finding that it had “effectively granted” rehearing on September 15th during the scheduling conference setting the matter for further proceedings. A.P. then timely filed her notice of appeal of the order granting rehearing and terminating her parental rights as to J.F. and F.S. A.P.’s claim that DCF’s motion for rehearing was deemed denied under rule 8.265(b)(3) was not preserved. See G.M. v. Dep’t of Child. & Fams., 969 So. 2d 569, 571 (Fla. 1st DCA 2007) (holding “possible defects in the procedural posture” of a case are “waived and not preserved” if not “argued below”).² But even if this issue was preserved for appellate review by A.P.’s motion to vacate, A.P. fails to establish that reversal is required. DCF’s written motion for rehearing was considered by the trial court the day after it was filed. As mentioned, the parties and the court proceeded as if the motion was granted by setting time for further testimony. A.P. fully participated with counsel and with her own witness in the hearings on rehearing, so there is no question that she was afforded due process. Any error by the trial court in failing to explicitly announce on the record on September 15th that partial rehearing was granted on the limited issue of the manifest best interests of J.F. and F.S. was harmless since it was clear to all parties that further proceedings were going to occur.

12 See D.M. v. Dep’t Child. & Fam. Servs., 979 So. 2d 1007, 1010 (Fla. 3d DCA 2008) (applying harmless error in an appeal following TPR). A.P. also challenges the order on rehearing as unsupported by “new and material evidence” as described in rule 8.265(a)(4). A.P. contends that DCF could have discovered this evidence before and produced it at the adjudicatory hearing prior to the first order. The record refutes A.P.’s claim. After complying with the court’s direction to conduct additional “staffing” for J.F. and F.S., DCF presented testimony on rehearing by five witnesses who described J.F.’s and F.S.’s behaviors, mental states, and emotional conditions after the adjudicatory hearing in early August 2020. The evidence presented and considered by the trial court was new and material as to these children’s manifest best interests. A.P. fails to establish reversible error in the timing of the court’s order on rehearing or the “new and material” character of the evidence to support it under rule 8.265. Manifest Best Interests of J.F. and F.S. Finally, A.P. appeals the trial court’s determination of the manifest best interests of J.F. and F.S. in the order entered November 23, 2020. But A.P. does not contest specific statutory factors addressed by the trial court under section 39.810, Florida Statutes. Rather, A.P. argues generally that she will bond with these children more closely than any adoptive parent could, that these children’s mental and emotional special needs will make placement difficult and possibly delay placement, and that A.P.’s ability to support the children has financially improved and stabilized since the children were resheltered. The trial court’s order on rehearing included detailed findings of the manifest best interests factors for J.F. and F.S. under section 39.810(1)–(11). The court specified the evidence it relied on for each factor and assigned weight and credibility to conflicting evidence received on rehearing. Although she does not refer to the subsections of the statute in her briefs, A.P.’s arguments relate to factors (2) (“ability and disposition of parent or parents to provide child with food, clothing, medical care . . . and other material needs”); (3) (“capacity of parent or parents to care for child to

13 extent child’s safety, well-being, and physical, mental, and emotional health will not be endangered upon child’s return home”); (5) (“love, affection, and other emotional ties between child and parent or parents, siblings, and other relatives, and the degree of harm to the child from termination of parental rights”); (6) (“likelihood of an older child remaining in long-term foster care upon [TPR], due to emotional or behavioral problems”); and (7) (“likelihood that the child will enter into a more stable and permanent family relationship as a result of” TPR). Here, A.P. essentially repeats her request that this court reweigh the evidence on the statutory factors and decide these factors contrary to what was found by the trial court. She asks that we find that her improved circumstances after years of services should outweigh the other statutory factors the trial court relied on, including the public policy favoring permanency and stability for dependent children. As discussed above, this we cannot not do. See also Dep’t of Child. & Fams. v. A.L., 307 So. 3d 978, 982–83 (Fla. 1st DCA 2020). A.P. establishes no deficiency in the evidence to support the trial court’s determination of the manifest best interests of J.F. and F.S. upon evaluation of the statutory factors listed in section 39.810 and as expressed in the written order on rehearing. Our review of the record on appeal, including the transcripts of the rehearing proceedings, revealed competent, substantial evidence to support the trial court’s determinations of the manifest best interests of J.F. and F.S. Conclusion A.P. demonstrates no deficiency in the evidence supporting the trial court’s finding grounds for termination of A.P.’s parental rights as to all four children, under sections 39.806(1)(c) and 39.806(1)(e)1. Likewise, A.P. establishes no error in the trial court’s finding that TPR is the least restrictive means to protect all four children under the circumstances of this case, and that TPR is in the manifest best interests of M.D. and M.D., Jr., under section 39.810, Florida Statutes. In addition, in her second appeal, A.P. fails to establish reversible error in the trial court’s grant of rehearing, under rule 8.265, and fails to demonstrate a deficiency in the evidence to support the trial court’s determination of the

14 manifest best interests of J.F. and F.S. upon rehearing. For these reasons, the orders on appeal are

AFFIRMED.

LEWIS and MAKAR, JJ., concur.

_____________________________

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

Melissa Joy Ford, Assistant Conflict Counsel, and Michael Titus, Assistant Conflict Counsel, Office of Criminal Conflict and Civil Regional Counsel Region One, Tallahassee, for Appellant.

Ward L. Metzger, Department of Children and Families, Jacksonville, for Appellee.

Thomasina F. Moore, Statewide Director of Appeals, and Laura J. Lee, Senior Attorney, Appellate Division, Statewide Guardian ad Litem Office, Tallahassee, for Appellee.