There are cases that haunt us, and sometimes, like our clients, attorneys also do not get closure. In 2019, I represented a father who had his parental rights terminated by the State of Florida based on child hearsay admitted under F.S. [section]90.803(23). (1) Although the circumstances of the hearsay statement contained inconsistencies that showed a lack of indicia of trustworthiness (2) (the child giggled while describing the alleged abuse, (3) the therapist diagnosed the child with a corroborating disorder based on hearsay before ever examining her, (4) the police investigated another family member who had an acrimonious relationship with the father for giving a false report about the abuse, (5) and experts opined that the child's drawings in therapy had been altered (6)) the appellate court affirmed based on the presumption of correctness in termination of parental rights cases. (7)
At the trial below, the child's hearsay statement was admitted for the truth of the matter asserted, despite the lack of reliable independent corroboration (physical or emotional) of sexual trauma and despite the other circumstances (8) being wholly inconsistent with any kind of abuse and, thus, lacking indicia of trust-worthiness. (9) At oral argument, the appellate court found the record "very troubling" but nonetheless affirmed the termination, (10) despite the countervailing evidence in the record. (11) In essence, the investigative branch of the state found no probable cause to charge the father, (12) while the judicial branch found the evidence clear and convincing despite concerns expressed by the panel members.
One panel member said that, in reviewing the record, there were "two equally viable scenarios," one in which the state is taking away a child from a man "who has done absolutely nothing wrong," or there has been a "horrific act of abuse" that has occurred. (13) She pointed out that clear and convincing is supposed to mean a "firm belief without hesitation" in the evidence. (14) Another panel member echoed that panel member in saying that this was a "very difficult record" for the court. (15) Again, if there are two equally viable scenarios, then the court is agreeing that the evidence itself never reached clear and convincing but affirming based on the common law appellate standard of review.
In 1982, the U.S. Supreme Court in Santosky v. Kramer, 455 U.S. 745, 756-58 (1982), held that for the state to terminate a parent's rights (TPR), the Due Process Clause of the 14th Amendment requires that the state support its case with at least a clear and convincing burden of proof. Why? Because New York using a "fair preponderance of the evidence" standard with a nearly equal allocation of "risk of error" as between the state (16) and parent did not adequately match the fundamental liberty interest at stake. Santosky started from the premise that "the child and his parents share a vital interest in preventing erroneous termination of their natural relationship," and that the goal at fact-finding is truth finding. (17) Hence, their mutual interests "coincide to favor use of error-reducing procedures" to reach "an accurate and just" determination. (18) The high court's reasoning went--just as processes like notice, summons, right to counsel, and rules of evidence are procedures to place information before the fact-finder so that he or she can fact-find, the burden of proof is also a crucial component "instruct[ing] the factfinder concerning the degree of confidence our society thinks he should have in the correctness of factual conclusions" he or she draws from that information. (19) Standards of appellate review are likewise a part of the legal processes and must accurately reflect the interest being adjudicated (in this case, a fundamental right to parent).
[A] standard of proof loses much of its value if a reviewing court does not apply sufficient scrutiny to enforce it. Due process in termination cases, as much as or more than other civil cases, depends upon "the error-reducing power of . . . appellate review." Applying a more deferential standard in termination appeals dilutes that power. (20)
In TPR cases, Florida continues to use a highly deferential standard of review, (21) that is, "a finding that evidence is clear and convincing enjoys a presumption of correctness and will not be overturned on appeal unless clearly erroneous or lacking in evidentiary support." (22) In a TPR appellate proceeding, it is not the role of an appellate court to substitute its judgment for that of the trial court. . . . [I]t is [the appellate court's] responsibility to search the record for competent, substantial evidence which supports the trial court's findings and conclusions. (23)
Takeaway--a judgment to terminate the sacrosanct right to "the companionship, care, custody, and management of his or her children," a right "far more precious than any property right," is shielded so long as the record contains any or some competent, substantial evidence, which the lower court dubs as "clear and convincing." (24)
While Florida has not discarded this common-law standard of review post-Santosky, other states find that de novo review is required to adequately protect the constitutional right at stake. (25) Some states look at juvenile dependency proceedings as being in equity and apply de novo review. (26) Sometimes, de novo review is statutorily mandated. (27)
The Oklahoma Supreme Court in Widick v. State (In re S.B.C.), 64 P.3d 1080 (Okla. 2002), explained the need for congruency between appellate review and burden of proof:
If a lower standard of review were to be adopted for scrutiny of these critical findings, the courts of first instance would remain free to disregard the clear mandate of Santosky by allowing an impermissibly low burden of persuasion to govern at trial. Continued application of common-law review standard also would make reversal-proof those judgments which rest on competent evidence but stand unsupported by clear-and-convincing proof. Any level of appellate scrutiny that is less stringent than that of searching for proof of clear-and-convincing nature will undermine the higher level of protection imposed by Santosky to safeguard the parents' fundamental right to their offspring. (28)
The Kansas Supreme Court has held that the appellate standard of review should be whether the substantial, competent evidence was of a clear and convincing nature, so that the fact finder could reasonably have concluded that the required factual predicate was highly probable: (29) "Clear" as in "certain, plain to understand, unambiguous," and "convincing" as in "it is so reasonable and persuasive as to cause you to believe it." (30)
The switch to a de novo standard of review came from the incongruity and contradictions in the caselaw from using a meaningless rule of review. (31) Florida is not immune to such inconsistent applications from this holdover standard of review. (32)
Florida's tendency to defer to a trier might make sense if a TPR were a standard civil proceeding. However, "[c]hoices about marriage, family life, and the upbringing of children are among associational rights [the Supreme]...
