Second DCA En Banc Clarifies TPR Nexus Requirement, Concurrence Dissects LRM

The Second DCA issued an incredible en banc opinion yesterday, clarifying its nexus requirements for TPR of siblings. In re Z.C., — So.3d —-, 2012 WL 1605425 (Fla. 2nd DCA). Authored by Chief Judge Silberman (joined by seven other judges), the opinion holds:

DCF argues that the nexus test applied by this court is something different than the totality of the circumstances test the supreme court discussed in F.L. DCF points to the following language this court has repeatedly quoted and applied to determine what evidence would satisfy the nexus test: “ ‘Generally, this nexus is established when the parent has a mental or emotional condition that will continue, such as mental illness, drug addiction, or pedophilia, and which will make it highly probable that in the future the parent will abuse or neglect another child.’ “ A.D., 870 So.2d at 238 (quoting C.M.,844 So.2d at 766); see also T.L. v. Dep’t of Children & Family Servs., 990 So.2d 1267, 1272 (Fla. 2d DCA 2008); M.C. v. Dep’t of Children & Family Servs., 940 So.2d 571, 575 (Fla. 2d DCA 2006); G.R. v. Dep’t of Children & Family Servs., 937 So.2d 1257, 1262–63 (Fla. 2d DCA 2006); M .C. v. Dep’t of Children & Family Servs., 936 So.2d 764, 766 (Fla. 2d DCA 2006).
While this language suggests that certain evidence would satisfy the nexus test in dependency and termination cases, these cases do not require this specific type of evidence to meet the nexus test. InC.M., for example, this court relied on the absence of such evidence to reverse an adjudication of dependency as to a father’s biological children based primarily on an incident in which he struck his teenage stepdaughter during an argument. 844 So.2d at 765–67. However, the court did not reject the application of other circumstances in favor of such scientific evidence. There was simply insufficient evidence of any circumstances that established a substantial certainty that the father would similarly abuse his biological children.
Instead, these cases merely suggest circumstances that might be considered as part of the totality of the circumstances to satisfy the nexus test. We conclude that this court’s use of the term “nexus” is therefore consistent with the totality of the circumstances test described by the supreme court in F.L.


Are lawyers in the Second interpreting this as a softening of the previously hard-line nexus rule? That’s how I tend to read it.

Equally incredible is Judge Altenbernd’s dissection (in a special concurrence joined by five other judges) of the convoluted LRM jurisprudence that has developed since Padgett was first announced. Judge Altenbernd argues that LRM was never meant to be a case-by-case substantive due process requirement, but instead should be used to determine whether a particular termination ground is constitutional on its face. He admits, though, that his concurrence is more treatise than opinion and future work should be done “[i]f or when we can revisit this law without harming children or disrupting families.”

In my experience, LRM has become the last bucket in which to pour your gut instinct when a TPR simply doesn’t feel right. It otherwise provides nothing that’s not contained statutorily in Chapter 39. It will be interesting to see if courts take up the challenge to use LRM more carefully, consistently, and narrowly in the future.


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