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Aligning Appellate Standards of Review To Match the Constitutional Liberty Interests Implicated in a Termination of Parental Rights Proceeding

Appellate Practice

Appellate PracticeThere 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. §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 trustworthiness.[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] Court has ranked as ‘of basic importance in our society,’ rights sheltered by the 14th Amendment against the State’s unwarranted usurpation, disregard, or disrespect.”[33] TPRs affect constitutionally-protected bonds, and despite Florida calling them “civil” proceedings, the U.S. Supreme Court calls them “quasi-criminal.”[34] Merely attaching the “civil” label to a proceeding has never short-circuited the 14th Amendment’s due process requirements where fundamental rights are at stake.[35]

To assuage any concern that the state has deprived any parent of the process due, Florida courts require proof that reunification with the parent poses a substantial risk of significant harm to the child to establish that termination was the least restrictive means.[36] If Florida recognizes that the burden remains on the state, even on appeal, to establish that it did not fail the parents (versus parents failing an offered case plan), then it is inconsistent to cling to an appellate standard that amounts to burden shifting back to the parents.[37] Allowing appellate courts to attach high deference to the trial court’s findings and search the record to support the trier’s judgment using a presumption that the civil judgment came clothed in correctness increases the likelihood of error(s) in a parent-child adjudication going uncorrected. The U.S. Supreme Court has already said “[i]f, in a given case, the parent’s interests were at their strongest, the State’s interest were at their weakest, and the risks of error were at their peak, it could not be said that the Eldridge [balancing] factors d[o] not overcome [a] presumption.”[38]

In Lassiter v. Dep’t of Soc. Servs. of Durham Cnty., N.C., 452 U.S. 18, 31 (1981), the U.S. Supreme Court confronted a presumption that an indigent parent-litigant was only entitled to counsel if he lost and was subject to a deprivation of physical liberty. Going back to Matthews v. Eldridge, 424 U.S. 319 (1976), which was the same line of reasoning followed by Santosky, the Lassiter court found that the state shared the “parent’s interest in the accuracy and justice of [a] decision,” and that the state had a “relatively weak pecuniary interest” in avoiding the expense of appointed counsel and the cost of lengthened proceedings at the expense of an erroneous deprivation of a parent’s rights.[39] To be sure, upping the standard of review on TPR cases to afford more scrutiny will cost money for judicial labor, but the Constitution has always recognized values far greater than the economics of “speed and efficiency.”[40]

Often, I wonder if A.S.’s story could have ended differently had the Florida appellate standard of review matched what is constitutionally required for the burden of proof below. That means, “whether evidence is clear and convincing requires weighing, comparing, testing, and judging its worth when considered in connection with all the facts and circumstances in evidence.”[41] The Georgia Supreme Court agrees that neither the “any evidence” standard of review for civil cases of legal cognizance, nor the “reasonable evidence” standard is of “sufficient quality and substantiality to support the rationality of the judgment.”[42] It is irrational to presume the record contains some or enough competent, substantial evidence, when it may contain only infected findings, not of sufficient quality or substantiality.

Even if the child hearsay in A.S. v. Dep’t. of Child. & Fams., 278 So. 3d 814 (No. 18-2363) (Fla. 3d DCA 2019), met both parts of the two-part admissibility test under §90.803(23), the hearsay was so suspect and dinged up, its evidentiary value would never rise to a clear and convincing weight or lead to a firm belief or conviction of egregious conduct committed by the father.[43] Lined up against the great weight of the other evidence indicative of A.S.’s innocence, a de novo review would have allowed the appellate court to consider whether the evidence really clearly and convincingly supported termination. Santosky warned that a trier “possesses unusual discretion to under-weigh probative facts that might favor the parent,”[44] and an appellate standard that forbids re-weighing the evidence can only allow an erroneous judgment to stand.

Here, outdated review standards required the district court to defer to the trial court, whether the record showed there was little support for the findings or even that the trial court had misgivings but the burden of proof was clear and convincing.[45] Rules of evidence are processes designed to place information before factfinders so they can do just that: fact-find.[46] Findings that hearsay lacking sufficient indicia of reliability support allegations of sex abuse should not be met with a “presumption of correctness” built-in.[47] However, in the haze of an appellate standard that means nothing and everything, who is to tell the difference?

De novo review does not allow appellate abstention in the face of error. It ensures that the next level of review (which is part of the constitutional process) scrutinized or searched the record to ensure that it contains the necessary amount of clear and convincing evidence of child sexual abuse, versus some evidence to support deference to the lower court. It prevents intertwined, inadmissible, and incompetent child hearsay propping up the lower court’s judgment and making the termination order a sort of reversal proof, self-fulfilling prophecy. As lower courts are in the business of truth finding, appellate courts ought to be in the business of truth affirming, not validating constitutionally uncomfortable outcomes.

Children do not belong equally to parents and the state; their protection is first entrusted to the parents, extended family next, and then, if necessary, the state. All-too-human agency actors routinely seize the language of safety and paternalism to justify their actions with families. That zeal going unchecked by a judiciary, far from protectionism, abnegates the child’s reciprocal right not to lose a parent unnecessarily.[48] The lower appellate standard does not show that the state shared the family’s interest to avoid an incorrect decision.[49] Florida owes due process under the 14th Amendment to both parents and children in ensuring that a judgment of permanent separation was a just and accurate decision. Bypassing a de novo review of not only the admissibility calls, but all the evidence (totality) in the record (such as proof of innocence) by reflexively assuming any or some competent, substantial evidence exists, deprives parents and children of having any confidence in a judgment that radically changes their lives onward.

[1] Third District Court of Appeal, Video Oral Argument Archives at 8:37, A.S. v. Dep’t. of Child. & Fams., 278 So. 3d 814 (No. 18-2363) (Fla. 3d DCA 2019),

[2] Id. at 13:21.

[3] Id. at 27:40.

[4] Id. at 8:37.

[5] Id. at 5:43, 6:36.

[6] Id. at 18:58, 21:21.

[7] Id. at 21:21.

[8] Id. at 8:37.

[9] Fla. Stat. §90.803(23). Transforming child hearsay into evidence requires 1) independent corroboration of the sex abuse; and 2) circumstantial guarantees of trustworthiness surrounding each statement to be admitted for the truth of the matter asserted. State v. Townsend, 635 So. 2d 949, 956-57 (Fla. 1994) (“If the answer to either question is no, then the hearsay statements are inadmissible.”).

[10] Oral argument at 21:45, 27:15 A.S., 278 So. 3d 814.

[11] Id. at 25:38.

[12] Id. at 1:26.

[13] Id. at 21:40.

[14] Id. at 12:33.

[15] Id. at 27:11.

[16] The state has zero interest in separating otherwise fit parents from their children. Stanley v. Illinois, 405 U.S. 645, 652 (1972) (“[T]he State registers no gain towards its declared goals when it separates children from the custody of fit parents.”). Thus, the state and parent do not share a co-equal interest in the child.

[17] Id. at 760-61, 765-66.

[18] Id. at 761, 766 (emphasis added) (citation omitted).

[19] Id. at 757 n.9 (“[T]he State [being] willing to tolerate undue uncertainty in the determination of the dispositive facts” does “[]not suffice to protect [the] liberty interest[] at stake.” (emphasis added)).

[20] Karen A. Wyle, Fundamental Versus Deferential: Appellate Review of Terminations of Parental Rights, 54 Res Gestae 13, 18 (May 2011) (footnotes omitted).

[21] Dep’t. of Child. & Fams. v. S.S.L, 352 So. 3d 521, 524 (Fla. 5th DCA 2022); J.E. v. Dep’t. of Child. & Fams., 126 So. 3d 424, 427 (Fla. 4th DCA 2013).

[22] J.E., 126 So. 3d at 427.

[23] Dep’t of Child. & Fams. v. A.R., 253 So. 3d 1158, 1164 (Fla. 3d DCA 2018) (emphasis added) (internal quotation marks omitted).

[24] See Santosky, 455 U.S. at 758–59, 769.

[25] See Martinez-Mendoza v. State (In re C.M.), 432 P.3d 763, 768 (Okla. 2018) (holding appellate review is de novo because the state “must show that the record contains clear and convincing evidence”); In re B.D.-Y., 187 P.3d 594, 599–601 (Kan. 2008) (discussing how appellate review standards scouting for any substantial competent evidence support obsolete fair “preponderance” weight); Draper v. Tippecanoe Cnty. Dep’t of Pub. Welfare (In re C.D.), 614 N.E.2d 591, 598 (Ind. Ct. App. 1993) (Conover, J., dissenting) (recognizing that “[j]ust as the burden of proof below is substantially enhanced when, as here, constitutional rights and liberties are put at civil risk, the standard of review at the appellate level is correspondingly more stringent”); J.H. v. Ind. Dep’t of Child. Servs. (In re I.A.), 934 N.E.2d 1127, 1132 (Ind. 2010) (“[W]e review the trial court’s judgment to determine whether the evidence clearly and convincingly supports the findings and the findings clearly and convincingly support the judgment.”).

[26] See, e.g., In re S.J., 451 N.W.2d 827, 830 (Iowa 1990) (a “de novo” review of parental termination proceedings gives weight to the juvenile court’s fact finding “when considering the credibility of witnesses, but we are not bound by it”); State v. David. S. (In re Kenna S.), 766 N.W.2d 424, 429 (Neb. App. 2009) (“Juvenile cases are reviewed de novo on the record, and an appellate court is required to reach a conclusion independent of the juvenile court’s findings.”).

[27] See Or. Rev. Stat. §19.415 (3)(a), (b).

[28] In re S.B.C., 64 P.3d at 1082–83.

[29] B.D.-Y., 187 P.3d at 606.

[30] Id. at 599.

[31] See id. at 604, 606; see also J.C. v. State Dep’t of Hum. Res., 986 So. 2d 1172, 1200 (Ala. Civ. App. 2007) (Moore, J., concurring in the result) (a “vague and meaningless” standard “cannot properly be applied in termination-of-parental-rights cases” with “due process” rights at stake, and leaves an appellate court with “ultimate unbridled discretion to decide the correctness…based on its own peculiar subjective views”).

[32] See K.R.L. v. Dep’t of Child. & Fams. Servs., 83 So. 3d 936, 938-39 (Fla. 3d DCA 2012) (holding lower court’s “uncertainty as to the mother’s role” was “speculation” “not ‘clear and convincing’ evidence” to “support” “generalized conclusions” of abuse or acquiescence); M.C. v. Dep’t of Child. & Fams., 186 So. 3d 74, 80 (Fla. 3d DCA 2016) (calling out trier’s “unsupported leap” that mother allowed injury as being inconsistent with mother’s immediacy in taking child to urgent care); A.R., 253 So. 3d at 1167 (re-construing tickling as “grooming…for sexual purposes,” versus an “act[] reasonably construed to be…affection” exempted under section 39.01(71)(d), Fla. Stat.).

[33] M.L.B. v. S.L.J., 519 U.S. 102, 116 (1996) (quoting Boddie v. Connecticut, 401 U.S. 371, 376 (1971)).

[34] Id. at 124.

[35] See In re Gault, 387 U.S. 1, 41 (1967) (holding that due process rights attach to juvenile proceedings where result may be “commitment to an institution.”).

[36] See Padgett v. Dept. of Health & Rehab. Servs., 577 So. 2d 565, 571 (Fla. 1991).

[37] One concurring opinion has observed that the deference results in impermissible burden shifting, and that due process considerations require an appellate court “not indulge any presumption,” but rather “simply review the record to determine if the factual findings are supported by clear and convincing evidence, with no presumption one way or the other.” J.C. v. State Dep’t of Hum. Res., 986 So. 2d 1172, 1200 (Ala. Ct. App. 2007) (Moore, J., concurring).

[38] Lassiter v. Dep’t of Soc. Servs. of Durham Cnty., N.C., 452 U.S. 18, 31 (1981) (concerning the presumption against the right to appointed counsel).

[39] Lassiter, 452 U.S. at 31.

[40] Stanley, 405 U.S. at 656.

[41] B.D.-Y., 187 P.3d at 599 (italics in original).

[42] Blackburn v. Blackburn, 292 S.E.2d 821, 826 (Ga. 1982); In re M.R.B., 829 S.E.2d 848, 850 (Ga. Ct. App. 2019) (“[I]t is not sufficient if the record merely contains some evidence to support the juvenile court’s factual findings.”).

[43] In re Z.L., 4 So. 3d 684 (Fla. 2d DCA 2009) (qualitative-quantitative standards means evidence must be credible, clear and without confusion).

[44] 455 U.S. at 762.

[45] Oral argument at 12:33, A.S., 278 So. 3d 814.

[46] Id. at 757 n.9.

[47] A.S., 278 So. 3d at 814; Dept. of Child. & Fams. v. S.S.L, 352 So. 3d 521, 524 (Fla. 5th DCA 2022) (“[O]ur deference to the trial court on factual matters does not extend to its legal conclusions, which we review de novo.”).

[48] See Santosky, 455 U.S. at 765 (“[T]he child and his parents share a vital interest in preventing an erroneous termination of their relationship.” (emphasis added)).

[49] See Lassiter, 452 U.S. at 31.

Debbie Maken is a partner in Lydecker’s Boca Raton office and former AUSA (S.D. Fla.), and law clerk to the Mississippi Supreme Court and Third District Court of Appeal. She has authored hundreds of appellate briefs in the areas of parental rights, banking-foreclosure law, commercial litigation, criminal law, and challenging unconstitutional state action.

This column is submitted on behalf of the Appellate Practice Section, Kansas Gooden, chair, and Sarah Roberge, Benjamin Paley, Matthew Cavender, and Dimitri Peteves, editors.

Appellate Practice