DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

E.T., the mother,

Appellant,

v.

DEPARTMENT OF CHILDREN AND FAMILIES and GUARDIAN AD 

LITEM PROGRAM,

Appellees

No. 4D18-2165

[January 2, 2019]

Appeal from the Circuit Court for the Nineteenth Judicial Circuit, 

Martin County; Barbara W. Bronis, Judge; L.T. Case No. 15-57-DP.

Antony P. Ryan, Director, and Paul O’Neil, Assistant Regional Counsel, 

Office of Criminal Conflict and Civil Regional Counsel, West Palm Beach, 

for appellant.

Andrew Feigenbaum of Children’s Legal Services, West Palm Beach, for 

appellee Department of Children and Families.

Thomasina Moore, Statewide Director of Appeals, and Laura J. Lee, 

Appellate Counsel, Tallahassee, for appellee Guardian ad Litem Program.

FORST, J.

E.T. (“the mother”) appeals a final judgment terminating her parental 

rights to her child. We affirm as to all issues raised by the mother, writing 

to discuss two of the issues raised. 

Background

The child was sheltered three times, beginning in May 2015, when she 

was six months old. The primary reason for the shelter orders was the 

parents’ drug abuse. After the first and second shelter orders, the mother 

was given a reunification case plan and ultimately achieved reunification. 

However, following the third shelter order in February 2017, the case plan 

goal was changed from reunification to adoption. 
2

For the most part, during the shelter periods, the child was placed with 

the paternal great-grandmother. The great-grandmother, with whom the 

child has a strong bond, wishes to adopt the child. 

In March 2017, the Department of Children and Families (“the 

Department”) petitioned to terminate parental rights (“TPR”) on multiple

grounds. The mother contested the petition. The father surrendered his 

rights, and testified for the Department at trial. 

The trial lasted six days, and the evidence established the mother’s long 

history of substance abuse. The trial court found that she began using 

opiates in 2009 when she was eighteen years old. The mother moved to 

Florida in 2013 to attend a drug rehabilitation program, and met the father 

while living at a halfway house. Their relationship resulted in the birth of 

the child in 2014. The trial court’s order referenced the father’s testimony 

that, during his relationship with the mother, he “observed [her] abuse 

heroin, cocaine, crack, Xanax, methamphetamine, benzodiazepine and 

ecstasy, taken orally and by injection.”

The Department received a report in early 2015 that both parents were 

abusing their then-four-month-old child. It commenced an investigation. 

Over the course of the next three years, the mother was in and out of drug 

treatment programs. She completed some of the programs, but her 

periods of sobriety always ended with relapse. One relapse involved a fourday “meth binge.” The mother has overdosed a number of times and been 

involved in several instances of domestic violence.

Shortly after the third shelter order, the parents entered an addiction 

treatment center in Palm Beach County. They left the facility early and 

against medical advice and traveled to the Betty Ford Center in California. 

On the way to California, they used drugs together. They completed their 

treatment at Betty Ford in May 2017 and returned to Florida. By that

time, the Department had filed its TPR petition and adoption case plan. In 

June 2017, a little over a month after her discharge from Betty Ford, the 

mother twice overdosed on drugs, each time requiring hospitalization. She 

continued to abuse drugs into 2018, and was convicted on the charge of 

domestic assault against the father based on an incident in February 

2018.

On July 6, 2018, the trial court entered its final judgment terminating 

both parents’ rights. The court concluded that termination was warranted 

on five statutory grounds. The court also found that termination was in 

the child’s manifest best interests and the least restrictive means of 

protecting the child from serious harm. The mother’s appeal followed.
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Analysis

A. Whether the trial court’s active participation during the 

termination trial violated the mother’s due process rights.

The mother’s first argument on appeal is that the trial court violated 

her due process rights by actively participating in the proceeding to the 

point of exceeding the role of neutral arbiter. We have de novo review of 

this issue. A.M. v. Dep’t of Children & Families, 223 So. 3d 312, 315 (Fla. 

4th DCA 2017).

A trial judge shall exercise reasonable control over the mode and order 

of the interrogation of a witness so as to: (1) facilitate the discovery of the 

truth, and (2) avoid needless consumption of time. § 90.612(1)(a), (b), Fla. 

Stat. (2018). “When required by the interests of justice, the court may 

interrogate witnesses, whether called by the court or by a party.” § 

90.615(2), Fla. Stat. “Such questioning may be appropriate, in the court’s 

discretion, to seek clarification of an issue and in an effort to ascertain the 

truth.” R.W. v. Dep’t of Children & Families, 189 So. 3d 978, 980 (Fla. 3d 

DCA 2016). “However, a trial judge must ensure that he or she does not 

become an active participant or an advocate in the proceedings and should 

not by words or actions make it ‘appear that his [or her] neutrality is 

departing from the center.’” Id. (quoting Riddle v. State, 755 So. 2d 771, 

773 (Fla. 4th DCA 2000)); see also Watson v. State, 190 So. 2d 161, 165 

(Fla. 1966) (“Error is committed only when it appears that the judge 

departs from neutrality or expresses bias or prejudice in his [or her] 

comments”).

Here, while the court actively questioned witnesses during the six-day 

trial, the questions reflect the court’s intent to clarify witness testimony, 

and to ascertain the truth. For example, during the father’s direct 

testimony, the following exchange took place:

Q . . . During the time that [the mother] was in Parkwood 

Behavioral Health and the two [of] you were living together, do 

you have personal -- any personal knowledge of [the mother] 

drug screening?

THE COURT: Can you say when this was?

[DEPARTMENT’S COUNSEL]: Excuse me? Oh, the dates? . . . 

From October 6th, 2017 through November, 2017, do you 

have knowledge of [the mother] drug screening for Parkwood
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Behavioral Health?

A For Parkwood Behavioral Health she was, as far as I know

just requested to take drug tests whenever the Department 

asked through there. It’s not something they normally do, 

they don’t normally give drug tests as part of the –

. . . .

Q Do you have personal knowledge of her drug screening?

A Yes.

THE COURT: You do. Okay, I thought you were saying 

they didn’t have drug screens.

THE WITNESS: Well, she had requested it on her own, so to

comply with the Department.

THE COURT: Were you there or this is what she told you?

THE WITNESS: I was sitting there during a few phone calls.

THE COURT: Okay.

At this time, the mother’s counsel objected generally “to any further 

questioning from [the court] . . . anything that’s eliciting testimony that --

from questions that [the Department’s counsel] is not asking.” The judge

responded that she “was actually trying to figure out if [the father] was 

changing his testimony,” because the court “thought the answers were in 

conflict.”

Later, during the direct testimony of the Department’s dependency case 

manager, the following colloquy occurred:

Q This case, was [the mother] obligated to continue with 

random drug screens after reunification?

A Yes, as part of her case plan.

Q And continue in whatever requested treatment was as a 

result of the Mental Health Evaluation?

[MOTHER’S COUNSEL]: Objection; leading.
5

[DEPARTMENT’S COUNSEL]: Was [the mother] obligated to 

continue to comply with her mental health?

[MOTHER’S COUNSEL]: Objection; leading.

THE COURT: What else was she required to continue to 

comply with?

THE WITNESS: The services that were in place at the time of 

reunification.

THE COURT: Yes, ma’am.

THE WITNESS: Substance abuse, random drug screens, 

mental health.

THE COURT: So wherever she was in that process at the 

time of reunification she just had to follow through with 

it?

THE WITNESS: Yes.

At this time, the mother’s counsel raised the “same objection to [the court] 

eliciting testimony.” The judge responded:

You know, here’s the thing, this, as you know, is very 

important proceeding, and I’m just trying to understand the 

testimony and you do have the right to object, but this is not 

about gotcha tactics or, you know, technical errors or 

anything like that, I don’t see these kinds of cases as being 

about that. I agree there’s a line beyond which the Court 

should not go, for example, if I’m sitting here and thinking of 

a question that should have been asked and wasn’t asked, I 

probably wouldn’t ask the question, sometimes I do, but since 

I’m the finder of fact and I would add that in trials, every 

juror gets a notebook and a piece of paper, and they can ask 

the witness whatever questions they want, so I’m the finder of 

fact and I have to be sure that I understand the evidence 

and I agree that the attorneys should be held to task, but 

when the witness’s answer is close enough and it’s gonna 

save time for me to just intervene and ask the question, 

that’s what I do because we’re already here on the second 

day of a one day trial and there’s just no other way for me 
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to try to manage this process, so I feel that’s where I’m 

coming from. I’ve told you before, I encourage you to make 

these kinds of objections, and I -- because, you know, part 

of your job is to watch what I do, and, you know, I wanna be 

told, but I so far don’t believe I’ve crossed the line. You 

might be able to convince me otherwise, but so far you 

haven’t, other than just saying, Your Honor, please don’t ask 

the questions.

No further objections were made to the court’s questioning of witnesses.

Accordingly, the mother failed to preserve any objection she might have 

unless she can establish fundamental error—which she cannot. See R.W., 

189 So. 3d at 979-80 (“At the final hearing, . . . R.W. failed to object to 

virtually all of the questions [she] now relies upon . . . . [W]e find no 

fundamental error or deprivation of due process”); see also Mathew v. 

State, 837 So. 2d 1167, 1170 (Fla. 4th DCA 2003) (“[N]ot every act or 

comment that might be interpreted as demonstrating less than neutrality 

on the part of the judge will be deemed fundamental error.”). 

We note that, while the trial court suggested to the Department’s 

counsel that she reword a question asked of a witness—which the mother 

mischaracterizes as “coaching”1—the court provided similar support to the 

mother and Guardian ad Litem Program. The court also asked questions 

 1 When the Department’s counsel asked a witness “Why are you here today to 

testify, what is it . . . that you believe you’re adding to this case today?” the 

following discussion took place:

THE COURT: Hold on, you’re getting a little . . . . First of all, were

you subpoenaed to be here today? Were you served with a

subpoena?

THE WITNESS: No, ma’am.

THE COURT: Okay, you were asked to come and testify and you’re 

doing it voluntarily?

THE WITNESS: Yes, Your Honor.

THE COURT: Okay. So I think you’re gonna have to narrow it 

to make it a little more specific of a question. Like what do

you want the judge to know today as a result of your 

testimony?

The Department then rephrased its question as: “What is it that you want the 

judge to know today as a result of your testimony?
7

that were favorable to the mother and to which the Department objected.

In short, this was not a criminal trial, but a TPR proceeding in which 

the best interest of the child was paramount. The transcript reflects that 

the court appropriately questioned witnesses where necessary during the 

six-day trial, to manage time, understand the evidence and ascertain the 

truth. We therefore affirm with respect to this issue. We also find the 

mother’s other due process argument (regarding the father testifying by 

telephone) to be without merit, and we affirm on that issue without 

comment. 

B. The legal requirements for termination of the mother’s parental 

rights were satisfied. 

The mother argues that termination under section 39.806(1)(e)1., (e)3., 

and (j), Florida Statutes was not proven by competent, substantial 

evidence. We have held: 

“While a trial court’s decision to terminate parental rights 

must be based upon clear and convincing evidence, our review 

is limited to whether competent substantial evidence supports 

the trial court’s judgment.” J.G. v. Dep’t of Children & 

Families, 22 So. 3d 774, 775 (Fla. 4th DCA 2009). “[S]o long 

as the trial court’s ruling on one of the statutory grounds set 

forth in section 39.806, Florida Statutes, is supported by the 

evidence, the court’s decision is affirmable.” J.E. v. Dep’t of 

Children & Families, 126 So. 3d 424, 427-28 (Fla. 4th DCA 

2013). 

M.D. v. State, Dep’t of Children & Families, 187 So. 3d 1275, 1277 (Fla. 4th 

DCA 2016).

The trial court found the Department proved by clear and convincing 

evidence five statutory grounds for a TPR: section 39.806(1)(c), (e)1., (e)3., 

(j), and (l). The mother challenges the court’s findings only as to 

subsections (1)(e)1., (e)3., and (j). She failed to brief and argue any legal 

issue related to subsections (1)(c) and (l), although the trial court 

determined that the Department proved, by clear and convincing evidence, 

that the parental rights of the mother should be terminated based on (1)(c) 

(parent engaged in conduct toward the child “that demonstrates that the 

continuing involvement of the parent or parents threatens the life, safety, 

well-being, or physical, mental, or emotional health of the child 

irrespective of the provision of services”) and (l) (“On three or more 

occasions the child or another child of the parent or parents has been 
8

placed in out-of-home care pursuant to this chapter . . . and the conditions 

that led to the child’s out-of-home placement were caused by the parent 

or parents”). 

Because the mother fails to challenge the other two grounds for 

termination, she has waived any argument with respect to these holdings 

of the trial court. See In re J.W., 210 So. 3d 147, 152 (Fla. 2d DCA 2016) 

(holding that, because the mother was put on notice by the answer briefs

that she had waived the issue of termination based on section 

39.806(1)(d)(3), because of her failure to argue the point in her initial brief

and failure to move for leave to file an amended initial brief to address the 

issue, “[the mother] has waived the point about the sufficiency of the 

evidence to support termination”);2 see also Coolen v. State, 696 So. 2d 

738, 742 n.2 (Fla. 1997) (stating that a failure to fully brief and argue 

points on appeal “constitutes a waiver of these claims”). The mother also 

failed to challenge the trial court’s determination that granting the TPR 

was in the child’s manifest best interests and the least restrictive means 

of protecting the child from serious harm. Accordingly, we need not reach 

the merits of the second issue. 

Conclusion

The child has spent most of her four years living with the paternal 

great-grandmother. The mother has spent most of this period either using

illegal drugs or in rehab. The trial court did not deny the mother due 

process and instead patiently and exhaustively heard and addressed the 

testimony and arguments of both parties before concluding, correctly, that 

it is in the “manifest best interests” of the child that the parental rights of 

both the mother and the father be terminated, and “that termination is the 

best restrictive means of protecting the child from serious harm.” We 

therefore affirm.

Affirmed.

GERBER, C.J., and KLINGENSMITH, J., concur.

* * *

Not final until disposition of timely filed motion for rehearing.

 2 As in In re J.W., the mother here did not seek leave to file an amended initial 

brief after the Department argued waiver in its answer brief. Nor did she file a 

reply brief. See In re J.W., 210 So. 3d at 152 n.8.