Full Opinion

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________ No. 1D19-4093 _____________________________ CARL HELWEG, CORRECTED PAGES: pg 6 REMOVED WORDS FROM UNDERLINED SECTION Appellant, MAILED: January 8, 2021 BY: FTA v. JODY LYNN BUGBY, o/b/o S.J.H., a minor child, Appellee. _____________________________ No. 1D19-4095 _____________________________ CARL HELWEG, Appellant, v. JODY LYNN BUGBY, o/b/o L.E.H., a minor child, Appellee. _____________________________ No. 1D19-4098 _____________________________ CARL HELWEG, Appellant, v. JODY LYNN BUGBY, Appellee. _____________________________ On appeal from the Circuit Court for Santa Rosa County. Ross M. Goodman, Judge. November 4, 2020 LONG, J. Appellant, Carl Helweg, appeals three final judgments granting indefinite injunctions for protection against domestic violence entered against him on behalf of his ex-wife, Jody Lynn Bugby, and his two minor children, S.J.H. and L.E.H. We reverse in part and affirm in part. I. Mr. Helweg and Ms. Bugby terminated their marriage in early 2019 through dissolution proceedings. The final dissolution judgment incorporated an agreed parenting plan that gave Mr. Helweg approximately 40% of the overnight time-sharing with S.J.H. and L.E.H., the two minor children born of the marriage. The allegations of domestic violence arose from incidents that occurred during the minor children’s time sharing with Mr. Helweg. Ms. Bugby filed three petitions for injunction for 2 protection against domestic violence against Mr. Helweg—one on her own behalf and one on behalf of each minor child. In the petition filed on her own behalf, Ms. Bugby alleged that Mr. Helweg had ongoing and increasing anger management issues including frequent tempers and outbursts. She asserted that Mr. Helweg demonstrated unreasonable behavior regarding educational decisions for their children and refused any mediation. Ms. Bugby’s petition did not allege any harm or threat of harm directed to her but requested that Mr. Helweg be prohibited from time sharing with the minor children. In the petitions filed on behalf of S.J.H. and L.E.H., Ms. Bugby asserted that, despite their agreement to not use corporal punishment, Mr. Helweg grabbed S.J.H.’s wrist and L.E.H.’s arm after the children failed to follow his instructions. She also alleged he yelled at the children during these incidents. The petitions expressed concerns for the children’s emotional, psychological, and physical safety. The petitions requested that Mr. Helweg be prohibited from time sharing with either child. The trial court granted no contact temporary injunctions on behalf of S.J.H. and L.E.H. but denied Ms. Bugby’s request for a temporary injunction. Four hearings were held on the merits of the petitions. During the second hearing, Ms. Bugby’s counsel questioned her about why she filed a petition on her own behalf when she was not alleging any physical abuse directed at her. Ms. Bugby explained: “I went to file for both of my daughters on their behalf. The county clerk there stated that since the girls would be in my care that I should file for my own as well, even though I do not feel a physical threat for their father.” Ms. Bugby further stated that she expressly told the clerk “I don’t feel physically threatened by Carl Helweg.” Ms. Bugby ultimately relied on the recommendation of the clerk and filed the petition for herself in addition to the petitions for the children. Ms. Bugby clarified she was not asking the trial court for a no contact injunction between her and Mr. Helweg, and that she was only concerned for the children’s safety when they were alone in his care. 3 At the third hearing, the trial court noted it had spoken with the minor children in camera, outside the presence of the parties and their counsel. The trial court found that the minor children, at times, feared Mr. Helweg when he lost his temper and concluded that Mr. Helweg had an “anger control problem.” After a lengthy discussion, the trial court granted another continuance to allow the parties to attempt a negotiated resolution. Ms. Bugby agreed to let Mr. Helweg have supervised visitation until the next hearing date. That attempted resolution was unsuccessful. During the final hearing, three witnesses testified. First, Ms. Bugby called Lisa Wright, a victim advocate who interviewed S.J.H. and L.E.H. Over Mr. Helweg’s objection, Ms. Wright testified about what the minor children told her during the interviews. Ms. Wright said the children told her Mr. Helweg gave them “Indian burns”—which Ms. Wright explained was a grabbing and twisting of the arm that feels like a burn—on more than one occasion. Ms. Wright also testified that the children told her they were scared of Mr. Helweg and afraid to go to his house. Ms. Bugby testified, again over Mr. Helweg’s objection, regarding a diagnosis and treatment plan she received from a therapist who examined the children shortly after the incidents described in the injunction petitions. The documents were admitted into evidence, over objection, and included statements that the children had reported being assaulted by a caregiver. 1 Mr. Helweg then testified and denied all allegations of violence. After the hearing, the trial court entered three final judgments granting the injunctions in each case. This appeal followed. II. 1 On appeal, Mr. Helweg does not challenge these trial court rulings admitting exhibits and testimony over objection. Nor does he challenge the sufficiency of the evidence to support the children’s injunctions. 4 The first issue Mr. Helweg raises on appeal is that the trial court’s entry of an indefinite injunction on behalf of Ms. Bugby was not supported by the evidence. We agree. Whether the evidence is legally sufficient to justify imposing a domestic violence injunction is a question of law reviewed de novo. Wills v. Jones, 213 So. 3d 982, 984 (Fla. 1st DCA 2016). Here, there was no evidence to support the imposition of an injunction for Ms. Bugby. The issuance of injunctions for protection against domestic violence is governed by section 741.30, Florida Statutes (2019), and Florida Family Law Rule of Procedure 12.610. Under section 741.30(6)(a), a trial court may grant an injunction when the petitioner is either the victim of domestic violence or the petitioner “has reasonable cause to believe he or she is in imminent danger of becoming a victim of domestic violence.” In Ms. Bugby’s petition, she alleged no domestic violence, fear, or apprehension of domestic violence. Rather, Ms. Bugby explained to the trial court that she only filed the petition at the instruction of the county clerk. Ms. Bugby repeatedly conveyed to the trial court that she was not alleging she personally experienced actual or feared domestic violence. Ms. Bugby was clear in her testimony that she did not feel physically threatened by Mr. Helweg and expressly told the court she was not seeking an injunction for herself. The trial court’s entry of an injunction for Ms. Bugby was in error because there was no evidence that Ms. Bugby was the victim of domestic violence or that Ms. Bugby believed she was in imminent danger of becoming a victim. Therefore, the final judgment of injunction for Ms. Bugby must be reversed. III. We turn next to Mr. Helweg’s claim that the trial court’s indefinite elimination of his time-sharing rights was a termination of his parental rights in violation of his right to due process. When the trial court entered the final judgment for Ms. Bugby, the injunction contained a provision temporarily modifying the 5 parties’ parenting plan time-sharing agreement and granted Ms. Bugby “100% of the time-sharing” rights. The injunction was not set for a definitive time period but rather “until further order of the court.” To the extent Mr. Helweg relies on the time-sharing order in Ms. Bugby’s injunction, the issue is moot because we now reverse that judgment. We write further to address the claim that the no contact order in the children’s injunctions acts as a termination of his parental rights. Mr. Helweg raises the termination of parental rights issue because at the conclusion of the final hearing, the trial court stated: Now, here’s the conundrum I face with all of these findings. If I grant the injunction and make it a permanent injunction, I’m essentially terminating your parental rights. I don’t know how to look at it any other way, but I don’t see, because the way this has progressed, that I have any other choice. Despite this statement, the trial court did not terminate Mr. Helweg’s parental rights. The parent-child relationship is a constitutionally protected fundamental liberty interest. See Santosky v. Kramer, 455 U.S. 745 (1982). The grounds for termination of parental rights in Florida are governed by section 39.806, Florida Statutes, and include, for example, the showing of abandonment, abuse, or neglect by clear and convincing evidence. The trial court must also engage in a manifest best interest of the child and least restrictive means analysis before termination is permitted. See § 39.810, Fla. Stat. (2019). All of these steps serve as crucial safeguards, in place to protect this natural right and foundational liberty interest. Other than the brief statement by the trial judge, there was never an indication that these proceedings sought to terminate Mr. Helweg’s parental rights. The court’s written final judgment granting the domestic violence injunctions support this conclusion. In its final orders, the trial court did not purport to terminate Mr. Helweg’s parental rights under any of the grounds for termination 6 enumerated in section 39.806, Florida Statutes. Rather, the court entered three injunctions using standard family law forms. Mr. Helweg’s argument that the indefinite nature of the injunctions violates his due process rights highlights the apparent confusion between a permanent termination of parental rights and an indefinite domestic violence injunction. In this case, the trial court entered three injunctions pursuant to section 741.30, Florida Statutes. The “permanence” of such injunctions is not that Mr. Helweg has forever lost his right to contact his children, but rather a prohibition until a further order of the court modifies or disposes of the injunction. See Fla. Fam. L. R. P. 12.610(c)(4)(B) (“Any relief granted by an injunction for protection against domestic, repeat, dating, or sexual violence, or stalking shall be granted for a fixed period or until further order of the court.”) (emphasis added); § 741.30(6)(c), Fla. Stat. (providing an injunction under the statute “shall remain in effect until modified or dissolved”). Domestic violence injunctions are permitted for indefinite periods of time, but they also can be modified or dissolved at any time. See § 741.30(6)(c), Fla. Stat. (“Either party may move at any time to modify or dissolve the injunction.”). This Court has explained that in order to justify modification or dissolution of an injunction, the moving party must “show changed circumstances” by demonstrating that “the scenario underlying the injunction no longer exists so that continuation of the injunction would serve no valid purpose.” Alkhoury v. Alkhoury, 54 So. 3d 641, 642 (Fla. 1st DCA 2011). Moreover, “in determining whether an injunction continues to serve a valid purpose, the trial court considers whether the victim ‘reasonably maintains a continuing fear of becoming a victim of domestic violence.’” Hobbs v. Hobbs, 290 So. 3d 1092, 1094 (Fla. 1st DCA 2020) (quoting Alkhoury, 54 So. 3d at 642). It is true that the two injunctions for S.J.H. and L.E.H. against Mr. Helweg remain valid and indefinitely prevent him from having contact with them. But Mr. Helweg may petition the trial court to modify or terminate the injunctions by showing a change in circumstance demonstrating that the underlying cause 7 for the injunction no longer exists so that continuation of the injunction would no longer serve a valid purpose. 2 IV. The trial court’s injunction on behalf of Ms. Bugby is reversed. The trial court’s injunctions on behalf of S.J.H. and L.E.H. are affirmed. REVERSED in part, AFFIRMED in part. LEWIS and NORDBY, JJ., concur. _____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________ Ross A. Keene of Ross Keene Law, P.A., Pensacola, for Appellant. No appearance for Appellee. 2 Though the injunction does not terminate parental rights, courts have long cautioned the exercise of great care when wielding the extraordinary power of domestic violence injunctions. This case illustrates well the considerable power of injunctions over the private lives of citizens and the way in which they can affect fundamental rights along with the otherwise robust legal schemes designed to protect them. The issuance of an injunction prohibiting a parent from having any contact with their child, particularly when imposed indefinitely, demands scrupulous attention to due process. We are confident the trial court will provide liberal access to modification proceedings. 8