Full Opinion

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________ No. 1D19-3887 _____________________________ K.J., Mother of K.H., Minor Child, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee. _____________________________ On appeal from the Circuit Court for Leon County. Jonathan Sjostrom, Judge. June 26, 2020 PER CURIAM. In this appeal of a final judgment terminating her parental rights over her child K.H., Appellant argues that the two statutory grounds on which termination was ordered were not proved by clear and convincing evidence. Moreover, she argues that termination was not in the manifest best interests of the child nor was it the least restrictive means of protecting the child. Finally, she argues that the trial court reversibly erred in admitting a cellphone recording. We affirm the final judgment of termination of parental rights because there is competent and substantial evidence to support termination pursuant to section 39.806(1)(e)3., Florida Statutes (2019), and because Appellant has not demonstrated that termination is not in the child’s manifest best interests and the least restrictive means of protecting him. See S.M. v. Florida Dep’t of Children & Families, 202 So. 3d 769 (Fla. 2016). The fourth issue raised by Appellant was that a cellphone video was erroneously admitted into evidence in violation of section 934.06, Florida Statutes (2019), and used to support the termination of parental rights under section 39.806(1)(c). Appellant’s objection to the entry of this evidence below acknowledged that the video was cumulative of other evidence in the record. And because the video was cumulative evidence, its introduction does not give cause for reversing this case even if it was erroneously admitted in violation of section 934.06, Florida Statutes (2019). See Witham v. Sheehan Pipeline Const. Co, 45 So. 3d 105, 109 (Fla. 1st DCA 2010) (“An error in the introduction of evidence may be considered harmless if the evidence is merely cumulative to other evidence that was properly introduced.”). AFFIRMED. B.L. THOMAS and OSTERHAUS, JJ., concur; BILBREY, J., concurs with an opinion. _____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________ BILBREY, J., concurring. Over objection from Appellant, the trial court admitted a cellphone recording in which Appellant is seen violently interacting with K.H.’s minor sibling in a bedroom of her home. The natural father of the sibling was also in the bedroom and made the recording surreptitiously. Appellant argues that the recording, 2 made without her consent or her knowledge (until she realized she was being recorded at the very end of the recording), was admitted in violation of section 934.06, Florida Statutes (2019). Section 934.06 prohibits the use of any intercepted oral or wire communication “in any trial, hearing, other proceeding in or before any court. . . .” The trial court relied upon the cellphone recording in terminating Appellant’s rights as to K.H. on the authority of section 39.806(1)(c), Florida Statutes (2019), finding the existence of parental conduct demonstrating continuation of the parent-child relationship would harm the child. The trial court did not, however, rely on the recording when ordering termination of Appellant’s rights on the authority of section 39.806(1)(e)3. Florida Statutes (2019), finding a failure to comply with a case plan so as to permit reunification after K.H. had been in care for 12 of the last 22 months. No doubt, cellphone recordings play an ever-increasing part in civil and criminal cases, and therefore, interesting questions are raised by the application of chapter 934, Florida Statutes, to cellphone recordings. * Such recordings generally contain a visual as well as audio portion, but by its explicit terms, section 934.06 applies only to an oral communication (i.e., something “uttered”) or a wire transmission (i.e., “aural transfer”). See § 934.02(1), (2), Fla. Stat. Further, while one may question whether a person engaging in criminal or abusive conduct on a minor has a legitimate expectation of privacy so as to invoke the protection of chapter 934, but see McDade v. State, 154 So. 3d 292 (Fla. 2014), these and a myriad of related issues need not be addressed here. The cellphone recording was used as one of the factual bases for termination pursuant to section 39.806(1)(c), Florida Statutes (2019). I believe that the recording was not cumulative because it was key to the trial court’s determination that Appellant’s continuing involvement with K.H. threatens K.H.’s “life, well- * In Smiley v. State, 279 So. 3d 262 (Fla. 1st DCA 2019), we suggested that chapter 934 may apply both the audio and visual portions of a video recording from a cellphone but did not decide the issue because the subject of the video was a trespasser without a reasonable expectation of privacy. 3 being, or physical, mental, or emotional health.” If the trial court’s finding under section 39.806(1)(c) was the only ground for termination, I believe that we would have to consider whether admission of the cellphone video was error. But given a ground for termination of parental rights was proven under section 39.806(1)(e)3., I agree we are correct to affirm the final judgment. See J.E. v. Dep't of Children & Families, 126 So. 3d 424, 427-28 (Fla. 4th DCA 2016)( “[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 [to terminate parental rights] is affirmable.”). _____________________________ Crystal McBee Frusciante, Office of Criminal Conflict and Civil Regional Counsel, Region One, Sunrise, for Appellant. Sarah J. Rumph, Children’s Legal Services, Tallahassee, for Appellee. Thomasina F. Moore, Statewide Director of Appeals, Statewide Guardian ad Litem Office, Tallahassee, and Ryan C. Tyler, Statewide Guardian ad Litem Office, Defending Best Interests Project, Ratzan, Weissman & Boldt, Boca Raton, Guardian ad Litem. 4