Full Opinion

DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT E.L., Appellant, v. A.L. and L.L., Appellees. No. 2D22-825 March 3, 2023 Appeal from the Circuit Court for Pinellas County; James V. Pierce, Judge. Jane H. Grossman, St. Petersburg, for Appellant. Allison M. Perry of Florida Appeals, P.A., Tampa, for Appellee A.L. No appearance for remaining Appellee. MORRIS, Chief Judge. E.L.,1 the maternal grandmother, appeals from a final judgment terminating her temporary custody of her grandchildren and returning custody to their biological father, A.L. E.L. makes three arguments on 1 Because of the type of allegations which were made against the appellee, A.L., we use initials to protect the parties' privacy. appeal, but only two merit discussion. Because we conclude that the trial court erred by failing to address E.L.'s expert's testimony and to provide an explanation for rejecting it, we must reverse the final judgment. We also take issue with the trial court's failure to address whether returning the children to their father would be detrimental to the children's welfare because in this case, that issue is intertwined with E.L.'s expert's testimony which the trial court failed to address. BACKGROUND2 A.L. had custody of the children in 2017 and was living with them in Missouri. In August of that year, a complaint was filed with the Missouri Department of Children and Families (Missouri DCF) alleging that A.L. was neglecting the children and using drugs around them and that A.L.'s girlfriend's sons were sexually abusing the children. The children were temporarily removed from A.L.'s custody but were subsequently returned to his custody after the Missouri DCF learned that there had already been a preexisting plan for the children to fly to Florida to temporarily reside with E.L. No further action was taken on the complaint. A.L. also desired to move to Florida, and E.L. agreed to allow A.L. to move in with her so that he could work on his substance abuse issues and so that he could "get his life together." A few months after moving to Florida, A.L. returned to Missouri on his own, purportedly to pick up a car and to then return to Florida. However, he testified that E.L. would not let him return to live with her, a point which E.L. disputed in her testimony. As a result of this, A.L. testified that he became depressed, began using drugs again, became 2 We rely on the facts as presented at the hearing on A.L.'s petition to terminate temporary custody, but we only detail those that are necessary to the resolution of the issues on appeal. 2 homeless, and did not have a job in 2018-2019; he also testified that he had some legal problems. E.L. filed a petition for temporary custody by extended family in March 2018; in it, she not only noted A.L.'s drug use, but she also alleged that he had sexually abused the children. E.L. was granted temporary custody of the children in 2018. Ultimately, A.L. overcame his substance abuse issues, obtained a job, and obtained housing. He provided evidence that his wages had been garnished to fulfill his child support obligation, and he testified that E.L. had received his stimulus checks for purposes of fulfilling the child support obligations as well. A.L. testified that he has a support system in place consisting of his mother and grandmother. A.L. filed a petition to terminate E.L.'s temporary custody in September 2020, alleging that he was then fit to care for the children and that it would be in their best interest. E.L. testified that when she initially agreed to allow A.L. to live with her, she believed the Missouri DCF complaint only related to A.L.'s drug use in front the children and neglect. She testified that it was only after A.L. returned to Missouri that the children began talking "about what had happened to them," and she testified that she placed the children in counseling. E.L.'s expert witness is a therapist with a master's degree in counseling; she specializes in treating child neglect, trauma, and sexual abuse. She was tendered and accepted as an expert in the area of child sexual trauma. She began treating the children in November 2019. She testified that it was her belief that the children had been sexually abused by A.L.; she based this opinion on the children's telling of stories involving sexual abuse of other children, the children's drawing of pictures depicting the abuse, and their fear of A.L. She testified that the 3 children were terrified of seeing A.L. and that it would be detrimental for them to do so at that time. However, the expert witness acknowledged that she had not had any contact with A.L. and that it was possible that the children's memories were distorted due to their young age. After the hearing, the trial court terminated E.L.'s temporary custody and entered an order granting A.L.'s motion for a court-provided transition plan. The trial court found that there was no substantial and clear and convincing evidence that there was a basis to continue to find that A.L. was "unfit" to have custody. In support of that determination, the trial court made several findings including its conclusion that if there had been any concerns about sexual abuse being committed by A.L., the Missouri DCF would not have allowed him to remove the children from Missouri and E.L. would surely have had concerns about his moving in with her. The trial court further found that the Missouri DCF case had been closed with no findings and that there was no evidence that a criminal prosecution had been initiated against A.L. A.L.'s stable residence and employment were also noted in support of the trial court's custody determination. Notably, the trial court did not address E.L.'s expert witness's testimony nor did the trial court indicate whether it had considered the issue of whether returning the children to A.L. would be detrimental to their welfare. ANALYSIS We first discuss the trial court's failure to address the testimony of E.L.'s expert witness. A trial court may reject an unrebutted expert opinion when ruling on a case, but "it is not free to do so arbitrarily." Morroni v. Wilmington Sav. Fund Soc'y FSB, 292 So. 3d 514, 518 (Fla. 2d DCA 2020); see also Wiederhold v. Wiederhold, 696 So. 2d 923, 924 (Fla. 4th DCA 1997). Rather, "when a trial court acting as a fact-finder 4 renders a decision that rejects the unrebutted testimony of an expert, 'it must offer a reasonable explanation for doing so, such as impeachment of the witness or conflict with other evidence. ' " Morroni, 292 So. 3d at 518 (quoting Storey v. State, 139 So. 3d 448, 449 (Fla. 2d DCA 2014)); see also Coday v. State, 946 So. 2d 988, 1005 (Fla. 2006) ("While we have given trial judges broad discretion in considering unrebutted expert testimony, we have always required that rejection to have a rational basis [such as a] conflict with other evidence, credibility or impeachment of the witness, or other reasons."). By virtue of the trial court's order terminating E.L.'s temporary custody of the children and returning custody to A.L., we presume that the trial court rejected E.L.'s expert witness's testimony wherein she opined that it would be detrimental to return the children to A.L.'s custody at that time. However, the trial court failed to address E.L.'s expert witness testimony in the order. Thus no reasonable explanation was provided, as required. See Morroni, 292 So. 3d at 518. Consequently, we must reverse the final judgment on this basis. A second issue in this case is intertwined with the first: the trial court's order fails to reflect if the trial court considered the issue of whether returning the children to A.L.'s custody would be detrimental to their welfare. This is especially problematic here, where E.L.'s expert opined that it would be detrimental to return custody to A.L. Section 751.05, Florida Statutes (2020), addresses temporary custody of minor children by extended family, and it forms the basis for E.L.'s temporary custody in this case. But notably, section 751.05 does not require a trial court to make a finding of detriment before termination of an extended family member's custody and return of custody to a biological parent. And we are not convinced that the cases relied on by 5 E.L., Richardson v. Richardson, 766 So. 2d 1036, 1039 (Fla. 2000), and Slover v. Meyer, 80 So. 3d 453, 455 (Fla. 2d DCA 2012), require a trial court to make a finding that no detriment will occur before returning custody to a biological parent. Neither of those cases involved review of an order terminating an extended family member's temporary custody of a child and returning custody to a biological parent. And, in fact, the Florida Supreme Court in Richardson recognized the well-established principle that "the [biological] parent ha[s] a clear preference to custody over all others based upon the status of parenthood." 766 So. 2d at 1039 (citing In re Guardianship of D.A. McW., 460 So. 2d 368, 370 (Fla. 1984)). Furthermore, even in the context of reviewing an order denying a biological parent's petition to modify a temporary custody order, this court did not find error based on lack of a finding as to detriment; rather, the error requiring reversal in that case was the trial court's use of an incorrect legal standard when ruling on the motion. Cf. Slover, 80 So. 3d at 455.3 We recognize that caselaw appears to require trial courts to at least consider the issue of detriment in making custody determinations. See, e.g., Slover, 80 So. 3d at 455 (explaining that while the trial court had 3 We note that at least one district appears to hold that a finding of detriment is required where a biological parent is denied custody. See Morris v. Morris, 255 So. 3d 908, 910-11 (Fla. 1st DCA 2018) (explaining that "[i]n addition to fitness, the common law rule of parental preference" requires a showing that awarding custody to a biological parent would be detrimental to the child's welfare before such custody can be denied, and reversing order in part because the trial court's findings were incomplete with regard to detriment and the appellate court could not tell from the record whether the trial court "analyzed detriment in the context of relocation of a child" (emphasis added)). However, Morris, like Richardson and Slover, is factually distinguishable, and it remains only persuasive authority. 6 determined the father was a fit parent, "we cannot determine whether the court properly considered whether placing the child in his custody would be detrimental to her welfare" (emphasis added)); Bateman v. Johnson, 818 So. 2d 569, 571 (Fla. 2d DCA 2002) (reciting the general rule that a biological parent should only be denied custody if he is unfit or if custody would be detrimental to the child's welfare and affirming where the trial court determined the father's fitness and then balanced the father's constitutional right to parent the child with "any possible detriment" to the child before ultimately finding that the equities were in the father's favor and granting custody to the father). But requiring a court to consider both a parent's fitness and the issue of detriment in resolving a custody dispute between a biological parent and a third party is not the same as requiring a trial court to make a finding on both issues before returning custody to the biological parent. While trial courts have, in certain cases, made findings that reference the issue of detriment before awarding custody to a biological parent, see Bateman, 818 So. 2d at 571, no authority has been cited and this court has located none that require a trial court to make an express finding regarding detriment before returning custody to a biological parent. However, while we do not believe that a trial court must make a finding of no detriment when custody is returned to a biological parent, detriment must at least be considered. Unfortunately in this case, we cannot determine if the trial court did so. And this is especially problematic in this case because E.L.'s expert opined on the issue of detriment, yet the trial court failed to address that testimony. Thus we cannot determine if the trial court rejected the expert's opinion on that issue or if the trial court simply failed to consider it. 7 CONCLUSION Because the trial court failed to specifically address E.L.'s expert's testimony and explain its reasons for rejecting the testimony, we must reverse the final judgment. Based on the unique facts of this case, the trial court should, upon remand, make it clear that it considered whether returning the children to A.L.'s custody would be detrimental to their welfare.4 Reversed and remanded for further proceedings. LaROSE and KHOUZAM, JJ., Concur. Opinion subject to revision prior to official publication. 4 E.L. makes a third argument: that the termination of her temporary custody and the returning of custody to A.L. was premature based on various facts. We construe this to be a challenge to the sufficiency of the evidence related to those facts. While the resolution of that issue does not affect the disposition in this case, we note that we find it to be without merit. 8