Filing # 32276024 E-Filed 09/21/2015 11:37:49 AM IN THE CIRCUIT COURT OF THE FOURTH JUDICIAL CIRCUIT IN AND FOR DUVAL COUNTY, FLORIDA CASE NO.:16-2014-DP-242-A, B, C DIVISION: JV-A. THE INTEREST OF: EACH A CHILD. FINAL JUDGMENT OF DISMISSAL WITH PREJUDICE sworn Petition for Involuntary Termination of Parental Rights (the “Petition”) filed by the Fh Department of Children and Families (the “Department”), pursuant to Chapter 39, Florida Statutes. The Father, Calvin Rockward was previously dismissed as an offending party by the Department. ‘The Court, having heard the testimony of each witness, having observed and carefully ‘THIS CAUSE came on to be heard on November 19, 2014 and December 16, 2014, upon the | weighed the credibility and demeanor of the witnesses, having received and reviewed all exhibits and otherwise being fully advised in the promises, finds that the Department has not met its burden of showing by a clear and convincing evidence such that a reasonable trier of fact could find that (a) the parents committed aggravated child abuse as defined by §827.03, Florida Statutes, (b) the parents subjected any of the children to chronic abuse as defined by §39.806(1)(g) Florida Statutes, (c) the parents engaged in egregious conduct that threatened the life, safe, or physical, mental or emotional health of the children, pursuant to §39.806(1)(f) Florida Statutes, or (d) it is in the manifest best interests of these children to terminate the ns of §39.810(1)-(11), Florida Statutes. | Furthermore, the Court finds that the Department has failed to prove by the preponderance of the | parental rights of the parents under the provi evidence such that a reasonable trier of fact could find that (a) the parents committed aggravated Page 1 of 10child abuse as defined by $827.03, Florida Statutes, (b) the parents subjected any of the children to chronic abuse as defined by §39.806(1)(g) Florida Statutes, or (e) the parents engaged in ‘egregious conduct that threatened the life, safe, or physical, mental or emotional health of the children, pursuant to §39.806(1}(P) Florida Statutes 1. Persons Present: The following persons were present: Attomey for CLS Holli Dean Attorney for CLS Tracy Sorcek Family Service Counselor Michelle Yurick, CHS Attorney for the Guardian ad Litem Christopher G Guardian ad Litem Emily Hall Attomey for Mother Lynn Salvatore Mother Brooke Bornhorst Attorney for Father Mead K.C. Tusher Father William Meade Attomey for Father Rockward Wesley Cassano 2. Jurisdiction: The Court has jurisdiction over the subject matter and the parties by virtue of dependency shelter orders entered June 10 and June 14, 2014. All of the parties entitled to notice have been notified as required by law. 3. The children have not been adjudicated dependent, the Department did not offer a Case Plan with a goal of reunification and the parents have not been ordered to comply with a case plan, 4, Witnesses: The Court heard testimony from the following: ‘© Meshun Richardson, Child Protective Investigator, Department of Children & Families ‘* Mandy Gibson, Family Services Counselor @ Jessica Ratchford, Child Protection Team Case Coordinator © Rachel Thomas, Ph.D., ARNP, First Coast Child Protection Team ¢ Calvin Rockward, Father of the minor child, [aa Zahir Sarwar, M.D., Board Certified Radiologist ¢ Kathleen Dully, M.D., Medical Director of First Coast Child Protection Team & Wolfson’s Children’s Hospital © Officer E.D. Everson, Jacksonville Sheriff's Office © Emily Hall, Guardian ad Litem © Gary Bornhorst, Maternal Grandfather © Baptist Hospital Records Custodian © St. Vincent’s Hospital Records Custodian © Douglas Benson, M.D., Orthopedic Surgeon, (via video deposition taken November 6, 2014) © David Ayoub, M.D., Radiologist (via video deposition taken Januaty 7, 2015) Page? of 105 © Michael Holick, M.D., Endocrinologist (via video deposition taken March 24, 2015) Children: The children subject to the Petitions for Involuntary Termination of Porental rights arc OOD, whose date of birth is (_A_ eens whose date of birth ‘s LIAS hose date of birth 2012. a) » Stipulated Fact ‘The minor children are residents of the State of Florida in Duval County and under the jurisdiction of this court. The child, BE was born on QE and was months old at the time of trial, The child, ED 92s bo: (AED «cw AEB years of at the time of trial. The OD + born on RATED 23 ws IBD yeas ‘ime of tal old at the The parties have stipulated to the following findings of fact: ‘The mother of the children is Brooke Bornhorst. The father GEAR is Calvin Rockward. &) The Cather f TIT is William Meade, hy dD ky At the time of trial, the child, }was in the temporary custody of the maternal uncle and aunt, Justin and Lauren Norton, At the time of trial, the child, ‘was in the temporary custody of the maternal grandparents, Gary and Deborah Bornhorst, At the time of trial, the child QS was in the temporary custody of her father, Calvin Rockward. ‘The children were originally removed from the custody of the parents/mother and placed in shelter care status on June 9, 2014 i Do: June 13, 2014 (TR = Judicial Notice: The Court takes judicial notice of the following: a) Dependency Shelter Order as to QQ cated June 10, 2014, b) Dependency Shelter Orders Saag ay June 14, 2014. Page 3 of 108. A copy of the Court’s Order on Objections During the Recorded Testimony of Expert Witnesses is attached hereto and incorporated herein, 9. The Court makes the following findings by clear and convincing evidence: ‘The Department of Children ‘and Families Child Protective Investigator, Meshun Richardson, testified regarding the removal of the children. The child, QR. was removed from the parents’ custody on June 9, 2014 and the children, QGAQSREIRED were removed on June 14, 2014, The Department originally received an abuse report on June 8, 2014 and e day. The allegations ofthe report were tha vie had a humerus fracture, and it was unknown how the child sustained the injury. The investigation teceived a supplemental report on the commenced on June 8, 2015 at Baptist Hospital. Ms, hardson spoke with the mother anéd father at the hospital, ‘The mother, Brooke Bornhorst, told Ms, Richardson that she was cohabiting with the father and were not married. She stated that they had three ¢hildren living in the home and the father’s niece, (QB, also resided in the home. ‘The mother stated that that morning she woke up, nursed the baby, and they cooked breakfast together as a family. After breakfast she left the child in the care of the father and she went back to sleep. Ms. Richardson also interviewed the father, William Meade, who told Ms, Richardson that it was actually the oldest chil eI anc the father that cooked breakfast together. He further stated to the CPI that the mom got up, nursed the baby, they prepared breakfast, and then mom laid back down and he was caring for the kids. As to the injury, the mother stated to the CPI that when she woke up later that morning she was getting the baby ready, The family was going to the maternal grandparent’s house to swim. The mother stated that at time she realized there was something wrong with the baby’s am. The mother stated that the baby wasn’t moving her arm, so the parents proceeded to go to the hospital. In addition to speaking with the parents, Ms. Richardson spoke with the hospital staff and law enforcement. Ms. Richardson also went to visit the parent’s home on June the 9". She saw the other two children at that time. Ms. Richardson referred the . CPT evaluated the child REED at the hospital on June 9, 2014. Ms, Richardson informed the parents of additional injures that were later found to the child, MBP. Both the parents appeared to be surprised when they were informed, ‘There was some tension among the parents, which the Court finds to be other children to the Child Protection Tean understandable, given the circumstances. At no time did either of the parents admit to any act of abuse or violence against any of the children, or admit knowledge of mistreatment toward any of Page 4 of 10the children by the other parent. The witness testified and the court so found that in the presence of the CPI, the mother then asked the father what he did to the baby. CPT also interviewed both the mother and the father and Ms, Richardson observed both of those interviews, In addition, Ms. Richardson completed a criminal check on the mother and father. ‘The father had a prior arrest for assault, The father was arrested on September 4, 2011 and the adjudication was withheld. Ms, Richardson testified that on June 9, 2014, the decision was made to remove RIND 0 eps. ATI eno removed that ime becanse the investigation was still ongoing. Ms. Richardson safety planned with a relative until she could get additional information, CPT saw the children QED oc grandfather, Gary Bornhorst. To Ms, Richardson's knowledge, ARID hs not had any more fractures since removal from the parents, 10. The father of TD Calvin Rockward, testified by telephone where is . The testimony of QB Rockwood was not particularly flattering toward the mother. Rockwood testified that he was married to the mother from Januat iterviewed the maternal is presently stationed in the servi 2007 to February 2011. Rockwood testified as to some issues relating to depression during their matriage. However the court finds that the testimony of Calvin Rockford is not particularly usefull given the fact that Rockwood has not had any significant contact with the mother for approximately three years, In addition there is some skepticism associated with the testimony of a former husband relating to the conduct of a former wife in circumstances where the parties did not separate amicably. I Jessica Ratchford is employed with the Child Protection Team and she completed terview \ih ED «sardine maltreatment. She is familiar with the parents, Brooke Bornhorst and William Meade. She interviewed Ms, Bornhurst at an Wolfson's Children’s Hospital on June 9, 2014. Meshun Richardson was also present for the interview. The mother admitted during that interview that she did not trust anyone with her children. She said she was very protective about who they were with. The mother stated that she did not know how the injury occurred but someone must have done it, Ms, Ratchford also interviewed the father, with Meshun Richardson present. The father stated he did not know how the injury occurred, ‘The father stated he was made aware of a fump on the child’s arm by Ms. Bornhorst, The father stated that the child was a fussy child. The witness testified and the court Page $ of 10so found that both parents admitted that the child was always either in the care of Mr, Meade or Ms, Borhorst. They had no explanation for how the injuries occurred. 12, Rachel Thomas is an Advanced Registered Nurse Practitioner with the Child Protection Team. She is board certified in family practice and has testified in cases of child abuse, specifically child physical abuse and child sexual abuse. She works as a medical consultant for CPT, which involves doing medical evaluations of children that have suspected maltreatment. Ms. Thomas testified that while she has had training in her masters program as to x-ray interpretation, she agreed that she doesn't normally interpret x-rays other than a basie study. Her experience is typically limited to interpretation in the emergency room. Ms.Thomas testified that she clearly saw evidence of a fracture on the clavicle or the collarbone of the child, BBD. Ms. Thomas went on to note the presence of numerous other fractures on AB and stated that those fractures should not have been present except in a ease of child abuse or some underlying medical condition. Ms.Thomas on to state that she was not aware of any underlying medical condition which would cost these fractures. 13, Elvongie Everson testified that she is a police officer with the Jacksonville Sheriff's Office currently assigned as a civil officer, She is familiar with Brooke Bornhorst and wil ‘was assigned to the case on June 9, 2014 and conducted interviews with the parents on the same m Meade, as she interviewed them in an aggravated child abuse, child neglect case. She day. Everson testified that neither the mother or the father admitted to any act of child abuse or child neglect. Everson noted that the criminal charges against the parents have been dropped. 14, ‘The witness presented by the Department in support of their petition to terminate who was most qualified to address the issue of the cause of the fractures found in MGW was Dr. Zahir Sarwar, Dr. Sarwar is a pediatric radiologist at Wolfson Children's Hospital and Nemours Clinic in Jacksonville. The doctor testified that this case was unlike any other that he had scen. The doctor testified that the child did not have any history of congenital disease. Furthermore he did not find evidence of osteopenia, or a low level of calcium. ‘The presence of this condition would cause the bone to be solved and fracture casily. The doctor did not find any evidence which would indicate that the child suffered from rickets or Ehlers ~ Danlos Syndrome. 15. ‘The Department also called Dr. Dully who is a pediatrician and an expert in chil abuse. While Dully is certainly an expert in those fields, she is not however, an expert in bone m or bone deficiency or an expert in radiology. The doctor also testified that Page 6 of 10 disease, calosteogenesis imperfecta was considered but in her opinion the bones appear normally formed and that this condition did not exist. Her findings were in direct conflict with those findings made by the witnesses presented by the parents, 16, The parents provided testimony of three experts by video deposition, The first k's creden was Michael Holick. Dr. Hi s are very impressive. Holick has taught physiology at MIT, endocrinology at Harvard and endocrinology at Tufts. He now teaches biology of disease regarding metabolic bone disease as the Professor of Medicine, Physiology, and Biophysies in the Department of Medicine at Boston University Medical center. He presently holds a BS degree in chemistry, a masters degree in biochemistry a PhD in biochemistry in addition to a medical degree. As a graduate student Holick identified the major circulating form of vitamin D and while engaged in postdoctoral studies was the first to chemically make the active form of vitamin D which is used to treat patients with metabolic bone disease. Holick has authored 538 peer-reviewed publications and written or edited 14 books, According to Holiek, who actually saw the Mother, she has a genetic bone disorder which affects her skeletal system. In addition this defect, coupled with a vitamin deficiency that the doctor found present in JIQBB could explain the fractures present in the child. These fractures could come about as a result of normal handling of Presley and not abuse, 17. Dr, David Ayoub is a radiologist who also testified on behalf of the parents by video deposition. Ayoub's opinion was that the lesions or damaged areas on QGMMBB bones njury. Again, this ‘were related to a healing medical condition rather than from some traumat doctor's qualifications and knowledge of the subject matter about which he testified are extremely impressive, 18. Dr. Douglas Benson was the final medical doctor whose testimony was presented by video deposition. Benson testified that in his opinion QB suffered from a medical condition causing brittle bones which would break with normal care and handling of a newborn or infant, and not necessarily as a result of any abuse by either of the parents. 19. To prevail on a Petition for Involuntary Termination of Parental Rights the Court ‘ing evidence that one of the grounds in Section 39.806 Florida must find by clear and convi Statutes has been proven and then must evaluate if the manifest best interests of the child would be served by granting the Petition pursuant to under Section 39.810 Florida Statutes. If the petitioner establishes that at least one of the statutory grounds exist to terminate the parents’ Page 7 of 10rights and that termination is in the manifest best interest of the children, the court must examine if termination of parental rights is the least restrictive means of protecting the child from harm Florida and that reunification with the parent poses a substantial risk of significant harm. Department of Children and Families, 164 So.3d 40(Fla, 1 DCA, April 27 2015); G.H. V. Dep't of Children & Families, 145 So 3d 884 (Pla. DCA); B.C. V. Fla, Dep't of Children & Families, 887 So. 2d 1046, 1053 (Fla.2004). 20. The Department has not proven by clear and convincing evidence the statutory ‘grounds pled, ‘The mother and father both denied knowledge of the child’s injury and there was insufficient proof to establish that they should have known and therefore knowingly failed to prevent egregious conduct that threatened the life, safety or physical health of the child. A.H. v. Florida Department of Children and Family Services, 85 So.3d 1213 (Fla. 1 DCA 2012); See RS. V. Department of Children and Families, (Fla. 4" DCA 2002). The parents offered credible expert testimony that the medical findings regarding the child, QJM, could have been caused by metabolic bone disease. There was no evidence that either parent subjected the child and/or the siblings to aggravated child abuse as defined in section 827.03 Florida Statutes and/or that the parents subjected the children to chronic abuse. 21. Even if the burden of proof on the department was that of more likely than not, it is not clear that the burden would have been met, However the burden of proof is that of clear and convincing evidence. This case is one of "battle of the experts". ‘The testimony of those experts called by the parents is very compelling. ‘These doctors are well educated and very well versed on the issues before the court. It is impossible for the court to find, based on a standard of clear and convineing evidence, that the department has shown that the child, QP, was subject to any form of abuse by the parents. To the contrary, the court finds that the more credible evidence points to the fact that both the mother and child likely suffer from a metabolic bone disease and the evidence presented by the department is consistent with symptoms of that disease, and not any form of abuse. 22. Furthermore, the Department has not established that termination of parental rights is in the manifest best interest of the children and is the least restrictive means to protect the children from harm, There was credible testimony that the children are bonded to the parents. ‘The parents visit multiple times each week for extended periods of time in the home of the custodians/matemal grandparents. The custodial maternal grandfather testified to the Page 8 of 10behavior of the children when the parents have to leave them at the end of each visit and how loving and positive the visits are between the parents and children, He has never had any concerns for the interaction between the children and parents. ‘The parents have the ability and have demonstrated their disposition to care for their children, the children are bonded to their parents and the contact with their parents is in the children’s best interest such that termination of parental rights is not, Although the Court is not required to consider if the overriding principle of least restrictive means because the Department did not meet their burden of proof as to the ‘two required elements, the Court finds that there ate measures short of termination of parental rights that would protect the children. 23. ‘The Department was not required to offer a Child Welfare Case Plan prior to filing a Petition for Termination of Parental Rights based on the grounds alleged and they did not, There was no evidence that the parents were offered any referrals or assistance address the reasons the children were removed, ‘The Court notes the lack of assistance or assessment of the parents only to highlight that in the 14 months since the children have been out of their parents’ home, it is plausible that the parents could have remedied any concemns to the satisfaction of the Department and/or Guardian Ad Litem. The length of time that the Department had to work with these parents is in excess of the 12-month maximum length of time that children should remain in out of home care without permanency. 39.621 Florida Statutes. Therefore, it is hereby ORDERED AND ADJUDGED that: ‘The Petition for Involuntary Termination of Parental Rights as to the children, CSD «© CRED is DENIED. The Petition for Involuntary ‘Termination of Parental Rights in this matter is dismissed with prejudice, jurisdiction is terminated, the children shall return to the parents immediately and the parties are returned to status quo ante. DONE AND ORDERED in Jacksonville, Duval County, Florida, this 21 day of ‘September 2015. lack hon MARK MAHON, Page 9 of 10 uit Judge‘Tracy Soreek, Attorney for Children’s Legal Services Lynn M. Salvatore, Attorney for Mother Brooke Bornhorst K.C. Tusher, Attorney for Father William Meade Wesley Cassano, Attorney for Father Calvin Rockward Christopher Guarino, Attorney for Guardian ad Litem Program NOTICE PURSUANT TO FLORIDA STATUTE §39.815(1) “ANY CHILD, ANY PARENT OR GUARDIAN AD LITEM OF ANY CHILD, ANY OTHER PARTY TO THE PROCEEDING WHO IS AFFECTED BY AN ORDER OF THE COURT, OR THE DEPARTMENT OF CHILDREN AND FAMILIES MAY APPEAL TO THE APPROPRIATE DISTRICT COURT OF APPEAL WITHIN THE TIME AND IN THE MANNER PRESCRIBED BY THE FLORIDA RULES OF APPELLATE PROCEDURE, WHICH IS 30 DAYS FROM THE DATE THIS ORDER IS RENDERED (FILED). THE DISTRICT COURT OF APPEAL SHALL GIVE AN APPEAL FROM AN ORDER TERMINATING PARENTAL RIGHTS PRIORITY IN DOCKETING AND SHALL RENDER A DECISION ON THE APPEAL AS EXPEDITIOUSLY AS POSSIBLE. APPOINTED COUNSEL SHALL BE COMPENSATED AS PROVIDED IN FLORIDA STATUTE §39.0134. Page 10 of 10