B.J., the Mother, Appellant, vs. Department of Children and Families, et al., Appellees.
No. 3D15-2593
Third District Court of Appeal State of Florida
April 20, 2016
Lower Tribunal No. 15-15503
Eugene F. Zenobi, Criminal Conflict and Civil Regional Counsel, Third Region, and Kevin Coyle Colbert, Assistant Regional Counsel, for appellant.
Karla Perkins, for the Department of Children and Families; Laura J. Lee (Sanford), for the Guardian ad Litem Program, for appellees.
Before SUAREZ, C.J., * and SHEPHERD and LOGUE, JJ.
* Chief Judge Suarez did not participate in oral argument, but participated in the decision.
The mother, B.J., seeks to reverse the trial court’s order of adjudication and disposition of dependency of the minor child, A.G. We reverse, as the totality of the circumstances presented in this case fails to provide competent substantiаl evidence to support the adjudication of dependency.
FACTS
The mother, B.J., and the father and their two children spent a weekend in a hotel in Broward as a family. The mother co-slept with her four-month old son, Ab.G., and then one-year old daughter, A.G. The father slept on the fold out sofa. B.J. awoke to find the four-month old cold and unresponsive. The parents called 911, but the parаmedics were unable to revive the child. The hotel room was messy, cluttered with empty food cartons and there was some blood on a towel. That evening, Broward County child protective services (CPI) contacted the parents, who were staying at the home of a friend from church, to follow up on investigating the baby’s death.1 The parents admit that after the Broward County CPI left, thеy left A.G. asleep on the sofa downstairs while their friend was asleep upstairs to go to another friend’s house. The parents submitted to drug testing the following morning, and tested positive for cannabis. They admitted to having smoked the night before. The parents then came back to Dade County. Over the
next several days, the Broward County CPI officer sporadically attempted to make
with the now-three-year-old child despite knowledge of the risk. The trial court
APPLICABLE LAW
To adjudicate a child “dependent,” the trial court must find that the Department of Children and Families (“DCF“) proved the allegations set forth in the verified petition for dependency by a preponderance of the evidence. M.F. v. Fla. Dep‘t of Children & Families, 770 So. 2d 1189, 1192 (Fla. 2000). An appellate court reviews “an adjudication of dependency for an abuse of discretion, and will uphold the determination if the trial court applied the correct law and its ruling is supported by competent, substantial evidence.” Id. at 1192; R.F. v. Fla. Dep‘t of Children & Families, 770 So. 2d 1189, 1192 (Fla. 2000); D.A. v. Dep‘t of Children & Family Servs., 84 So. 3d 1136 (Fla. 3d DCA 2012).
The trial court recited three “factors” that it believed provided a basis for the dependency order when viewing the totality of circumstances: the dirty hotel room, the parents’ leaving the child asleep at a friend’s house as they went to another friend’s house (where they smoked some cannabis), and the alleged evasiveness of the parents toward DCF’s subsequent investigation into the sibling’s death – not into A.G.’s circumstances. The trial court concluded that аny one of the “factors” shown in this case would not be sufficient to order the child dependent, but taken
To support an adjudication of dependency, the parent‘s harmful behavior must be a present threat to the child. See B.C. v. Dep‘t of Children & Families, 846 So. 2d 1273 (Fla. 4th DCA 2003). A “[c]hild who is found to be dependent” includes, among other things, one who has been “abandoned, abused, or neglected” by the parents, or a child who is found “[t]o be at substantial risk of imminent abuse, abandonment, or neglect” by the parents. See
we must find competent, substantial evidence that the child was either abandoned,
An abused child is one who is subjected to “any willful act or threatened act that results in any physical, mental, or sexual injury or harm that causes or is likely to cause the child‘s physical, mental, or emotional health to be significantly impaired.”
Finally, the record does not contain аny competent substantial evidence of imminent prospective abuse, abandonment, or neglect.5 See B.D. v. Dep‘t of
Children & Families, 797 So. 2d 1261, 1262 (Fla. 1st DCA 2001); In re J.L., 824 So. 2d 1023, 1025 (Fla. 2d DCA 2002).
To the extent that DCF implies the adjudication in this case was appropriate based upon a “danger” that the physical, mental, or emotional health of A.G. would be significantly impaired in the future, the evidence still must meet the imminency requirement of
abuse, abandonment or neglect] these definitions are read in pari materia with the
PROCEEDINGS
SIBLING’S DEATH: There is no competent substantial evidence in the record that A.G.’s sibling died as a result of abuse, abandonment or neglect so as to be deemed “harm” to A.G. pursuant to the language of
Further, the pick-up order, shelter order, and verified petition for dependency are misleading in their recitation of the facts. For example, although the parents tested positive for cannabis thе day after the child died, the shelter order suggests by its wording that the child died while the parents were under the
influence of cannabis.7 This is an inaccurate characterization of the actual facts
4. Interview/Facts/Evidence obtained by CPI during Investigation: Contact was made with Plantation Police and was advised that there is active order signed by a judge in Broward County removing the child from the care of her parents and placing her into state custody. Drug tests were administered to both parents who voluntarily took tests, mother was positive for Marijuana while fathеr tested negative for all substances. Child was recovered with the assistance of North Miami Beach Police Officer at the home of the paternal grandmother.
. . .
7. Grounds for Removal: [D. There is probable cause, (clear and convincing if ICWA case) that reasonable grounds for removal exist, the provision of appropriate and available services will not eliminate the need for placement, the child(ren) are dependent, and shelter care is necessary and in the best interest of the child(ren) because: The child(ren) has/have been abused, abandoned, or neglected or is/are in imminent danger of illness or injury as a result of abuse, abandonment, or neglect;
* * *
The Department has made reasonable efforts, as described in the “AFFIDAVIT TO DEPENDENCY SHELTER PETITION,” to prevent or eliminate the need for removal or continued removal of the Child(ren), or an emergency situation prevented these efforts.
9. Continuation of the Child(ren) in the home is contrary to the welfare of the Child(ren) because:
A. The home situation presents a substantial immediate danger to the Child(ren), which cannot be mitigated by the provision of preventive services, because of the reasons that are described in the “AFFIDAVIT TO DEPENDENCY SHELTER PETITION.”
B. The Child(ren) cannot safely remain at home, either because there are no preventive services that can ensure the safety of the Child(ren), or because even with the appropriate and available services being provided, the safety of the child cannot be ensured.
[Emphases added].
As another basis for dependency, the DCF set forth the parents’ “prior history with the department,” citing reports generated when the mother was a teenager in 2003 and 2007, which cases werе “disposed with no indicators.” The father’s last criminal event was in 2014 for possession of marijuana, in which case adjudication was withheld. His prior two criminal charges were also adjudication withholds. The petition goes on to state:
These activities and/or environments harmed the Child as defined in
Section 39.01(30) , Florida Statutes (2014) and /or caused or are likely to cause the Child’s physical, mental or еmotional health to be significantly impaired or to be in danger of being significantly impaired.
It is a considerable stretch to say that the Child has or will be harmed by events
HOTEL ROOM: There are several description of the condition of the hotel room when the youngest child died; one of the police officers described take-out containers, tossed clothing, sofa cushions on the floor, and observing a few “bloody” towels. The hotel housekeeping supervisor described the room as cluttered, when she testified that a stroller was right by the door, chairs, “stuff was all over the place,” which she described as “trash, clothes, everything.” The CPI investigator testified that because the family had been evicted, they stayed together in hotel rooms where the mother could cook. The mother testified that the couch cushions were off because it is a fold-out bed and the father was sleeping on it; the “trash” was from cooking packages; the blood on the towels was because B.G. had run out of sanitary napkins and had to use the towels. All of these explanations are reasonable for рeople in difficult financial circumstances, finding themselves
without permanent housing, and with a cluttered room resulting from a long
EVASIVENESS: There is no competent substantial evidence in the record that the CPI’s inability to contact the parents, or the parents’ failure to contact the CPI was a result of the parents’ purposefully evading the CPI’s investigation. The circumstances can just as easily be explained by neglect, miscommunication, or happenstance. The Broward County CPI testified that she called in an abuse allegation solely to triggеr a case with a pickup order simply because she could not find the parents to follow up with A.G. She also testified that the parents only knew that she was investigating the sibling’s death; A.G. was not added to her case until after the matter of the sibling’s death had been closed. The parents testified that, under the circumstances (child’s death, being without a permanent address, financially unstable), it did nоt occur to them to return the call. This does not translate into willful evasiveness.
CO-SLEEPING WITH A.G.: Children who have not been abused may still be found to be at substantial risk of imminent abuse and declared dependent by
a court as a result of abuse inflicted upon a sibling. See In re M.F., 770 So. 2d 1189, 1194 (Fla. 2000).
The State has not provided any substantial competent evidence that A.G. was or is in imminent danger of abuse, neglect or any harm; the sibling’s death was ruled SIDS; the allegation of “evаsiveness” is at most attributable to the parents’ negligence, and not willful evasion of any investigation. The reasons the State provides for alleging imminent danger of harm are, at best, speculative. There is absolutely no evidence that A.G. has been or may be imminently deprived of necessary food, clothing, shelter, or medical treatment. “The State of Florida does
not demand perfection from its families. Instead, the State demands that children
We therefore reversing the trial court’s Ordеr of Adjudication and Disposition and remand for immediate proceedings consistent with this ruling.
Reversed and Remanded.