C.G., In Interest of, 86-1970

• Decision Date: 08 May 1987
• Docket Number: No. 86-1970,86-1970
• Citation: 506 So.2d 1131,12 Fla. L. Weekly 1210
• Parties: 12 Fla. L. Weekly 1210 In the Interest of C.G., a child. Edwin C. "Bob" GLENNON and Christa Glennon, his wife, Appellants, v. STATE of Florida, DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Appellee.
• Court: Florida District Court of Appeals

Page 1131

506 So.2d 1131

12 Fla. L. Weekly 1210

In the Interest of C.G., a child.

Edwin C. "Bob" GLENNON and Christa Glennon, his wife, Appellants, v. STATE of Florida, DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Appellee.

No. 86-1970.

District Court of Appeal of Florida,

Second District.

May 8, 1987.

John Charles Coleman of Coleman & Coleman, Fort Myers, for appellants.

Anthony N. DeLuccia, Jr., Dist. Legal Counsel, Dept. of Health and Rehabilitative Services, Fort Myers, for appellee.

SCHEB, Acting Chief Judge.

Appellants, the parents of C.G., their six-year-old daughter, challenge the trial court's determination that C.G. is a dependent child and its subsequent order of disposition refusing to reunite their daughter with them. We affirm the adjudication of dependency but remand for a further disposition hearing.

The Department of Health and Rehabilitative Services (HRS) filed a dependency petition alleging that C.G. had been sexually abused by her father and was a dependent child within the meaning of chapter 39, Florida Statutes (1985). The appellants denied the allegations. On October 28, 1985, the trial court found that C.G. was a dependent child under the law and requested HRS to prepare a disposition report. After a disposition hearing, the court, on November 19, released C.G. to the custody of HRS.

In January 1986, HRS pursuant to section 409.168(3), Florida Statutes (1985), submitted a performance agreement for appellants' review. The proposed agreement identified five tasks for appellants to accomplish to assure C.G.'s return to them: (1) submit to alcohol evaluation; (2) engage in counseling to overcome the denial of the sexual abuse; (3) when appropriate, enter counseling in FACE (a sexual abuse program) to overcome the problem of sexual abuse; (4) provide all necessary medical and educational support to C.G., as well as consistent and positive support throughout C.G.'s placement and foster care; and (5) assist HRS in investigation of appropriate placement of C.G. with relatives. Appellants were unable to perform tasks (2) and (3) because they would not admit the abuse occurred, and thus were ineligible for FACE counseling. Because of appellants' inability to comply with the performance agreement, they declined to sign it, and HRS submitted a permanent placement plan on January 16, pursuant to section 409.168(4)(a).

At a hearing on February 3, HRS requested that the court accept the permanent placement plan in lieu of the performance agreement. At this hearing, the trial judge stated that any reference in the performance agreement to appellants admitting or denying the sexual abuse should be deleted, and appellants should engage in good faith counseling. The judge acknowledged the appellants had complied with task (1) as written and stated that unless HRS obtained additional information about the alcohol abuse, that matter should be left alone. Further, appellants informed the trial judge and HRS that they were willing to comply with tasks (4) and (5) of the performance agreement. Subsequently, on February 5, the court entered an order accepting the permanent placement plan as proposed by HRS but with the modifications discussed at the February 3 hearing. The permanent placement plan had as its stated goal the return of C.G. to her natural parents, the appellants.

In early May, appellants provided names and addresses of C.G.'s relatives for possible placement, as requested. Thereafter, HRS filed a report requesting the trial court to allow the father supervised visitation with C.G. and asking that the permanent placement plan be continued for an additional ninety days. Notwithstanding the trial court having previously deleted any reference to the denial of sexual abuse from the performance agreement as discussed at the February 3 hearing, HRS reported that the major area of noncompliance with the permanent placement plan involved the appellants' continued denial of the sexual abuse allegations against the father. Appellants' denial, HRS noted, resulted in their inability to successfully participate in a sexual abuse program.

On May 12 the trial court conducted the initial six-month judicial hearing to review the status of C.G. § 409.168(4), Fla.Stat. (1985); § 409.168(5)(c)(1), Fla.Stat. (1985). The court concluded that matters of appellants' visitation with C.G. should be left to the guardian ad litem, HRS and a psychologist who had previously evaluated the appellants. On May 28 the court extended the permanent placement plan until August 31. In direct conflict with his actions at the February 3 hearing, the trial judge's order stated that the appellants had not complied with the permanent placement plan because they had not overcome their denial of the father's sexual abuse of C.G. As a result of this denial, the court observed, appellants had been unable to participate in a sexual abuse treatment program.

Two days after the court extended the permanent placement plan, HRS recommended to the trial court that C.G. be given an extended in-home visitation with her half-sister, Cynthia Evans, at a friend's home in Ft. Myers, Florida. Then on June 20, it recommended that the child be temporarily relocated to Ms. Evans' residence in Germany. Appellants renewed their request for the return of C.G. to their custody with counseling or, alternatively, for the court to allow their child to return to the mother with the stipulation that the father maintain a separate residence.

On July 3, the court entered an order of disposition continuing C.G.'s status as a dependent child. Following HRS's recommendation, the court gave temporary custody to Cynthia Evans, who was allowed to return to Germany with C.G., where Ms. Evans and her husband plan to remain until August 1987. In denying appellants' motion for rehearing, the trial court modified its previous order to permit appellants to contact C.G. by telephone, and to provide that should appellants visit Germany, they would be allowed supervised visitation with their child. Finally, the court ordered the case be reviewed in six months. From the court's order of July 3, as amended, this appeal ensued.

Appellants seek reversal of the court's determination that C.G. is a dependent child. Additionally, they contend the court erred in entering its disposition order. In support of their first contention, appellants argue there was insufficient evidence to sustain the court's finding that the father had sexually abused the child. On this point, they urge that the court erred in admitting evidence of similar occurrences of sexual abuse involving the father and two of his older daughters when they were quite young. Appellants also contend they were denied procedural due process because they were not furnished the guardian ad litem's report before the initial disposition hearing.

We begin our analysis by observing that in making its determination that C.G. was sexually abused by her father, the trial court reviewed a video taped interview with the child. No attack was made on the child's competency to testify, and appellants and appellee agreed to the admission into evidence of the video tape. The court heard additional evidence, including testimony of similar occurrences of sexual abuse by appellant father involving C.G.'s half-sisters when they were quite young. Those incidents, like the complained of conduct in this case, occurred when the mother was either sleeping or not present. Appellants contend the trial court erred in admitting such evidence. We think, however, this evidence was relevant to the appellant father's lack of inadvertence and to establish that he had the opportunity to commit such acts. § 90.404(2)(a) Fla.Stat. (1985); see Potts v. State, 427 So.2d 822 (Fla.2d DCA 1983); Hodge v. State, 419 So.2d 346 (Fla.2d DCA 1982); Beasely v. State, 503 S.2d 1347 (Fla. 5th DCA 1987).

The evidentiary standard in a dependency hearing is preponderance of the evidence. § 39.408(2)(b), Fla.Stat. (1985). We find substantial competent evidence in the record to support the trial court's finding that C.G. is a dependent child. We have not overlooked appellants' contention that they were denied procedural due process because of the court's consideration of the guardian ad litem's report which was not furnished to appellants. The guardian ad litem was present...