DWG v. DEPT. OF CHILDREN & FAMILIES, 4D01-701.
| Decision Date | 26 December 2002 |
| Docket Number | No. 4D01-701.,4D01-701. |
| Citation | 833 So.2d 238 |
| Parties | D.W.G., Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee. |
| Court | Florida District Court of Appeals |
John R. Cook, Okeechobee, for appellant.
Crystal Y. Yates-Hammond, Fort Pierce, for appellee.
ON MOTION FOR REHEARING
We withdraw our previously issued opinion and substitute the following in its place.
The father appeals an order adjudicating his two minor sons dependent based upon the trial court's findings of sexual abuse of one child and acts of domestic violence which were harmful to both children and constituted abuse. The father claims he was denied procedural due process due to the numerous delays during the proceedings. He also alleges that the court erred in admitting unreliable child hearsay statements, that it improperly restricted crossexamination, and that its findings regarding domestic violence were insufficient to constitute abuse. Finally, he alleges that the Department of Children and Family Services ("DCF") withheld damaging information regarding its investigation, the revelation of which should have entitled him to a new trial. We conclude that the trial court did not err in any of these matters and affirm.
During the father and mother's twelve year relationship, the father verbally abused and threatened physical abuse against the mother. The mother was depressed and addicted to pain medication, resulting in several brushes with the law. When they separated, the mother obtained a domestic violence injunction against the father and retained custody of the children. After the separation, the father was accused of sexually abusing his new girlfriend's daughter, prompting DCF to interview his two sons. DCF concluded, however, that there was no present danger to the children.
The criminal charges of sexual abuse were investigated and remained pending. Over a year later the investigation was revived. During that year, the father had obtained custody of his sons from the mother by fabricating a story that he was dying of cancer. Based upon the criminal investigation against the father, the potential risk to the children, and the parents' failure to provide safe living conditions for the children, DCF filed a petition to declare the sons dependent as to both parents in 1998. The children were placed with the mother provided she remain at a domestic violence shelter. The father objected based upon the mother's criminal history and addictions.
The youngest child was interviewed several times by various people, including a caseworker for the Children's Home Society and an elementary school teacher who lived at the shelter where the mother stayed and assisted in taking care of the children. Each related statements by the child revealing sexual abuse by the father. A child psychologist also interviewed the children and father. Based upon his interviews, the psychologist could not conclusively determine whether the father had in fact sexually abused the children. He did conclude that while both parents had major shortcomings, the father was better suited to care for the children if the criminal charges against him were dropped.
Shortly after the petition was filed the mother consented to the allegations contained in the dependency petition, and the court adjudicated the children dependent as to the mother. The father contested the allegations, and despite the fact that the petition was filed in 1998, the adjudicatory hearing was not conducted until January of 2001. Two judges recused themselves from these contentious proceedings, and many continuances were requested by both sides. After a full evidentiary hearing, the trial court found credible evidence existed that the father committed sexual acts only on the younger child and that these acts constituted abuse. The court further found the father committed acts of domestic violence against the mother that were harmful to both children. Based upon these findings, the court adjudicated the children dependent as to the father, which the father appeals.
The delay in setting the adjudicatory hearing underlies the father's first issue on appeal in which he claims that he was denied due process. However, the record reveals that the trial court attempted to set and expedite the dependency hearing several times, only to have either the Department or the father move for a continuance in order to adequately prepare the case. The father did not raise an objection to the delay until July of 2000. After that, he moved to recuse two judges and his counsel sought to withdraw, further delaying the final hearing until January 2001. Although section 39.408(2)(a), Florida Statutes (1997), provides that "[t]he adjudicatory hearing shall be held as soon as practicable after the petition for dependency is filed," it also allows for reasonable delay for purposes of investigation and preparation for trial. We have previously held, moreover, that a parent's acquiescence to continuances suspends the time limitations until the parent demands the court to set a trial date. See B.B. v. Dep't of Children & Family Servs., 731 So.2d 30, 36 (Fla. 4th DCA 1999)
. As the father acquiesced to the delays in this case, he has not shown that he was denied due process.
At the adjudicatory hearing, the father objected to the admission of the younger child's hearsay statements of sexual abuse on the ground that DCF failed to prove the reliability of the statements as required by section 90.803(23). The court held a hearing to determine whether the circumstances surrounding the statements provided "sufficient safeguards of reliability." § 90.803(23)(a)(1). It made findings, supported by specific facts, that the child's statements to the caseworker and school teacher were reliable.
In State v. Townsend, 635 So.2d 949, 954 (Fla.1994), the supreme court emphasized the trial court's responsibility in ensuring that child hearsay statements satisfy a strict standard of reliability before admitting them as substantive evidence. The trial court must make findings that satisfy two criteria: "(1) the source of the information through which the statements was reported must indicate trustworthiness; and (2) the time, content, and circumstances of the statement must reflect that the statement provides sufficient safeguards of reliability." Id. at 954. These findings must be specific to the case. Id. Mere recitation of the statutory requirements is insufficient, and without such findings, this court cannot determine whether the trial court abused its discretion in finding the statements reliable....
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