E.M.a. v. Dept of Children & Families

• Decision Date: 24 September 2001
• Docket Number: 99-3590,1
• Parties: NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED E.M.A., natural father of E.A. and E.M.A., Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee. CASE NO. 1D99-3590 IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA Opinion filed
• Court: Florida District Court of Appeals

NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

E.M.A., natural father of E.A. and E.M.A., Appellant v DEPARTMENT OF CHILDREN AND FAMILIES, Appellee

CASE NO. 1D99-3590

IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA

Opinion filed September 24, 2001

An appeal from the Circuit Court for Escambia County.

Terry D. Terrell, Judge.

John B. Carr, Pensacola, for Appellant.

Lori Lee Fehr, Assistant District Legal Counsel, Pensacola, for Appellee.

REVISED OPINION

BROWNING, J.

E.M.A. (Appellant), who is the 30-year-old father of two minor children, appeals a final order finding the children dependent, withholding an adjudication of dependency, and ordering the children (who formerly lived with Appellant) to remain in the temporary physical care and custody of their paternal grandparents and maternal grandmother pending further order of the court.¹ We have jurisdiction. K.S. v. Dep't of Children & Families, 760 So. 2d 1068 (Fla. 5 th DCA 2000); Fla. R. App. P. 9.146(b). Appellant contends that the finding of dependency does not meet statutory requirements and that the evidence is insufficient to support a finding of dependency. We affirm the finding of dependency and instruct the trial court, on remand, to revise its written order to adjudicate dependency pursuant to section 39.507(5), Florida Statutes (1999).

Department filed a petition for dependency in September 1997 alleging 1) that Appellant's two children (a daughter, then 2-1/2 years old; a son, then 1-1/2 years old) were in Appellant's care

when the dependency status occurred; 2) that Department received an August 8, 1997, report stating that Appellant had exhibited "bizarre behavior" for the past three months, including calling himself "God" and signing his name "God"; 3) that when Department tried to assess Appellant's emotional and mental state and the children's safety, Appellant forced Department's representative to leave Appellant's property, necessitating assistance by law enforcement; 4) that after Department filed an order to take the children into custody, Sergeant Cox (of the Escambia County Sheriff's Department) went to the residence, and indicated that his office had responded to Appellant's home on several occasions and Appellant always appeared to have emotional and mental problems; 5) that Appellant's father stated that he had initiated Appellant's commitment under the "Baker Act" in February 1996 for mental-health problems; 6) that since the September 9, 1997, shelter hearing, Appellant had been in continuous contact with Department and had made threats; 7) that Appellant was arrested for trespassing at the Juvenile Justice Center; 8) that voluntary protective services were not offered to the family because the children's safety could not be assured; and 9) that the above allegations placed the children at significant risk of abuse,

neglect, or threatened harm. A series of adjudicatory hearings occurred from March 1999 to June 1999. § 39.507, Fla. Stat. (1999).

Proof of abuse, neglect, or abandonment sufficient to demonstrate a state of dependency must be shown by a preponderance of the evidence. § 39.507(1)(b), Fla. Stat. (1999); I.T. v. Dep't of Health & Rehabilitative Services, 532 So. 2d 1085, 1087 (Fla. 3d DCA 1988). To support its finding of dependency, the trial court found in its written orders that a preponderance of the evidence demonstrates a substantial risk of "prospective mental neglect" or "prospective abuse" of the children based on Appellant's mental-health condition. Appellant contends that the

lower court misconstrued the findings required under section 39.01(14)(f), Florida Statutes (1999), and that the evidence does not support a finding of dependency.

The pertinent statute defines a "[c]hild who is found to be dependent" as, inter alia, one who is found by the court "[t]o be at substantial risk of imminent abuse, abandonment, or neglect by

the parent or parents or legal custodians." § 39.01(14)(f), Fla. Stat. (emphasis added). Appellant acknowledges that even without any actual prior abuse, abandonment, or neglect, the court can

find dependency if the "imminence" requirement is met. Denson v. Dep't of Health & Rehabilitative Services, 661 So. 2d 934, 935 (Fla. 5 th DCA 1995); Richmond v. Dep't of Health & Rehabilitative Services, 658 So. 2d 176, 177 (Fla. 5 th DCA 1995). The statutory definitions of "abuse" and "neglect" do not expressly include this requirement of imminence. § 39.01(2)&(46), Florida Statutes (1999).² However, when these definitions are read in pari materia with the related language in section 39.01(14)(f), a risk of imminent abuse or imminent neglect seems to be required to establish that a child is "dependent" as a matter of law. At the

conclusion of the adjudicatory hearings, the trial court orally found that Appellant suffers from a mental-health condition classified as either a schizo-affective disorder with manic features or bipolar disorder that, under the circumstances, will require long-lasting mental-health intervention. Significantly, the court also found that because the children are at risk of "imminent danger" of mental abuse or neglect as those terms are defined in Chapter 39, Florida Statutes, Department's petition for dependency should be granted. These findings indicate the trial

court's awareness of the statutory threshold for a finding of dependency. To the extent, if any, that the risk of "prospective" abuse or neglect fails to satisfy the statutory reference to "imminent" abuse or neglect,³ we affirm the order on the grounds that the oral pronouncement is legally sufficient, and the evidence adduced amply demonstrates a nexus between Appellant's severe mental-health disorder and the substantial risk of danger to his children during the next inevitable manic episode, which could occur within a year or a month or even a week.

In reviewing the challenged order finding dependency, we are not conducting a de novo review of the evidence, nor may we substitute our judgment for that of the trial court. D.J.W. v. Dep't of Children & Family Services, 764 So. 2d 825, 826 (Fla. 2d DCA 2000). Rather, we shall uphold the trial court's order "[i]f, upon the pleadings and evidence before the trial court, there is any theory or principle of law which would support the trial court's judgment." In re Adoption of Baby E.A.W., 658 So. 2d 961, 967 (Fla. 1995); D.J.W., 764 So. 2d at 826; Interest of D.J.S.,

563 So. 2d 655, 662 (Fla. 1 st DCA 1990) (on reh'g en banc). The record supports the lower court's findings.

The expert testimony and medical documentary evidence demonstrates consistently that Appellant suffers from a mental condition---bipolar disorder---that manifests itself in periodic

manic depressive episodes. Like many others with this disorder, Appellant often fails to acknowledge having the condition or understand the nature of his disorder. Typically, patients like Appellant who respond positively to medication and treatment in the short term will incorrectly consider themselves "cured," will stop taking or will reduce their dosage of the prescribed medications, and will skip medical appointments. There is no way to predict exactly when a person is going to experience another manic phase, although certain factors can play a significant role in triggering an episode and increasing its duration and severity: stresses, non-compliance with medication regimens, use of illicit substances or even certain legal substances, lack of sleep, and inappropriate dietary habits.

One of Appellant's treating psychiatrists, Dr. Simpalli, testified that Appellant exhibited typical traits of bipolar disorder such as defensiveness, anger, fearlessness, denial of the disorder, vacillation between compliance and noncompliance, non-cooperation, risk-taking behavior, rapid and pressured speech, and delusions of grandeur and grandiosity. He further opined that these traits are exacerbated by Appellant's failure to take his medication regularly, all of which create the "possibility" of harm to the children, but he could not specify beyond a psychiatric "possibility."

Other expert testimony was adduced that Appellant's episodes will continue to worsen, and that Appellant would be "at high risk for causing harm to his children either directly or indirect

[sic]." Psychiatrist Dr. Barnette testified that during treatment, Appellant initiated questions about the Government's alleged lying to him about Antarctica. Appellant's conversations

often are rambling and indicative of delusional thinking. In November 1997, Appellant told the doctor that he had been taking his medicine, but sometimes Appellant meant that God was his

medicine and that he really was taking fewer pills than the prescribed amount. Decompensation is inevitable if Appellant does not take his medications or is under stress, and he should be

monitored on an ongoing basis. Dr. Barnette expressed concern that the inevitability of Appellant's decompensation placed the children in harm's way.

There was additional expert testimony that Appellant believes he is God's son, that he sometimes signs his own name as "God" or "Lord," and that he has experienced other bizarre contacts with

God. The treating doctors uniformly opined that heavy use of marijuana further distorts the thinking process and inevitably leads to decompensation, which could occur anytime and endanger Appellant and others around him, including his children.

Appellant denied having a mental illness, and he admitted periodic noncompliance with his prescribed treatment schedule and medication for his mental condition. He understood the

consequences of not taking his medications and admitted having faked compliance. He admitted intermittent heavy use of marijuana, the ingestion of which directly affects his disorder, makes him more susceptible to a manic episode, and amplifies the psychotic symptoms of his disorder.

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