S.H. v. Dep't of Children & Families
| Decision Date | 15 September 2021 |
| Docket Number | Case No. 5D21-335 |
| Citation | 328 So.3d 30 |
| Parties | S.H., Mother of J.M., a Child, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee. |
| Court | Florida District Court of Appeals |
Richard F. Joyce, Special Assistant Regional Counsel, of Office of Criminal Conflict & Civil Regional Counsel, Casselberry, for Appellant.
Kelley Schaeffer, of Children's Legal Services, Bradenton, for Appellee.
Thomasina F. Moore, Rebecca L. Bartlett, and Sarah Todd Weitz, of Statewide Guardian ad Litem Office, Tallahassee, for Guardian ad Litem.
S.H., ("Mother"), appeals the adjudication of dependency as to her infant daughter, J.M. Because the trial court did not apply the correct law and its order was not based upon competent substantial evidence, we are compelled to reverse for further proceedings.
J.M. was sheltered based upon allegations that her father, Mother's paramour, G.M., had sexually abused J.M.'s half-brother, who was fourteen at the time. The shelter order and ultimately the order adjudicating J.M. dependent were based upon testimony and the trial court's finding that Mother has decreased protective capacity, because she allowed the accused abuser, G.M., to remain in the home with her and her three children, including the abuse victim, for one or two nights after the sexual abuse of her son was reported to her.
Given that "decreased protective capacity" is not a statutory ground for a declaration of dependency, the trial court's order states that there "is imminent risk of harm and perspective [sic—prospective] abuse if the child [J.M.] were returned to [M]other's custody." Although the trial court did not include a specific citation, section 39.01(14)(f), Florida Statutes (2020), states that "substantial risk of imminent abuse" is a ground for declaring a child dependent. The risk identified in this case is the possibility that G.M. could be released from jail, return to Mother's home, and then abuse J.M. because Mother had no specific plan for safeguarding J.M. from such abuse. There was no claim or evidence that G.M. had attempted to abuse J.M. or her nine-year-old sister, who lived with Mother.
"A court's final ruling of dependency is a mixed question of law and fact and will be sustained on review if the court applied the correct law and its ruling is supported by competent substantial evidence in the record." In re M.F. , 770 So. 2d 1189, 1192 (Fla. 2000) (internal citations omitted). Courts are not required to wait for actual child abuse or neglect to occur before taking action by declaring a child dependent. See Palmer v. Dep't of HRS , 547 So. 2d 981, 984 (Fla. 5th DCA 1989). We agree with the trial court that Mother's reaction to her son's report of sexual abuse was inappropriate in several regards. However, T.G. v. Dep't of Child. & Fams. , 927 So. 2d 104, 107 (Fla. 1st DCA 2006). "Prospective" in terms of possible future abuse has been said to mean "likely to happen" or "expected," while "imminent" encompasses a narrower time frame and means "impending" and "about to occur." See B.J. v. Dep't of Child. & Fams. , 190 So. 3d 191,194–95 (Fla. 3d DCA 2016) (internal citations and quotations omitted). Risk of imminent harm was found in a case where the father exhibited bizarre behavior during three months prior to petition, he referred to himself as and signed his name "God," he was diagnosed as having a persistent mental-health condition labeled as either schizo-affective disorder or bipolar disorder, he had been Baker-Acted, heavy use of marijuana further distorted his ability to think clearly, and he had made repeated threats to DCF personnel. See E.M.A. v. Dep't of Child. & Fams. , 795 So. 2d 183,184 (Fla. 1st DCA 2001). Expert testimony predicted he could harm the young children at any time. Id.
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