S.T. v. Dep't of Children & Family Servs. (In re K.C.), 2D11–4544.

• Decision Date: 16 May 2012
• Docket Number: No. 2D11–4544.,2D11–4544.
• Citation: 87 So.3d 827
• Parties: In the Interest of K.C. and D.C., minor children. S.T., Appellant, v. Department of Children and Family Services and Guardian Ad Litem Program, Appellees.
• Court: Florida District Court of Appeals

87 So.3d 827

In the Interest of K.C. and D.C., minor children.

S.T., Appellant,

v.Department of Children and Family Services and Guardian Ad Litem Program, Appellees.

No. 2D11–4544.

District Court of Appeal of Florida,

Second District.

May 16, 2012.

Norman A. Palumbo, Jr., Tampa, for Appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Allison McCabe, Assistant Attorney General, Tampa, for Appellee Department of Children & Family Services.

Jennifer S. Paullin, Tavares, for Appellee Guardian ad Litem Program.

CASANUEVA, Judge.

S.T. appeals the order finding her children, K.C., aged eleven, and D.C., aged six, dependent as to her, primarily because the circuit court believed that she was in denial about the hazard the father's alcohol and substance abuse presented to the children. She claims the circuit court erred in adjudicating the children dependent, arguing that the evidence does not support the circuit court's finding that she will fail to protect them from imminent harm caused by their father's drinking.¹ We agree and reverse, holding that the record does not contain competent, substantial evidence authorizing the circuit court to enter a judgment of dependency as to the mother.

I. Background

This case involves an intact family of four, married parents living with their two biological children. The children do not lack adequate food, clothing, shelter, medical attention, or emotional support and are doing well in school. The father is unemployed, has had debilitating medical issues in the past with present consequences as a result of a motorcycle accident and lengthy coma, and as a young man made errors in judgment resulting in a criminal record. But he has had no involvement with the criminal justice system in any manner for the past ten years or more. The mother is the primary breadwinner for the family. She formerly had two jobs but at the time of the adjudicatory hearing had been laid off from one of them; she was at that time working full-time as a nurse on a nightshift at a hospital, seven p.m. to seven a.m. The father supplements the family's income with odd jobs of lawn maintenance, handyman services, and auto repair. Based on interviews with the children and the parents' non-cooperation with the agency, the Department filed a non-shelter petition of dependency in April 2011.

II. The Petition For Dependency

The Department's petition alleged prospective abuse/neglect by the father and prospective neglect by the mother ² based on the following allegations. In relation to the father, on a date in January the children reported that the father was drinking beer in his car while he drove them home from school and that he smelled of alcohol. The six-year-old had stated that the father drank every night, and the eleven-year-old confirmed this, adding that the father also smoked marijuana, which she had seen him do recently. When the investigator went to the home, the father instructed the children not to answer the door, was uncooperative throughout the investigation, and refused services. The family had two other reports involving substance abuse, a 2001 report that was closed with some indicators of a substance-exposed child and a 2010 report that was closed with verified findings for substance abuse. The petition claimed that the father's chronic, extensive, and abusive use of alcohol would likely continue and because of this, the children would remain at substantial risk of imminent abuse and neglect from the father.

In relation to the mother, the petition alleged that the mother was aware of the father's use of alcohol but denied that he had a problem and allowed the father to transport the children home from school despite his alcohol problem. The mother did not believe what the children had reported about their father's alcohol abuse and claimed she was being harassed by the Department. Like the father, she also claimed that the family does not need services. Because of the mother's denial of the apparent problem posed by the father's drinking, the Department alleged that the children are at risk of neglect from the mother. The Department sought judicial intervention because the children are “presently under substantial risk or imminent threat of harm or abuse or neglect.”

III. The Evidence Adduced At The Adjudicatory Hearing

We underscore that the above facts were the allegations in the petition and do not constitute admissible evidence.³ Both parents contested the allegations so the circuit court held an evidentiary hearing. Five witnesses testified at the hearing. The Department presented four: the father, the mother, the principal of the school that the eleven-year-old attended, and the kindergartener's assistant teacher; the mother presented one, a long-time friend, close confidante of the family, and across-the-street neighbor, a sort of surrogate grandmother who had daily contact with the children. No representative of the Department who had had contact with the family testified, nor did either child, nor did any expert witness, such as a psychologist or counselor, who may have interviewed any member of the family.

A. For The Department: The Father's Testimony

The father of the children was the first witness to testify. He stated that he drank most evenings, usually five-to-six bottles of light beer between six and nine p.m., and occasionally a glass of whiskey and soda. Sometimes he had a beer with friends or coworkers at lunchtime. He was not happy about the Department's involvement with his family. He claimed that his children were fine and that he had no difficulty in taking care of them. He involved himself with their homework and often read to them or helped them with reading and making sure they did their chores, such as watering the garden and house plants and keeping their rooms neat.

He admitted to having a problem with cocaine more than ten years previously but had not used it since. He was unclear about the last time he used marijuana. As for the children's purported statements to investigators that he recently used marijuana, he denied the marijuana use and contended the children were coerced into making those statements. He admitted that he had been in substance abuse programs in the past, both outpatient and residential, and stated that some (such as Alcoholics Anonymous) were voluntary and not court-ordered. He had successfully completed most of them. From those programs he learned to live his life day-by-day; to use his energy to take care of his family; and to avoid drugs, the people who used them, and the places where they were used. He went to Crossroads the day before the hearing, of his own volition, to take a drug test. He testified on cross-examination by the mother's counsel that the results were negative for drugs, but upon questioning by the circuit court, he said he did not take a Breathalyzer test for alcohol. He denied that he was in need of treatment for alcohol abuse, contending that he did not abuse alcohol, his wife, or his children.

As for drinking and driving, the father denied having ever driven with the children in the car while under the influence of alcohol but did admit to transporting beer in his car in a cooler that was not within his reach while he was driving. He used to take his children to and from school daily but at the time of the hearing his license was suspended, so he no longer drove. He claimed the suspension was for failure to pay child support ⁴ so his wife was currently assuming the duty of transporting the children.

He denied refusing to answer the door when a Department worker first came to the house, denied running out the back to avoid talking to the worker, and denied having ever told his children not to talk to a representative of the Department. On cross-examination, he explained that on the one occasion when a Department worker had come to the house with a police officer to interview the children, he left to secure a third-party witness to the interview. He further denied ever drinking alcohol and then driving with the children in the car.

During cross-examination by his own counsel, the father showed the circuit court a pouch that he used to store the tobacco that he smokes in a pipe and explained that his children had seen him use a pipe with the loose tobacco from the pouch. The circuit court sniffed the pouch and stated that it did not smell like marijuana. The father further explained that although he drank regularly, it was never to the point where he was falling down drunk or could not function the next day for work or had a hangover or blackout. He also denied having memory problems. As for his recent attendance at an Alcoholics Anonymous meeting, he explained that he went because a friend had asked him to accompany him there. And although his intent in going was to support his friend, he still enjoyed some personal benefit from the meeting because of the memories of past attendance.

Lastly, he testified that he regularly drank water from a cup while driving, but he never had alcohol in this cup. He categorically stated that he does not drink and drive and doesn't drink enough to consider it a problem.

B. For The Department: The Mother's Testimony

The Department next called the mother to the stand. She testified that she did not believe the father had a substance abuse problem and believed that the children were safe in his care. She said he would never place them in an unsafe environment, and she was comfortable leaving them alone with him. She and the father had been together for about fourteen years and had been married since 2006. She was aware of his past problems with drugs, his drug treatment history, and his criminal convictions. She also knew that he drank beer, usually in the evening or on weekends, but it was not to excess. And although they typically have beer in the house, she did not know if he drank a six-pack in the evening but she had never seen him drunk around the children. S...