A.W.J. v. Dep't of Children & Families

• Decision Date: 01 August 2014
• Docket Number: No. 2D13–4877.,2D13–4877.
• Citation: 143 So.3d 1109
• Parties: In the Interest of A.W.J., a child. N.J., Appellant, v. Department of Children and Families, and Guardian ad Litem Program, Appellees.
• Court: Florida District Court of Appeals

143 So.3d 1109

In the Interest of A.W.J., a child.N.J., Appellant,

v.Department of Children and Families, and Guardian ad Litem Program, Appellees.

No. 2D13–4877.

District Court of Appeal of Florida, Second District.

Aug. 1, 2014.

Timothy M. Beasley, The Beasley Law Firm, P.L., Pinellas Park, for Appellant.

Bernie McCabe, State Attorney, and Leslie M. Layne, Assistant State Attorney, Clearwater, for Appellee Department of Children and Families.

Laura E. Lawson, Statewide Guardian ad Litem, Sanford, for Appellee Guardian ad Litem Program.

SLEET, Judge.

N.J., the father, appeals an order finding that the State proved by a preponderance of the evidence that he abused his son, A.W.J., and adjudicating A.W.J. dependent. He argues on appeal that the trial court erred in adjudicating A.W.J. dependent because the State failed to meet its evidentiary burden. We agree and reverse.

According to the father's testimony, he placed six-month-old A.W.J. in a Bumbo chair on the floor and went to the kitchen to retrieve a bottle. While the father was in the kitchen, A.W.J. pushed the chair over backwards and hit his head on the exposed concrete floor. The father contacted the mother, who came home from work with the car seat base, and the couple drove A.W.J. to Trinity Medical Center. Trinity doctors determined that A.W.J. sustained a skull fracture extending across his occipital and parietal bones. A.W.J. received further treatment for his injuries at All Children's Hospital. A.W.J. has since made a full recovery; he suffered no permanent damage as a result of the accident.

At the evidentiary hearing, Detective Grady, who conducted the routine investigation for Pasco County major crimes division, testified that he was not suspicious of the parents' version of events and that as part of his investigation he independently confirmed online that the Bumbo chair can be unreasonably unstable. Similarly, Detective Gulati, who initially interviewed the parents at the hospital, testified that the parents' story was consistent with his observations at their home.

Doctor Charlene Weber, A.W.J.'s pediatrician, testified that she reviewed the reports generated at both Trinity and All Children's hospitals. She explained that the report of each physician who examined A.W.J. at the Trinity emergency room made reference to a palpable bruise on the back of his head. She testified that at six months, A.W.J. was large for his age, that he had a larger-than-average head circumference and weight, and that his motor skills were a little developmentally delayed. She was certain that based on A.W.J.'s development and physical characteristics, it was “possible and plausible” that he was injured in the manner described by the parents. She testified that she did not see any inconsistencies in the parents' accounts of the accident and that the medical reports from both hospitals supported their version of events.

Doctor Sally Smith was the only witness at the hearing who testified that A.W.J.'s head injury was the result of abuse. The record reflects that she was not asked to by the Department and she did not provide her opinion within a reasonable degree of medical probability. She based her conclusion of child abuse primarily on her assessment of the parents' credibility, not on the available medical reports. Dr. Smith testified that her opinion was based on “significant inconsistencies” in the parents' accounts of the accident. However, the only inconsistencies she testified to were the father's ability to see the accident and the presence of a bump on the back of the child's head. Dr. Smith concluded that the father's account of the accident was inconsistent because the father told Trinity physicians that he saw the accident occur, but told Dr. Smith that he was in the kitchen. However, the father testified that he could see A.W.J. in the living room from the kitchen; this layout and the ability to see from one room to another was confirmed by the officer who visited the family home.

Dr. Smith also concluded that the parents were not credible because the father misrepresented the presence of a large bump on the back of A.W.J.'s head. Dr. Smith explained that she read the E.R. doctors' notes and that no bump was reported when A.W.J. first arrived at Trinity Medical Center and that she did not observe a bump on the child's head when she examined him a few days after the accident. However, she conceded on cross examination that A.W.J.'s CAT scan showed some slight swelling and...