IN RE INTEREST OF C.W., A CHILD. DORI ALAINE SALAS WHITE, APPELLANT,
v.
DEPARTMENT OF HEALTH & REHABILITATIVE SERVICES, APPELLEE
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The Florida Fifth District Court of Appeal reversed a dependency adjudication of an infant based on neglect, finding that the state failed to prove by preponderance of the evidence that the child's weight loss resulted from neglect rather than the mother's lack of education regarding proper infant feeding. The court held that the evidence showed inadequate feeding practices due to inexperience, not willful deprivation, and found the dependency finding was unsupported by the record.
The court held that the state failed to prove by a preponderance of the evidence that the child was neglected and therefore could not be adjudicated dependent. The evidence demonstrated inadequate feeding due to lack of education and experience rather than willful deprivation of necessary food or neglectful treatment.
[1] A child is neglected when a parent or custodian deprives the child of necessary food, clothing, shelter, or medical treatment, or permits the child to live in an environm…
[2] Financial inability alone does not constitute neglect if services for relief have been offered and not rejected.
Previewing 2 of 6 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“"Neglect" occurs when the parent or legal custodian of a child or, in the absence of a parent or legal custodian, the person primarily responsible for the child's welfare deprives a child of, or allows a child to be deprived of, necessary food, clothing, shelter, or medical treatment or permits a child to live in an environment when such deprivation or environment causes the child's physical, mental, or emotional health to be significantly impaired or to be in danger of being significantly impaired.”
Definition of neglect under Florida statute § 39.01(27) that establishes the legal standard for dependency adjudication.
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Join FLexlaw to unlock all legal intelligenceC.W., born May 5, 1985, lost 3.5 ounces of weight between July 18-29, 1985 due to being fed two percent fat milk instead of formula. The child was hos…
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COBB, Chief Judge.
This is an appeal from an order adjudicating a child, C.W., born May 5, 1985, dependent and placing him in the foster care of the Department of Health & Rehabilitative Services. The allegations in the petition filed by HRS were:
1. Between July 18, 1985 and July 29, 1985, [C.W.] lost weight measuring 3V20Z. The weight loss was due to improper feeding by child’s mother, Dori White.
2. [C.W.] was hospitalized for failure to thrive in Humana Hospital on 7/29/85. Upon the child’s discharge on August 9, 1985 [C.W.] had gained approximately 1 pound in body weight. Dr. Esdras Filart, M.D., found no organic cause for the above mentioned weight loss.
3. Even though the child has gained weight on soybean based formulas, Dori White states that she will discontinue the soybean based formula when the child is returned to her custody.
On September 6, 1985, an adjudicatory hearing was held. Following the taking of testimony, the court found the foregoing allegations to be sustained by the evidence, adjudicated the child dependent, and placed him in the temporary custody of H.R.S. for an indeterminate period. The court’s order required the parents to enter into a performance agreement, have a mental health assessment, and follow the recommendations of H.R.S. Under Florida law, a dependent child is one who has been abandoned, abused or neglected by his parents or other custodians. § 39.01(9)(a), Fla.Stat. (1985). Here, there is no contention of abuse or abandonment. “Neglect” is defined by section 39.-01(27), Florida Statutes, which states in pertinent part:
“Neglect” occurs when the parent or legal custodian of a child or, in the absence of a parent or legal custodian, the person primarily responsible for the child’s welfare deprives a child of, or allows a child to be deprived of, necessary food, clothing, shelter, or medical treatment or permits a child to live in an environment when such deprivation or environment causes the child’s physical, mental, or emotional health to be significantly impaired or to be in danger of being significantly impaired. The foregoing circumstances shall not be considered neglect if caused primarily by financial inability unless services for relief have been offered and rejected....
In the instant case, the only evidence presented is that the child’s mother fed the child two percent fat milk rather than formula, thus apparently leading to the child’s weight loss. There is no evidence that the child has been willfully deprived of food, medical treatment or shelter. The trial court’s findings merely parrot the allegations contained in the petition for dependency, which was insufficient on its face. Two of the court’s findings, that the child was hospitalized for failure to thrive and that the child’s mother stated that she will not feed formula to the child if he is returned to her custody, are contrary to the evidence presented.
The state has failed to show by a preponderance of the evidence1 that this child is neglected so as to be declared dependent and placed in a foster home. The evidence is simply that the mother, through lack of education and experience, rather than through neglect and mistreatment, has failed to provide what the state considers adequate feeding for the baby. This case is, an example of administrative overkill which is not supported by the evidence. There is no indication that the child could not be monitored at home, as it was prior to its being declared dependent, to ensure that the mother complies, as she has indicated to all witnesses she would, with the feeding program. Accordingly, the order of dependency and the disposition order entered herein are reversed. -
REVERSED.
SHARP and COWART, JJ., concur. . Section § 39.408(2)(b), Fla.Stat. (1985); In Interest of L.T., 464 So. 2d 201 (Fla. 5th DCA 1985).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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In the Interest of I.T. v. State, 532 So. 2d 1085 (Fla. 3d DCA 1988)…ency based on neglect); In the Interest of G.D.H. (neglect not established by examples of poor parental judgment such as spanking children with belt and forbidding children to take food from refrigerator without permission); In re Interest of C. W., 490 So. 2d 175 (Fla. 5th DCA 1986) (neglect not established where through lack of education and experience mother failed to provide baby with formula considered most appropriate by state). Although parental choices and judgments are informally scrutinized by commu…
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In the Interest of K.H. v. State, 527 So. 2d 230 (Fla. 1st DCA 1988)…nal health was significantly impaired by reason of their deprivation of food, because the record disclosed that the children were required first to receive the mother’s permission before removing food from the refrigerator); In re Interest of C. W., 490 So. 2d 175 (Fla. 5th DCA 1986) (finding of neglect not established by evidence disclosing simply that the mother, through lack of education and experience, had failed to provide what the state considered adequate feeding for an infant child). Similarly, in the…
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Lenorris Hardy v. Dep't of Health & Rehabilitative Servs., 568 So. 2d 1314 (Fla. 5th DCA 1990)…environment where the child’s physical health is in danger of being significantly impaired. In the Interest of D.J.S. & J.S.G., 563 So. 2d 655 (Fla. 1st DCA 1990). Neglect must be established by a preponderance of evidence. In the Interest of C.W., 490 So. 2d 175 (Fla. 5th DCA 1986); § 39.408(2)(b), Fla.Stat. (1987). Because the inadequate weight gain occurred in the home in the custody of his parents and because his condition was potentially dangerous, there was sufficient, competent evidence to support th…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- In the Interest of L.T. and C.T. v. State, 464 So. 2d 201 (Fla. 5th DCA 1985)