LENORRIS HARDY, ET UX., APPELLANTS,
v.
DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, APPELLEE
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Parents appealed an order adjudicating their three-year-old son dependent and placing him in foster care, claiming insufficient evidence of neglect and inadequate factual findings. The Florida appellate court affirmed, holding that the child's failure to thrive despite ruling out organic causes constituted neglect under Florida law.
The court affirmed both the dependency adjudication and the dispositional order. There was sufficient evidence of neglect based on the child's failure to thrive in the parents' custody despite medical evaluation ruling out organic causes. The dispositional order's failure to restate the factual basis did not violate section 39.409(3) because the adjudicatory order had already provided the required factual support.
[1] A child is neglected when a parent permits the child to live in an environment that causes the child's physical health to be in danger of being significantly impaired.
[2] Nonorganic failure to thrive can be diagnosed by observing a child's improved growth after placement in a more nurturing environment.
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Join FLexlaw to unlock all legal intelligence“A dependent child is one who has been abandoned, abused, or neglected by his parents or custodians.”
Establishes the statutory definition of dependency under Florida law
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Join FLexlaw to unlock all legal intelligenceL.H., a three-year-old boy, was diagnosed with nonorganic failure to thrive (parental neglect syndrome). Multiple physicians testified the child was s…
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McNEAL, R.T., Associate Judge.
Appellants, the parents of L.H., a three-year-old boy, appeal from a final order adjudicating their son dependent and placing him in the temporary care and custody of the Department of Health and Rehabilitative Services (H.R.S.) for placement in foster care. Appellants argue that there was no evidence of neglect and that the order adjudicating the child dependent failed to set forth a supporting factual basis required by section 39.409(3), Florida Statutes (1987). We affirm the orders of the trial court.
L.H. was diagnosed by the state’s expert, a pediatrician, as suffering from “parental neglect syndrome,” commonly referred to as nonorganic failure to thrive. Even considering the child’s premature birth and small parents, the doctor found that the child had not grown normally, and as a result, the child’s condition was potentially dangerous. Because testing ruled out organic factors, he concluded that the child was not being fed adequately and did not have a nurturing environment. Three other doctors who had treated L.H. testified that'the child was small for his age and expressed concern over the child’s weight. At one time, the child lost weight between exams. Two of the doctors reported that the parents failed to keep follow-up visits to monitor the child’s condition. These doctors confirmed that the child’s weight gain was below what should be expected.
The only way to confirm a diagnosis of nonorganic failure to thrive is to place the child in a more nurturing environment and see if the child begins to grow. If so, the subsequent growth confirms the diagnosis. After L.H. was removed from his parents’ home, he gained 24 ounces and grew two inches over the next seven months. At the time L.H. was removed, he was 22 months old and weighed 18 pounds. A dependent child is one who has been abandoned, abused, or neglected by his parents or custodians. § 39.01(10)(a), Fla.Stat. (1987).
The trial court found no evidence of abandonment or abuse. Neglect is defined in section 39.01(27), Florida Statutes, which provides in part that a child is considered neglected “when a parent ... permits a child to live in an environment when such ... environment causes the child’s physical ... health to be in danger of being significantly impaired.” See E.H. v. Department of Health & Rehabilitative Services, 443 So. 2d 1083 (Fla. 3d DCA 1984) (finding this language was not unconstitutionally vague).
This law was designed to protect children in need of services in a variety of circumstances. Id. at 1084.
This language clearly applies to parents who allow their child to be deprived of the essentials of life, like food, or permit the child to live in an 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 the trial court’s conclusion that the child was dependent: In an order dated July 11, 1989, on the adjudicatory hearing, the trial court outlined the evidence, adjudicated the child dependent, and scheduled the case for a dispositional hearing. The court’s order on the dispositional hearing dated August 1, 1989, from which this appeal was taken, did not restate the factual basis for the court’s finding of dependency. The failure to do so did not violate section 39.409(3), Florida Statutes (1987).
The order of the trial court is AFFIRMED.
HARRIS, J., concurs.
PETERSON, J., concurs specially with opinion.
PETERSON, Judge,
concurring specially.
I concur with the result reached by the majority, but I feel the need to distinguish this case from Williams v. Department of Health and Rehabilitative Services, 568 So. 2d 995 (Fla. 5th DCA 1990). Both cases originated before the same trial court.
In the order entered pursuant to the adjudicatory hearing required by section 39.408(2), Florida Statutes (1987), the court in the instant case complied with section 39.409(3) by providing specific factual findings in the adjudicatory hearing. The factual findings were not repeated in the disposition order entered pursuant to section 39.408(3), nor was reference made to the order previously entered in the section (2) hearing. While I believe that the better practice for courts is to place findings in each of the orders or, at the very least, to incorporate by reference earlier findings into later orders, the instant record does include written reviewable findings by the trial court. Such findings allowed the court in this case to review the findings by the trial court. The Williams case had no findings that could be reviewed on appeal.
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Cited By (11 total)
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Williams v. Dep't of Health & Rehabilitative Servs., 568 So. 2d 995 (Fla. 5th DCA 1990)…endency in Castellanos v. Department of Health and Rehabilitative Services, 545 So. 2d 455 (Fla. 3d DCA 1989). Also, it cannot be salvaged by reference to a previous order as was the case in Hardy v. Department of Health and Rehabilitative Services, 568 So. 2d 1314 (Fla. 5th DCA 1990). There is nothing in the instant record to compare with the factual findings in Hardy’s adjudicatory order. We do admit that some legislative dictates requiring specific findings by a court can be overdone and are burdensome, bu…
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In the Interest of M.F.G. v. Dep't OF Child. & Families, 723 So. 2d 290 (Fla. 3d DCA 1998)…safety were in jeopardy. In order to adjudicate the daughter dependent, the department had to prove neglect by a preponderance of the evidence.2 [*293] See § 39.408(2)(b), Florida Statutes (1997); Hardy v. Dep’t of Health and Rehabilitative Servs., 568 So. 2d 1314 (Fla. 5th DCA 1990). It succeeded in this endeavor. See Hardy v. Dep’t of Health and Rehabilitative Servs., 568 So. 2d at 1316. In sum, the trial court properly protected the interests of the children under these circumstances. Although we sympathi…
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Clock v. Vikki Clock, 649 So. 2d 312 (Fla. 3d DCA 1995)…hat the petition for dependency should therefore have been dismissed. We agree. A dependent child is one who has been abandoned, abused, or neglected by his parents or custodians. Sec. 39.01(10)(a), Fla. Stat. (1993); Hardy v. Department of H.R.S., 568 So. 2d 1314, 1316 (Fla. 5th DCA 1990). Based upon the conclusions in support of the order of dependency, the trial court obviously deemed Clock’s planned relocation to Colorado with J.C. to be an act of abuse. The statutory definition of abuse is set out in se…
Previewing 3 of 11 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 D.J.S. and J.S.G. v. Dep't of Health & Rehabilitative Servs., 563 So. 2d 655 (Fla. 1st DCA 1990)
- Williams v. Dep't of Health & Rehabilitative Servs., 568 So. 2d 995 (Fla. 5th DCA 1990)
- In the Interest of E.H. v. State, 443 So. 2d 1083 (Fla. 3d DCA 1984)
- In re Interest of C.W. v. Dep't of Health & Rehabilitative Servs., 490 So. 2d 175 (Fla. 5th DCA 1986)