IN THE INTEREST OF J.J. AND J.J., BOTH CHILDREN
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Florida appellate court reversed a dependency finding where the trial court explicitly found no evidence of parental abuse or neglect, holding that sexual abuse by a non-custodial third party cannot support dependency without parental involvement or negligence.
A child cannot be adjudicated dependent based solely on sexual abuse perpetrated by a third party when the trial court finds no evidence of parental abuse, neglect, or failure to protect.
[1] A child cannot be adjudicated dependent based on abuse by a third party absent evidence of parental involvement, permission, or negligent failure to protect.
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Join FLexlaw to unlock all legal intelligence“There was no evidence adduced to indicate that the mother was involved in any abuse or neglect.”
Trial court's explicit finding despite ultimately adjudicating the child dependent.
A four-year-old daughter was alleged to have been sexually abused by the mother's paramour/fiancé. The trial court found no evidence that the mother w…
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PER CURIAM.
In this appeal, the mother challenges the trial court’s finding that her four-year-old daughter, J.J., is dependent.1 We hold that the evidence was insufficient to support such a finding and reverse.
In the petition for dependency, the Department of Health and Rehabilitative Ser vices alleged that J.J. had been sexually abused by the mother’s “paramour/fiance.” This allegation, which is the only one that survived the mother’s motion for dismissal, did not allege abuse or neglect on the part of the mother. After a hearing, the trial court issued an order finding that “[t]here was no evidence adduced to indicate that the mother was involved in any abuse or neglect.” Despite this finding, J.J. was deemed dependent. As near as we can determine, the basis for the dependency finding was an incident of sexual abuse perpetrated by someone who was neither a parent nor legal custodian. It is clear from the trial court’s findings that the mother did not participate in the abuse, nor did she permit the abuse to occur through any neglect on her part. Because we are unable to determine in what way J.J.’s mother was responsible for what occurred, we cannot permit the dependency finding to stand.
Accordingly, the trial court’s finding of dependency is REVERSED.
ERVIN, WIGGINTON and MINER, JJ., concur. . Although the dependency petition also sought to have appellant’s six-year-old son, J.J., adjudicated dependent, the trial court dismissed the allegations relating to the son. All further refer- ' enees to "JJ.” are to the daughter.
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B.C. v. Dep't of Child. & Families, 864 So. 2d 486 (Fla. 5th DCA 2004)…rcumstances of the particular case. Case law on this subject has applied dependency provisions in this manner. See, e.g., C.F. v. Department of Health and Rehabilitative Services, 649 So. 2d 295 (Fla. 1st DCA 1995); In the Interest of J.J. and J.J., 570 So. 2d 1078, 1079 (Fla. 1st DCA 1990); In the Interest of L.S., 592 So. 2d 802 (Fla. 4th DCA 1992). The court further observed that, in addition, the 1994 amendments to section 39.404(3)(c)1 state in part: “The petition need not contain allegations of acts or…
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Dep't OF Health & Rehabilitative Servs. v. P.H., 659 So. 2d 1375 (Fla. 1st DCA 1995)…stances of the particular case. Case law on this subject has applied the dependency provisions in this manner. See, e.g., C.F. v. Department of Health and Rehabilitative Services, 649 So. 2d 295 (Fla. 1st DCA 1995); In the Interest of J.J. and J.J., 570 So. 2d 1078, 1079 (Fla. 1st DCA 1990); In the Interest of L.S., 592 So. 2d 802 (Fla. 4th DCA 1992). In this vein, the 1994 amendments to section 39.404(3)(c) state in part: The petition need not contain allegations of acts or omissions by both parents. The e…
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In the Interest of H.B., 627 So. 2d 1331 (Fla. 4th DCA 1993)…ich were the basis of the modification); Walden v. Walden, 483 So. 2d 87 (Fla. 1st DCA 1986) (reversing a modification of custody because the child was insulated from knowledge of the mother’s alleged sordid misconduct); and In the Interest of J.J., 570 So. 2d 1078 (Fla. 1st DCA 1990) (reversing a finding of dependency because of sexual abuse by the mother’s boyMend where the mother was in no way responsible). Undoubtedly the trial judge was heavily influenced by the fact that the children “thrived” in the fa…
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