E.B., APPELLANT,
v.
DEPARTMENT OF CHILDREN AND FAMILY SERVICES, APPELLEE

Fla. 3d DCA | 1999-06-16
No. 98-1607
Before GODERICH, SHEVIN and SORONDO, JJ.
733 So. 2d 1145 Florida District Court of Appeal, Third District (1999) Negative Treatment
Cited by 12 cases

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Synopsis

E.B. appeals from a dependency adjudication finding his five stepchildren dependent based on sexual abuse allegations. The trial court credited one stepdaughter's in-court testimony of abuse despite her later recantation, and also relied on inadmissible hearsay from another stepdaughter. The appellate court affirms, holding that the credible abuse finding as to one child suffices to find all children in the home dependent.


Holding

The trial court properly credited T.W.'s initial testimony of abuse despite recantation, as the trier of fact was free to believe parts of her testimony and disbelieve others. Although the trial court erred in admitting D.W.'s hearsay statements (which exceeded the statutory age limit for that exception), the finding of dependency as to T.W. was sufficient to support dependency findings for all children in the home.


Headnotes

[1] A trier of fact may believe parts of a witness's testimony and disbelieve other parts, including recanted testimony.

[2] Prior inconsistent statements of a child under eleven years of age may be admitted as substantive evidence in a dependency proceeding.

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Key Quotes

“At the dependency hearing, the trial court acted as the trier of fact. As the trier of fact, the trial court was free to believe parts of T.W.'s testimony and disbelieve other parts.”

Establishes the trial court's discretion to credit parts of testimony and reject others, supporting the validity of believing the abuse allegations while disbelieving the recantation.

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Facts & Procedural History

E.B.'s two stepdaughters, D.W. and T.W., initially alleged sexual abuse, but both recanted, leading to dismissal of criminal charges. At the dependenc…

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Opinion of the Court
PER CURIAM.

PER CURIAM.

E.B. appeals from an order adjudicating his stepchildren dependent based on the trial court’s finding that he sexually abused two of his five stepchildren. We affirm.

Two of E.B.’s stepdaughters, D.W. and T.W., made allegations that he had sexually abused them. Both girls recanted, and as a result, the criminal charges were dropped.

At the dependency hearing, D.W. testified that she had lied because she resented her stepfather’s authority. T.W., however, testified as to two incidents where the stepfather had sexually abused her. After a court break, when T.W.’s testimony continued, she once again recanted.

The trial court adjudicated the five children dependent and prohibited the stepfather from having any contact with his stepchildren. In doing so, the trial court concluded that “T.W.’s in-court testimony alone enables the Court to find by a preponderance of the evidence that [the stepfather] sexually abused T.W.”

As to D.W., who was over eleven years old, the trial court, relying on Department of Health & Rehabilitative Services v. M.B., 701 So. 2d 1155 (Fla.1997), admitted D.W.’s prior inconsistent statements as substantive evidence. M.B. is based on the hearsay exception of section 90.803(23), Florida Statutes, which is limited to chil dren who are eleven years of age or less.1 The stepfather’s appeal followed.

The stepfather contends that the trial court erred by finding T.W. dependent because the trial court relied solely on the in-court testimony that T.W. subsequently recanted. We disagree.

At the dependency hearing, the trial court acted as the trier of fact. As the trier of fact, the trial court was free to believe parts of T.W.’s testimony and disbelieve other parts. Myron v. South Broward Hosp. Dist, 703 So. 2d 527, 531 (Fla. 4th DCA 1997). In the instant case, based on T.W.’s demeanor while testifying, the trial court chose to believe T.W. when she described two incidents of sexual abuse and to disbelieve her when she later recanted. Based on T.W.’s trial testimony, the Department of Children and Families [Department] proved by a preponderance of the evidence that the stepfather had sexually abused T.W.

The stepfather also contends that the trial court erred by relying on M.B. to admit D.W.’s prior inconsistent hearsay statements as substantive evidence. Both the Department and the Guardian Ad Li-tem Program [Guardian] have properly conceded error as to that point.2

The Department and Guardian, however, argue that the trial court’s finding of dependency as to T.W. may serve as grounds for finding the other children, including D.W., dependent. We agree.

As discussed above, the Department met its burden of proving by a preponderance of the evidence that the stepfather had sexually abused T.W. The trial court also found that based on this finding, all the children, including D.W., were at “prospective risk of harm from [the stepfather].” The trial court’s finding of dependency as to T.W. was sufficient to find the other children in the home, including D.W., dependent. See Padgett v. Department of Health & Rehabilitative Servs., 577 So. 2d 565 (Fla.1991)(holding that prior termination of parental rights in other children can serve as ground for terminating the parents’ rights as to another child); M.F.G. v. Department of Children & Families, 723 So. 2d 290 (Fla. 3d DCA 1998)(same); see also Department of Health & Rehabilitative Servs. v. M.B., 701 So. 2d 1155, 1157 n. 3 (Fla.1997). As such, we affirm the trial court’s order finding all of the children in the home dependent.

Affirmed.

. In extending the Florida Supreme Court's holding in M.B. to D.W., the trial court stated: "It is this Court’s position that if a court were prohibited from extending the reasoning in Department of Health and Rehabilitative Services v. M.B. to children over the age of 11, the law would be creating an absurdity.”

. The trial court recognized that section 90.803(23) does not apply to children over eleven years of age, but nonetheless opted to disregard the statute. We would like to remind the trial court that although it may disagree with the statute and believes that the eleven-year-old age limit creates an "absurdity," it was still bound to follow the statute. Any amendments to section 90.803(23) must be made by the legislature, not the judiciary.


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  • …also find sufficient, competent evidence to support the court's determination that D.H.G.'s daughter was at risk of prospective harm and that it was in her best interest to be adjudicated dependent.”); E.B. v. Department of Children & Family Servs., 733 So. 2d 1145, 1146 (Fla. 3rd DCA 1999) (“The trial court’s finding of dependency as to T.W. was sufficient to find the other children in the home, including D.W., dependent.”). . See, e.g., E.B. v. Department of Children & Family Servs., 733 So. 2d 1145 (Fla. 3…
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  • E.M.A. v. Dep't of Child. & Families, 795 So. 2d 183 (Fla. 1st DCA 2001)
    …imminent abuse or neglect is prospective, prospective abuse or neglect is merely in the future, but not necessarily about to happen. In some instances, the terms appear to have been used interchangeably. E.B. v. Dep’t of Children & Family Services, 733 So. 2d 1145 (Fla. 3d DCA 1999); M.F.G. v. Dep't of Children & Families, 723 So. 2d 290 (Fla. 3d DCA 1999). . This statutory subsection states: If the court finds that the child named in the petition is dependent, but finds that no action other than supervisio…
  • In the Interest of M.F. v. State, 742 So. 2d 490 (Fla. 2d DCA 1999)
    …In cases involving sexual abuse, the Third District has found the act of sexual abuse of a child sufficient in itself to establish a substantial likelihood of future abuse and neglect of a sibling. See E.B. v. Department of Children & Family Servs., 733 So. 2d 1145, 1146 (Fla. 3d DCA 1999). However, the Fifth District has required additional evidence of a likelihood that the parent will similarly abuse the other children. See, e.g., Eddy v. Department of Children & Family Servs., 704 So. 2d 734, 736 (Fla. 5th…

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