IN THE INTEREST OF D.J.W., A CHILD. M.J.S., APPELLANT,
v.
STATE OF FLORIDA, DEPARTMENT OF CHILDREN AND FAMILY SERVICES, APPELLEE

Fla. 2d DCA | 2000-07-28
No. 2D99-4898
WHATLEY, J., and SEALS, JAMES H., Associate Judge, Concur.
764 So. 2d 825 Florida District Court of Appeal, Second District (2000) Positive Treatment
Cited by 23 cases

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Holding

The appellate court affirmed the trial court's order adjudicating the child dependent, finding sufficient competent substantial evidence to support the findings of abuse and neglect.


Headnotes

[1] An appellate court will affirm a trial court's order adjudicating a child dependent if there is any theory or principle of law that supports the judgment based on the ple…

[2] A trial court's findings of abuse, abandonment, or neglect will be sustained if supported by competent substantial evidence.

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Facts & Procedural History

The mother challenged an order adjudicating her child dependent and placing him with the Department of Children and Family Services, arguing insuffici…

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Opinion of the Court
PARKER, Acting Chief Judge.

PARKER, Acting Chief Judge.

M.J.S., the mother of D.J.W., challenges the trial court’s order adjudicating D.J.W. dependent and placing him in the custody of the Department of Children and Family Services (DCFS). We affirm. .

M.J.S.’s sole argument on appeal is that the evidence presented at the hearing was insufficient for the trial court to find D.J.W. dependent. While not contesting the evidence itself, M.J.S. argues that the evidence could be explained or interpreted so as to show that she was not neglectful or abusive. This argument ignores the standard of review this court must apply in this case.

In reviewing an order adjudicating a child dependent, this court does not conduct a de novo review of the evidence or substitute its judgment for that of the trial court. See In re Adoption of Baby E.A.W., 658 So. 2d 961, 967 (Fla.1997).

Rather, this court will uphold the trial court’s order “[i]f, upon the pleadings and evidence before the trial court, there is any theory or principle of law which would support the trial court’s judgment....” Id. See also The Florida Bar v. Hooper, 509 So. 2d 289, 290-91 (Fla.1987); In re D.J.S., 563 So. 2d 655, 662 (Fla. 1st DCA 1990) (en banc).

In order to adjudicate a child dependent, the trial court must find by the preponderance of the evidence that the child has been abused, abandoned, or neglected or .is at substantial risk of imminent abuse, abandonment, or neglect. See §§ 39.01(14), 39.507(1)(b), Fla. Stat. (1999).1 Because the trial court is responsible for resolving disputes in the evidence and making findings of fact, the trial court’s findings as to abuse, abandonment, or neglect will be sustained if they are supported by competent substantial evidence. See Hooper, 509 So. 2d at 291; In re D.J.S., 563 So. 2d at 662.

In this case, a review of the entire record establishes that the trial court’s findings were supported by competent substantial evidence. ' The trial court heard ample evidence to establish that M.J.S. was withholding food from D.J.W. This evidence included not only medical testi mony concerning D.J.W.’s failure to thrive, but also the testimony of his teacher concerning his reactions to feedings at school. While there was also some evidence of emotional abuse, the trial court’s order adjudicating D.J.W. dependent relied primarily on the finding of physical abuse through food deprivation. This finding is supported by competent substantial evidence.

M.J.S. argues that other interpretations of the evidence are possible.

First, she argues that D.J.W.’s physical handicaps, rather than her actions, caused his failure to thrive. This argument ignores the evidence that D.J.W. is no longer failing to thrive since being removed from M.J.S.’s care. If D.J.W.’s physical handicaps caused his failure to thrive, the failure would have continued after he was removed from M.J.S.’s care.

Second, M.J.S. argues that D.J.W.’s improvement since being placed in foster care is due to his recovery from his 1998 health problems. This argument ignores the fact that D.J.W. had been diagnosed with failure to thrive as far back as 1995 and that he weighed less in 1998 than he did in 1995. D.J.W.’s 1998 health problems cannot explain his failure to gain weight between 1995 and 1998. Further, this argument requires the court to ignore testimony that M.J.S. told others that she did not feed D.J.W. because she wanted him to remain small so that he would be easier to handle. Based on the record evidence, the trial court did not err in dismissing these arguments.

The trial court found that D.J.W. was being abused and neglected by M.J.S. This finding is supported by competent substantial evidence contained in the record. Therefore, the trial court’s order adjudicating D.J.W. dependent is affirmed.

Affirmed.

WHATLEY, J., and SEALS, JAMES H., Associate Judge, Concur. . In their briefs, the parties argued that the issue was whether DCFS proved dependency by clear and convincing evidence. That is the burden of proof required for terminating parental rights. See § 39.809(1), Fla. Stat. (1999). However, M.J.S.'s parental rights were not terminated in this proceeding. Rather, this proceeding was limited to determining whether to adjudicate D.J.W. dependent. Therefore, the proper burden of proof was by the preponderance of the evidence. See § 39.507(1)(b), Fla. Stat. (1999). Despite this, the trial court's order states that it found the evidence clear and convincing.


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Citator

Cited By (23 total)

  • B.C. v. Dep't of Child. & Families, 846 So. 2d 1273 (Fla. 4th DCA 2003)
    …2d 615, 617-18 (Fla. 5th DCA 2000). The petition for dependency was filed in July of 2002, and the hearing was held on August 26, 2002. Viewed in the light most favorable to sustaining the trial court’s adjudication of dependency, see In re D.J.W., 764 So. 2d 825, 826 (Fla. 2d DCA 2000), the evidence established that there were two instances of domestic violence in the presence of the couple’s child, one in August 2000, following the couple’s separation, and one in December 2000. In order to support an adjud…
  • D.D. as Parent of E.R. v. Dep't of Child. & Families, 773 So. 2d 615 (Fla. 5th DCA 2000)
    …ren & Families, 769 So. 2d 424 (Fla. 4th DCA 2000). To that end, “[i]n reviewing an order adjudicating a child dependent, this court does not conduct a de novo review of evidence or substitute its judgment for that of the trial court.” In re D.J.W., 764 So. 2d 825, 826 (Fla. 2nd DCA 2000). An adjudication must be upheld if the trial court’s findings of fact are supported by competent substantial evidence. Id. Section 39.01(46) of the Florida Statutes (1999) defines neglect for purposes of dependency proceedi…
  • E.M.A. v. Dep't of Child. & Families, 795 So. 2d 183 (Fla. 1st DCA 2001)
    …or a month or even a week. In reviewing the challenged order finding dependency, we are not conducting a de novo review of the evidence, nor may we substitute our judgment for that of the trial court. M.J.S. v. Dep’t of Children & Family Services, 764 So. 2d 825, 826 (Fla. 2d DCA 2000). Rather, we shall uphold the trial court’s order “[i]f, upon the pleadings and evidence before the trial court, there is any theory or principle of law which would support the trial court’s judgment.” In re Adoption of Baby E…

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