IN THE INTEREST OF E.B., A CHILD. S.B., APPELLANT,
v.
DEPARTMENT OF CHILDREN AND FAMILY SERVICES, APPELLEE
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The Florida Second District Court of Appeal reversed the circuit court's adjudication of dependency, finding that the evidence did not support the trial court's findings of abuse due to domestic violence exposure, neglect due to residential instability, or abandonment due to lack of financial support during a two-month period.
The court reversed the dependency adjudication, holding that: (1) the abuse finding was unsupported because there was no evidence the child saw or was aware of the domestic violence incident; (2) the neglect finding was unsupported because the residential changes did not cause deprivation of necessities or significant impairment; and (3) the abandonment finding did not meet the statutory definition because the mother made efforts to retrieve the child, maintained contact, and authorized medical treatment.
[1] A finding of child abuse based on exposure to domestic violence requires evidence that the child saw or was aware of the violence occurring.
[2] Frequent residential changes alone do not constitute statutory neglect if the child is not deprived of necessary food, clothing, shelter, or medical treatment, and the en…
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Join FLexlaw to unlock all legal intelligence“The Fourth District has interpreted abuse to "include harm caused by incidents of domestic violence, but it is limited to instances where the child sees or is aware of the violence occurring."”
Establishes the legal standard for abuse in domestic violence cases, requiring child awareness or observation of the violence.
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Join FLexlaw to unlock all legal intelligenceS.B., the mother, had her son E.B. adjudicated dependent by the trial court based on three grounds: (1) exposing the child to domestic violence betwee…
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DAVIS, Judge.
S.B., the mother, challenges the circuit court’s order adjudicating her son, E.B., dependent. In adjudicating E.B. dependent, the trial court found that the mother abused the child by exposing him to acts of domestic violence between the mother and her boyfriend; neglected the child by failing to maintain a stable residence and living in seven different places in eight months; and abandoned the child by failing to consistently and regularly provide child support to the maternal grandmother with whom the child stayed for two months. We reverse.
A child may be found dependent if the child has been “abandoned, abused, or neglected by the child’s parent or parents or legal custodians.” § 39.01(14)(a), Fla. Stat. (2001). “[T]he trial court’s findings as to abuse, abandonment, or neglect will be sustained if they are supported by competent substantial evidence.” In re D.J.W., 764 So. 2d 825, 826 (Fla. 2d DCA 2000).
The Fourth District has interpreted abuse to “include harm caused by incidents of domestic violence, but it is limited to instances where the child sees or is aware of the violence occurring.” D.H. v. Dep’t of Children & Families, 769 So. 2d 424, 427 (Fla. 4th DCA 2000). Here, the mother’s roommate testified that she came home one day to find the mother icing her wrist because she said her boyfriend had slammed a door on it. The witness was not present for the incident, however, and did not testify that the child was either. Accordingly, the trial court’s finding that the mother exposed the child to acts of domestic violence is not supported by competent substantial evidence of record.
Furthermore, while the trial court’s finding that the mother and child had changed residences seven times in eight months was supported by record evidence, such finding does not rise to the level of statutory neglect.
Section 39.01(45) defines neglect as “when a child is deprived of, or allowed to be deprived of, necessary food, clothing, shelter, or medical treatment or a child is permitted to live in an environment when such deprivation or environment causes the child’s physical, mental, or emotional health to be significantly impaired.” Here, no evidence was presented that the residential changes caused the child to be deprived of food, clothing, shelter, or medical treatment.
Furthermore, there was no evidence that the environment created by those living arrangements caused the child significant impairment.
Similarly, the trial court’s finding that the mother did not financially support the child during the two months he stayed with his maternal grandmother, while supported by record evidence, does not meet the statutory definition of abandonment.
Section 39.01(1) defines “abandoned” as “a situation in which the parent or legal custodian of a child ... while being able, makes no provision for the child’s support and makes no effort to communicate with the child.” The testimony here, from both the mother and the maternal grandmother, was that the mother attempted to retrieve the child from the maternal grandmother’s home at the conclusion of an approximately two-week-long vacation. When the mother was informed that the maternal grandmother would not return the child, at the behest of child protective services, she contacted the child by telephone and internet.
Additionally, she gave the maternal grandmother authorization to seek medical treatment for the child if necessary. This conduct does not “evince a willful rejection of parental obligations. Nor would the evidence support a finding that the mother’s efforts were only marginal efforts to support and communicate with the [child] such that she failed to evince a settled purpose to assume parental duties.” S.C. v. Dep’t of Children & Families, 767 So. 2d 579, 582 (Fla. 5th DCA 2000).
Because the trial court’s finding regarding the mother’s exposing the child to domestic violence is not supported by the record and because the trial court’s findings regarding changing residences and financial support do not rise to the statutory level of neglect or abandonment, we reverse.
Reversed.
ALTENBERND and CANADY, JJ., Concur.
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In the Interest of K.B. and M.B. v. Dep't of Child. & Fam. Servs., 937 So. 2d 709 (Fla. 2d DCA 2006)…child and could reasonably result in serious injury to the child.” § 39.01(30)®. Based on these statutory definitions, courts have held that domestic violence may constitute “harm” if it occurs in the presence of the child. In the Interest of E.B., 834 So. 2d 415, 416 (Fla. 2d DCA [*711] 2003); D.H. v. Dep’t of Children & Families, 769 So. 2d 424, 427 (Fla. 4th DCA 2000). However, the “presence” of the child must be something more than physical proximity. D.D. v. Dep’t of Children & Families, 773 So. 2d 615,…
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In the Interest of L.C. & L.C. v. Dep't of Child. & Fam. Servs. & Guardian ad Litem Program, 947 So. 2d 1246 (Fla. 2d DCA 2007)…wever, domestic violence [*1249] may constitute “harm” only if it occurs in the child’s presence. M.B. v. Dep’t of Children & Family Servs. (In re K.B.), 937 So. 2d 709, 710 (Fla. 2d DCA 2006); S.B. v. Dep’t of Children & Family Servs. (In re E.B.), 834 So. 2d 415, 416 (Fla. 2d DCA 2003). There must be evidence that the child has seen the violence or was aware of it. A.R. v. Dep’t of Children & Family Servs. (In re J.A.H.), 876 So. 2d 647, 649 (Fla. 2d DCA 2004); D.D. v. Dep’t of Children & Families, 773 So.…
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E.K. v. Dep't of Child. & Fam. Servs., 948 So. 2d 54 (Fla. 3d DCA 2007)…1189, 1192 (Fla.2000). Although the father here is not a perfect parent, the evidence in the record indicates he provided necessaries when asked and regularly visited and communicated with his daughter. See S.B. v. Dep’t of Children & Family Servs., 834 So. 2d 415, 417 (Fla. 2d DCA 2003) (concluding that mother’s failure to financially support child for two months when child stayed with grandmother did not constitute abandonment because mother tried to retrieve the child from grandmother’s home, contacted the…
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Rounds v. State, 769 So. 2d 424 (Fla. 5th DCA 2000)
- Murray v. State, 764 So. 2d 825 (Fla. 4th DCA 2000)
- In the Interest of D.J.W. v. State, 764 So. 2d 825 (Fla. 2d DCA 2000)
- S.C. v. Dep't OF Child. & Families, 767 So. 2d 579 (Fla. 5th DCA 2000)