N.S., PARENT OF M.M., I.S., N.S., ETC., ET AL., APPELLANT,
v.
DEPARTMENT OF CHILDREN AND FAMILIES, APPELLEE

Fla. 5th DCA | 2003-10-31
Nos. 5D02-1571, 5D02-1609, 5D02-2247
SAWAYA, C.J., and HARRIS, C., Senior Judge, concur.
857 So. 2d 1000 Florida District Court of Appeal, Fifth District (2003) Positive Treatment
Cited by 6 cases

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Synopsis

Parents appealed the trial court's order adjudicating their three younger children dependent based solely on allegations of abuse against the mother's child from a prior relationship (M.M.). The appellate court reversed the dependency adjudication of the younger children, holding that abuse of one sibling cannot support a dependency finding for other siblings without evidence establishing a nexus between the prior abuse and prospective abuse of those children.


Holding

The court reversed the adjudication of the younger children as dependent, holding that abuse or neglect of one child is insufficient to adjudicate siblings dependent without evidence establishing a nexus between the prior abuse and prospective abuse of those children. The court affirmed the granting of party participant status to the maternal grandparents and found the father waived his objection to the batterer's intervention program requirement by failing to object before the case plan was accepted.


Headnotes

[1] Abuse or neglect of one child is an insufficient basis to adjudicate a sibling dependent without evidence establishing a nexus between the prior abuse and the allegation…

[2] A trial court abuses its discretion by adjudicating children dependent based solely on allegations of abuse or neglect of a sibling, absent evidence demonstrating a risk…

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Key Quotes

“Without more, abuse or neglect of a child is an insufficient basis upon which to adjudicate the child's siblings dependent.”

Establishes the core legal principle that sibling abuse alone cannot support a dependency finding without additional evidence of nexus to prospective abuse of other children.

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Facts & Procedural History

N.S. (father) and K.S. (mother) have three children together (I.S., N.J.S., and A.S.). The mother also has M.M. from a prior relationship. The amended…

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Opinion of the Court
THOMPSON, J.

THOMPSON, J.

N.S., the father, and K.S. (“the mother”) appeal the order adjudicating their children, I.S., N.J.S., and A.S. (collectively “the younger children”), dependent and granting the maternal grandparents “party” status. Separately, N.S. contends that the trial court erred when it ordered him to complete a batterer’s intervention program. We reverse the part of the order adjudicating the younger children dependent, but affirm in all other respects.

N.S. and the mother have three children together, I.S., N.J.S., and A.S. The mother also has a child, M.M., who is not the child of N.S. The amended petition for dependency 1 alleged that M.M. said that marks observed on his arm were caused when the mother squeezed his arm. The petition also alleged that M.M. stated that his stepfather, N.S., did not like him and that N.S. and his mother whipped him with belts. He also stated that N.S. had beaten him with a shoe. The petition alleged that the allegations concerning M.M. placed the younger children at risk. There were no allegations in the petition that the parents had abused or neglected any of the younger children, nor were there allegations that the children might be abused in the future.2

At the dependency hearing, the guardian ad litem admitted that she had only spoken with the parents once for about twenty or thirty minutes, and she admitted that the younger children were removed solely based on the allegations concerning M.M. A protective investigator testified that the recommendation had been to shelter all of the children although no child protective team member had seen the younger children. A former department employee testified that she had worked with the family, and that although she felt that N.S. was stricter than most parents and could use parenting classes, N.S. would not hurt a child. Witnesses testified that M.M. had been a troubled child since he was three years old.3 Although witnesses testified about M.M.’s bruises, his behavioral problems, and his chronic absenteeism from school, there was no testimony that the younger children had been abused or neglected.

We agree that adjudicating the younger children dependent was an abuse of discretion. The only reason given by the trial court for adjudicating the younger children dependent was the testimony concerning abuse or neglect of M.M. The adjudication order states in part:

From the parents’ failures and apparent disinclinations to respond to the apparent mental health and bonding needs of [M.M.] and [A.G.],4 the conclusion from the greater weight of the evidence is that [I.S.], [N.J.S.], and [A.S.] are in danger of harm, abuse, or neglect as well.

Without more, abuse or neglect of a child is an insufficient basis upon which to adjudicate the child’s siblings dependent. In re M.F., 770 So. 2d 1189, 1194 (Fla.2000); see also M.N. v. Department of Children and Families, 826 So. 2d 446 (Fla. 5th DCA 2002) (holding that evidence that father had physically abused his stepchild did not support a finding that his natural child was dependent). This court has held that in order to adjudicate a child dependent based upon the treatment of a sibling, there must be evidence “that establishes a nexus between the prior abuse and the allegation of prospective abuse.” M.N., 826 So. 2d at 448.

In the instant case, the court made no findings that drew a connection between the treatment of M.M. and the probable treatment of the younger children in the future. Indeed, the department offered no evidence to support a conclusion that the younger children were at risk. Here, because there was no showing that the abuse or neglect of M.M. predicted abusive or neglectful behavior toward the younger children, the order finding them at risk of abuse or neglect was not supported by competent, substantial evidence and must be reversed.

The mother and N.S. also contend that the trial court erred when it granted the maternal grandparents “party” status. The trial court ruled that the maternal grandparents were “participants” and allowed them to participate, but did not grant them “party” status. Because the grandparents were the legal guardians and actual custodians of M.M. and the younger children, they were “participants” in the proceedings pursuant to section 39.01(50), Florida Statutes (2001).5 Under that section, a participant may be granted leave by the court to be heard without filing a motion to intervene. See also Rule 8.210(b), Fla. R. Juv. P. (2001).

Finally, we conclude that the father has waived the issue of his being required to complete a batterer’s intervention program. The court invited objections before accepting the case plan, and N.S. made none.6

The order on appeal is affirmed except the part adjudicating I.S., N.J.S., and A.S. dependent, which is reversed.

AFFIRMED in part; REVERSED in part.

SAWAYA, C.J., and HARRIS, C., Senior Judge, concur. . Section 39.01 (14)(£), Florida Statutes, defines a dependent child in part as one found “to be at substantial risk of imminent abuse, abandonment or neglect by the parent or parents or legal custodians.”

. The language in the amended petition is not a model of clarity. The language reads: "The natural [parents], although able, [have] neglected or abused the children, and by [their] actions [have] inflicted or created the risk of significant mental, physical or emotional injury to the children....”

. In another case involving this family, M.M. was removed based on allegations of sexual molestation, mental injury, and inadequate supervision. This court reversed the disposition order based on numerous procedural errors and the lack of a dependency finding and remanded the cáse to the trial court to comply with the rules of juvenile procedure. See K.S. v. Department of Children and Families, 760 So. 2d 1068 (Fla. 5th DCA 2000).

.A.G. is not related to the parties in this case. A.G. is the daughter of N.S.'s former girlfriend and was living with N.S. before his marriage to the mother. A.G. alleged that she had been sexually abused by her mother's uncle and her mother’s boyfriend and asked to live with N.S. The department placed A.G. with N.S. and helped him collect child support for the child. According to N.S., he surrendered A.G. because she killed a cat and because the department was beginning to "hassle" him about the child. A.G. was not involved in this case.

. Section 39.01(50), Florida Statutes, reads in part:

Participant, for purposes of a shelter proceeding, dependency proceeding, or termination of parental rights proceeding, means any person who is not a party but who should receive notice of hearings involving the child, including foster parents or the legal custodian of the child, identified prospective parents, grandparents entitled to priority for adoption consideration ...., actual custodians of the child, and any other person whose participation may be in the best interest of the child.

(emphasis added).

. Because the order adjudicating the younger children dependent is reversed, the case plan will be effective only for M.M.


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Citator

Cited By

  • I.B. and D.B. v. Dep't of Child. & Families, 876 So. 2d 581 (Fla. 5th DCA 2004)
    …rocedure 8.210(b) since they were the child’s foster parents.2 Under this rule, participants [*585] may be granted leave by the court to be heard without the necessity of filing a motion to intervene. See N.S. v. Department of Children and Families, 857 So. 2d 1000 (Fla. 5th DCA 2003). Turning to the substantive issues, the foster parents contend the trial court erred in failing to determine that section 39.812 is unconstitutional, both facially and as applied in this case. We are unable to find the foster pa…
  • …unger six children. As to the father, the Department conceded that the older children’s truancy and similar findings did not support the termination of A.A.’s parental rights to his natural children. See, e.g., N.S. v. Dep’t of Children & Families, 857 So. 2d 1000, 1001 (Fla. 5th DCA 2003). Neither do G.E.M.’s sexual abuse allegations against A.A. justify the termination of his parental rights to his natural children. A showing by the Department that a parent committed a sex act on one child does not alone co…
  • R.M. v. Dep't of Child. & Families, 886 So. 2d 329 (Fla. 5th DCA 2004)
    …that another sibling will be abused. Id. at 447-48. In other words, there must be a showing that the circumstances surrounding an act of abuse on one child is predictive of a similar act on the other child. See N.S. v. Dep’t. of Children & Families, 857 So. 2d 1000 (Fla. 5th DCA 2003) (reversing dependency order where there was no showing that the abuse or neglect of one “troubled” child predicted abusive or neglectful behavior toward the younger children). Although the commission of an act of abuse on one chi…

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