IN THE INTEREST OF J.A.H., A CHILD, AND D.G.S., A CHILD, A.R., APPELLANT,
v.
DEPARTMENT OF CHILDREN AND FAMILY SERVICES, AND GUARDIAN AD LITEM PROGRAM, APPELLEES

Fla. 2d DCA | 2004-06-18
No. 2D03-2372
CASANUEVA and SALCINES, JJ., Concur.
876 So. 2d 647 Florida District Court of Appeal, Second District (2004) Positive Treatment
Cited by 8 cases

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Holding

The court held that a mother's omission to supervise her child during an incident of abuse by a third party constituted neglect, supporting dependency, but that dependency for a sibling without evidence of witnessing the abuse or a nexus to potential harm was unsupported.


Headnotes

[1] A parent may be found to have neglected a child by negligently failing to protect the child from inflicted physical, mental, or sexual injury caused by the acts of anothe…

[2] A child may be adjudicated dependent based on abuse inflicted upon a sibling, but the evidence must demonstrate a nexus between the sibling's abuse and any prospective ab…

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Facts & Procedural History

A mother allowed her father, who had a difficult disposition, to live with her. The grandfather physically abused the mother's son, D.G.S., leading to…

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Opinion of the Court
CANADY, Judge.

CANADY, Judge.

A.R., a mother, appeals an order adjudicating her son, D.G.S., and her daughter, J.A.H., dependent. We conclude that the adjudication of dependency as to D.G.S. was supported by competent, substantial evidence and consequently affirm that adjudication. However, we conclude that the adjudication as to J.A.H. was not supported by competent, substantial evidence and therefore reverse that adjudication.

The evidence presented at the dependency hearing indicated that A.R. had permitted her father, who suffered from a number of health problems, to live with her for a period of approximately two years. Testimony at the hearing indicated that A.R.’s father had a “nasty” disposition and had a particularly difficult time getting along with A.R.’s eight-year-old son, D.G.S. The strained relationship between the grandfather and D.G.S. culminated in an incident in which the grandfather wrapped his hand in a sheet and struck D.G.S. in the head. When the Department of Children and Family Services learned of this incident, they removed both D.G.S. and his younger sister, J.A.H., from A.R.’s home and instituted dependency proceedings.

A.R. testified that her father had lived at her home because he could not live independently due to his health problems and because his unpleasant disposition made other relatives unwilling to provide him shelter. She admitted that she had been aware of the poor relationship between her father and D.G.S. for some time but stated that she had attempted to mitigate any problems by having D.G.S. live mostly with A.R.’s mother. She also stated that, shortly after the removal of her children from her home, she found appropriate government subsidized housing for her father and that at the time of the hearing he was no longer in her home.

A child may be adjudicated dependent if the court finds that the child was “abandoned, abused, or neglected,” § 39.01(14)(a), Fla. Stat. (2003), or that the child is “at substantial risk of imminent abuse, abandonment, or neglect,” § 39.01(14)(f). We review the trial court’s order adjudicating D.G.S. and J.A.H. dependent under an abuse of discretion standard. D.H. v. Dep’t of Children & Families, 769 So. 2d 424, 426 (Fla. 4th DCA 2000) (noting that the trial court’s discretion is “very broad with respect to proceedings involving child welfare”).

On appeal, A.R. contends that the adjudication of dependency as to D.G.S. was improper because there was no evidence that D.G.S. was “abandoned, abused, or neglected by the child’s parent or parents, legal custodians, or caregivers.” § 39.01(14)(a). Specifically, A.R. argues that she was not a participant in the grandfather’s abuse of D.G.S. and took reasonable measures to prevent it. A.R. also argues that no evidence was presented to support the trial court’s finding of dependency with respect to J.A.H.

In this case, competent, substantial evidence was presented that the mother knew of the grandfather’s propensity to abuse the child but nonetheless permitted them to be together without direct and continuous supervision. Section 39.01(2) defines abuse, in pertinent part, as “any willful act or threatened act that results in any physical, mental, or sexual injury or harm that causes or is likely to cause the child’s physical, mental, or emotional health to be significantly impaired.” Section 39.01(3) also provides that abuse “includes acts or omissions.” Section 39.01(30) defines “ ‘[h]arm’ to a child’s health or welfare” to include situations where a person “[njegli-gently fails to protect a child in his or her care from inflicted physical, mental, or sexual injury caused by the acts of another.” The evidence presented was legally sufficient for the trial court to conclude that, through omission of proper supervision when the incident occurred, A.R. had neg ligently permitted D.G.S. to be abused by the grandfather, despite evidence that A.R. had taken some measures to avoid the abuse. We therefore conclude that the trial court did not abuse its discretion in adjudicating D.G.S. dependent.

We conclude, however, that the trial court erred by adjudicating J.A.H., D.G.S.’s younger sister, dependent. It was undisputed that J.A.H. was not directly abused. “Children who have not been abused may be adjudicated dependent based on abuse inflicted upon their siblings; however, the evidence must demonstrate a nexus between the abuse and any prospective abuse to another sibling.” CM. v. Dep’t of Children & Family Servs., 844 So. 2d 765, 766 (Fla. 2d DCA 2003). Here, there was no demonstration of any nexus between the abuse of D.G.S. and any prospective abuse of J.A.H.

The apparent basis for the adjudication was that J.A.H. might have been harmed by witnessing the abuse suffered by her older brother. Section 39.01(30)(i) provides that “harm” to a child can occur when any person “[e]ngages in violent behavior that demonstrates a wanton disregard for the presence of a child and could reasonably result in serious injury to the child.” But this type of harm can only occur when the “domestic violence [is] committed in the presence of [the] child,” and “the child sees or is aware of the violence occurring.” D.D. v. Dep’t of Children & Families, 773 So. 2d 615, 617-18 (Fla. 5th DCA 2000). Here there was no evidence that J.A.H. actually witnessed or was cognizant of the abuse of D.G.S. by the grandfather and thus there was no basis for the trial court’s determination that J.A.H. was dependent. We therefore reverse the adjudication of dependency as to J.A.H.

Affirmed in part, reversed in part, and remanded with instructions.

CASANUEVA and SALCINES, JJ., Concur.


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Citator

Cited By

  • …. 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. 2d 615, 617-18 (Fla. 5th DCA 2000). For domestic violence to constitute “abuse,” the child must have witnessed the violence and the violence must have resulted in some physical,…
  • Y.P. v. Dep't of Child. & Fam. Servs., 939 So. 2d 1118 (Fla. 3d DCA 2006)
    …d the determination if the trial court applied the correct law and its ruling is supported by competent, substantial evidence. M.F., 770 So. 2d at 1192; D.R. v. Dep’t of Children & Family Servs., 898 So. 2d 254, 255 (Fla. 3d DCA 2005); In re J.A.H., 876 So. 2d 647, 648 (Fla. 2d DCA 2004). Weighing the evidence is the province of the trial court, M.R. v. Dep’t of Children & [*1120] Family Sens., 788 So. 2d 277, 278 (Fla. 3d DCA 2001), and this Court will not disturb the trial court’s credibility findings. “In…
  • In the Interest of C.R. v. Dep't of Child. & Fam. Servs., 937 So. 2d 1257 (Fla. 2d DCA 2006)
    …re-to-protect findings in the dependency context indicates that the Department must demonstrate that the parent who allegedly failed to protect the child knew or should have known that the abusive person was engaging, in the abuse.4 In In re J.A.H., 876 So. 2d 647, [*1261] 648 (Fla. 2d DCA 2004), for example, we concluded that the trial court’s adjudication of dependency was proper when “competent, substantial evidence was presented that the mother knew of the grandfather’s propensity to abuse the child but n…

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