IN THE INTEREST OF M.C. AND H.C., CHILDREN. N.E.R., APPELLANT,
v.
DEPARTMENT OF CHILDREN AND FAMILY SERVICES AND GUARDIAN AD LITEM PROGRAM, APPELLEES
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A Florida appellate court reversed a trial court's order finding two children dependent and withholding adjudication of dependency as to the mother, N.E.R., because the Department of Children and Family Services failed to prove abuse, abandonment, neglect, or imminent risk thereof. The court also reversed the order requiring the mother to participate in Family Dependency Treatment Court.
The court reversed the order finding the children dependent and withholding adjudication of dependency because the Department failed to prove abuse, abandonment, neglect, or imminent risk thereof. The court also reversed the order requiring the mother to participate in Family Dependency Treatment Court.
[1] A finding of dependency requires proof of abuse, abandonment, neglect, or an imminent risk thereof.
[2] A trial court cannot withhold adjudication of dependency when the evidence fails to establish the statutory grounds for dependency.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“the Department failed to prove the Mother's "[c]ontinued chronic and severe use of a controlled substance or alcohol" that "demonstrably adversely affected" her children.”
Establishes that the Department failed to meet its burden of proof regarding substance abuse affecting the children.
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Join FLexlaw to unlock all legal intelligenceN.E.R. was the mother of two children, M.C. and H.C. The trial court found the children to be dependent but withheld adjudication of dependency as to …
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N.E.R. appeals an order entitled “Order Withholding Adjudication and Disposition as to the Mother, [N.E.R.] (pursuant to § 39.507(5) Florida Statutes).” In the order, the trial court found the Mother’s two children, M.C. and H.C., to be dependent but withheld adjudication of dependency. The Mother also appeals an order that *1014requires her to participate in Family Dependency Treatment Court as a result of the dependency and disposition order. The Department concedes error, and we reverse.
We have jurisdiction to review the order finding the children to be dependent but withholding adjudication of dependency. See P.H. v. Dep’t of Children & Families, 901 So.2d 277, 277 (Fla. 5th DCA 2005); R.B. v. Dep’t of Children & Families, 799 So.2d 441, 442 (Fla. 5th DCA 2001); E.M.A. v. Dep’t of Children & Families, 795 So.2d 183, 184 (Fla. 1st DCA 2001); F.R. v. Dep’t of Children & Families, 763 So.2d 478, 479 (Fla. 5th DCA 2000).
The Mother argues, and the Department concedes, that the Department failed to prove abuse, abandonment or neglect, or imminent risk thereof. See § 39.01(14)(a), (f), Fla. Stat. (2007). The record supports the Department’s concession and that, it failed to prove the Mother’s “[cjontinued chronic and severe use of a controlled substance or alcohol” that “demonstrably adversely affected” her children. § 39.01(31)(g)(2); see also J.B.M. v. Dep’t of Children & Families, 870 So.2d 946, 950 (Fla. 1st DCA 2004).
We note that the Guardian ad Litem (GAL) does not concede error. With respect to the GAL’s argument concerning prospective abuse or neglect, the substantial risk of abuse or neglect to the child must be imminent. See § 39.01(14)(f); N.D. v. Dep’t of Children & Family Servs., 939 So.2d 1192, 1194 (Fla. 2d DCA 2006). The trial court did not make a finding of an imminent risk, and the Department failed to prove an imminent risk.
Therefore, we reverse the order finding the children dependent and withholding adjudication of dependency. We also reverse the order entered as a result of the dependency order that requires the Mother to participate in Family Dependency Treatment Court.
Reversed.
FULMER and NORTHCUTT, JJ., Concur.
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J. L.-B. v. Dep't of Child. & Families, 175 So. 3d 944 (Fla. 1st DCA 2015)…I.L. and A.B., while withholding adjudication as to five of their siblings. We have jurisdiction, under Florida, Rule of Appellate Procedure 9.146(b). E.M.A. v. Dep’t of Children & Families, 795 So. 2d 183, 184 (Fla. 1st DCA 2001); see In re M.C., 11 So. 3d 1013, 1014 (Fla. 2d DCA 2009); see also R.B. v. Dep’t of Children & Families, 799 So. 2d 441, 442 (Fla. 5th DCA 2001) (“[A] trial court order finding a child dependent but withholding an adjudication of dependency is properly reviewable by this court pur…
Authorities Cited
- E.M.A. v. Dep't of Child. & Families, 795 So. 2d 183 (Fla. 1st DCA 2001)
- J.B.M. v. Dep't of Child. & Families, 870 So. 2d 946 (Fla. 1st DCA 2004)
- In the Interest of T.B. v. Dep't of Child. & Fam. Servs., 939 So. 2d 1192 (Fla. 2d DCA 2006)
- F.R. v. Dep't OF Child. & Families, 763 So. 2d 478 (Fla. 5th DCA 2000)
- R.B. v. Dep't of Child. & Families, 799 So. 2d 441 (Fla. 5th DCA 2001)
- P.H. v. Dep't of Child. & Families, 901 So. 2d 277 (Fla. 5th DCA 2005)