D.G., FATHER OF L.G. AND M.G., CHILDREN, APPELLANT,
v.
DEPARTMENT OF CHILDREN AND FAMILIES, APPELLEE

Fla. 5th DCA | 2012-02-14
No. 5D11-2374
EVANDER and JACOBUS, JJ., concur.
80 So. 3d 1063 Florida District Court of Appeal, Fifth District (2012) Caution
Cited by 6 cases

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Holding

The court held that the trial court erred by entering a second order of dependency and improperly considering prospective abuse or neglect after finding the father had not abused or neglected the children.


Headnotes

[1] A trial court errs by entering a second order adjudicating a child dependent when a prior order already establishes the child's dependent status.

[2] Following an adjudication of dependency, an evidentiary hearing concerning a parent's conduct must focus on whether the parent actually abused, abandoned, or neglected th…

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Facts & Procedural History

Following the death of an infant, DCF filed a dependency petition against the parents. The mother consented to dependency, and the trial court entered…

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Opinion of the Court
COHEN, J.

COHEN, J.

D.G. (“Father”) and R.L. (“Mother”) lived together for approximately ten years. Three children were born of the relationship: L.G., M.G., and a third child whose death at a very young age led to the initiation of these proceedings. The Department of Children and Family Services (“DCF”) had a report pending when the infant died. The report concerned Mother’s substance abuse and the birth of the baby girl with drugs in her system. Upon the infant’s death, DCF took the two surviving children into custody.

DCF filed a two-count dependency petition against both parents. Count one focused on the parents’ abuse of drugs and the infant’s death, without alleging any wrongdoing by either parent in the death of the infant. Count two incorporated the allegations of count one and, without more, alleged a substantial risk of prospective abuse, abandonment, or neglect.

Both parents denied the allegations of the petition at their arraignment, and an adjudicatory hearing was set. When Mother failed to appear at the hearing, the trial court found she had consented to the dependency pursuant to section 39.506(3), Florida Statutes (2011). The court rescheduled Father’s adjudicatory hearing. *1064However, it then prematurely held a dispo-sitional hearing. The hearing resulted in entry of an “Order of Adjudication, Disposition, Acceptance of Case Plan, and Notice of Hearing.” The judge found the children dependent, repeating almost verbatim the allegations contained in the petition, and entered a case plan with the goal of reunification.1

Thereafter, the trial court conducted what was termed an adjudicatory hearing as to Father. Without objection, the court took judicial notice of the findings made in the original order adjudicating the children dependent, although DCF presented no evidence at the hearing and Father had, at all times, denied the allegations in the petition. Based on this “evidence,” the trial court found DCF had failed to prove that Father either abused or neglected the children.2 Despite substantial evidence to the contrary,3 the court specifically found the evidence insufficient to establish that Father had a substance abuse issue.

We must accept the trial court’s findings of fact, given the conflicting nature of the testimony. Notwithstanding those findings, the trial court found the children were at substantial risk of prospective abuse, abandonment, or neglect by Father, because he admitted he was aware of Mother’s ongoing substance abuse and had left the children unsupervised with her. The court reaffirmed the case plan entered at the time of the initial disposition, but struck Father’s substance abuse tasks while ordering random urinalysis testing. This resulted in a continued non-relative placement, but with unsupervised visitation by Father.

DCF concedes that the trial court erred in its procedural handling of the case. To its credit, DCF shoulders some of the responsibility, acknowledging that:

The parties inadvertently led the court astray concerning proper procedure. That led to an understandable but misguided effort to expeditiously handle the dependency proceedings, which resulted in the lower court’s rush to disposition based on the mother’s failure to appear while postponing the adjudicatory hearing on the petition’s allegations concerning father. There was no separate petition or motion for supplemental adjudication filed....

This acknowledgement reflects the framework of section 39.507(7)(a), Florida Statutes (2011), which provides:

For as long as a court maintains jurisdiction over a dependency case, only one order adjudicating each child in the case dependent shall be entered. This order establishes the legal status of the child for purposes of proceedings under this chapter and may be based on the conduct of one parent, both parents, or a legal custodian.

We discussed the operation of this statute in P.S. v. Department of Children and Families, 4 So.3d 719 (Fla. 5th DCA 2009).4 In P.S., the mother entered a consent plea that resulted in the children *1065being adjudicated dependent. Following that adjudication, DCF filed a second amended petition alleging separate and distinct grounds against the father. After a hearing, the trial court found the children at risk and entered a “second” order adjudicating the children dependent due to a substantial risk of prospective abuse or neglect. We found the entry of a second order of dependency improper and noted the trial court’s improper focus on the issue of prospective abuse or neglect. Instead, section 39.507(7)(b) required the trial court to hold an evidentiary hearing to determine whether the father had actually abused, abandoned, or neglected the children:

It is significant to observe that while a child can be found dependent if he or she is “at substantial risk of imminent abuse, abandonment, or neglect,” section 39.507(7)(b) only requires a trial judge, who has already adjudicated a child to be dependent, to determine whether each parent has actually abused, abandoned or neglected the child. Thus, in this case, the primary purpose of the evidentiary hearing should have been to determine if the father had actually abused or neglected R.S. and B.S. — not whether the children were at substantial risk of imminent abuse or neglect.

Id. at 720-21 (footnote omitted).

Assuming, in the present case, we were to treat the hearing conducted as that which was required under 39.507(7)(b), the trial court found Father did not abuse or neglect the children. Instead, contrary to the procedure outlined in P.S. and the statute, the trial court improperly considered the issue of prospective abuse or neglect. This was error.

The finding of dependency defines the legal status of the children, not the parents. On remand, the trial court is not without options. See J.P. v. Dep’t of Children & Families, 855 So.2d 175 (Fla. 5th DCA 2003); B.C. v. Dep’t of Children & Families, 864 So.2d 486 (Fla. 5th DCA 2004).

REVERSED and REMANDED.

EVANDER and JACOBUS, JJ., concur.


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Citator

Cited By

  • D.A. v. Dep't OF Child. & Fam. Servs., 84 So. 3d 1136 (Fla. 3d DCA 2012)
    …urt is very persuasive, I come down on the side of agreement with P.S. v. Dep’t of Children & Families, 4 So. 3d 719 (Fla. 5th DCA 2009), particularly as explicated by the Fifth District in the later decision of D.G. v. Dep’t of Children & Families, 80 So. 3d 1063 (Fla. 5th DCA 2012).…
    1 / 2
  • F.O., SR. v. Dep't of Child. & Families, 94 So. 3d 709 (Fla. 5th DCA 2012)
    …more, this court has previously recognized that a parent may be ordered to participate in a case plan, even though that parent had not been found to have abused, abandoned or neglected the children at issue. See D.G. v. Dep’t of Children & Families, 80 So. 3d 1063, 1065 (Fla. 5th DCA 2012); B.C. v. Dep’t of Children & Families, 864 So. 2d 486, 490 (Fla. 5th DCA 2004); J.P. v. Dep’t of Children & Families, 855 So. 2d 175, 176 (Fla. 5th DCA 2003); see also § 39.521(l)(b), Fla.Stat. (2011). We find no merit to…

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