DEPARTMENT OF CHILDREN AND FAMILIES, APPELLANT,
v.
S.A.E., MOTHER OF A.A.A.-E., APPELLEE

Fla. 1st DCA | 2016-02-02
No. 1D15-3624
THOMAS and KELSEY, JJ., concur.
184 So. 3d 615 Florida District Court of Appeal, First District (2016) Positive Treatment
Cited by 2 cases

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Synopsis

The Florida Department of Children and Families appealed a trial court's adjudication of a child as dependent based on abandonment by the father in Honduras twelve years prior. The court reversed, holding that past abandonment in a foreign country with no present threat to the child, combined with the child's current safe placement with the mother, does not constitute grounds for dependency under Florida law, particularly when the sole motivation is to facilitate federal immigration proceedings.


Holding

The court held that the trial court misapplied section 39.01(15)(a) and reversed the adjudication of dependency. Past abandonment that poses no present threat to the child, particularly when the child is receiving appropriate care in a single-parent home, does not constitute sufficient grounds for a finding of dependency. Immigration considerations alone cannot constitute grounds for adjudicating a child dependent, and the potential risk of federal deportation is not a danger that Florida's child protective services system is designed to address.


Headnotes

[1] A child's immigration-related motivation for seeking an adjudication of dependency is irrelevant to the determination of whether the child is dependent.

[2] Immigration considerations alone cannot constitute sufficient grounds upon which a child may be adjudicated dependent.

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Key Quotes

“[T]o support a finding of dependency, the parent's harmful behavior must pose a present threat to the child based on current circumstances.”

Establishes the legal standard that abandonment must create a present threat, not merely historical harm

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Facts & Procedural History

A.A.A.-E. was born in Honduras to S.A.E. (mother) and an unnamed father. The father abandoned the child approximately twelve years before the final he…

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Opinion of the Court
BILBREY, J.

BILBREY, J.

The Florida Department of Children and Families appeals the final order of which adjudicated A.A.A.-E. dependent, on the ground that the trial court misapplied section 39.01(15)(a), Florida Statutes, to the undisputed facts of the case. We agree with DCF and reverse the final order.

This case commenced when A.A.A.-E.’s mother, S.A.E., filed her private petition for dependency1 in the circuit court. She sought to have A.A.A.-E. declared a dependent child as defined in section 39.01(15), Florida Statutes, because the child was abandoned by his father in their native country of Honduras, approximately twelve years prior to the final hearing. The threat or risk to the child, which the mother sought to remedy via her petition, was the possible deportation of A.A.A.-E. by federal authorities due to his unauthorized entry into the United States three years prior to the filing of the mother’s amended petition. The mother asserted that A.A.A.-E. needed the court adjudication to support an application for a Special Immigrant Juvenile Visa under the federal Immigration and Naturalization Act, 8 U.S.C. § 1101(a)(27)(J)(i)-(iii).2

*617The mother’s testimony at the final hearing supported her allegations and the trial court’s findings of fact. A.A.A.-E.’s father knew of the child’s existence and knew he was the father from the time the child was born, yet the father never contributed to the child’s support or developed any relationship with the child. A.A.A.-E. was left in the care of his maternal grandparents in Honduras while the mother moved to the United States. When the grandparents were no longer able to take care of A.A.A.-E., his father escorted the child through Mexico and then turned him over to a smuggler to enter the United States. Immigration authorities detained A.A.A.-E., and were then able to locate the mother in Florida and reunite the child with her.

The mother testified that she was willing and able to continue to provide for all of A.A.A.-E.’s needs. The trial court specifically found, and DCF agrees, that “the safety, well-being, and physical, mental and emotional health of the Child is not endangered by the Child remaining in the custody of the Mother.” The only risk of imminent harm to A.A.A.-E. proven at the hearing was the possibility of deportation and return to Honduras by federal authorities, not any harm caused by abuse, neglect, or abandonment by his mother, his father, or any other caregiver.

This case is factually similar to In re B.Y.G.M., 176 So.3d 290 (Fla. 3d DCA 2015), In re K.B.L.V., 176 So.3d 297 (Fla. 3d DCA 2015), and other recent cases where children residing in Florida or their caregivers sought to support applications to the federal immigration authorities with Florida circuit court adjudications of dependency.3 As noted in In re B.Y.G.M. and In re K.B.L.V., this Court reviews the trial court’s application of the statutes to the uncontroverted facts de novo. This standard of review applies where the petitioners unsuccessfully appeal denials of their petitions, as in In re B.Y.G.M. and In re K.B.L.V., and where, as here, DCF appeals the trial court’s adjudication of dependency based on undisputed facts. See § 39.510, Fla. Stat.

A petitioner’s admitted intent to use an adjudication of dependency to support federal immigration proceedings does not preclude a petitioner seeking such an adjudication. See In re Y.V., 160 So.3d at 578 (reversing dismissal of minor orphan’s petition for adjudication since motivation for petition — to facilitate immigration status — did not negate prima facie case for dependency); In re T.J., 59 So.3d 1187 (Fla. 3d DCA 2011) (reversing summary denial of minor orphan’s petition seeking adjudication as dependent where petition stated prima facie case and should have proceeded to adjudicatory hearing). In fact, courts have repeatedly held that a petitioner’s immigration-related motivation for seeking an adjudication of dependency is irrelevant to the determination of whether or not the child is dependent due to abandonment. In re B.Y.G.M., 176 *618So.3d at 293 (advancing immigration process without any need for relief from abuse, abandonment or- neglect was “no basis for a declaration of dependency under these circumstances”); In re K.B.L.V., 176 So.3d at 299-300 (sole need for adjudication was to- support certain immigration status; -only threat to child’s well-being was potential deportation; no valid basis to qualify for declaration of dependency); O.I.C.L. v. Dep’t of Children and Families, 169 So.3d 1244, 1249 (Fla. 4th DCA 2015), rev. granted, — So.3d —, 2015 WL 6854614 (Fla. Oct. 30, 2015) (“determination of a child’s status as dependent should be made independent of his motivations for seeking that status.”); F.L.M. v. Dep’t of Children & Families, 912 So.2d 1264, 1269 (Fla. 4th DCA 2005) (orphan’s' intent to use adjudication of dependency to apply for immigration permit “is irrelevant”).

Because a petitioner’s immigration-related motivation for seeking an adjudicar tion of dependency is irrelevant to the determination of whether a child is dependent, it follows that immigration considerations alone cannot constitute sufficient grounds upon which a child may be adjudicated dependent. The use of an abandonment by one parent in a child’s country of origin, which has little if any present effect on the child, to support an adjudication of dependency under section 39.01(15), is a misapplication of that statute which leads to an absurd result. See In re K.B.L.V., 176 So.3d at 299-300. Where, as here, it was undisputed that the child is receiving appropriate care in a single-parent home, a finding of “abandonment” as the ground for an adjudication of dependency, with the concomitant obligations for DCF to provide government supervision and services, is contrary to the provisions of the pertinent statutes and the clear legislative intent of chapter 39.4

Granted, it is possible to find a child dependent based on one parent’s actions. But to construe the definition' of dependency in section 39.01(15)(a) as including every child living in a single parent household with adequate support ¿nd care whose second parent is absent, would be contrary to .the plain meaning of the statute which provides very specific grounds for a finding of dependency. Our precedent, consistent with In re B.Y.G.M., and In re K.B.L.V., requires that,

“[T]o support a finding of dependency, the parent’s harmful, behavior must pose a present threat to the child based on current circumstances.” C.W. v. Dep’t of Children & Fams., 10 So.3d 136, 138 (Fla. 1st DCA 2009). “[I]n the absence of actual abuse,' abandonment, or neglect, a . finding of dependency can be made if prospective abuse, abandonment, or neglect is shown to be imminent.”' J.B.M. v. Dep’t of Children & Fams., 870 So.2d 946, 951 (Fla. 1st DCA 2004) (citations omitted). “The terms - ‘prospective’ and ‘imminent’ are not defined in the statute. ‘Prospective’ simply means likely to ‘happen,’ or ‘expected.’ ‘Imminent’ encompasses a narrower time frame and means ‘impending’ and ‘about to occur’.” E.M.A. v. Dep’t of Children & Fams., 795 So.2d 183 n. 3 (Fla. 1st DCA 2001) (internal citations omitted).

S.S. v. Dep’t of Children & Families, 81 So.3d 618, 621 (Fla. 1st DCA 2012), The father’s harmful behavior — his abandon*619ment of A.A.A.-E. in Honduras twelve years ago — does not pose a present threat to A.A.A.-E. Furthermore, there is no allegation of prospective or imminent abandonment to support a finding that A.A.A.E. is dependent.5

However well-intentioned the adjudication of dependency’was in this case, and however beneficial it was to A.A.A.-E.’s immigration prospects under federal law, the risk of potential deportation by federal authorities is not a danger Florida’s ehild protective services system is intended or designed'to address. Accordingly, the trial court’s adjudication of dependency of A.A.A.-E. based on his father’s abandonment which occurred in Honduras twelve years ago, despite the child’s current beneficial situation with his mother, is REVERSED.

THOMAS and KELSEY, JJ., concur.


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Citator

Cited By

  • R.J. v. Fla. Dep't of Child. & Families, 187 So. 3d 362 (Fla. 4th DCA 2016)
    …e of the facts alleged or is informed of them and believes that they are true” may file a petition for dependency and thus also allows for a “private petition.” § 39.501(1), Fla. Stat. (2014) (emphasis added); Dep’t of Children & Families v. S.A.E., 184 So. 3d 615 (Fla. 1st DCA 2016) (“A petition filed by a person who has knowledge of the facts but is not filing on behalf of the State is commonly referred to as a ‘private petition for dependency,’ to distinguish such a case from one initiated by the DCF.”). F…

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