J.M., THE MOTHER, APPELLANT,
v.
DEPARTMENT OF CHILDREN AND FAMILIES AND GUARDIAN AD LITEM PROGRAM, APPELLEES
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In a confession of error case, the Florida Fourth District Court of Appeal reversed a trial court's order adjudicating a child dependent, finding insufficient competent substantial evidence that the child was aware of or affected by domestic violence between the parents or by the mother's substance use.
No. The court reversed the dependency adjudication, holding that without evidence showing domestic violence occurred when the child was present or that the child was aware of such violence, or evidence that the child was adversely affected by the mother's substance use, there is insufficient basis for a dependency finding.
[1] A finding of dependency requires competent substantial evidence that a child was aware of domestic violence or was affected by it.
[2] A finding of dependency based on parental substance abuse requires evidence that the child was demonstrably adversely affected by the usage.
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“Without evidence showing that domestic violence has occurred when the children were home, or that they otherwise were aware of the violence, the finding of impending harm to the children is unsubstantiated.”
Establishes the legal standard requiring evidence of child's awareness of domestic violence for a dependency finding
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceThe trial court found the child dependent based on allegations of domestic violence between the mother and father and testimony that the mother was un…
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CONFESSION OF ERROR
In this case, where the Appellees, the Department of Children and Families (“DCF”) and the Guardian ad Litem Program (“GAL”), both concede error, the *95Mother appeals the trial court’s order adjudicating the Child dependent. :
There was testimony regarding several instances of domestic violence between the Mother and the Father. However, there was no competent substantial evidence that the Child was aware of the alleged incidents of violence, or that the Child was affected by these instances. See S.S. v. Dep’t of Children & Families, 81 So.3d 618, 623 (Fla. 1st DCA 2012) (“Without evidence showing that domestic violence has occurred when the children were home, or that they otherwise were aware of the violence, the finding of impending harm to the children is unsubstantiated.”); In re K.B., 937 So.2d 709, 711 (Fla. 2d DCA 2006) (“[T]he Department presented no evidence that the children suffered any physical or. mental injury as a result of witnessing the altercation or that the Father posed any current threat of harm to them. In the absence of such evidence, the trial court’s finding of-dependency cannot stand.”). To the contrary, the child protection investigator that testified on behalf of DCF at the hearing stated, “[a]c-cording to my investigation, the final findings were family violence threatens harm to the child is not substantiated .... ” (emphasis added).
Likewise, although there was testimony that the Mother was under the influence of substances on the date that she met with the child protection investigator, there was no testimony that the Mother was under the influence in the presence of the Child, or that any substance abuse adversely affected the Child. See S.S., 81 So.3d at 621 (“For purposes of finding dependency, harm to a child includes ‘extensive, abusive, and chronic use óf a controlled substance or alcohol by a parent when the child is demonstrably adversely affected by such usage.’ ” (quoting § 39.01(32)(g)2., Fla. Stat. (2011))).
Therefore, we reverse the trial court’s order «adjudicating the Child dependent, and remand for proceedings consistent with- this opinion. See J.R. v. State, Dep’t of Children & Families, 995 So.2d 611, 612 (Fla. 4th DCA 2008).
’ WARNER, GROSS and CONNER, JJ., concur.
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L.J. v. Dept. of Children and Families, 273 So. 3d 1123 (Fla. 3d DCA 2019)…harmed. The third matter was based solely on hearsay. As the Mother properly points out, the evidence and the controlling law does not support adjudicating the children dependent on these three grounds. See J.M. v. Dep’t of Children & Families, 188 So. 3d 94, 95 (Fla. 4th DCA 2016) (“[A]lthough there was testimony that the [m]other was under the influence of substances on the date that she met with the child protection investigator, there was no testimony that the [m]other was under the influence in…
Authorities Cited
- In the Interest of K.B. and M.B. v. Dep't of Child. & Fam. Servs., 937 So. 2d 709 (Fla. 2d DCA 2006)
- S.S. v. Dep't of Child. & Families, 81 So. 3d 618 (Fla. 1st DCA 2012)
- J.R. v. State, 995 So. 2d 611 (Fla. 4th DCA 2008)