AMT v. State

883 So. 2d 302, 2004 WL 1881750
CourtDistrict Court of Appeal of Florida
DecidedAugust 25, 2004
Docket1D03-2830
StatusPublished
Cited by1 cases

This text of 883 So. 2d 302 (AMT v. State) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
AMT v. State, 883 So. 2d 302, 2004 WL 1881750 (Fla. Ct. App. 2004).

Opinion

883 So.2d 302 (2004)

A.M.T., father of A.D.T., A.D.T. and A.M.T., et al, Appellant,
v.
STATE of Florida, Appellee.

No. 1D03-2830.

District Court of Appeal of Florida, First District.

August 25, 2004.

*304 Marsha W. Montgomery, Pensacola, for Appellant.

Katie George and Richard D. Cserep, Dept. of Children & Families, Pensacola, for Appellee.

HAWKES, J.

We are confronted with a situation where a trial court: 1) sheltered minor children without taking sworn testimony to establish a factual basis justifying shelter; and 2) adjudicated children dependent without competent, substantial evidence to support the only allegation in the petition for dependency that would justify a finding of dependency. Because of these errors, we reverse.

Background

Appellant was the custodial parent of his 16-year-old stepson, 14-year-old son, 12-year-old daughter, and 10-year-old son. On January 16, 2003, Appellant left his 16-year-old stepson in charge while he went for an anticipated one-day trip to Jacksonville. He instructed his stepson to contact neighbor and long-time family friend, Chantel Harper, if they needed anything. It was alleged that while in Jacksonville, Appellant concluded it was necessary to take immigration papers to his fiancee in the Dominican Republic. He called to let his children know he would be away for a few days, then left the country.

The next morning the children got into an argument, and the daughter called her mother. When the mother learned the children had been left alone, she called the Department of Children and Family Services (DCF). When Appellant called home, he learned his former wife and a DCF investigator were there.

DCF filed a dependency petition alleging inadequate supervision and threatened harm, specifically, that Appellant had a history of leaving the children alone, and had left them for four days on this occasion, January 2003, without making adequate arrangements. Two arraignment hearings were held. Pursuant to orders entered following each hearing, Appellant retained custody of the children. Notably, there were no instructions regarding supervision of the children should Appellant again leave the country.

Subsequently, Appellant again went to the Dominican Republic. He left his sons with Chantel Harper and his daughter with Christy Slack, the mother of his daughter's best friend. Appellant gave Harper written authorization to act on his behalf to get each child from school and get them medical treatment, if necessary. While Appellant was away, his 14-year-old son became ill at school. Because school personnel could not contact Appellant, they called Harper to get the child.

The Shelter Order

Shortly after the second trip, a preliminary hearing was held on the petition for dependency. The court took no sworn *305 testimony or evidence of any kind, and made no inquiry regarding the allegations contained in the dependency petition.

Instead, the DCF attorney informed the court that DCF recently learned Appellant had been out of the country again, and DCF did not know who had been taking care of the children. The 14-year-old son had been sick at school during that time, and DCF alleged the school could not reach anyone to take him home. The DCF investigator learned the 16-year-old stepson had been arrested for fighting at school and for driving without a license, and the 14-year-old had vandalized a house on the military base where Appellant and his children lived. When the court asked what DCF was requesting, DCF's attorney stated "that he [Appellant] not leave the country, and supervise these kids." DCF did not seek to shelter the children.

The court then questioned Appellant regarding the new allegations. Appellant responded that, at the time of the most recent trip, he left his children with Harper and Slack. Appellant explained his 14-year-old son had thrown rocks at a boarded-up house on the base, which a neighbor reported. Appellant further stated the fight his 16-year-old stepson had been arrested for occurred almost a year previously, and his stepson had received a ticket for driving without a license. Appellant only allowed him to drive "up the street."

Immediately after hearing Appellant allowed his stepson to drive without a license, the trial court stated she wanted the children sheltered and would allow Appellant only supervised visitation. This was done sua sponte, without notice to Appellant.

Appellant's attorney asked why the court was allowing only supervised visitation when there was no physical threat to the children. The court replied Appellant allowed his stepson to drive without passing the written test. Appellant's attorney stated that did not constitute a threat of physical harm from visiting Appellant. The court responded there were "allegations of him not being able to supervise, and then he goes off and leaves them once again, and when I ask him who the babysitter is, he can't even remember who his daughter is staying with."[1] With no notice, no sworn testimony, and without even inquiring as to the allegations contained in the dependency petition, the court sheltered the children, allowing Appellant only supervised visitation.

A few days later, a shelter review hearing was held. However, the only sworn testimony taken at this hearing related to Appellant's income for purposes of child support. The court's order continued the children in shelter, and found probable cause to believe the children were dependent based on allegations of abuse, abandonment, or neglect. The court found DCF's appraisal of Appellant's "home situation" indicated a substantial and immediate danger to the children which could not be mitigated by the provision of services, and the children could not safely remain in the home. Appellant was again allowed only supervised visitation. By entering these shelter orders, the trial court erred.

Sections 39.401(1) and 39.402(1), Florida Statutes, require that, before a court may order a child taken into custody or sheltered, it must receive sworn testimony to establish probable cause to support a finding that the child has been abused, abandoned, or neglected, or is in imminent danger of illness or injury as a result of *306 abuse, abandonment or neglect. Here, although two hearings were held, the court did not place anyone under oath or take sworn testimony of any kind before ordering the children sheltered. Significantly, the court did not even inquire about the allegations contained in the dependency petition, but instead focused only on new allegations, primarily the driving, that DCF admitted were under investigation.

Even if the facts relied upon by the trial court had been presented through sworn testimony, they were insufficient to establish a basis to shelter the children, because they did not evidence abuse, abandonment or neglect, as those terms are defined by statute.

We also note that even if the trial court had evidence before it which would have warranted sheltering the children, which it did not, there was absolutely no evidence that Appellant's visits should be supervised. There was neither evidence nor allegation that Appellant had endangered the children in any way when they were in his care.

The Dependency Order

An adjudicatory hearing was later held where sworn testimony was taken. Following the hearing, the trial court adjudicated the children dependent. In its order of adjudication, the court found it was in children's best interest to remain in the mother's custody under DCF supervision.

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Related

TF v. Department of Children and Family Services
881 So. 2d 702 (District Court of Appeal of Florida, 2004)

Cite This Page — Counsel Stack

Bluebook (online)
883 So. 2d 302, 2004 WL 1881750, Counsel Stack Legal Research, https://law.counselstack.com/opinion/amt-v-state-fladistctapp-2004.