B.W., THE MOTHER v. DEPARTMENT OF CHILDREN AND FAMILIES

• Court: District Court of Appeal of Florida
• Decided: May 24, 2023
• Docket: 21-2409
• Status: Published

Opinion

Third District Court of Appeal State of Florida

Opinion filed May 24, 2023. Not final until disposition of timely filed motion for rehearing.

________________

No. 3D21-2409 Lower Tribunal No. 21-15441 ________________

B.W., The Mother, Appellant,

vs.

Department of Children and Families, et al., Appellees.

An appeal from the Circuit Court for Miami-Dade County, Rosy Aponte, Judge.

Thomas Butler, P.A., and Thomas J. Butler, for appellant.

Karla Perkins, for appellee Department of Children & Families; Marshall Dennehey Warner Coleman & Goggin, and Kimberly Kanoff Berman (Fort Lauderdale); Sara E. Goldfarb (Tallahassee), for appellee Guardian ad Litem.

Before HENDON, MILLER, and LOBREE, JJ.

PER CURIAM. Appellant, B.W., the mother, appeals from an adjudication of

dependency as to her minor child. The petition for dependency, filed below,

alleged a myriad of grounds, but the adjudicatory hearing focused on a

discrete series of domestic incidents. At the conclusion of the hearing, the

lower court granted the petition on the basis that “the [m]other displayed lack

of behavioral control and impulse control and that there is a substantial risk

of harm to the [c]hild because the [m]other has a poor understanding of how

the violent behavior taking place affects her [c]hild.” Relying upon the

opinion of our sister court in C.W. v. Dep’t of Child. & Fams., 10 So. 3d 136

(Fla. 1st DCA 2009), as well as the opinion of this court in C.R. v. Dep’t of

Child. & Fams., 45 So. 3d 988 (Fla. 3d DCA 2010), we find the record devoid

of competent, substantial evidence the child was “abandoned, abused, or

neglected,” or at “substantial risk of imminent abuse, abandonment, or

neglect” by the mother. § 39.01(14)(a), (f), Fla. Stat. (2021); see also C.W.,

10 So. 3d at 138–39 (reversing trial court’s finding of dependency of three-

month-old child where record contained no evidence that child was aware of

domestic violence incident or was physically or mentally harmed); C.R., 45

So. 3d at 989 (finding past history of domestic abuse insufficient to support

finding of dependency where child’s parents separated, and court injunction

was entered to prevent any contact between parents); In re K.B., 937 So. 2d

2 709, 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 [domestic violence] 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.”); In re N.F., 82 So. 3d 1188, 1196 (Fla. 2d DCA

2012) (holding allegation of domestic violence between child’s parents was

insufficient to justify termination of parental rights where there “was no

assertion that the child had witnessed or been affected by the mother’s

battery of others or by their battery of her”); R.S. v. Dep’t of Child. & Fams.,

881 So. 2d 1130, 1133–35 (Fla. 4th DCA 2004) (finding father’s poor

parenting skills, lack of attachment to children, and substance abuse and

anger management issues constituted insufficient evidence that children

were at substantial risk of imminent harm to justify adjudication of

dependency); B.J. v. Dep’t of Child. & Fams., 190 So. 3d 191, 195 (Fla. 3d

DCA 2016) (reversing trial court’s order of adjudication of dependency of

minor child where Department of Children and Families failed to demonstrate

requirement under section 39.01(14)(f) of substantial risk of imminent

abuse); In re J.L., 824 So. 2d 1023, 1025 (Fla. 2d DCA 2002) (reversing

adjudication of dependency where evidence was insufficient “to establish a

nexus between the father’s health issues and his potential to harm or neglect

3 J.L.”). Accordingly, “[i]n the absence of any evidentiary finding that the child

appreciated or suffered any physical or mental injury, or a finding that the

mother posed a current threat of harm to the child, the trial court’s finding of

dependency cannot stand.” C.W., 10 So. 3d at 139. We therefore reverse

the order under review without prejudice to the Department to reinstitute

dependency proceedings, if appropriate, at such time as it is evident that

such action is warranted.

Reversed and remanded.