CA v. Department of Children and Families

958 So. 2d 554, 2007 Fla. App. LEXIS 9214, 2007 WL 1690027
CourtDistrict Court of Appeal of Florida
DecidedJune 13, 2007
Docket4D06-4415
StatusPublished
Cited by15 cases

This text of 958 So. 2d 554 (CA v. Department of Children and Families) 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
CA v. Department of Children and Families, 958 So. 2d 554, 2007 Fla. App. LEXIS 9214, 2007 WL 1690027 (Fla. Ct. App. 2007).

Opinion

958 So.2d 554 (2007)

C.A., the Father, Appellant,
v.
DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.

No. 4D06-4415.

District Court of Appeal of Florida, Fourth District.

June 13, 2007.

*556 Kevin G. Thomas, Hallandale, for appellant.

Bill McCollum, Attorney General, Tallahassee, and Jeffrey P. Bassett, Assistant Attorney General, Fort Lauderdale, for appellee.

POLEN, J.

Appellant, C.A., the father, appeals the trial court's final adjudication of dependency of E.A., the minor child. In April 2006, the Department of Children and Families (DCF) filed an affidavit and petition for placement in shelter on behalf of E.A. As probable cause for removing E.A. from the home, DCF alleged E.A. "has been abused, abandoned, or neglected or is in imminent danger of illness or injury as a result of abuse, abandonment, or neglect." This action was prompted by his mother K.R.'s drug overdose in E.A.'s presence. C.A. was in the hospital at the time of the overdose. While K.R. agreed to the adjudication of dependency, C.A. did not and his case proceeded to trial. Following the presentation of evidence, the trial court made a final adjudication of dependency and placed E.A. with C.A.'s parents. C.A. raises two issues in this appeal and we find merit in both. We find there is insufficient evidence to support the trial court's adjudication of dependency and reverse.

For his first issue on appeal, C.A. argues the trial court erred in admitting K.R.'s hearsay statements, made to a DCF worker, Jillian Bleistein, into evidence. At trial, Ms. Bleistein relayed comments made by K.R. about her drug use. Defense counsel made a hearsay objection and DCF asserted that K.R. was a party and any statements she had made fell under the admissions by a party exception. Defense counsel asserted K.R. was no longer a party, as she had already consented to the dependency order. The trial court overruled the objection, finding K.R. was a party. K.R. told Bleistein that "they" did drugs in the bathroom of their house. Bleistein assumed K.R. was referring to herself and C.A.K.R. did not give specifics or details about any drug use by C.A.

Interpretation of the rules of evidence is reviewed de novo. See Linn v. Fossum, 946 So.2d 1032, 1036 (Fla.2006). Statements offered against a party are admissible and not hearsay if they are:

(a) The party's own statement in either an individual or a representative capacity;
(b) A statement of which the party has manifested an adoption or belief in its truth;
(c) A statement by a person specifically authorized by the party to make a statement concerning the subject;

§ 90.803(18)(a)-(c), Fla. Stat. C.A. argues K.R.'s statements were not admissible under this exception as she was no longer a party to the dependency proceeding, having previously consented to a dependency order.

We find K.R. was still a party to the proceeding even though she agreed to the dependency order. "`Party' means the parent or parents of the child, the petitioner, the department, the guardian ad litem or the representative of the guardian ad *557 litem program when the program has been appointed, and the child." § 39.01(50), Fla. Stat. An admission is made by a party to the litigation and it comes into evidence regardless of whether its maker is present at trial. Hunt v. Seaboard Coast Line R. Co., 327 So.2d 193, 195-96 (Fla.1976).

However, we find the trial court erred in allowing K.R.'s statements to come in as they were not made by C.A., and they were offered against C.A., not K.R. See § 90.803(18)(a), Fla. Stat. C.A. did not manifest an adoption or belief in the statement, or authorize K.R. to make the statement in his behalf. See § 90.803(1)(b)-(c), Fla. Stat. While the statements would be admissible at trial against K.R., even though they would be against both K.R.'s and C.A.'s interests, as K.R. had already settled with DCF and the trial court adopted this settlement, no issues concerning K.R. were before the trial court. Therefore it was error for the trial court to admit K.R.'s statements as they were solely against C.A.'s interest.

Further, we find admission of these statements was not harmless error. "To find this error to be harmless, this court must find that there is no reasonable possibility that the error contributed to the verdict." K.V. v. State, 832 So.2d 264, 266 (Fla. 4th DCA 2002). In its oral findings at trial, the trial court specifically stated its acceptance of K.R.'s statements that she and C.A. had used drugs in the bathroom of their home. The trial court's oral findings and final order indicate that its decision was based in large part on K.R. and C.A.'s alleged recent drug use. Therefore, we cannot say the admission of K.R.'s statements did not contribute to the verdict.

For his second issue on appeal, C.A. argues the trial court's finding of dependency is unsupported by the factual and legal evidence introduced at trial. Again, we agree.

A court's final ruling of dependency is a mixed question of law and fact and will be sustained on review if the court applied the correct law and its ruling is supported by competent substantial evidence in the record. Competent substantial evidence is tantamount to legally sufficient evidence. While a trial court's discretion in child welfare proceedings is very broad, reversal is required where the evidence is legally insufficient to sustain the findings of the trial court.

R.S. v. Dep't of Children and Families, 881 So.2d 1130, 1132 (Fla. 4th DCA 2004). "Weighing the evidence is the province of the trial court, and this Court will not disturb the trial court's credibility findings." Y.P. v. Dept. of Children and Family Services, 939 So.2d 1118, 1119-20 (Fla. 3d DCA 2006) (internal citations omitted). "In the event the evidence is conflicting or turns on credibility of the witnesses, all credence and presumption of correctness must be given to the trial court." F.R. v. Dep't of Children & Families, 826 So.2d 449, 450 (Fla. 5th DCA 2002).

The dependency petition filed by DCF alleged C.A. neglected E.A. because of his substance abuse problem and his behavior in leaving E.A. with K.R. when he had knowledge of her substance abuse problem. At trial, Bleistein testified she met with C.A. when he was in the hospital to talk about K.R.'s overdose. C.A. had been hospitalized for cellulitus at the time of K.R.'s overdose. Bleistein stated C.A. did not seem overly concerned about E.A. when they talked about K.R.'s overdose.

C.A. admitted that he and K.R. had used drugs in the past, although C.A. told her the last time he used drugs was a couple of years ago. However, after reading a Comprehensive Behavioral Health Assessment (CBHA) that was done on C.A., Bleistein *558 testified C.A. admitted to doing drugs "recently" when he met up with some old friends. Bleistein didn't know if "recently" referred to two years ago or a more recent occasion. C.A. had not been arrested on drug-related charges since 1999 and in fact, since E.A. was born, he had only received a ticket for failure to use his turn signal. Bleistein's assertion that C.A. neglected E.A. was based on the fact C.A. took no precautions to protect E.A. and left E.A. with K.R. while he was in the hospital. Bleistein admitted E.A. showed no physical signs of neglect or abuse.

C.A. testified in his own defense. C.A. heard about K.R.'s overdose from his mother approximately two hours before talking to Bleistein. C.A.

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958 So. 2d 554, 2007 Fla. App. LEXIS 9214, 2007 WL 1690027, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ca-v-department-of-children-and-families-fladistctapp-2007.