J.W., FATHER OF J.W., Z.R.W., AND Z.W., CHILDREN vs DEPARTMENT OF CHILDREN AND FAMILIES

• Court: District Court of Appeal of Florida
• Decided: May 3, 2022
• Docket: 22-0045
• Status: Published

Opinion

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT

NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

J.W., FATHER OF J.W., Z.R.W., AND Z.W., CHILDREN,

Appellant, v. Case No. 5D22-0045 LT Case No. 2020-30407-CJCI DEPARTMENT OF CHILDREN AND FAMILIES,

Appellee. ________________________________/

Opinion filed May 3, 2022

Appeal from the Circuit Court for Volusia County, A. Kathleen McNeilly, Judge.

Richard F. Joyce, Special Assistant Regional Counsel, of Office of Criminal Conflict & Civil Regional Counsel, Casselberry, for Appellant.

Ward L. Metzger, of Children’s Legal Services, Tallahassee, for Appellee, Department of Children and Families. EVANDER, J.

The Father of J.W., Z.R.W., and Z.W. appeals an order finding his

children dependent based on his violent behavior during altercations with the

children’s mother. We affirm the trial court’s order as to the youngest child,

J.W., who was present and physically impacted during one incident of

domestic violence. Competent, substantial evidence supports the trial

court’s determination that the father engaged in violent behavior that

demonstrated a wanton disregard for the presence of J.W. that could have

reasonably resulted in serious injury to the child. See § 39.01(35)(i), Fla.

Stat. (2019).

We reverse the trial court’s order finding J.W.’s two older sisters

dependent. There was no competent evidence that these siblings were

aware of the domestic violence, nor was there sufficient evidence to support

a finding of prospective abuse.

We conclude that the other arguments raised by the Father are either

unpreserved or without merit.

AFFIRMED, in part; REVERSED, in part; REMANDED.

COHEN, J., concurs. EISNAUGLE, J., concurs in result only, with opinion.

2 Case No. 5D22-45 LT Case No. 2020-30407-CJCI

EISNAUGLE, J., concurring in result only with opinion.

I agree with the majority that there was no competent, substantial

evidence to support the trial court’s adjudication of dependency as to Z.R.W.

and Z.W. We must therefore reverse as to J.W.’s two older sisters.

However, while I would affirm as to J.W., I do not agree with the

majority’s reason for doing so. On appeal, Father argues that the evidence

was insufficient because the trial court relied on inadmissible hearsay. While

that is true, Father failed to preserve this argument with a timely objection at

trial. See Sunset Harbour Condo. Ass’n v. Robbins, 914 So. 2d 925, 928

(Fla. 2005) (“In order to be preserved for further review by a higher court, an

issue must be presented to the lower court and the specific legal argument

or ground to be argued on appeal or review must be part of that presentation

if it is to be considered preserved.” (quoting Tillman v. State, 471 So. 2d 32,

35 (Fla. 1985))). This argument is therefore without merit.

Notably, Father does not argue on appeal that the trial court’s findings

lack evidentiary support even if we consider, as we must, the unobjected-to

hearsay evidence. Cf. Wilson v. Dep’t of Child. & Fams., 326 So. 3d 170,

171 (Fla. 5th DCA 2021) (“Whether a better argument for reversal could have

been made here by [appellant] is not our task to address. Simply put, it is

3 neither the function nor role of an appellate court to make an argument for a

party.” (citation omitted)); Rosier v. State, 276 So. 3d 403, 407 (Fla. 1st DCA

2019) (“In his initial brief, Rosier argued only that the trial court failed to hold

a competency hearing. Now on rehearing, he argues, for the first time, that

the hearing was inadequate. Because Rosier did not challenge the adequacy

of the competency hearing in his initial brief, he may not raise it now on

rehearing.” (citations omitted)). For that reason, I would affirm as to J.W.