J.W.H. v. Department of Children & Family Services

956 So. 2d 1210, 2007 Fla. App. LEXIS 7579, 2007 WL 1452172
CourtDistrict Court of Appeal of Florida
DecidedMay 18, 2007
DocketNos. 2D06-3715, 2D06-3756
StatusPublished

This text of 956 So. 2d 1210 (J.W.H. v. Department of Children & Family Services) 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
J.W.H. v. Department of Children & Family Services, 956 So. 2d 1210, 2007 Fla. App. LEXIS 7579, 2007 WL 1452172 (Fla. Ct. App. 2007).

Opinion

NORTHCUTT, Judge.

The circuit court rendered an order that adjudicated two-year-old J.H. to be a dependent child and placed her with her maternal grandmother. The child’s parents, J.W.H., Sr., and S.M., have filed sep-ai'ate appeals in which they contend that the evidence failed to prove that they neglected their daughter. We have consolidated their cases sua sponte.

A dependency determination is a mixed question of law and fact. The court’s order will be sustained on appeal if the court applied the correct law and the ruling is supported by competent substantial evidence in the record. S.G. v. Dep’t of Children & Family Servs. (In re I.B.), 946 So.2d 650, 652 (Fla. 2d DCA 2007) (citing R.F. v. Fla. Dep’t of Children & Families (In re M.F.), 770 So.2d 1189, 1192 (Fla.2000)). In this case, we reverse the dependency order because the evidence did not support it.

The dependency proceeding had its genesis in an anonymous telephone call to the Department of Children and Family Services’ abuse hotline in the late-night hours of February 4, 2006. The caller made several complaints about the parents’ care of J.H. that have never been substantiated. Pertinent to this appeal, however, the caller also claimed that J.H. was underweight to the point that she looked “like a skeleton with her skin on.” The Department sent a child protection investigator to the family’s home around two o’clock in the morning of February 5, 2006. The investigator spoke with the parents and examined the child. She did not think J.H. was dangerously underweight. Rather, she found a small but healthy-looking child with a “round and rosy” face. The responding investigator did not remove J.H. from the home, but she obtained the name of the child’s pediatrician.

The case was then assigned to a different investigator, who reviewed the family’s history. She became concerned when she learned that, some years before, S.M.’s older daughter from a previous relationship had been removed from S.M.’s home and placed with the maternal grandmother. The investigator asked the parents to permit a home visit. J.W.H. agreed, but citing his hectic work schedule, he asked her to call him to make an appointment. He also gave the investigator permission to contact J.H.’s pediatrician.

The pediatrician’s office told the investigator that J.H. was underweight and was characterized as failing to thrive.1 Without seeing J.H. for herself or reviewing the child’s medical records, the investigator convinced the local Child Protection Team (CPT) to examine her. (The CPT initially refused to examine the girl because she was already under a doctor’s care.) The [1212]*1212investigator arranged for S.M. to take the girl to the CPT appointment the next morning. At the CPT exam, J.H. was found to be undernourished and failing to thrive. She was referred to a growth clinic, which the mother agreed to attend.

Apparently, S.M. had failed to mention the CPT appointment to the child’s father. Upon learning of the examination and the growth clinic referral, J.W.H. made an angry telephone call to the investigator to complain that he had not been consulted. The investigator attempted to explain the need for the referral, but the father declared that his child would not be seen without a court order. Later that day, the Department sheltered J.H. and placed her with her maternal grandmother.

In March 2006, the Department filed a dependency petition alleging that the parents neglected J.H. by depriving her of necessary food and medical treatment.2 See § 39.01(43), Fla. Stat. (2006). At the hearing on the petition in mid-June 2006, the Department presented the testimony of the second child protection investigator, who described the previously detailed events leading to the decision to remove J.H. from her parents’ home. The Department’s only other witness was Dr. Carol Lilly, an expert in pediatric undernutrition. Dr. Lilly had examined J.H. and counseled the family at the growth clinic after the CPT’s referral. (

Dr. Lilly first examined and evaluated J.H. in March 2006. J.H.’s height was in the normal range for a two-year-old, but her weight was far below normal. Dr. Lilly performed several laboratory tests in search of an organic factor — a chronic illness, a biological problem, or a physiological symptom- — that might be the cause of J.H.’s low weight gain. She found nothing. She diagnosed J.H. with mild to moderate chronic undernutrition and developmental delay. Dr. Lilly continued to monitor J.H.’s weight at the growth clinic and referred her to Early Steps to address the developmental delays.

Dr. Lilly’s determination that J.H. had a chronic condition was based on her review of the records maintained by J.H.’s pediatrician. They reflected that J.H.’s weight gain began decreasing when she was six months old. The pediatrician recommended that the parents give J.H. high calorie supplements. Later, he referred the parents to the Special Supplemental Nutrition Program for Women, Infants, and Children (WIC) to obtain additional nutritional boosters. The pediatrician’s records did not detail what, if any, counseling was given to the parents, nor did they reflect whether the doctor was concerned with what the parents were or were not doing to address J.H.’s poor weight gain. Dr. Lilly expressed surprise that the records did not mention J.H.’s developmental delays, which should have been noticed in a typical pediatric screening. Dr. Lilly did not speak with the pediatrician, nor did the Department call him as a witness in the dependency hearing.

Dr. Lilly met with S.M. and other family members at the growth clinic. She never met J.W.H. because the shelter order effectively prohibited him from attending the appointments. At the first visit, Dr. Lilly was concerned that the mother and the maternal grandmother did not fully appreciate J.H.’s problems. On subsequent visits, Dr. Lilly noted that the family did not appear to understand or follow through with the recommendations of the clinic. Dr. Lilly thought that the family needed help with organizing and adhering to feeding schedules for J.H. She testified that [1213]*1213maintaining a routine is important in encouraging a young child to eat regularly. The pediatrician’s records did not indicate that the family had been previously instructed on these tasks. Further, the mother and the grandmother were slow to accept the referral to Early Steps to address J.H.’s developmental delays, and they declined home services.

The parents testified in opposition to the petition. Both acknowledged that they had known of their daughter’s weight problem. But they asserted that they had followed all of their pediatrician’s recommendations. They gave the child high-calorie supplements such as PediaSure and took her to WIC when referred. Both parents testified that S.M. had taken J.H. to the pediatrician regularly and had reported to J.W.H. that the baby was fine and just a little underweight. Indeed, both parents thought J.H. was doing well.

J.W.H. testified that he regretted his hostile telephone call to the child protection investigator in which he initially refused services. He explained that he made the call because he was upset when he learned that the investigator, who had promised to contact him to schedule a home visit, had instead arranged the CPT appointment without consulting him. Since then, he testified, he had encouraged the mother to fully comply with all the agencies’ recommendations for J.H.3

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Bluebook (online)
956 So. 2d 1210, 2007 Fla. App. LEXIS 7579, 2007 WL 1452172, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jwh-v-department-of-children-family-services-fladistctapp-2007.