L.M., MOTHER OF N.M. AND G.M., CHILDREN vs DEPARTMENT OF CHILDREN AND FAMILIES

• Court: District Court of Appeal of Florida
• Decided: April 28, 2022
• Docket: 21-2573
• 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

L.M., MOTHER OF N.M. AND G.M., CHILDREN,

Appellant,

v. Case No. 5D21-2573 LT Case No. 2021-DP-28 DEPARTMENT OF CHILDREN AND FAMILIES,

Appellee. ________________________________/ Opinion filed April 28, 2022

Appeal from the Circuit Court for Hernando County, Stephen E. Toner, Jr., Judge.

Kari Jorma Myllynen, The Law Offices of K.J. Myllynen, Esq., Land O’ Lakes, for Appellant.

Rachel Batten, of Children’s Legal Services, Brooksville, for Appellee, Department of Children and Families.

Sara Elizabeth Goldfarb, Statewide Director of Appeals, and Samantha C. Valley, Senior Attorney, of Guardian ad Litem, Tallahassee, for Guardian ad Litem Program.

SASSO, J. L.M., mother of N.M. and G.M. (“Mother”), appeals the trial court’s

order adjudicating the children dependent, contending the evidence was

legally insufficient to support the trial court’s determination. Mother also

appeals the post-dependency order denying her request for a home study.

This appeal arises out a petition for dependency filed by the

Department of Children and Families (“the Department”) on March 12, 2021,

wherein the Department alleged N.M. and G.M. should be adjudicated

dependent because Mother abused, abandoned, or neglected the children:

(1) by engaging in impulsive and violent behavior that displays a wanton

disregard for the presence of the children and could reasonably result in

serious injury to the children, and (2) due to an extensive history of substance

abuse to the extent that Mother’s ability to provide supervision and care for

the children is likely to be severely compromised. We agree with Mother that

the evidence is legally insufficient to support an adjudication of dependency

on both grounds. 1

While we afford deference to the trial court’s resolution of the

conflicting evidence in this case, we conclude that even still, the evidence

presented was legally insufficient to support a finding of dependency based

1 We have considered alternative bases for affirmance under the tipsy coachman doctrine, but our review is limited in this respect due to the lack of factual findings. 2 on either abuse or neglect based on controlled substance abuse. See, e.g.,

S.S. v. Dep’t of Child. & Fams., 81 So. 3d 618, 622 (Fla. 1st DCA 2012)

(evidence did not support determination of dependency based on

prospective abuse or neglect where no one testified that the children were

poorly cared for, or that either child suffered physical, mental, or emotional

harm because of the mother’s alcohol and drug use); In re T.B., 939 So. 2d

1192, 1194–95 (Fla. 2d DCA 2006) (holding that trial court’s finding that

mother had “no stable place to live” was legally insufficient to support

dependency when there was no evidence that the residential changes

caused the child to be deprived of food, clothing, shelter, or medical

treatment or that the child’s environment had caused her health to be

significantly impaired); In Interest of R.H., 516 So. 2d 324, 325–26 (Fla. 2d

DCA 1987) (holding that the children’s out-of-court statements to police

officer that they had not eaten all day, and mother’s statement that she was

residing at nonexistent address, were insufficient to support trial court’s

finding of neglect, where the children were not unsupervised and medical

examination revealed nothing abnormal about physical condition).

Similarly, we conclude the evidence is legally insufficient to support an

adjudication of dependency based on violent behavior. See, e.g., T.G. v.

Dep’t of Child. & Fams., 927 So. 2d 104, 106 (Fla. 1st DCA 2006) (evidence

3 of mother’s corporal discipline causing a bruise was insufficient to support

dependency determination where the Department produced no evidence

that the bruise required medical attention or evidence that the bruise was

significant); J.C. v. Dep’t of Child. & Fams., 773 So. 2d 1220, 1221–22 (Fla.

4th DCA 2000) (finding father’s routine spanking of his oldest child with a

belt, which on one occasion caused a bruise on the child’s buttocks, did not

qualify as excessive corporal discipline because the bruises were

insignificant, did not constitute temporary disfigurement, and did not put the

child at risk of imminent abuse or cause the child to suffer significant mental

impairment); In Interest of W.P., 534 So. 2d 905, 905 (Fla. 2d DCA 1988)

(holding evidence that father slapped the child on side of face with open hand

and mother pulled the child’s hair was insufficient to establish that parents

“abused” the child; the child required no medical attention, and there was no

testimony from any witness that slap or hair pulling significantly impaired the

child’s physical, mental, or emotional health); In Interest of G.D.H., 498 So.

2d 676, 677 (Fla. 1st DCA 1986) (holding testimony by the child that her

mother had on occasion spanked her by hand and with a belt and that mother

sometimes bruised her, and mother’s testimony that she never punished the

child without a reason was insufficient to show that the child was dependent

based on abuse); Kitchen v. Cerullo, 299 So. 3d 436, 440–41 (Fla. 3d DCA

4 2019) (“By this legal standard, Cerullo was required to present evidence that

the child was present or aware of the alleged domestic violence incident, and

that such exposure resulted in injury or harm to the child.”).

Because we conclude the evidence presented was legally insufficient

to support an adjudication of dependency, we reverse the order of

dependency as to Mother. We dismiss the portion of Mother’s appeal relating

to the denial of her request for a home study as the trial court’s determination

in that regard is not reviewable as a final or nonfinal order and Mother cannot

establish irreparable harm necessary to invoke this court’s jurisdiction for

certiorari relief.

REVERSED, in part; DISMISSED, in part.

NARDELLA, J., concurs. TRAVER, J., dissents without opinion.