N.E.R. v. Department of Children & Family Services

District Court of Appeal of Florida

N.E.R. v. Department of Children & Family Services

11 So. 3d 1013, 2009 Fla. App. LEXIS 9438, 2009 WL 1975940

CourtDistrict Court of Appeal of Florida

DecidedJuly 10, 2009

DocketNo. 2D08-3563

StatusPublished

Cited by2 cases

This text of 11 So. 3d 1013 (N.E.R. 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.

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N.E.R. v. Department of Children & Family Services, 11 So. 3d 1013, 2009 Fla. App. LEXIS 9438, 2009 WL 1975940 (Fla. Ct. App. 2009).

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Opinion

SILBERMAN, Judge.

N.E.R. appeals an order entitled “Order Withholding Adjudication and Disposition as to the Mother, [N.E.R.] (pursuant to § 39.507(5) Florida Statutes).” In the order, the trial court found the Mother’s two children, M.C. and H.C., to be dependent but withheld adjudication of dependency. The Mother also appeals an order that [1014]*1014requires her to participate in Family Dependency Treatment Court as a result of the dependency and disposition order. The Department concedes error, and we reverse.

We have jurisdiction to review the order finding the children to be dependent but withholding adjudication of dependency. See P.H. v. Dep’t of Children & Families, 901 So.2d 277, 277 (Fla. 5th DCA 2005); R.B. v. Dep’t of Children & Families, 799 So.2d 441, 442 (Fla. 5th DCA 2001); E.M.A. v. Dep’t of Children & Families, 795 So.2d 183, 184 (Fla. 1st DCA 2001); F.R. v. Dep’t of Children & Families, 763 So.2d 478, 479 (Fla. 5th DCA 2000).

The Mother argues, and the Department concedes, that the Department failed to prove abuse, abandonment or neglect, or imminent risk thereof. See § 39.01(14)(a), (f), Fla. Stat. (2007). The record supports the Department’s concession and that, it failed to prove the Mother’s “[cjontinued chronic and severe use of a controlled substance or alcohol” that “demonstrably adversely affected” her children. § 39.01(31)(g)(2); see also J.B.M. v. Dep’t of Children & Families, 870 So.2d 946, 950 (Fla. 1st DCA 2004).

We note that the Guardian ad Litem (GAL) does not concede error. With respect to the GAL’s argument concerning prospective abuse or neglect, the substantial risk of abuse or neglect to the child must be imminent. See § 39.01(14)(f); N.D. v. Dep’t of Children & Family Servs., 939 So.2d 1192, 1194 (Fla. 2d DCA 2006). The trial court did not make a finding of an imminent risk, and the Department failed to prove an imminent risk.

Therefore, we reverse the order finding the children dependent and withholding adjudication of dependency. We also reverse the order entered as a result of the dependency order that requires the Mother to participate in Family Dependency Treatment Court.

Reversed.

FULMER and NORTHCUTT, JJ., Concur.

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SILBERMAN, Judge.

N.E.R. appeals an order entitled “Order Withholding Adjudication and Disposition as to the Mother, [N.E.R.] (pursuant to § 39.507(5) Florida Statutes).” In the order, the trial court found the Mother’s two children, M.C. and H.C., to be dependent but withheld adjudication of dependency. The Mother also appeals an order that [1014]*1014requires her to participate in Family Dependency Treatment Court as a result of the dependency and disposition order. The Department concedes error, and we reverse.

We have jurisdiction to review the order finding the children to be dependent but withholding adjudication of dependency. See P.H. v. Dep’t of Children & Families, 901 So.2d 277, 277 (Fla. 5th DCA 2005); R.B. v. Dep’t of Children & Families, 799 So.2d 441, 442 (Fla. 5th DCA 2001); E.M.A. v. Dep’t of Children & Families, 795 So.2d 183, 184 (Fla. 1st DCA 2001); F.R. v. Dep’t of Children & Families, 763 So.2d 478, 479 (Fla. 5th DCA 2000).

The Mother argues, and the Department concedes, that the Department failed to prove abuse, abandonment or neglect, or imminent risk thereof. See § 39.01(14)(a), (f), Fla. Stat. (2007). The record supports the Department’s concession and that, it failed to prove the Mother’s “[cjontinued chronic and severe use of a controlled substance or alcohol” that “demonstrably adversely affected” her children. § 39.01(31)(g)(2); see also J.B.M. v. Dep’t of Children & Families, 870 So.2d 946, 950 (Fla. 1st DCA 2004).

We note that the Guardian ad Litem (GAL) does not concede error. With respect to the GAL’s argument concerning prospective abuse or neglect, the substantial risk of abuse or neglect to the child must be imminent. See § 39.01(14)(f); N.D. v. Dep’t of Children & Family Servs., 939 So.2d 1192, 1194 (Fla. 2d DCA 2006). The trial court did not make a finding of an imminent risk, and the Department failed to prove an imminent risk.

Therefore, we reverse the order finding the children dependent and withholding adjudication of dependency. We also reverse the order entered as a result of the dependency order that requires the Mother to participate in Family Dependency Treatment Court.

Reversed.

FULMER and NORTHCUTT, JJ., Concur.

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11 So. 3d 1013, 2009 Fla. App. LEXIS 9438, 2009 WL 1975940, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ner-v-department-of-children-family-services-fladistctapp-2009.

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