final until disposition of timely filed motion for rehearing.
Appeal from the Circuit Court for Miami-Dade County, Jason E.
Dimitris, Judge. Lower Tribunal No. 17-15364
Butler, P.A., and Thomas J. Butler, for appellant.
Perkins, for appellee.
ROTHENBERG, C.J., and SALTER and LINDSEY, JJ.
mother, C.H., appeals the trial court's order
adjudicating her minor child, L.W., dependent. Because the
trial court's determination that L.W. was at substantial
risk of imminent harm is not supported by competent
substantial evidence, we reverse the order adjudicating L.W.
dependent as to the mother.
May 2017, the Department of Children and Families
("DCF") initiated an abuse investigation after a
weapon was discharged in L.W.'s presence. Following the
investigation, in June 2017, DCF filed a verified petition
for dependency, alleging, in part, as follows: (1) the mother
abandoned L.W., as defined in section 39.01(1); and (2) L.W.
is "at a substantial risk of imminent abuse,
abandonment, or neglect" based, in part, on the
mother's alleged use of illegal drugs and the mother
leaving L.W. with an inappropriate caregiver-the mother's
sister ("maternal aunt").
adjudicatory hearing, DCF called its Child Protective
Investigator ("CPI"); L.W.'s maternal
grandmother, who was granted temporary custody of L.W.
following a shelter hearing; and the mother. The testimony at
the adjudicatory hearing reflects that the mother lived with
the maternal grandmother during her pregnancy, and following
L.W.'s birth in February 2016, the mother continued to
live at the maternal grandmother's home with L.W. until
December 2016, when the mother and L.W. moved out. While
living at the maternal grandmother's home, the mother
actively cared for L.W. and bought him necessities.
in March 2017, the mother gave the maternal aunt physical
custody of L.W. because she was unable to care for L.W. The
mother decided to leave L.W. with the maternal aunt because
the maternal grandmother worked fulltime whereas the maternal
aunt was not working. Prior to the mother leaving L.W. with
the maternal aunt, the mother knew that the maternal aunt had
a prior case with DCF, which was closed following the
maternal aunt's successful completion of her case plan
and the return of the child to the maternal aunt. Despite
knowing that the maternal aunt had a history with DCF, the
mother did not inquire into any specific facts relating to
the closed case.
May 2017, DCF became involved with L.W. following an abuse
report against the maternal aunt. The abuse report was based
on a gun being discharged in the presence of L.W. and the
maternal aunt's daughter. When the CPI became involved,
L.W. and the maternal aunt's daughter were clean, had no
bruises or marks, appeared to be well-fed, and were
conclusion of DCF's case, the trial court found that DCF
had failed to establish by a preponderance of the evidence
that the mother had abandoned L.W. or was using illegal
drugs. The trial court, however, adjudicated L.W. dependent
as to the mother based on its finding that L.W. was at
substantial risk of imminent harm because the mother had left
L.W. in the custody of an inappropriate caregiver-the
maternal aunt. Specifically, the trial court's order
provides that the fact that a gun was discharged in
L.W.'s presence "proves" that the mother's
placement of L.W. with the maternal aunt was inappropriate.
The trial court's order also states:
The Mother was aware of the maternal aunt's own
child's removal, yet never sought to inquire why that
removal occurred. This leaves the Court to conclude that the
Mother is willing to leave the Child anywhere without
questioning the environment so that she could go out and do
something else. ...