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C.H. v. Department of Children and Families

Florida Court of Appeals, Third District

May 30, 2018

C.H., the mother, Appellant,
v.
Department of Children and Families, Appellee.

         Not final until disposition of timely filed motion for rehearing.

          An Appeal from the Circuit Court for Miami-Dade County, Jason E. Dimitris, Judge. Lower Tribunal No. 17-15364

          Thomas Butler, P.A., and Thomas J. Butler, for appellant.

          Karla Perkins, for appellee.

          Before ROTHENBERG, C.J., and SALTER and LINDSEY, JJ.

          ROTHENBERG, C..J.

         The 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.[1]

         In late 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").

         At the 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.

         Sometime 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.

         In late 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 appropriately clothed.

         At the 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. ...

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