In the INTEREST OF C.E., a child. K.E., Appellant,
Department of Children and Families and Guardian Ad Litem Program, Appellees.
from the Circuit Court for Hillsborough County; Emily A.
L. Robbins and Elizabeth D. Burchell of Law Office of Scott
L. Robbins, Tampa, for Appellant.
Moody, Attorney General, Tallahassee, and Mary Soorus,
Assistant Attorney General, Tampa, for Appellee Department of
Children and Families.
Moore and Joanna Summers Brunell, Appellate Counsel,
Tallahassee, for Appellee Guardian ad Litem Program.
(the Mother) appeals the order adjudicating her child, C.E.
(the Child), dependent. We reverse.
approximately five weeks old, the Child suffered an oblique
fracture of his left humerus. In a previous opinion in this
case, K.E. v. Department of Children & Families, 263
So.3d 202, 213 (Fla. 2d DCA 2019), this court reversed the
final judgment terminating the Mothers parental rights,
holding, among other things, that the Department of Children
and Families (the Department) had "failed to prove that
the Mother was involved in egregious conduct or that the
Childs life, safety, or health would be threatened by
continued interaction with the Mother." See
also § 39.806(1)(c), (f), Fla. Stat. (2017). In so
holding, we concluded that "[t]he trial courts finding
that the Mother either inflicted the [Childs] injury, or
knows who did and is covering for that person [was] not
based on competent, substantial record evidence, but rather
on the trial courts speculation." K.E., 263
So.3d at 211. We also concluded that "[t]he Department
did not offer any evidence that the Child would be harmed by
continued custody with the foster parent while the Mother
worked on a case plan," and we noted parenthetically
that the Department did
not even offer any evidence "that leaving the Child in
the custody of the Mother would lead to abuse, abandonment,
or neglect." Id. at 213. We remanded for
further proceedings pursuant to section 39.811.
K.E., 263 So.3d at 213.
status conference on remand, both the Department and the
guardian ad litem requested that the trial court adjudicate
the Child dependent based on the evidence that had been
presented at the termination hearing. The court granted their
request and, without hearing any new evidence, adjudicated
the Child dependent under sections 39.01(15)(a) and (f),
Florida Statutes (2018), which define a dependent child as
one who was abandoned, abused, or neglected or who is at
substantial risk of imminent abandonment, abuse, or neglect.
trial courts findings in its dependency order are nearly
identical to those in its final judgment of termination of
parental rights. But its findings of abuse or neglect by the
Mother in connection with the Childs injury, as well as its
findings of a substantial risk of imminent abuse or neglect,
are no better supported now than they were then.
Consequently, they are insufficient even under the lower
preponderance-of-the-evidence standard applicable to
adjudications of dependency. See Guardian ad
Litem Program v. C.H., 204 So.3d 122, 124 (Fla. 2d DCA
2016) ("A child may be adjudicated dependent if the
court finds by a preponderance of the evidence that the child
is abused, abandoned, or neglected or that the child is at
substantial risk of imminent abuse, abandonment, or neglect.
" (citing § 39.01(15)(a), (f), Fla. Stat. (2015))). As
additional grounds for adjudicating the Child dependent, the
court, in its written order, cited evidence in the
termination proceeding that the Mother, who had been
breastfeeding, had smoked cigarettes despite having been
advised against it. The court also cited evidence that the
Mother, despite having been advised on "safe sleep
practices" and against "co-sleeping," had
nonetheless fallen asleep with the Child a few times and, on
one occasion, had dropped the Child after dozing off while
nursing him in her bed. Not only was this evidence a year old
at the time of the dependency adjudication (and nearly two
years old now), but we are loath to affirm an adjudication of
dependency based on evidence that a nursing new mother is a
therefore reverse the order adjudicating the Child dependent
and remand for dismissal of the petition. See §
39.811(1)(b) (providing that if grounds for termination of
parental rights have not been established by clear and
convincing evidence and grounds for ...