In the Interest of C.E, a child.
DEPARTMENT OF CHILDREN AND FAMILIES and GUARDIAN AD LITEM PROGRAM, Appellees. K.E., Appellant,
FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF
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.
Thomasina 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 Mother's 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 Child's 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
court's finding that the Mother 'either inflicted the
[Child's] injury, or knows who did and is covering for
that person' [was] not based on competent, substantial
record evidence, but rather on the trial court's
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 court's 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 Child's 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 dependency have not been
established, the trial court shall dismiss the petition).
BLACK, and ...