final until disposition of any timely and authorized motion
under Fla. R. App. P. 9.330 or 9.331.
appeal from the Circuit Court for Alachua County. Robert K.
J. Kelly of Glassman & Zissimopulos, Gainesville, for
Scott Walker and A. Derek Folds of Folds, Walker &
Maltby, LLC, Gainesville, for Appellee.
Diego De Hoyos appeals a final judgment of injunction against
domestic violence entered against him after the mother of his
nine-year-old son alleged that De Hoyos hit the child in the
face. De Hoyos argues that the trial court erred by relying
on child hearsay statements without determining whether the
statements were reliable. He argues that without the
inadmissible hearsay, no competent, substantial evidence
supports the trial court's finding that an act of
domestic violence occurred. We agree and reverse.
Julia Bauerfeind petitioned for an injunction against
domestic violence on behalf of her son against De Hoyos, the
child's father. Bauerfeind alleged that De Hoyos injured
the child by striking him in the face when De Hoyos was
taking the child to school. Bauerfeind claimed that De Hoyos
hit the child's head against the window of the car after
the child asked to return home to grab his jacket. When the
petition was filed, Bauerfeind and De Hoyos were in a legal
dispute over paternity and time-sharing. During that same
time, the child was in treatment with a therapist, Dr. Mary
trial court held a hearing on Bauerfeind's petition. The
child did not testify. De Hoyos expected the child's
therapist and Bauerfeind to testify about statements the
child made to them about the alleged abuse. De Hoyos'
counsel objected to the hearsay testimony. Counsel argued
that the court needed to determine whether the statements
were admissible under the child hearsay exception provided in
section 90.803(23), Florida Statutes.
counsel disagreed and argued that the statements were
admissible without reference to the hearsay exception, citing
the decisions in Berthiaume v. B.S. ex rel. A.K., 85
So.3d 1117 (Fla. 1st DCA 2012), and Hughes v.
Schatzberg, 872 So.2d 996 (Fla. 4th DCA 2004). The trial
court agreed with Bauerfeind. The court noted De Hoyos'
standing objection to the admission of the hearsay statements
and the hearing continued.
Hoyos testified that he chastised his son for taking too much
time to do his hair before they left for school, when the son
knew they were in a rush. De Hoyos admitted that he put his
hand either on his son's head or on his shoulder after
his son told him that he "wished that during the day
today a large black man would come and break [De Hoyos']
face." But De Hoyos denied that his son's head hit
the window of the car.
Mary McCue, the child's therapist, testified next. She
agreed to waive the therapist-patient privilege on behalf of
the child. Dr. McCue testified about her conversations with
So [the child] explained that in the morning they were
running behind and that they got into the car, and [the
child] realized that he forgot his coat. So he went back in
to retrieve his coat. When he got back into the car, his
father was highly irritated that it took [the child] three
minutes to retrieve his coat. [The child] described Diego
questioning him about what he was doing in the house, why it
was taking him so long.
And that appeared to escalate to the point where Diego
started calling him-this is where I need my notes- a
"sneaky bag of shit," a "bag of shit," a
"motherfucker," and a ...