appeal from the Circuit Court for Alachua County. Robert K.
Kelly of Glassman & Zissimopulos, Gainesville, for Appellant.
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 courts 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
childs 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
childs 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 McCue.
trial court held a hearing on Bauerfeinds petition. The
child did not testify. De Hoyos expected the childs
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),
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 sons 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 sons head hit the window of the
Mary McCue, the childs therapist, testified next. She agreed
to waive the therapist-patient privilege on behalf of the
child. Dr. McCue ...