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De Hoyos v. Bauerfeind

Florida Court of Appeals, First District

December 16, 2019

Diego De Hoyos, Appellant,
v.
Julia Bauerfeind as Natural Guardian of Jan De Hoyos Bauerfeind, a Minor, Appellee.

         Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331.

          On appeal from the Circuit Court for Alachua County. Robert K. Groeb, Judge.

          John J. Kelly of Glassman & Zissimopulos, Gainesville, for Appellant.

          S. Scott Walker and A. Derek Folds of Folds, Walker & Maltby, LLC, Gainesville, for Appellee.

          Rowe, J.

         Dr. 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.

         I. Background

         Dr. 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 McCue.

         The 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.

         Bauerfeind's 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.

         De 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.

         Dr. 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 the child:

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 ...

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