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April 01, 2012

Evidence of Risks to Children Not Enough for Dependency Adjudication

The views expressed herein have not been approved by the House of Delegates or the Board of Governors of the American Bar Association, and accordingly, should not be construed as representing the policy of the American Bar Association.

Trial court improperly found children were dependent where risk factors either had not been shown to affect children or did not otherwise meet substantial criteria. Dependency finding requires evidence that children were harmed or are at imminent risk of abuse or neglect.

S.S. v. Dep’t of Children & Families, 2012 WL 752034 (Fla. Dist. Ct. App.).

Children, ages seven and 10, were removed and adjudicated neglected based on allegations that their mother placed them at imminent risk of neglect due to the mother’s alcohol and substance abuse, domestic violence, medical neglect, and psychological instability. The mother appealed.

For each allegation, the Florida District Court of Appeal found the evidence did not support findings that there was an imminent risk of neglect.

Regarding alcohol and substance use, evidence that the parent has extensive, abusive, and chronic substance use that adversely affects the child is required. The record in the circuit court revealed that mother’s former supervisor testified that she never saw her drunk or drinking at work. One of the children’s former teachers testified that the mother smelled of alcohol after school one day, but that she did nothing because the mother was speaking coherently and they were walking, not driving home. The only evidence of drug use was one alleged positive drug screen that was introduced without proper foundation as to the chain of command or by the custodian of the record.

Further, the record did not show that the mother’s substance use adversely affected the children. Witnesses testified that though the children were often tardy or absent from school, some were excused but that teachers described the children as clean, well kept, well mannered, and earning average or above average grades. An agency investigator described the home as having no hazards. In fact, no one described the children as being poorly cared for or suffering emotional harm.

As to the domestic violence allegation, though there was some history between the mother and her boyfriend, nothing indicated this occurred in front of the children or that they were aware of it. Though the children said that they had heard yelling, they did not report any physical violence and had not seen their mother with bruises. In fact, they had been staying with their father during one primary incident in question.

Regarding medical neglect, the fact that the children needed dental care before being placed in foster care did not support a neglect finding. While the children did need cleanings and fillings, there was no evidence of dental emergencies or suffering on the children’s parts.

As to testimony that the mother engaged in self harming cutting behavior, for which she was receiving therapy, the agency failed to show how this could harm the children.

Because the allegations were not supported by competent, substantial evidence showing a risk of imminent abuse or neglect, the adjudication of dependency was reversed.