E.K. v. DEPT. OF CHILD

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Docket Number

No. 3D05-599.

Attorney(S)

Kevin Coyle Colbert, Miami, for appellant. Calianne P. Lantz, Assistant District Legal Counsel, for appellee.

Judges

Frank A. Shepherd

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Smart Summary

Factual and Procedural Background

E.K., a minor child, was taken into custody by the Department of Children and Families (DCF) two days after birth. Three weeks later, DCF petitioned the circuit court to adjudicate E.K. dependent as to both parents. The father, E.J.K., was charged solely with neglect, abandonment, and failure to protect the child by leaving her with the mother, who had a known history of substance abuse. The mother consented to the adjudication, while the father contested the petition. The father suffers from combat-related post-traumatic stress syndrome and intermittent depression but was found capable of parenting by his treating psychiatrist and group therapy leader. The child was never found to have suffered effects from the mother's substance abuse and was placed in either DCF custody or with the maternal aunt under court approval. The trial court adjudicated E.K. dependent as to the father, relying on allegations of neglect, mental illness, and abandonment. This appeal challenges that adjudication.

Legal Issues Presented

Whether the Department of Children and Families met its burden of proof to establish that the father was a dependent parent under Florida law based on neglect or abandonment.
Whether an amended charge of mental illness rendering the father incapable of parenting was supported by sufficient evidence.
Whether the trial court properly considered eleventh-hour arguments and theories advanced by DCF, including allegations of abandonment and prospective neglect.
Whether the doctrine of "Tipsy Coachman" is applicable to uphold the trial court’s order based on arguments first raised on appeal or at oral argument.

Arguments of the Parties

Appellee (Department of Children and Families) Arguments

Initially charged the father with neglect and failure to protect the child by leaving her with the mother, who had substance abuse issues.
Amended the petition on the day of trial to include a charge that the father’s mental illness rendered him incapable of caring for the child.
After trial, argued abandonment based on the father’s alleged failure to provide necessities unless asked and failure to communicate.
On appeal, shifted to an alternate theory of prospective neglect and abandonment under Florida Statutes.
At oral argument, advanced a new ground for affirmance based on disputed evidence of physical altercations between the father and mother during DCF-arranged visits.
Invoked the "Tipsy Coachman" doctrine to support affirmance based on arguments not presented below.

Appellant (Father) Arguments

Contested the neglect and abandonment charges, emphasizing his capability to parent despite mental health conditions.
Presented expert testimony confirming his fitness as a parent.
Argued that the evidence did not support findings of abandonment or neglect, particularly noting his provision of necessities when asked and regular communication and visitation.
Challenged the use of eleventh-hour theories and the applicability of the "Tipsy Coachman" doctrine to arguments raised for the first time on appeal or at oral argument.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
K.S. v. Dep't of Children Families, 760 So.2d 1068 (Fla. 5th DCA 2000)	Jurisdiction under section 39.815 and appellate procedure.	Established appellate jurisdiction and procedural context for review.
D.H. v. Dep't of Children Families, 769 So.2d 424, 427 (Fla. 4th DCA 2000)	Requirement of showing nexus between parent's mental condition and risk to child for adjudication based on prospective abuse.	Trial court’s rejection of mental illness charge was supported by lack of evidence connecting father's condition to parenting ability.
CM. v. Dep't of Children Family, 844 So.2d 765, 766 (Fla. 2d DCA 2003)	Establishing nexus for mental illness as basis for dependency adjudication.	Referenced in rejecting the mental illness claim due to insufficient proof of nexus.
Malu v. Sec. Nat'l Ins. Co., 898 So.2d 69, 73 (Fla. 2005)	Use of "Tipsy Coachman" doctrine to affirm judgments on alternative grounds supported by the record.	Doctrine rejected here because DCF’s argument was first presented on appeal and not in lower court.
Dade County Sch. Bd. v. Radio Station WQBA, 731 So.2d 638, 645 (Fla. 1999)	Explanation of "Tipsy Coachman" doctrine allowing affirmance on any ground supported by record.	Doctrine’s applicability limited where appellee’s argument was not presented below.
M.B. v. Dep't of Children Family Servs., 937 So.2d 709, 710 (Fla. 2d DCA 2006)	Requirement that domestic violence witnessed by child must cause injury to constitute abuse.	Used to reject DCF’s argument based on physical altercations lacking a finding of injury or adverse effect on child.
D.R. v. Dep't of Children Family Servs., 898 So.2d 254, 255 (Fla. 3d DCA 2005)	Standard that dependency adjudication requires competent substantial evidence.	Applied to reject abandonment claim due to evidence showing father provided necessities and maintained communication.
B.C. v. Dep't of Children Families, 846 So.2d 1273 (Fla. 4th DCA 2003)	Domestic violence between parents insufficient for dependency without showing effect on child.	Supported rejection of physical altercation argument.
W.T. v. Dep't of Children Families, 787 So.2d 184 (Fla. 5th DCA 2001)	Reversal of dependency finding absent evidence domestic violence affected child.	Referenced in rejecting dependency based on alleged domestic violence.
In re M.F., 770 So.2d 1189, 1192 (Fla. 2000)	Definition of abandonment requiring willful rejection of parental obligations.	Applied to conclude abandonment not established due to father’s efforts to support and communicate with child.
S.B. v. Dep't of Children Family Servs., 834 So.2d 415, 417 (Fla. 2d DCA 2003)	Failure to financially support child does not constitute abandonment if parent maintains contact and care.	Supported rejection of abandonment claim.
Santosky v. Kramer, 455 U.S. 745, 753 (1982)	Fundamental liberty interest of parents in care and custody of children.	Emphasized the need for DCF to properly plead and prove dependency allegations.
State ex rel. Sparks v. Reeves, 97 So.2d 18, 20 (Fla. 1957)	Recognition of parental fundamental liberty interest.	Reinforced the principle that parental rights require proper legal process.
Adams v. Shiver, 890 So.2d 1199, 1202 (Fla. 1st DCA 2005) (dissent)	Limitations on application of "Tipsy Coachman" doctrine when argument is first raised on appeal.	Supported court’s refusal to apply doctrine to DCF’s late-raised argument.

Court's Reasoning and Analysis

The court carefully examined the evolving legal theories advanced by DCF throughout the proceedings. Initially, DCF charged the father with neglect based on leaving the child with an impaired caretaker, the mother. On the day of trial, DCF amended the petition to include mental illness rendering the father incapable of parenting, but this was rejected by the trial court due to lack of evidence connecting the father's mental health to parenting ability, consistent with precedent requiring a nexus between mental condition and risk to the child.

DCF further argued abandonment based on the father's alleged failure to provide necessities unless asked and lack of communication. The court found the evidence insufficient to support abandonment, noting the father provided necessities when requested and maintained regular contact and visitation.

At appellate oral argument, DCF advanced a new theory based on physical altercations between the father and mother during supervised visits. The court rejected this argument because there was no finding of domestic violence adversely affecting the child, as required by controlling precedents, and because the argument was not presented below.

The court also declined to apply the "Tipsy Coachman" doctrine to uphold the trial court’s order on grounds first raised on appeal or at oral argument, emphasizing that the doctrine cannot be used to excuse a party’s failure to timely present its case or arguments in the trial court.

Ultimately, the court concluded that DCF failed to meet its burden to prove by a preponderance of the evidence that the father was dependent under Florida law. The court underscored the fundamental liberty interest parents have in the care and custody of their children, requiring DCF to properly plead and prove its case when a parent contests dependency allegations.

Holding and Implications

The court reversed the trial court’s adjudication of dependency as to the father.

The direct effect of this decision is to vacate the dependency finding against the father, thereby preserving his parental rights given the insufficiency of evidence to support neglect, abandonment, or incapacity. The opinion does not establish new legal precedent but reaffirms the requirement that DCF must properly plead and prove its case, and courts must apply existing standards rigorously to protect parental liberty interests.

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E.K., Appellant, v. DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Appellee.

SHEPHERD, J.

This is an appeal from a trial court order finding a minor child, E.K., dependent as to the father, E.J.K. We have jurisdiction, section 39.815, Florida Statutes (2004); Florida Rules of Appellate Procedure 9.146(b); K.S. v. Dep't of Children Families, 760 So.2d 1068 (Fla. 5th DCA 2000), and reverse.

FACTUAL BACKGROUND

The record reflects E.K. was taken into the custody of the Department of Children and Families (DCF) from a local hospital two days after she was born. Three weeks later, DCF petitioned the circuit court to have the child adjudicated dependent as to both the father and mother. The sole charge against the father was that he had "neglected, abandoned, and failed to protect the child by leaving the child with an inadequate and impaired caretaker, the mother, who the father knew or should have known, had a history of substance abuse, thereby placing the child at significant risk of harm." The mother, who has a serious substance abuse problem, consented to the adjudication. The father chose to contest the petition.

The father is not a drug user. However, he suffers from a moderate case of combat-related, post-traumatic stress syndrome and intermittent depression. He periodically sees a Veterans Administration supplied psychiatrist for the former condition and faithfully attends group therapy for support. The only medication he has needed for either condition during the last four years is the commonly prescribed anti-depressant Zoloft "on and off for occasional sleeplessness resulting from the depression. At trial, his psychiatrist and group therapy leader, an advanced nurse practitioner with a specialization in psychiatry and mental health, both testified the father was capable of parenting E.K.

There is no evidence the child was left with any effects from the mother's abuse. Since the time of DCF intervention, the child at all times has been housed either in a DCF shelter or with the maternal aunt pursuant to a court-approved placement.

DISCUSSION

Although it is quite apparent DCF believes the father is no more capable of parenting E.K. than the mother, the record of this case reflects continual change by DCF in its legal and factual theories to achieve that result. Apparently concerned about the viability of its petition as filed, see section 39.01(12), Florida Statutes (2004) ("`[c]hild' or `youth' means any unmarried person under the age of 18 years who has not been emancipated by order of the court"), DCF amended it on the day of trial to add a charge that the father was possessed of a mental illness that rendered him incapable of caring for the child. After trial, the trial judge rejected the amended charge on the ground DCF failed to prove any nexus between the father's mental health condition and ability to parent, see D.H. v. Dep't of Children Families, 769 So.2d 424, 427 (Fla. 4th DCA 2000) ("where adjudications are based upon prospective abuse, `there must be a showing in the record that the behavior of the parent was beyond the parent's control, likely to continue, and placed the child at risk'") (internal quotations omitted); see also CM. v. Dep't of Children Family, 844 So.2d 765, 766 (Fla. 2d DCA 2003) ("[g]enerally, this nexus is established when the parent has a mental or emotional condition that will continue, such as mental illness . . ."), but approved the original charge, holding that the father knowingly failed to prevent the mother's drug use during pregnancy, constituting actual abuse of E.K. by him within the meaning of section 39.01(2), Florida Statutes (2004). The trial court also found E.K. dependent as to the father based upon an unalleged, eleventh-hour DCF argument in its post-trial written submission, that the father abandoned the child within the meaning of section 30.01(1), Florida Statutes (2004), by failing to provide necessities for the child unless asked.

By the time the case arrived here, DCF abandoned the actual harm theory it had promoted from the outset, and sought to convert that charge into an affirmance based upon an alternate theory of " prospective neglect and abandonment" under section 39.01 (14)(f), Florida Statutes (2004). DCF continued to urge affirmance based upon its separate, eleventh-hour abandonment assertion. A few weeks later, at oral argument, DCF changed its position yet again, urging as its primary ground for affirmance disputed evidence of physical altercations between the father and the mother in the child's presence during DCF-arranged joint visits at the maternal aunt's residence. Of necessity, DCF invoked a frequently used doctrine of last resort, the "right for the wrong reason" or Tipsy Coachman doctrine, in an effort to excuse its legal meanderings. Malu v. Sec. Nat'l Ins. Co., 898 So.2d 69, 73 (Fla. 2005) (citing Dade County Sch. Bd. v. Radio Station WQBA, 731 So.2d 638, 645 (Fla. 1999)).

We reject DCF's most recent entreaty for affirmance — the physical altercation argument — for two reasons. First, there being no finding of domestic violence, we are unable to affirm on the ground that such domestic violence as may have occurred had an adverse effect on the child. See M.B. v. Dep't of Children Family Servs., 937 So.2d 709, 710 (Fla. 2d DCA 2006) (citing 39.01(2), Fla. Stat.) ("for `harm' resulting from witnessing domestic violence witnessed by the child to constitute `abuse,' the domestic violence witnessed by the child must result in some physical, mental, or sexual injury to the child"); D.R. v. Dep't of Children Family Servs., 898 So.2d 254, 255 (Fla. 3d DCA 2005) (affirming trial court finding of dependency where child's knowledge of domestic disputes "had an adverse [e]ffect on the child"); B.C. v. Dep't of Children Families, 846 So.2d 1273 (Fla. 4th DCA 2003) (adopting elements of W.T. v. Dep't of Children Families, 787 So.2d 184 (Fla. 5th DCA 2001) to conclude instances of domestic violence that took place between father and father's former wife in front of child did not provide sufficient grounds to adjudicate child dependent); W.T. v. Dep't of Children Families, 787 So.2d at 184-85 (reversing finding of dependency where there was no finding that any domestic violence between parents had any effect on the child).

Second, the "Tipsy Coachman" doctrine does not rescue parties from their own inattention to important legal detail. Rather, it is a doctrine that allows an appellee arguing for the affirmance of a judgment to "present any argument supported by the record even if not expressly asserted in the lower court," Dade County Sch. Bd. v. Radio Station WQBA, 731 So.2d at 645, and appellate courts latitude to uphold a judgment on the argument thus made. The doctrine is grounded on the view that it is "the decision of the trial court that primarily matters, not the reasoning used." Id. Here, however, DCF's primary ground for affirmance was not known either to us or opposing counsel until articulated during oral argument. We are unwilling to allow DCF to invoke the doctrine under these circumstances. Cf. Adams v. Shiver, 890 So.2d 1199, 1202 (Fla. 1st DCA 2005) (Browning, J., dissenting) (Tipsy Coachman doctrine not applicable where "the parties will, for the first time, become acquainted with the argument which forms the basis and rationale of the[e] court's decision upon receipt of the majority's opinion.").

As to the only other claim upon which the trial court found E.K. dependent as to the father, the eleventh-hour abandonment claim, this claim likewise is insufficiently supported by evidence adduced at the trial. D.R. v. Dep't of Children Family Servs., 898 So.2d at 255 ("An adjudication of dependency will be upheld where competent substantial evidence supports the trial court's findings of fact."). For a child to be adjudicated dependent as to a parent on the ground of abandonment, DCF must establish its allegations by a preponderance of the evidence that the parent "while being able, makes no provision for the child's support and makes no effort to communicate with the child, which situation is sufficient to evince a willful rejection of obligations." § 39.01(1), Fla. Stat. (2004) (emphasis added); In re M.F., 770 So.2d 1189, 1192 (Fla. 2000). Although the father here is not a perfect parent, the evidence in the record indicates he provided necessaries when asked and regularly visited and communicated with his daughter. See S.B. v. Dep't of Children Family Servs., 834 So.2d 415, 417 (Fla. 2d DCA 2003) (concluding that mother's failure to financially support child for two months when child stayed with grandmother did not constitute abandonment because mother tried to retrieve the child from grandmother's home, contacted the child, and gave authorization for medical treatment if necessary). The adjudication on this ground cannot stand.

We recognize the extraordinary responsibility the legislature has reposed in DCF to intervene to provide for the care, safety, and protection of the children of this state when statutorily required. § 39.001, Fla. Stat. (2004). However, it is also well settled that a parent has a fundamental liberty interest in the care, custody, and management of his or her child. Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982); State ex rel. Sparks v. Reeves, 97 So.2d 18, 20 (Fla. 1957). For this reason, DCF must, like any other litigant, be prepared to properly plead and prove its case when a parent contests its proposed action. Because DCF failed to meet its fundamental legal obligation in this regard in this case, we reverse the adjudication of dependency below.

Reversed.