N.S. v. DEPT. OF CHILDREN FAM

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Docket Number

CASE NOs. 5D02-1571 5D02-2247, 5D02-1609,

Attorney(S)

Rebecca L. O'Neill, of Jonathan P. Culver, P.A., for Appellant, N.S. Douglas L. Kirkland, Ocala, for Appellant, K.S. Ralph J. McMurphy, Department of Children and Families, Wildwood, for Appellee.

Judges

THOMPSON, J.

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Smart Summary

Factual and Procedural Background

N.S. (the father) and K.S. (the mother) appealed an order adjudicating their younger children, I.S., N.J.S., and A.S., dependent and granting maternal grandparents "party" status in the dependency proceedings. The amended petition for dependency alleged that M.M., the mother's child by a different father, had been physically abused by the mother and stepfather N.S., including being whipped with belts and beaten with a shoe. The petition contended that these allegations concerning M.M. placed the younger children at risk. However, there were no direct allegations or evidence that the younger children had been abused or neglected.

At the dependency hearing, testimony indicated that the younger children were removed solely based on allegations related to M.M., without any direct evidence of harm to them. The guardian ad litem had limited contact with the parents and no child protective team member had seen the younger children. Witnesses described M.M. as a troubled child with behavioral problems and bruises, but did not testify to abuse or neglect of the younger children.

The trial court adjudicated the younger children dependent based on the parents' failure to address M.M.'s mental health and bonding needs, concluding that the younger children were at risk of harm. The court also granted the maternal grandparents "participant" status, allowing them to participate in the proceedings as legal guardians and custodians of the children. Additionally, the trial court ordered N.S. to complete a batterer's intervention program.

The appeal challenged the dependency adjudication of the younger children, the granting of party status to the maternal grandparents, and the batterer's intervention program order.

Legal Issues Presented

Whether the trial court erred in adjudicating the younger children dependent based solely on allegations and evidence concerning M.M.
Whether the trial court properly granted the maternal grandparents "party" status in the dependency proceedings.
Whether N.S. waived the issue of being required to complete a batterer's intervention program.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
In re M.F., 770 So.2d 1189, 1194 (Fla. 2000)	Abuse or neglect of one child alone is insufficient to adjudicate siblings dependent without evidence linking the abuse to prospective harm.	Used to reverse the dependency adjudication of the younger children because the court did not find a nexus between M.M.'s abuse and probable abuse of the younger children.
M.N. v. Department of Children and Families, 826 So.2d 445 (Fla. 5th DCA 2002)	Requirement for evidence establishing a nexus between prior abuse of one child and risk of abuse to siblings for dependency adjudication.	Supported the court's conclusion that no competent evidence connected M.M.'s abuse to the younger children, warranting reversal of their dependency adjudication.
K.S. v. Department of Children and Families, 760 So.2d 1068 (Fla. 5th DCA 2000)	Procedural requirements for dependency proceedings and reversal for lack of dependency finding and procedural errors.	Referenced as background regarding prior proceedings involving this family and M.M.'s removal.

Court's Reasoning and Analysis

The court analyzed the dependency adjudication by examining the statutory definition of a dependent child, which requires a finding of substantial risk of imminent abuse, abandonment, or neglect by a parent or legal custodian. The court found that the only evidence presented related to abuse of M.M., and there was no direct evidence or findings connecting this abuse to a risk of harm to the younger children.

The court emphasized that adjudicating siblings dependent based solely on abuse of one child requires evidence establishing a nexus between the prior abuse and prospective abuse of the siblings. Since the department offered no such evidence and the court made no findings linking M.M.'s treatment to probable future harm to the younger children, the adjudication of dependency for the younger children was an abuse of discretion and lacked competent, substantial evidence.

Regarding the maternal grandparents' status, the court clarified that although the trial court allowed them to participate, it did not grant them formal "party" status. Because the grandparents were the legal guardians and custodians, they qualified as "participants" under Florida law, which allows participants to be heard without formal intervention motions.

Finally, the court held that N.S. waived the issue of the batterer's intervention program because he did not object when invited to do so before the case plan was accepted.

Holding and Implications

The court's final decision was to REVERSE the portion of the order adjudicating the younger children dependent, and to AFFIRM the remainder of the order, including the participation status of the maternal grandparents and the batterer's intervention program requirement for N.S.

As a direct consequence, the dependency case plan will remain effective only for M.M., not for the younger children. The decision does not establish new legal precedent but reinforces the requirement for competent evidence linking abuse of one child to a risk of abuse to siblings before adjudicating dependency for those siblings.

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N.S., PARENT OF M.M, I.S., N.S., ETC., et al., Appellant, v. 5D02-2247 DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.

THOMPSON, J.

N.S., the father, and K.S. ("the mother") appeal the order adjudicating their children, I.S., N.J.S., and A.S. (collectively "the younger children"), dependent and granting the maternal grandparents "party" status. Separately, N.S. contends that the trial court erred when it ordered him to complete a batterer's intervention program. We reverse the part of the order adjudicating the younger children dependent, but affirm in all other respects.

N.S. and the mother have three children together, I.S., N.J.S., and A.S. The mother also has a child, M.M., who is not the child of N.S. The amended petition for dependency alleged that M.M. said that marks observed on his arm were caused when the mother squeezed his arm. The petition also alleged that M.M. stated that his stepfather, N.S., did not like him and that N.S. and his mother whipped him with belts. He also stated that N.S. had beaten him with a shoe. The petition alleged that the allegations concerning M.M. placed the younger children at risk. There were no allegations in the petition that the parents had abused or neglected any of the younger children, nor were there allegations that the children might be abused in the future.

Section 39.01(14)(f), Florida Statutes, defines a dependent child in part as one found "to be at substantial risk of imminent abuse, abandonment or neglect by the parent or parents or legal custodians."

The language in the amended petition is not a model of clarity. The language reads: "The natural [parents], although able, [have] neglected or abused the children, and by [their] actions [have] inflicted or created the risk of significant mental, physical or emotional injury to the children . . ."

At the dependency hearing, the guardian ad litem admitted that she had only spoken with the parents once for about twenty or thirty minutes, and she admitted that the younger children were removed solely based on the allegations concerning M.M. A protective investigator testified that the recommendation had been to shelter all of the children although no child protective team member had seen the younger children. A former department employee testified that she had worked with the family, and that although she felt that N.S. was stricter than most parents and could use parenting classes, N.S. would not hurt a child. Witnesses testified that M.M. had been a troubled child since he was three years old. Although witnesses testified about M.M.'s bruises, his behavioral problems, and his chronic absenteeism from school, there was no testimony that the younger children had been abused or neglected.

In another case involving this family, M.M. was removed based on allegations of sexual molestation, mental injury, and inadequate supervision. This court reversed the disposition order based on numerous procedural errors and the lack of a dependency finding and remanded the case to the trial court to comply with the rules of juvenile procedure.See K.S. v. Department of Children and Families, 760 So.2d 1068 (Fla. 5th DCA 2000).

We agree that adjudicating the younger children dependent was an abuse of discretion. The only reason given by the trial court for adjudicating the younger children dependent was the testimony concerning abuse or neglect of M.M. The adjudication order states in part:

From the parents' failures and apparent disinclinations to respond to the apparent mental health and bonding needs of [M.M.] and [A.G.], the conclusion from the greater weight of the evidence is that [I.S.], [N.J.S.], and [A.S.] are in danger of harm, abuse, or neglect as well.

Without more, abuse or neglect of a child is an insufficient basis upon which to adjudicate the child's siblings dependent. In re M.F., 770 So.2d 1189, 1194 (Fla. 2000); see also M.N. v. Department of Children and Families, 826 So.2d 445 (Fla. 5th DCA 2002) (holding that evidence that father had physically abused his stepchild did not support a finding that his natural child was dependent). This court has held that in order to adjudicate a child dependent based upon the treatment of a sibling, there must be evidence "that establishes a nexus between the prior abuse and the allegation of prospective abuse." M.N., 826 So.2d at 448.

In the instant case, the court made no findings that drew a connection between the treatment of M.M. and the probable treatment of the younger children in the future. Indeed, the department offered no evidence to support a conclusion that the younger children were at risk. Here, because there was no showing that the abuse or neglect of M.M. predicted abusive or neglectful behavior toward the younger children, the order finding them at risk of abuse or neglect was not supported by competent, substantial evidence and must be reversed.

The mother and N.S. also contend that the trial court erred when it granted the maternal grandparents "party" status. The trial court ruled that the maternal grandparents were "participants" and allowed them to participate, but did not grant them "party" status. Because the grandparents were the legal guardians and actual custodians of M.M. and the younger children, they were "participants" in the proceedings pursuant to section 39.01(50), Florida Statutes (2001). Under that section, a participant may be granted leave by the court to be heard without filing a motion to intervene. See also Rule 8.210(b), Fla. R. Juv. P. (2001).

Section 39.01(50), Florida Statutes, reads in part:

Participant, for purposes of a shelter proceeding, dependency proceeding, or termination of parental rights proceeding, means any person who is not a party but who should receive notice of hearings involving the child, including foster parents or the legal custodian of the child, identified prospective parents, grandparents entitled to priority for adoption consideration . . ., actual custodians of the child, and any other person whose participation may be in the best interest of the child.

(emphasis added).

Finally, we conclude that the father has waived the issue of his being required to complete a batter's intervention program. The court invited objections before accepting the case plan, and N.S. made none.

Because the order adjudicating the younger children dependent is reversed, the case plan will be effective only for M.M.

The order on appeal is affirmed except the part adjudicating I.S., N.J.S., and A.S. dependent, which is reversed.

AFFIRMED in part; REVERSED in part.

SAWAYA, C.J., and HARRIS, C., Senior Judge, concur.