               NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
                      MOTION AND, IF FILED, DETERMINED

                                             IN THE DISTRICT COURT OF APPEAL

                                             OF FLORIDA

                                             SECOND DISTRICT

In the Interest of J.H., Le.H., and La.H., )
children.                                  )
___________________________________)
                                           )
GUARDIAN AD LITEM PROGRAM,                 )
                                           )
               Appellant,                  )
                                           )
v.                                         )                  Case No. 2D16-2200
                                           )
C.H. and N.H.; and DEPARTMENT OF           )
CHILDREN AND FAMILES,                      )
                                           )
               Appellees.                  )
                                           )

Opinion filed November 16, 2016.

Appeal from the Circuit Court for Lee
County; Lee Ann Schreiber, Judge.

Laura J. Lee, Sanford, for Appellant.

Michael Mummert, Naples, for Appellees
C.H. and N.H.

Stephanie C. Zimmerman, Children's Legal
Services, Bradenton, for Appellee
Department of Children and Families.

MORRIS, Judge.

             The Department of Children and Families (DCF) filed a petition for

dependency of the appellees' three young children: Le.H., his twin brother La.H., and

their toddler sister, J.H. The trial court adjudicated Le.H. dependent but denied the
petition as to La.H. and J.H. The Guardian Ad Litem Program (GAL) appeals, asserting

that the trial court abused its discretion by finding that La.H and J.H. are not at

substantial risk of imminent harm. We agree. Because the trial court failed to recognize

the nexus between the severe abuse of Le.H. and the substantial risk of significant

harm to his siblings, we reverse.

                                      BACKGROUND

              When Le.H. was two months old, his mother brought him to the hospital

emergency room for a fever and cough. An x-ray of the infant showed multiple rib

fractures in several locations and at different stages of healing. DCF was notified and

filed a shelter petition as to all three children; however, the trial court granted the

petition as to Le.H. but denied the petition as to his siblings. The GAL filed a petition for

writ of certiorari to review this order, and this court granted the petition and quashed the

order to the extent that it failed to shelter La.H. and J.H. We held that because the trial

court found probable cause to shelter Le.H. based on his parents' alleged physical

abuse through the unexplained rib fractures, the trial court departed from the essential

requirements of law when it failed to shelter his similarly situated siblings who were

equally susceptible to the kind of physical abuse inflicted upon Le.H. N.H. v. Dep't of

Children & Families, 192 So. 3d 592, 594-95 (Fla. 2d DCA 2016).

              While the certiorari proceeding was pending in this court, the trial court

held an adjudicatory hearing on DCF's dependency petition. In an April 2016 order—

just one month shy of this court's issuance of the opinion quashing the shelter order—

the trial court granted the dependency petition as to Le.H., finding that his parents had

abused or had not protected him. The trial court denied the dependency petition as to




                                             -2-
La.H. and J.H., finding that they are not at imminent risk of substantial harm. We hold

that the trial court's finding is not supported by substantial competent evidence.

              Numerous witnesses testified at the dependency adjudicatory hearing

concerning Le.H.'s injuries. An image screening taken in September 2015 showed no

evidence that Le.H. had any fractures. But x-rays performed on Le.H. at the emergency

room in November 2015 revealed multiple rib fractures in different locations and at

different stages of healing. Le.H.'s mother and father denied harming him.

              A physician working with the Child Protective Team (CPT) who examined

Le.H.'s November x-ray results testified that Le.H. suffered several different rib fractures

with at least one or two different stages of healing. The physician ordered additional x-

rays, which were taken on November 21, 2015. This set of x-rays indicated that the

initial fractures were still present and revealed an additional fracture on the left tenth rib

that was not initially visible. The physician opined that the fractures occurred on three

or four different occasions and were indicative of physical abuse. Le.H. suffered from

no underlying medical conditions. The physician explained that an infant suffering from

rib fractures would experience pain, discomfort, and fussiness.

              Law enforcement officers testified that neither the mother nor the father

could explain the injuries. Additionally, a detective related that when speaking about

Le.H.'s injuries, the mother seemed more concerned about potential consequences at

work than the actual injuries themselves. He explained that while law enforcement had

not established probable cause to arrest anyone for Le.H.'s injuries, the investigation

revealed that only the mother, the father, and the maternal grandmother have cared for

the children. The Child Protective Supervisor and Child Welfare Case Manager testified




                                             -3-
that their concerns for all three children have not been alleviated; in their opinions, La.H.

and J.H. remain in immediate danger based on Le.H.'s unexplained, significant injuries

and the mother's inability to care for her three, very young children.

                                       DISCUSSION

              A child may be adjudicated dependent if the court finds by a

preponderance of the evidence that the child is abused, abandoned, or neglected or

that the child is "at substantial risk of imminent abuse, abandonment, or neglect." See §

39.01(15)(a), (f), Fla. Stat. (2015). We review a dependency adjudication as a mixed

question of law and fact and will affirm the trial court's findings if they are supported by

competent, substantial evidence. See S.T. v. Dep't of Children & Family Servs., 87 So.

3d 827, 833 (Fla. 2d DCA 2012). Abuse is defined as "any willful act or threatened act

that results in any physical, mental, or sexual abuse, injury, or harm that causes or is

likely to cause the child's physical, mental, or emotional health to be significantly

impaired." § 39.01(2). With regard to potential abuse, the questions become whether

future behavior (1) will adversely affect the child and (2) can be clearly as well as

certainly predicted. See F.S.G. v. Dep't of Children & Family Servs., 825 So. 2d 530,

531 (Fla. 2d DCA 2002).

              In our opinion quashing the order that failed to shelter La.H. and J.H., we

recognized that "the connection between the unexplained abuse of a child and the

substantial risk of significant harm to a sibling can warrant the removal of both children,

even though one child has yet to be abused." N.H., 192 So. 3d at 595; see also Dep't of

Children & Family Servs. v. K.D., 88 So. 3d 977 (Fla. 2d DCA 2012), superseded on

other grounds by § 39.806(1)(f), Fla. Stat. (2014); H.B. v. Dep't of Children & Family




                                            -4-
Servs., 971 So. 2d 187 (Fla. 2d DCA 2007). In determining whether a connection or

nexus exists, the inquiry is whether DCF proved that there is a substantial risk of harm

to the sibling stemming from the abuse of the child. K.D., 88 So. 3d at 984. To that

end, courts must examine the totality of the circumstances surrounding the dependency

or termination petition. See, e.g., R.F. v. Fla. Dep't of Children & Families, 770 So. 2d

1189, 1194 (Fla. 2000) (holding that a ruling of dependency cannot be based solely on

the fact that the parent committed a sex act on a different child; instead, the decision

must focus on all of the circumstances).

              When we quashed the initial shelter order for failing to shelter La.H. and

J.H, we relied largely upon the reasoning outlined in K.D., in which we reviewed an

order terminating the parental rights to identical twins—one of whom suffered fractures

to his leg, skull, and ribs during the first two weeks of his life. K.D., 88 So. 3d at 980.

We found that although K.D.'s sibling did not suffer any abuse, "he was identically

situated to his injured twin and equally susceptible to the same unexplained abuse."

N.H., 192 So. 3d at 595 (citing K.D., 88 So. 3d at 986). Even though a termination of

parental rights case is subject to a higher standard of proof than the preponderance of

the evidence standard used in a dependency proceeding, the fact remains that in this

case, as in K.D., an infant suffered significant injuries—characterized as physical

abuse—that are unexplained.

              Likewise, although La.H and J.H. had suffered no abuse as of the date of

the dependency hearing, both young children are identically situated to Le.H. based on

age, vulnerability, and proximity. Because Le.H.'s unexplained injuries were inflicted on

multiple occasions and competent substantial evidence shows that Le.H.'s similarly




                                             -5-
situated siblings are at risk of suffering the same kind of physical abuse, the trial court's

finding that both La.H. and J.H. are not at risk of imminent danger is contrary to our

holding in K.D. and is not supported by competent substantial evidence.

              DCF proved that there is a nexus between Le.H.'s unexplained injuries

and the significant risk of harm to his siblings. Thus, we affirm the order adjudicating

Le.H. dependent but reverse the order to the extent that the trial court failed to

adjudicate La.H. and J.H. dependent.

              Affirmed in part, reversed in part, and remanded.



CASANUEVA and SALARIO, JJ., concur.



.




                                            -6-
