                                     IN THE DISTRICT COURT OF APPEAL
                                     FIRST DISTRICT, STATE OF FLORIDA

DEPARTMENT OF CHILDREN               NOT FINAL UNTIL TIME EXPIRES TO
AND FAMILIES,                        FILE MOTION FOR REHEARING AND
                                     DISPOSITION THEREOF IF FILED
      Appellant,
                                     CASE NO. 1D15-3624
v.

S.A.E., Mother of A.A.A.-E.,

      Appellee.

_____________________________/

Opinion filed February 2, 2016.

An appeal from the Circuit Court for Okaloosa County.
Mary Polson, Judge.

Dwight O. Slater, Children's Legal Services, Department of Children and Families,
Tallahassee, for Appellant.

Jennifer H. Copus of Copus & Copus, P.A., Shalimar, for Appellee.




BILBREY, J.

      The Florida Department of Children and Families appeals the final order of

which adjudicated A.A.A.-E. dependent, on the ground that the trial court
misapplied section 39.01(15)(a), Florida Statutes, to the undisputed facts of the

case. We agree with DCF and reverse the final order.

        This case commenced when A.A.A.-E.’s mother, S.A.E., filed her private

petition for dependency 1 in the circuit court.      She sought to have A.A.A.-E.

declared a dependent child as defined in section 39.01(15), Florida Statutes,

because the child was abandoned by his father in their native country of Honduras,

approximately twelve years prior to the final hearing. The threat or risk to the

child, which the mother sought to remedy via her petition, was the possible

deportation of A.A.A.-E. by federal authorities due to his unauthorized entry into

the United States three years prior to the filing of the mother’s amended petition.

The mother asserted that A.A.A.-E. needed the court adjudication to support an

application for a Special Immigrant Juvenile Visa under the federal Immigration

and Naturalization Act, 8 U.S.C. § 1101 (a)(27)(J)(i)-(iii). 2


1
  A petition filed by a person who has knowledge of the facts but is not filing on
behalf of the State is commonly referred to as a “private petition for dependency,”
to distinguish such a case from one initiated by the DCF. See § 39.501 Fla. Stat.
(petition to be filed by attorney for DCF or any other person with knowledge of the
facts).
2
    8 U.S.C.A. § 1101(a)(27)(J) provides in pertinent part:
        (27) The term “special immigrant” means—
                                      * * *
         (J) an immigrant who is present in the United States—
              (i) who has been declared dependent on a juvenile court
              located in the United States or whom such a court has
              legally committed to, or placed under the custody of, an
                                          2
      The mother’s testimony at the final hearing supported her allegations and the

trial court’s findings of fact. A.A.A.-E.’s father knew of the child’s existence and

knew he was the father from the time the child was born, yet the father never

contributed to the child’s support or developed any relationship with the child.

A.A.A.-E. was left in the care of his maternal grandparents in Honduras while the

mother moved to the United States. When the grandparents were no longer able to

take care of A.A.A.-E., his father escorted the child through Mexico and then

turned him over to a smuggler to enter the United States. Immigration authorities

detained A.A.A.-E., and were then able to locate the mother in Florida and reunite

the child with her.

      The mother testified that she was willing and able to continue to provide for

all of A.A.A.-E.’s needs. The trial court specifically found, and DCF agrees, that

“the safety, well-being, and physical, mental and emotional health of the Child is

             agency or department of a State, or an individual or entity
             appointed by a State or juvenile court located in the
             United States, and whose reunification with 1 or both of
             the immigrant’s parents is not viable due to abuse,
             neglect, abandonment, or a similar basis found under
             State law;
             (ii) for whom it has been determined in administrative or
             judicial proceedings that it would not be in the alien’s
             best interest to be returned to the alien’s or parent’s
             previous country of nationality or country of last habitual
             residence; and
             (iii) in whose case the Secretary of Homeland Security
             consents to the grant of special immigrant juvenile
             status....
                                         3
not endangered by the Child remaining in the custody of the Mother.” The only

risk of imminent harm to A.A.A.-E. proven at the hearing was the possibility of

deportation and return to Honduras by federal authorities, not any harm caused by

abuse, neglect, or abandonment by his mother, his father, or any other caregiver.

      This case is factually similar to In re B.Y.G.M., 176 So. 3d 290 (Fla. 3d

DCA 2015), In re K.B.L.V., 176 So. 3d 297 (Fla. 3d DCA 2015), and other recent

cases where children residing in Florida or their caregivers sought to support

applications to the federal immigration authorities with Florida circuit court

adjudications of dependency. 3 As noted in In re B.Y.G.M. and In re K.B.L.V., this

Court reviews the trial court’s application of the statutes to the uncontroverted

facts de novo. This standard of review applies where the petitioners unsuccessfully

appeal denials of their petitions, as in In re B.Y.G.M. and In re K.B.L.V., and

where, as here, DCF appeals the trial court’s adjudication of dependency based on

undisputed facts. See § 39.510, Fla. Stat.




3
  Even with the adjudication of dependency, A.A.A.-E. apparently would not fall
under Florida’s definition of a child who “may be eligible for special immigrant
juvenile status under federal law” since he resides with his mother and is therefore
not eligible for long-term foster care. See § 39.5075(1)(b)2, Fla. Stat. In re
S.A.R.D., ___ So. 3d ___, 2016 WL 145999 (Fla. 3d DCA Jan. 13, 2016), and In
re Y.V., 160 So. 3d 576 (Fla, 1st DCA 2015) provide excellent discussions of the
interplay between the state courts’ dependency systems and federal immigration
law, and explain why an adjudication of dependency would be sought to assist in
procuring special immigrant status.
                                          4
      A petitioner’s admitted intent to use an adjudication of dependency to

support federal immigration proceedings does not preclude a petitioner seeking

such an adjudication. See In re Y.V., 160 So. 3d at 578 (reversing dismissal of

minor orphan’s petition for adjudication since motivation for petition — to

facilitate immigration status — did not negate prima facie case for dependency); In

re T.J., 59 So. 3d 1187 (Fla. 3d DCA 2011) (reversing summary denial of minor

orphan’s petition seeking adjudication as dependent where petition stated prima

facie case and should have proceeded to adjudicatory hearing). In fact, courts have

repeatedly held that a petitioner’s immigration-related motivation for seeking an

adjudication of dependency is irrelevant to the determination of whether or not the

child is dependent due to abandonment. In re B.Y.G.M., 176 So. 3d at 293

(advancing immigration process without any need for relief from abuse,

abandonment or neglect was “no basis for a declaration of dependency under these

circumstances”); In re K.B.L.V., 176 So. 3d at 299-300 (sole need for adjudication

was to support certain immigration status; only threat to child’s well-being was

potential deportation; no valid basis to qualify for declaration of dependency);

O.I.C.L. v. Dep’t of Children and Families, 169 So. 3d 1244, 1249 (Fla. 4th DCA

2015), rev. granted, ___ So. 3d ___, 2015 WL 6854614 (Fla. Oct. 30, 2015)

(“determination of a child’s status as dependent should be made independent of his

motivations for seeking that status.”); F.L.M. v. Dep’t of Children & Families, 912

                                        5
So. 2d 1264, 1269 (Fla. 4th DCA 2005) (orphan’s intent to use adjudication of

dependency to apply for immigration permit “is irrelevant”).

      Because a petitioner’s immigration-related motivation for seeking an

adjudication of dependency is irrelevant to the determination of whether a child is

dependent, it follows that immigration considerations alone cannot constitute

sufficient grounds upon which a child may be adjudicated dependent. The use of

an abandonment by one parent in a child’s country of origin, which has little if any

present effect on the child, to support an adjudication of dependency under section

39.01(15), is a misapplication of that statute which leads to an absurd result. See

In re K.B.L.V., 176 So. 3d at 299-300. Where, as here, it was undisputed that the

child is receiving appropriate care in a single-parent home, a finding of

“abandonment” as the ground for an adjudication of dependency, with the

concomitant obligations for DCF to provide government supervision and services,

is contrary to the provisions of the pertinent statutes and the clear legislative intent

of chapter 39.4

      Granted, it is possible to find a child dependent based on one parent’s

actions. But to construe the definition of dependency in section 39.01(15)(a) as

4
  Section 39.001, Florida Statutes, sets out at length and in detail the legislative
purpose and intent of chapter 39. The “paramount concern” of the statutory
scheme is child safety, particularly safety from abuse, abandonment, and neglect.
§ 39.001(1)(b)&(3), Fla. Stat. A pathway to legal immigration is not one of the
enumerated protections to be afforded by DCF’s child protection system.

                                           6
including every child living in a single parent household with adequate support and

care whose second parent is absent, would be contrary to the plain meaning of the

statute which provides very specific grounds for a finding of dependency. Our

precedent, consistent with In re B.Y.G.M., and In re K.B.L.V., requires that,

      “[T]o support a finding of dependency, the parent's harmful behavior
      must pose a present threat to the child based on current
      circumstances.” C.W. v. Dep't of Children & Fams., 10 So.3d 136,
      138 (Fla. 1st DCA 2009). “[I]n the absence of actual abuse,
      abandonment, or neglect, a finding of dependency can be made if
      prospective abuse, abandonment, or neglect is shown to be imminent.”
      J.B.M. v. Dep't of Children & Fams., 870 So.2d 946, 951 (Fla. 1st
      DCA 2004) (citations omitted). “The terms ‘prospective’ and
      ‘imminent’ are not defined in the statute. ‘Prospective’ simply means
      likely to ‘happen,’ or ‘expected.’ ‘Imminent’ encompasses a narrower
      time frame and means ‘impending’ and ‘about to occur’.” E.M.A. v.
      Dep't of Children & Fams., 795 So.2d 183 n. 3 (Fla. 1st DCA 2001)
      (internal citations omitted).
S.S. v. Dep't of Children & Families, 81 So. 3d 618, 621 (Fla. 1st DCA 2012). The

father’s harmful behavior — his abandonment of A.A.A.-E. in Honduras twelve

years ago — does not pose a present threat to A.A.A.-E. Furthermore, there is no

allegation of prospective or imminent abandonment to support a finding that

A.A.A.-E. is dependent.5


5
  Our recent case In re Y.V., is distinguishable. There the child was residing safely
with his uncle, but it was alleged that both parents had abandoned the child and
that no parent was capable of providing supervision and care. In re Y.V., 160 So.
3d at 578, citing § 39.01(15)(a)&(f), Fla. Stat. We analyzed other cases and held
that going forward to hearing on the dependency petition was appropriate, “[d]ue
to the lack of a legally compelled relationship between the children and their
caretakers.” In re Y.V., 160 So. 3d at 579. We noted that the children in In re
                                           7
      However well-intentioned the adjudication of dependency was in this case,

and however beneficial it was to A.A.A.-E.’s immigration prospects under federal

law, the risk of potential deportation by federal authorities is not a danger Florida’s

child protective services system is intended or designed to address. Accordingly,

the trial court’s adjudication of dependency of A.A.A.-E. based on his father’s

abandonment which occurred in Honduras twelve years ago, despite the child’s

current beneficial situation with his mother, is REVERSED.

THOMAS and KELSEY, JJ., CONCUR.




Y.V. and the other cases allegedly “were not adequately protected from the harms
chapter 39 is designed to prevent and remedy” and therefore a hearing was
necessary on the dependency petition. Id.
                                        8
