       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT

                             J.D., the mother,
                                Appellant,

                                     v.

             DEPARTMENT OF CHILDREN AND FAMILIES
                and GUARDIAN AD LITEM PROGRAM,
                           Appellees.

                              No. 4D18-2432

                             [January 2, 2019]

   Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Alberto Ribas, Jr., Judge; L.T. Case No. 2018-905CJ-DP.

    Antony P. Ryan, Director, and Paul O’Neil, Assistant Regional Counsel,
Office of Criminal Conflict and Civil Regional Counsel, West Palm Beach,
for appellant.

   Pamela Jo Bondi, Attorney General, Tallahassee, and Carolyn Schwarz,
Assistant Attorney General, Fort Lauderdale, for appellee Department of
Children and Families.

   Thomasina Moore, Statewide Director of Appeals, Florida Statewide
Guardian ad Litem Office, Tallahassee, and Aislynn Thomas-McDonald of
Hershoff Lupino & Yagel, LLP, Tavernier, for appellee Guardian ad Litem
Program.

FORST, J.

   J.D. (“the mother”) appeals an adjudication of dependency as to her two
children. She argues that neither the facts nor law support the trial court’s
determination. As explained below, we affirm.

                               Background

   The events leading to the petitions for dependency are as follows. The
mother was taken to the hospital by ambulance, complaining of
pregnancy-related bleeding. She left her seventeen-month-old child at
home with her boyfriend’s family. Her boyfriend had gone to a party the
night before and not yet returned.

   The mother, who was eight months pregnant, initially told hospital staff
that her boyfriend beat her with a belt and with his hand “[a]nywhere it
landed.” She also informed the staff that she was worried her boyfriend’s
family would not feed her elder child. Hospital staff informed the mother
that they were calling the police, and the mother asked them not to and
began to recant her allegations.

    The police arrived at the hospital and spoke to the mother with hospital
staff present. She told a sheriff’s office investigator that “she was scared
for her life” and was “concerned for her child’s safety with her boyfriend.”
Another officer observed bruises on the mother including one on her
temple. She told the officer that her boyfriend had slapped her on her face
after coming home drunk from a club. She mentioned he had been
arrested for one such incident of domestic violence. Upon learning the
officer was going to arrest her boyfriend, however, the mother again
recanted her allegations.

    A Child Protective Investigator (“CPI”) spoke to the mother regarding the
domestic violence and the concern for the elder child. The mother stated
that her boyfriend was only hitting her and not the child “so it was okay.”
The mother also indicated that her boyfriend needed to be in the home to
take care of the child. The CPI told the mother that the elder child needed
to be removed from the care of her boyfriend’s family and asked if she had
family in Florida that could care for the child. The mother said that she
did not have relatives in Florida and that her family lived in Haiti. The
mother stated that she wanted the child to stay with her boyfriend while
she was hospitalized. When the CPI informed the mother that her
boyfriend was being arrested, the mother became hysterical. The CPI
attempted to redirect the mother to the concerns for the elder child’s safety
to no avail. Because the mother was being hospitalized and because she
reported having no relatives to care for the child, the elder child was
sheltered. It eventually came to light that both of the mother’s parents
lived in Fort Lauderdale.

    The Department of Children and Families (DCF) filed for dependency,
alleging the mother had neglected the elder child and placed both children
at substantial risk of harm, abuse, and neglect. At trial, the mother
testified that she reported abuse out of jealousy. She explained: “But this
is not true. I also told them that he hit [the elder child] and this is not
true. But I was just upset because he had left me pregnant and I didn’t
know whether he was out with another woman.” The sheriff’s office

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investigator and hospital social worker denied the mother had reported
any physical abuse of the elder child, and no one from the hospital testified
otherwise. The social worker did report that the boyfriend once dismantled
the elder child’s crib and forced her to sleep on the floor.

    The trial court concluded that the children had been neglected and
inferred “a pattern, a cycle of violence in the home which poses a threat of
harm to both children” and that the mother’s expressed desire to continue
to live with her boyfriend placed “the children at imminent risk of abuse
and neglect.” In reaching this conclusion, the trial court found that the
mother’s own admissions, corroborated by other witnesses’ testimony,
established there was ongoing domestic violence in the home—including
earlier in the mother’s pregnancy. The trial court also determined that the
mother’s reports of domestic violence, while seeking medical attention,
were more credible than her recantation upon learning her boyfriend
would be arrested. Based on her own admission, the mother relied on the
boyfriend financially and to help care for the children. She was scared and
concerned for losing her boyfriend’s financial assistance and would have
reason to recant her statements.

    The court also found that testimony from the police “proves [the]
mother’s own admissions” that the boyfriend had hit the elder child. It
also noted that no actual abuse needed to be proven or even that the
children were present or aware of the domestic violence. Accordingly, the
trial court found the children dependent and placed them with their
maternal grandmother, with a case plan goal of reunification.

                                  Analysis

   In a dependency proceeding, DCF must establish its allegations by a
preponderance of the evidence. In re M.F., 770 So. 2d 1189, 1192 (Fla.
2000). A court’s final ruling of dependency is a mixed question of law and
fact and will be sustained on review if the court applied the correct law
and its ruling is supported by competent substantial evidence in the
record. Id.; see also E.H. v. Dep’t of Children & Families, 147 So. 3d 616,
620 (Fla. 4th DCA 2014). The evidence presented is “[v]iewed in the light
most favorable to sustaining the adjudication of dependency.” B.C. v. Dep’t
of Children & Families, 846 So. 2d 1273, 1274 (Fla. 4th DCA 2003).

    Initially, we note the trial court’s finding that testimony from the police
investigator “proves [the] mother’s admission[]” that her boyfriend had hit
the elder child is not supported by competent, substantial evidence. None
of the witnesses testified that the mother had made such an accusation,


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and DCF’s answer brief does not contend that the boyfriend had physically
abused the child.

   Nonetheless, there is sufficient evidence in the record to sustain the
adjudication of dependency which the trial court “based upon the Mother’s
neglect of the children and/or substantial risk of imminent abuse or
neglect . . . .” It is not necessary to establish that the child saw or was
aware of the domestic violence for a finding of neglect. C.J. v. Dep’t of
Children & Families, 968 So. 2d 121, 122 (Fla. 4th DCA 2007) (noting that
the standard for “abuse” differs from “neglect,” as domestic violence in the
home constitutes child abuse only if the child is present); see also §
39.01(50), Fla. Stat. (2018) (defining “neglect,” in relevant part, to occur
“when a child is . . . permitted to live in an environment when such . . .
environment causes the child’s physical, mental, or emotional health to be
significantly impaired or to be in danger of being significantly impaired”).

   We agree with the trial court that DCF presented competent,
substantial evidence of several incidents of domestic violence directed by
the boyfriend against the mother. Nonetheless, the mother continued the
relationship with her boyfriend and recanted her prior reports of domestic
violence in an effort to protect him. “[W]hen there is a history of domestic
violence and the parents’ relationship is ongoing, prior incidents of
domestic violence can support a finding that a present threat of harm
exists.” M.B. v. Dep’t of Children & Families, 937 So. 2d 709, 711 (Fla. 2d
DCA 2006).

    In M.B., the Second District reversed the trial court’s dependency
determination, in part, because “the situation that gave rise to the
domestic violence no longer exists, and the children are not exposed to a
present threat of harm by continued acts of domestic violence.” Id. at 712.
The court noted “the evidence showed that the parents are currently living
apart and both have begun relationships with others.” Id. Here, in
contrast, the mother testified that she still wanted to live with the
boyfriend and relied on his financial support. She also recanted her
accusations when faced with the arrest of her boyfriend, just after she had
told hospital staff and law enforcement that her boyfriend had hit her
numerous times while she was pregnant. As such, there is support for the
trial court’s conclusion that the children were exposed to “a present threat”
of neglect.

                                Conclusion

   We are cognizant that the mother is a victim of domestic violence, not
the perpetrator. Nevertheless, the primary purpose of a petition for

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dependency is to protect the child, not to punish the caregiver. § 39.001,
Fla. Stat. (2018); A.B. v. Dep’t of Children & Family Servs., 901 So. 2d 324,
327 (Fla. 3d DCA 2005). Based on the foregoing discussion, we conclude
the trial court did not err in adjudicating the two children to be dependent
as to the mother. DCF will engage with the mother to develop a case plan,
with the goal of reunification of the mother with her children. Thus, this
dependency action—unlike a TPR action—shouldn’t be viewed as an
ending, but rather, as a beginning.

   Affirmed.

GERBER, C.J., and KLINGENSMITH, J., concur.

                            *        *         *

   Not final until disposition of timely filed motion for rehearing.




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