                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 C.E, a child.        )
                                        )
                                        )
K.E.,                                   )
                                        )
              Appellant,                )
                                        )
v.                                      )    Case No. 2D19-1191
                                        )
DEPARTMENT OF CHILDREN AND              )
FAMILIES and GUARDIAN AD LITEM          )
PROGRAM,                                )
                                        )
              Appellees.                )
                                        )

Opinion filed November 8, 2019.

Appeal from the Circuit Court for
Hillsborough County; Emily A.
Peacock, Judge.

Scott L. Robbins and Elizabeth D.
Burchell of Law Office of Scott L.
Robbins, Tampa, for Appellant.

Ashley Moody, Attorney General,
Tallahassee, and Mary Soorus,
Assistant Attorney General, Tampa,
for Appellee Department of Children
and Families.

Thomasina Moore and Joanna
Summers Brunell, Appellate Counsel,
Tallahassee, for Appellee Guardian ad
Litem Program.
PER CURIAM.

              K.E. (the Mother) appeals the order adjudicating her child, C.E. (the

Child), dependent. We reverse.

              At approximately five weeks old, the Child suffered an oblique fracture of

his left humerus. In a previous opinion in this case, K.E. v. Department of Children &

Families, 263 So. 3d 202, 213 (Fla. 2d DCA 2019), this court reversed the final

judgment terminating the Mother's parental rights, holding, among other things, that the

Department of Children and Families (the Department) had "failed to prove that the

Mother was involved in egregious conduct or that the Child's life, safety, or health would

be threatened by continued interaction with the Mother." See also § 39.806(1)(c), (f),

Fla. Stat. (2017). In so holding, we concluded that "[t]he trial court's finding that the

Mother 'either inflicted the [Child's] injury, or knows who did and is covering for that

person' [was] not based on competent, substantial record evidence, but rather on the

trial court's speculation." K.E., 263 So. 3d at 211. We also concluded that "[t]he

Department did not offer any evidence that the Child would be harmed by continued

custody with the foster parent while the Mother worked on a case plan," and we noted

parenthetically that the Department did not even offer any evidence "that leaving the

Child in the custody of the Mother would lead to abuse, abandonment, or neglect." Id.

at 213. We remanded for further proceedings pursuant to section 39.811. K.E., 263

So. 3d at 213.

              At a status conference on remand, both the Department and the guardian

ad litem requested that the trial court adjudicate the Child dependent based on the

evidence that had been presented at the termination hearing. The court granted their



                                             -2-
request and, without hearing any new evidence, adjudicated the Child dependent under

sections 39.01(15)(a) and (f), Florida Statutes (2018), which define a dependent child as

one who was abandoned, abused, or neglected or who is at substantial risk of imminent

abandonment, abuse, or neglect.

              The trial court's findings in its dependency order are nearly identical to

those in its final judgment of termination of parental rights. But its findings of abuse or

neglect by the Mother in connection with the Child's injury, as well as its findings of a

substantial risk of imminent abuse or neglect, are no better supported now than they

were then. Consequently, they are insufficient even under the lower preponderance-of-

the-evidence standard applicable to adjudications of dependency. See Guardian ad

Litem Program v. C.H., 204 So. 3d 122, 124 (Fla. 2d DCA 2016) ("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.' " (citing § 39.01(15)(a), (f), Fla. Stat.

(2015))). As additional grounds for adjudicating the Child dependent, the court, in its

written order,1 cited evidence in the termination proceeding that the Mother, who had

been breastfeeding, had smoked cigarettes despite having been advised against it. The

court also cited evidence that the Mother, despite having been advised on "safe sleep

practices" and against "co-sleeping," had nonetheless fallen asleep with the Child a few

times and, on one occasion, had dropped the Child after dozing off while nursing him in

her bed. Not only was this evidence a year old at the time of the dependency



              1At the status conference, the trial court did not mention these additional
grounds for adjudicating the Child dependent; there, the sole reason that the court gave
was "the fact that I think there was intentional injury."

                                            -3-
adjudication (and nearly two years old now), but we are loath to affirm an adjudication of

dependency based on evidence that a nursing new mother is a tired smoker.

              We therefore reverse the order adjudicating the Child dependent and

remand for dismissal of the petition. See § 39.811(1)(b) (providing that if grounds for

termination of parental rights have not been established by clear and convincing

evidence and grounds for dependency have not been established, the trial court shall

dismiss the petition).

              Reversed.


KELLY, BLACK, and ROTHSTEIN-YOUAKIM, JJ., Concur.




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