       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT
                              July Term 2014

                            E.R., the mother,
                               Appellant,

                                    v.

              DEPARTMENT OF CHILDREN AND FAMILIES,
                            Appellee.

                              No. 4D14-885

                             [August 6, 2014]

   Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Elizabeth Scherer, Judge; L.T. Case No. 13-003717
CJDP.

   Lori D. Shelby, Fort Lauderdale, for appellant.

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

PER CURIAM.

   E.R., the mother, appeals an order adjudicating her two minor children
dependent. Because the trial court’s ruling “that the mother placed both
the minor children at imminent risk of neglect and harm” is not supported
by competent, substantial evidence, we reverse.

    The Department of Children and Families (“DCF”) initiated an abuse
investigation after the paternal grandparents of the minor children, E.B.
and A.R., reported the father and E.B. missing. After the investigation,
DCF filed a petition for dependency in June of 2013 alleging that the
mother neglected the minor children and placed them “at substantial risk
of imminent threat of harm,” “imminent risk of abuse,” “and/or imminent
risk of neglect.”

    Testimony at an adjudicatory hearing held in September and November
of 2013 revealed that the father had obtained sole custody of E.B. in June
of 2012, approximately one year prior to the dependency petition. He was
granted sole custody based on a sworn petition and affidavit filed in April
of 2012 in front of another judge in family court alleging that the mother
showed “an inability to properly care for [E.B.]” in that she would not or
could not properly feed, interact, calm, or stimulate the child; and when
“not ignoring [E.B.], [the mother] commits inappropriate physical acts
such as poking her unnecessarily causing trauma.” The family court judge
entered an order providing the mother have “no time sharing” with E.B.

   The grandmother testified further regarding the mother’s treatment of
E.B., which she witnessed on a Nanny Cam video approximately eighteen
months prior to the dependency hearing. On the video, the mother
grabbed the back of E.B.’s shirt pulling her backward, making her hit her
head; the mother watched TV and played on her cell phone while the child
crawled away; and lastly, the mother repeatedly pulled E.B.’s hair until
the child started crying. After these events, the father obtained sole
custody of E.B. and the two lived with the paternal grandparents.

   In June 2013, approximately one year after obtaining sole custody of
E.B., the father did not show up to work and did not bring E.B. to daycare.
The grandparents’ attempts to contact the father were unsuccessful, and
they called police to report the two missing. The grandmother explained
she was concerned because she “didn’t know what he was doing,” and she
was afraid he was not taking Zoloft which was prescribed for a mood
disorder that he suffered from.

    DCF determined that the father and E.B. were with the mother and A.R.
at a hotel in Sebring. The father explained they went there to “start a
family of our own, without the conflict” that the mother previously
experienced with the grandparents. He testified that he sees a psychiatrist
regularly for his prescription medication and was taking it during the
incident. Officers were sent to perform a wellness check. One of the
officers testified that the motel room was “clean and orderly,” with food,
formula, diapers, two beds, and a crib. He felt there was “no immediate
danger to the children and [the parents] had money.” DCF informed the
officer that the mother had outstanding warrants, and he arrested her and
DCF took the children into custody.

   The mother testified at the September 2013 adjudicatory hearing that
she was homeless and unemployed. She claimed that she did not contact
the father during the custody proceedings because she was “upset and
mad.” She claimed that she and the father had “everything we needed” at
the hotel, including food, diapers, and wipes. She testified that she was
“in the means now of getting a job,” and if she had a job, she would “be
able to take care of [the children].”


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   The assigned child protection investigator testified that she made a
finding of “inadequate supervision” based on the father leaving E.B. in the
mother’s care after obtaining sole custody due to his concerns about the
mother’s inability to care for the child and the mother’s past abuse history.
She also made a finding of “threatened harm” based on the father leaving
the county with E.B. and having prior history of a mood disorder, not being
on his medication, and not being seen by a psychologist to follow up with
his mood disorder. The child advocate testified that during home visits,
she had seen the mother interact more with A.R. than E.B., and that she
provided the mother with referrals for voluntary services for parenting
skills, counseling, and assistance programs.

   In February of 2014, the trial court adjudicated the children dependent
based upon a preponderance of the evidence “that the mother placed both
the minor children at imminent risk of neglect and harm.” The court noted
the mother’s alleged prior mistreatment of E.B., her “violation” of the “no
time sharing” order, her failure to “contest the Order or take steps to
rehabilitate herself,” and her “homeless and unemployed” status.

   “[I]t is well settled that, in a dependency proceeding, the allegations
contained in the dependency petition must be established by a
preponderance of the evidence.” D.A. v. Dep’t of Children & Family Servs.,
84 So. 3d 1136, 1138 (Fla. 3d DCA 2012).

          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. Competent
      substantial evidence is tantamount to legally sufficient
      evidence. While a trial court’s discretion in child welfare
      proceedings is very broad, reversal is required where the
      evidence is legally insufficient to sustain the findings of the
      trial court.

C.A. v. Dep’t of Children & Families, 958 So. 2d 554, 557 (Fla. 4th DCA
2007) (citation omitted).

    A court may enter an order adjudicating a child dependent if the child
is at substantial risk of imminent harm or neglect “based on the conduct
of one parent, both parents, or a legal custodian.” §§ 39.01(15)(f);
39.507(7)(a), Fla. Stat. (2013). “Harm” to a child’s health or welfare occurs
when the child suffers “physical, mental, or emotional injury.”             §
39.01(32)(a) Fla. Stat. (2013). “Neglect” occurs when “a child is deprived
of . . . necessary food, clothing, shelter, or medical treatment or . . . is

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permitted to live in an environment when such deprivation or environment
causes the child’s physical, mental, or emotional health to be significantly
impaired or to be in danger of being significantly impaired.” § 39.01(44),
Fla. Stat. (2013). “‘Imminent’ encompasses a narrower time frame and
means ‘impending’ and ‘about to occur.’” J.B.M. v. Dep’t of Children &
Families, 870 So. 2d 946, 951 (Fla. 1st DCA 2004) (citation omitted). In
imminent harm or neglect cases, “the parent’s harmful behavior must pose
a present threat to the child based on current circumstances” and be
“clearly and certainly predicted.” S.S. v. Dep’t of Children & Families, 81
So. 3d 618, 621 (Fla. 1st DCA 2012) (citation omitted); E.M.A. v. Dep’t of
Children & Families, 795 So. 2d 183, 187 (Fla. 1st DCA 2001) (citation
omitted).

   The Trial Court’s Findings Applicable to Both E.B. and A.R.

    Applicable to both children, the trial court noted the mother’s “history
of instability and unemployment” and then-current “homeless and
unemployed” status at the adjudicatory hearing.                 The mother’s
homelessness and unemployment, standing alone, is insufficient to
support a finding of a prospective harm or neglect because the mother had
not previously rejected offered services. See § 39.01(44), Fla. Stat. (2013)
(stating that if circumstances supporting a finding of neglect are “caused
primarily by financial inability,” then neglect will not be found “unless
actual services for relief have been offered to and rejected by such person”);
Brown v. Feaver, 726 So. 2d 322, 324 (Fla. 3d DCA 1999) (“Homelessness,
derived solely from a custodian’s financial inability, does not constitute
abuse, neglect, or abandonment unless the Department offers services to
the homeless custodian and those services are rejected.”). The mother’s
residential instability and unemployment do not provide sufficient bases
for a finding of imminent risk of neglect or harm.

    Additionally, there was no testimony or evidence presented that either
child was ever “deprived of . . . necessary food, clothing, shelter, or medical
treatment” as a result of the mother’s homelessness and unemployment
to constitute imminent risk of neglect. § 39.01(44), Fla. Stat. (2013).
Rather, the officers who performed the wellness check testified that the
children appeared “clean,” “orderly,” and “healthy,” with food, formula,
diapers, two beds, and a crib and nothing to cause concern for the
children’s welfare. The grandmother testified that since the children were
sheltered, the mother has fed and bathed them during her supervised
visits with the children. There is no testimony to show that the mother
placed the children at risk to be “deprived of . . . necessary food, clothing,
shelter, or medical treatment.”


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   The Trial Court’s Findings as to E.B.

   First, the court placed “great weight” on the family court order which
granted the father sole custody of E.B. and ordered that the mother have
“no time-sharing” with E.B. The court also weighed the mother’s failure
to “contest the Order or take steps to rehabilitate herself” after its entry.
The father obtained sole custody of E.B. nearly one year prior to the
dependency proceeding based on his petition for sole custody filed in
family court and sworn allegations that the mother was “incapable of
properly caring for” E.B., and was “abusive and neglectful” toward her.
The allegations were based on Nanny Cam footage he viewed with the
grandmother approximately eighteen months prior to the dependency
adjudicatory hearing. There was no testimony by either the father or the
grandmother that the mother had engaged in “neglectful” or “abusive”
behavior since the Nanny Cam incident that occurred nearly eighteen
months before the hearing. The evidence presented is insufficient to
support a finding that the mother posed an “imminent risk of harm or
neglect” to E.B. because there was not “a present threat to the child based
on current circumstances.” S.S., 81 So. 3d at 621.

    The case of B.C. v. Department of Children & Families, 846 So. 2d 1273
(Fla. 4th DCA 2003), is instructive. There, DCF filed a dependency petition
in July 2002 against two parents based on “two instances of domestic
violence in the presence of the couple’s child” that occurred in August and
December of 2000, following the couple’s separation. Id. at 1274. Because
the instances of domestic violence occurred approximately eighteen
months prior to the dependency petition, this court found the instances
were “simply too remote in time to support an adjudication of dependency.”
Id. at 1275. See also M.F. v. Dep’t of Children & Families, 975 So. 2d 622,
625-26 (Fla. 4th DCA 2008) (finding that DCF “failed to establish that the
father’s drug use placed the children at risk of imminent neglect” because
the father’s prior arrest for drug possession and failed drug test did not
establish that the father recently “used drugs in the presence of the
children or that his drug use adversely affected the children or had an
adverse effect on his ability to parent”).

    Here, the allegations concerning the mother’s mistreatment of E.B. are
likewise “too remote in time to support an adjudication of dependency.”
B.C., 846 So. 2d at 1275. The testimony concerned actions by the mother
that occurred approximately eighteen months prior to the dependency
proceeding—the same amount of time as in B.C. In conclusion, we find




                                     5
that none of the findings1 by the trial court present competent, substantial
evidence to support its conclusion that the mother subjected E.B. to
“imminent risk of neglect and harm.”

    A.R.

   Any testimony regarding the mother’s prior treatment toward E.B. is
insufficient evidence to consider when analyzing the bases for a finding of
dependency for A.R. See M.N. v. Dep’t of Children & Families, 826 So. 2d
445, 448-49 (Fla. 5th DCA 2002) (finding that the father’s prior abuse of
the mother’s other child who was not his was insufficient to support a
finding of prospective abuse or neglect toward the parents’ minor child).
Thus, the “great weight” the trial court placed on the allegations in the
father’s petition for sole custody of E.B. and the consequent “no time
sharing” order cannot support a finding of harm or neglect as to A.R.

   The only finding specifically related to A.R. made by the trial court is
that at the time the mother left with A.R. to go to Sebring with the father
and E.B., A.R. was believed to be the child of another man. Once in
Sebring, “[t]he mother was arrested [on outstanding warrants] and taken
into custody . . . [leaving A.R.] with no known parent immediately available
to care for the minor child” who was only two months old at the time. The
police who arrested the mother notified DCF who then took A.R. into
custody. This finding does not present competent, substantial evidence
that the mother subjected A.R. to “imminent risk of neglect and harm.”

   In sum, “reversal is required [because] the evidence is legally
insufficient to sustain the findings of the trial court.” C.A., 958 So. 2d at
557 (citation omitted).

    Reversed and remanded.

LEVINE, CONNER and KLINGENSMITH, JJ., concur.

                              *         *         *


1 The trial court additionally found that the mother was “in violation” of the “no
time sharing” order entered by the family court judge in June of 2012. Since the
order was not a restraining or “no contact” order prohibiting the mother from
being in contact with E.B., the mother could not violate the family court order
simply by spending time with E.B. in the presence of the father. In any event,
there was no competent, substantial evidence of imminent “neglect” or “harm” as
a result of the mother spending time with E.B. in the presence of the father.


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Not final until disposition of timely filed motion for rehearing.




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