       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

                             M.P., the father,
                               Appellant,

                                     v.

             DEPARTMENT OF CHILDREN AND FAMILIES,
                           Appellee.

                              No. 4D14-3439

                            [ March 11, 2015 ]

  Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; James Martz, Judge; L.T. Case No. 2014DP300225-JO.

  Antony P. Ryan, Regional Counsel, Office of Criminal Conflict and Civil
Regional Counsel, Fourth District, and Paulina Forrest, Assistant Regional
Counsel, West Palm Beach, for appellant.

   Rosemarie Farrell, Orlando, for appellee.

TAYLOR, J.

    The father, M.P., appeals an Order of Adjudication of Dependency and
an Order of Disposition and Case Plan Approval. This court has
jurisdiction. See Fla. R. App. P. 9.146(b) & 9.030(b)(1)(A). We affirm the
adjudication of dependency, but remand for the trial court to strike certain
unsupported findings from the orders on appeal. We also reverse for the
trial court to strike the task of random drug testing from the father’s case
plan, as there was no showing of good cause for a substance abuse
evaluation of the father.

   The father and the mother have four minor children, born between
2007 and 2012. The father and mother live separately, but have an
ongoing history of domestic violence between them. The children were in
the mother’s custody at all relevant times.

    In March 2014, the children were sheltered due to allegations that they
were abused, neglected, or abandoned, or were in imminent danger of
illness or injury as a result of abuse, neglect, or abandonment. The shelter
petition alleged in relevant part that the mother abused drugs, exposed
the children to domestic violence with her boyfriend, and burned the finger
of one of her children. As to the father, the shelter petition alleged in
relevant part that he had minimal contact with the children and failed to
protect them from the mother’s actions, even though he knew about the
mother’s drug abuse and her violent relationship with her boyfriend.

    The Department filed a verified dependency petition against both
parents, alleging the same facts as the shelter petition. The mother
consented to the adjudication of dependency. The father denied the
allegations and went to trial. Following trial, the court rendered the
dependency order and the disposition order. This appeal ensued.

   On appeal, appellant first argues that competent substantial evidence
does not exist to support the findings in paragraph H of the trial court’s
orders of disposition and adjudication. We agree.

    Paragraph H, which was included as a factual basis for the dependency,
was taken verbatim from the “prior history” summaries of call-out
investigations that were set forth in the dependency petition. The
adjudication of dependency as a whole was supported by competent
substantial evidence, but paragraph H consisted almost entirely of
uncorroborated abuse reports that were never proven at trial. Therefore,
we affirm the adjudication of dependency, but remand with instructions
for the trial court to strike paragraph H from both orders on appeal. See
In re C.Z., 106 So. 3d 976, 979 (Fla. 2d DCA 2013) (“Courts are duty-bound
to ensure that their dependency orders reflect only facts proved by
competent, substantial evidence presented at the dependency hearing,
and no more.”).

   The father next argues that it was improper to order him to submit to
random drug screens as part of his case plan.1 On this record, we are
compelled to agree.

    A court may order a parent to submit to a mental or physical
examination in circumstances where (1) the parent has requested custody
of the child, (2) the parent’s mental or physical condition is in controversy,
and (3) good cause has been shown to require the examination. See S.N.

1 In the second issue on appeal, the father seeks to invoke certiorari jurisdiction
to challenge the case plan’s requirement that he undergo random drug screening.
In our view, we already have appellate jurisdiction over the disposition order.
Nonetheless, there is support in the case law for challenging case plan tasks in a
disposition order via certiorari jurisdiction. See In re S.M., 136 So. 3d 1271 (Fla.
2d DCA 2014).

                                         2
v. State Dep't of Health & Rehabilitative Servs., 529 So. 2d 1156, 1159 (Fla.
1st DCA 1988); § 39.407(15), Fla. Stat. (2014) (“At any time after the filing
of a shelter petition or petition for dependency, when the mental or
physical condition . . . of a parent, caregiver, legal custodian, or other
person who has custody or is requesting custody of a child is in
controversy, the court may order the person to submit to a physical or
mental examination by a qualified professional. The order may be made
only upon good cause shown . . . .”); § 39.407(16), Fla. Stat. (2014) (“At
any time after a shelter petition or petition for dependency is filed, the
court may order a person who has custody or is requesting custody of the
child to submit to a substance abuse assessment or evaluation. . . . The
order may be made only upon good cause shown.”); Fla. R. Juv. P. 8.250(b)
(2014) (a court may, on its own motion, order a person requesting custody
to submit to a substance abuse evaluation only on good cause shown and
after notice to the person to be examined).

   A case plan must contain a “description of the identified problem being
addressed, including the parent’s behavior or acts resulting in risk to the
child and the reason for the intervention by the department.”             §
39.6011(2)(a), Fla. Stat. (2014). A case plan must also be designed to
improve the conditions in the home and must be the least intrusive
possible into the life of the parent and child. § 39.6012(1)(a), Fla. Stat.
(2014). Furthermore, before accepting a case plan submitted by the
Department, the court must consider “[w]hether the plan is meaningful
and designed to address facts and circumstances upon which the court
based the finding of dependency in involuntary placements . . . .” §
39.603(1)(f), Fla. Stat. (2014).

    “Generic case plans that do not consider the needs and circumstances
of the individual family violate these statutory directives, as does a case
plan for one parent that simply mirrors the case plan for the other without
considering each parent’s individual circumstances.” In re G.S., 84 So. 3d
1231, 1233 (Fla. 2d DCA 2012). Thus, a case plan that does not
meaningfully address the facts and circumstances that resulted in the
adjudication of dependency violates section 39.603(1)(f), Florida Statutes.
Id. at 1232.

   For example, in G.S., the Second District held that case plan tasks
requiring the mother to participate in domestic violence counseling,
prescription drug monitoring, and parenting classes violated statutory
directives and were improperly included in the mother’s case plan, as they
were not meaningfully designed to address the issue that resulted in the
child’s removal from the home. Id. at 1233. Even though the trial court
ordered these tasks for the father (who had an alleged history of drug

                                     3
abuse and physical and mental abuse), the Second District reversed the
trial court’s acceptance of the case plan for the mother and remanded “for
the Department to prepare an amended case plan containing tasks for the
Mother that are designed to address only the facts and circumstances
giving rise to [the child’s] adjudication of dependency as to her.” Id. at
1232-33.

    Here, the father sought custody, and the dependency petition’s
allegation concerning the father’s criminal history of drug possession was
sufficient to place the issue of the father’s substance use in controversy.
However, we find that there was no showing of good cause for a substance
abuse evaluation of the father, nor was there any showing that a substance
abuse evaluation would meaningfully address the facts and circumstances
which resulted in the adjudication of dependency as to the father.

   There was absolutely no evidence presented at trial that the father
abused drugs.2 There was also no evidence presented at trial regarding
the father’s alleged arrest for possession of drugs. The trial court’s
statement that drug testing was appropriate due to “the allegation of drug
use all around” does not satisfy the “good cause” standard. A case plan
for one parent cannot simply mirror “the case plan for the other without
considering each parent’s individual circumstances.”        Id. at 1233.
Although there was evidence that the father failed to protect the children
from the mother’s drug use and neglect, the Department presented no
evidence that the dependency resulted from any substance abuse problem
on the part of the father.

    Accordingly, we reverse and remand for the trial court to strike the task
of random drug testing from the father’s case plan. We emphasize,
however, that upon a showing of good cause, the case plan may be
amended to require a substance abuse evaluation of the father should the
need arise. See In re S.M., 136 So. 3d 1271, 1271 (Fla. 2d DCA 2014)
(“[W]e grant the petition for writ of certiorari in part, quashing the
disposition order to the extent that it requires the Father and the Mother
to submit to substance abuse evaluations as part of the case plan. We
note that the case plan may . . . be amended pursuant to section 39.6013
and Florida Rule of Juvenile Procedure 8.420 should the need arise.”).


2 Moreover, contrary to the Department’s suggestion, no adverse inference can be
made on this issue as a result of the father’s invocation of his Fifth Amendment
rights. When the father asserted his Fifth Amendment rights at trial, it concerned
questioning regarding domestic violence issues, not whether the father had a
substance abuse problem.

                                        4
   Affirmed in part, Reversed in part, and Remanded.

STEVENSON and CIKLIN, JJ., concur.

                          *          *      *

   Not final until disposition of timely filed motion for rehearing.




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