          Third District Court of Appeal
                                   State of Florida

                                Opinion filed May 8, 2019.
             Not final until disposition of timely filed motion for rehearing.

                                   ________________

                                   No. 3D18-2026
                             Lower Tribunal No. 17-15659
                                 ________________


                                 L. J., The Mother,
                                        Appellant,

                                            vs.

                     Department of Children and Families,
                                        Appellee.


         An Appeal from the Circuit Court for Miami-Dade County, Jason E. Dimitris,
Judge.

     Eugene F. Zenobi, Criminal Conflict and Civil Regional Counsel, Third
Region, and Kevin Coyle Colbert, Assistant Regional Counsel, for appellant.

         Karla Perkins, for appellee.


Before SALTER, LOGUE, and HENDON, JJ.

         LOGUE, J.
      The Mother, L.J., appeals the trial court’s order adjudicating her two minor

children dependent and placing the children in the temporary care and custody of

their maternal aunt. In the order adjudicating the children dependent, the trial court

discusses the Mother’s mental health issues, the Mother’s past substance abuse, and

the Mother’s removal of an IV from one child’s arm during the child’s stay in a

hospital. Regarding the first two matters, there was no expert testimony or other

evidence that indicated the children were harmed or at risk of being harmed. The

third matter was based solely on hearsay.

      As the Mother properly points out, the evidence and the controlling law does

not support adjudicating the children dependent on these three grounds. See J.M. v.

Dep’t of Children & Families, 188 So. 3d 94, 95 (Fla. 4th DCA 2016) (“[A]lthough

there was testimony that the [m]other was under the influence of substances on the

date that she met with the child protection investigator, there was no testimony that

the [m]other was under the influence in the presence of the [c]hild, or that any

substance abuse adversely affected the [c]hild.”); V.G. v. Dep’t of Children &

Families, 813 So. 2d 298, 299 (Fla. 5th DCA 2002) (“The standard of review on the

issue of sufficiency of the evidence in dependency cases is whether the trial court’s

findings are supported by competent substantial evidence.”); E.M.A. v. Dep’t of

Children & Families, 795 So. 2d 183, 187-88 (Fla. 1st DCA 2001) (affirming a

finding of dependency where expert testimony and other competent evidence



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showed a parent’s mental disorder posed a significant risk of danger to their

children).

      The trial court, however, also found that the Mother neglected the children

because she and they were homeless and the Mother twice refused the offer of shelter

services. Although there was disputed evidence on this point, this finding was

supported by competent, substantial evidence and reflects a basis for the trial court

to adjudicate the children dependent. Under Florida law, a child is dependent if the

child is found “to have been abandoned, abused, or neglected by the child’s parent

or parents or legal custodians.” § 39.01(15), Fla. Stat. (2017). “Neglect,” in turn,

encompasses a child who “is deprived of, or is allowed to be deprived of . . . shelter

. . . .” § 39.01(50), Fla. Stat. (2017). However, “[t]he foregoing circumstances shall

not be considered neglect if caused primarily by financial inability unless actual

services for relief have been offered to and rejected by such person.” Id. (emphasis

added).

      The court’s factual findings that the Mother and children were homeless and

the Mother twice refused shelter services for her and her children are supported by

competent, substantial evidence. Accordingly, we hold that the trial court did not

abuse its discretion. Y.P. v. Dep’t of Children & Family Servs., 939 So. 2d 1118,

1119 (Fla. 3d DCA 2006) (“We review an adjudication of dependency for an abuse




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of discretion, and will uphold the determination if the trial court applied the correct

law and its ruling is supported by competent, substantial evidence.”).

      Affirmed.




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