Full Opinion

Third District Court of Appeal State of Florida Opinion filed April 8, 2020. Not final until disposition of timely filed motion for rehearing. ________________ No. 3D19-1732 Lower Tribunal No. 02-15896 ________________ A.D., The Mother, Appellant, vs. Department of Children and Families, Appellee. An Appeal from the Circuit Court for Miami-Dade County, Michelle Alvarez Barakat, Judge. Law Offices of Roger Ally, P.A., and Roger Ally, for appellant. Karla Perkins, for appellee. Before SALTER, LOGUE, and LOBREE, JJ. LOGUE, J. Appellant A.D. (the “Mother”) appeals the circuit court’s order adjudicating her youngest child, J.H., dependent. Because the record does not establish the required nexus between the risk the Mother poses to her two older children and any risk the Mother might pose to J.H., we reverse. Background The following facts were established at the trial of this matter. Although medical issues were discussed during the trial, there were no medical records introduced and no testimony from a medical provider. The only two witnesses were a Child Protective Investigator and the Mother. The Mother has three biological children: N.D. (age 16), Z.D. (age 15), and J.H. (age 13). The three children are autistic. After receiving a report that Z.D. had complained the Mother had attacked and scratched her, the Investigator went to the Mother’s home to investigate. She observed that the Mother was living with her three children. The Mother told her that all three children were autistic. The house was clean, had water, electricity, and food. She learned the complaint arose when J.H. tried to take Z.D.’s phone away because Z.D. was disrespectful to the Mother. Z.D. punched J.H. in the face. The Mother got up to part them when J.H. fell, then the Mother fell on top of him. Z.D. began to punch and kick the Mother. N.D. entered the room and removed Z.D. off the Mother then took her phone away. Although Z.D. insisted there were scratches on her arms, the Investigator could find none. The Investigator did not observe any other injuries on Z.D. or any of the others. She interviewed the children and was unable to verify any 2 physical abuse. She never observed a family situation that would place J.H. at risk. The Mother indicated she was willing to receive services from the Department. After the altercation, according to the Mother, the Mother had taken Z.D. and J.H. to their pediatrician. The pediatrician has known J.H. since he was an infant. After speaking with J.H. the pediatrician did not see the need to provide a referral for services for J.H. After the home visit, however, the Investigator reviewed the Department’s files on the family which took some time to obtain. She learned that, on March 3, 2005, before J.H. was born, the Mother’s parental rights had been terminated based on abuse as to Z.D., N.D., and three other children the Mother had adopted. The court had placed Z.D. and N.D. in the custody of their father who was ordered to prevent any contact between the Mother and Z.D. and N.D. Nevertheless, at the end of 2006, the father returned custody of Z.D. and N.D. to the Mother, who, in direct contravention of court orders, cared for them for the next twelve years. The Investigator then had all three children removed from the Mother’s physical custody. The removal occurred approximately fifty days after her initial visit. When the Investigator removed the children, the Mother told her that Z.D. and N.D. needed medication. Z.D. and N.D., however, told her that the Mother had not given them medication for months. As to J.H., the Mother told the Investigator that 3 J.H. did not need medication. The Investigator took the children to the emergency room, but no medical problems were found. The Court adjudicated J.H. dependent. The Court based the adjudication largely on the fact that the Mother had physical custody of Z.D. and N.D. for twelve years in direct violation of prior court orders. This fact caused the Court to question the Mother’s ability to provide care to J.H. The Mother timely appealed. Analysis Under the governing statutes, a “‘[c]hild who is found to be dependent’ means a child who, . . . is found by the court: (a) [t]o have been abandoned, abused, or neglected by the child’s parent or parents or legal custodians; . . . (f) [t]o be at substantial risk of imminent abuse, abandonment, or neglect by the parent or parents or legal custodians[.]” § 39.01(15), Fla. Stat. The statute defines “abuse” as “any willful act or threatened act that results in any physical, mental, or sexual abuse, injury, or harm that causes or is likely to cause the child’s physical, mental, or emotional health to be significantly impaired.” § 39.01 (2), Fla. Stat. A child’s health or welfare is harmed when a person: [i]nflicts or allows to be inflicted upon the child physical, mental, or emotional injury. In determining whether harm has occurred, the following factors must be considered in evaluating any physical, mental, or emotional injury to a child: the age of the child; any prior history of injuries to the child; the location of the injury on the body of the child; the multiplicity of the injury; and the type of trauma inflicted. 4 § 39.01 (35)(a), Fla. Stat. Further, “neglect” can be found when: a child is deprived of, or is allowed to be deprived of, necessary food, clothing, shelter, or medical treatment or a child is 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(50), Fla. Stat. “To support an adjudication of dependency, the parent’s harmful behavior must be a present threat to the child.” B.J. v. Dep’t of Children & Families, 190 So. 3d 191, 194 (Fla. 3d DCA 2016) (citations and quotations omitted). For this reason, “before we can affirm a trial court’s adjudication of dependency, we must find competent, substantial evidence that the child was either abandoned, abused, or neglected, or that the risk of abandonment, abuse or neglect is imminent.” Id. Of course, children “may be deemed to be at substantial risk of imminent abuse or neglect based on a parent's abuse or neglect of their siblings; however, the evidence must demonstrate a nexus between the past abuse and any prospective abuse to another sibling.” In re J.E.B., 971 So. 2d 187, 189 (Fla. 2d DCA 2007) (citing C.M. v. Dep’t of Children & Family Servs. (In re C.M.), 844 So. 2d 765, 766 (Fla. 2d DCA 2003)). Here, the Department argues that the Mother’s testimony that Z.D. and N.D. both needed medicine and Z.D.’s and N.D.’s statements to the Investigator that they had not received medicine for months indicates the Mother could fail to provide J.H. 5 needed medicine. But the only evidence in the record about J.H.’s need for medicine is the Mother’s statement that J.H. did not need medicine. Because this record reflects J.H. has no need for medicine, this record contains no competent substantial evidence that the risk of the Mother depriving J.H. of needed medicine is “imminent.” Similarly, the Mother’s abuse of Z.D. and N.D. twelve years ago which led to the termination of her parental rights of those children does not constitute competent substantial evidence that J.H. is currently at imminent risk of similar abuse from the Mother. The record reflects no evidence of any such abuse of Z.D. and N.D. in the ensuing twelve years when the Mother had physical, albeit not legal, custody of them. Finally, the fact that the Mother unlawfully had physical custody of Z.D. and N.D. does not rise to the level of the evidence needed to establish J.H. is at imminent risk of being abandoned, abused, or neglected. There would need to be “ ‘competent, substantial evidence that . . . neglect is ‘impending and about to occur.’ ” M.F. v. Dep’t of Children & Families, 975 So. 2d 622, 625 (Fla. 4th DCA 2008) (quoting C.A. v. Dep’t of Children & Families, 958 So. 2d 554, 560 (Fla. 4th DCA 2007)). Reversed. 6