B.J. v. Department of Children and Families, 2016 WL 1578492 (Fla. 3rd DCA)

Mother appealed an order of adjudication and disposition of dependency. The Third District Court of Appeal (Third DCA) reversed adjudication.Mother and Father were spending the weekend in a hotel with their two children. Mother co-slept with the children, while Father slept on a pull-out sofa. Mother awoke and found their 4 month old child cold and unresponsive. The parents called 911 but the child was not revived. The hotel room was messy and cluttered with food cartons. After child protective services interviewed the family, the parents left their one year old daughter, A.G., downstairs with a friend that was sleeping and went upstairs to smoke marijuana. Child protective services sporadically tried to reach the parents but they never responded. A month later, child protective services filed a report seeking a pick up order for A.G. When she was found, A.G. appeared healthy and there were no indications of abuse. At the shelter hearing, the trial court found that the totality of the circumstances (the dirty hotel room, the parents’ admission to smoking marijuana and the apparent evasiveness) and the mother’s decision to continue to co-sleep indicated that A.G. was at risk of neglect.

Pursuant to Florida Statute § 39.01(14)(a) and (f), a dependent child is one who has been “abandoned, abused or neglected” by the parents or is found “[t]o be at substantial risk of imminent abuse abandonment or neglect.” The parents’ behavior must be a present threat to the child. B.C. v. Department of Children and Families, 846 So.2d 1273 (Fla. 4th DCA 2003).

The Third DCA found no competent substantial evidence in the record to find that A.G. was abandoned, abused or neglected or at risk of imminent abandonment, abuse or neglect. The medical examiner found the cause of the sibling’s death was SIDS with co-sleeping as a possible factor (emphasis in the original). Both the state of the hotel room and the evasiveness of the parents had other possible explanations and were not evidence of abuse or neglect.

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