Department of Children and Families v. H.M.R., 2014 WL 2893281 (Fla. 5th DCA)

The Department of Children and Families appealed the trial court’s order denying its second shelter petition regarding E.R., a three week old infant, asserting the trial court applied an incorrect standard in issuing a finding of no probable cause.

Removal of a child and placement in shelter care requires a finding of probable cause to believe the child has been “abused, neglected or abandoned or is suffering from or is in imminent danger of illness or injury as a result of abuse, neglect or abandonment.”

Evidence was presented at the shelter hearing that Mother was convicted of involuntary manslaughter and felony child abuse of E.R.’s sibling following an Alford plea, convicted of misdemeanor child abuse to another sibling, and did not have custody of any of E.R’s five surviving siblings.  The trial court did not appear to believe it could consider Mother’s past conduct in determining whether probable cause existed as to E.R.  The trial court used the higher standard of clear and convincing evidence, which is required in termination proceedings but not in shelter hearings.

The Fifth District Court of Appeal (Fifth DCA) found that at the shelter stage the department is required to show the probability that the child is in imminent danger of illness or injury as a result of abuse, neglect or abandonment.   To establish probable cause necessary to support its petition to shelter three-week-old child, the department was not required to produce clear and convincing evidence, but was merely required to show the probability that the child was in imminent danger of illness or injury as a result of abuse, neglect, or abandonment.  F.S.A. R.Juv.P.Rule 8.305(b)(5).

The Fifth DCA found sufficient evidence was presented to the trial court to support a finding that E.R. was in imminent danger and reversed the order denying the second shelter petition.

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