Postdisposition Change of Custody: Order effectively granting reunification quashed where dependency court failed to apply proper statutory provisions, misconstrued the evidence and findings were not supported by competent substantial evidence.

In the Interest of I.N., a child. E.N., Petitioner, v…., — So.3d —- (2017)

The Second DCA reversed a trial court’s order which “effectively reunified” a child with a father who is alleged to have sexually abused the child. The DCA found that the trial court departed from the essential requirements of law by failing to apply the applicable standard of law, misconstruing the evidence and that the court’s findings as to the child’s best interests were not supported by competent and substantial evidence.

In finding the trial court failed to apply the proper standard of law, the Court discussed section 39.522(3), which addresses the proper standard when determining whether a child who has been placed in the custody of a parent should be reunified with the other parent. Prior July 1, 2013, courts were required to grant reunification absent a finding of endangerment, so long as the parent seeking reunification had substantially complied with his case plan. However, in 2013 the section was amended at the urging of the GAL program, to add the important requirement that the court must also find that reunification would be in the best interest of the child.

Although not in effect at the time of this decision, section 39.522(3) was again amended effective July 1, 2017; however, the new language does not alter the requirement that the court must find that reunification would be in the best interest of the child. Thus, a trial court may deny reunification if it is not in the child’s best interest, even if the court does not find that reunification would endanger the child.

The DCA also determined that the trial court erred in its best interest findings under section 39.621(10) by misconstruing the evidence and incorrectly discredited the testimony of the mother and the GAL.

Practice Tips:
At the time of the hearing on this case there was a pending motion to amend the case plan to address the alleged sexual abuse of the child. It is critical that we ensure that the case plan tasks are designed to address the issues that brought the children into care. Amendments must be timely addressed.

The court noted that although the allegations in this case triggered the rebuttable presumption and other protections of the Keeping Children Safe Act, the provisions of the act were not followed. For a comprehensive review of the KCSA and Dynamics of Child Sexual Abuse, see http://guardianadlitem.org/training-advocacy-resources/training-materials/

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