IN THE INTEREST OF A.P. AND J.P., JR., MINOR CHILDREN. J.P., SR., APPELLANT,
v.
DEPARTMENT OF CHILDREN AND FAMILY SERVICES AND GUARDIAN AD LITEM PROGRAM, APPELLEES

Fla. 2d DCA | 2014-04-09
No. 2D13-4135
ALTENBERND and CASANUEVA, JJ., Concur.
135 So. 3d 541 Florida District Court of Appeal, Second District (2014)

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Synopsis

Father appealed from a trial court's order finding his two minor children dependent based on neglect after an unsecured gun was found in the home during his arrest. The Florida appellate court reversed, holding that the evidence failed to establish a continuing substantial risk of imminent harm sufficient to support a dependency finding, especially after police confiscated the weapon.


Holding

The court reversed the dependency finding, holding that the evidence was insufficient to prove by a preponderance of the evidence that the children were dependent. The confiscation of the gun removed any danger, and the Department presented no evidence showing that any continuing risk of harm to the children remained.


Headnotes

[1] A child's physical, mental, or emotional health must be significantly impaired or in danger of being significantly impaired to establish neglect based on living in an env…

[2] Evidence of multiple residential moves alone is insufficient to establish statutory neglect if there is no demonstration that the moves caused deprivation of necessary fo…

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Key Quotes

“the application of section 39.01(15)(f) requires "the necessity of a continuing risk — not just a risk that existed sometime in the past, but a risk that is alive and merits judicial interference in the parent-child relationship to protect the child's welfare."”

Establishes that dependency findings require proof of a continuing, not historical, risk of harm

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Facts & Procedural History

The Department filed a dependency petition after Father was arrested at his sister's home where he lived with his children, A.P. and J.P., Jr. An unse…

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Opinion of the Court
KELLY, Judge.

KELLY, Judge.

J.P., Sr. (the Father), appeals from the trial court’s order that finds his children, A.P. and J.P., Jr., to be dependent on the grounds of neglect. Because the evidence fails to support the basis for a finding of dependency, we reverse.

The Department filed a dependency petition after the Father was arrested at his sister’s home where he was living with his children and an unsecured gun was found in a bedroom. The police officers confiscated the weapon, and the charges against the Father were ultimately dropped. In finding the children dependent, the court found sufficient proof of neglect where both children lived in the home and J.P., Jr., was in an adjoining room when the gun was found. The court stated that “Meglect encompasses a situation where a child’s environment causes the children *542[sic] physical, mental or emotional health to be significantly impaired or be in danger of being significantly impaired.”

Chapter 89 of the Florida Statutes defines a “dependent” child as one who is found by the court to have been “abandoned, abused, or neglected by the child’s parent or parents” or one who is “at substantial risk of imminent abuse, abandonment, or neglect by the parent or parents.” § 39.01(15)(a), (f), Fla. Stat. (2013). There being no evidence of actual harm to the children within the meaning of subsections 39.01(32)(f)1 or (44)2, the adjudication in this case rests upon the existence of a substantial risk of imminent harm to the children within the meaning of section 39.01(15X0.

The trial court based the finding of neglect entirely on the fact that the Father had an unsecured gun in the home. However, the police officers confiscated the gun and therefore, any danger to the children was removed. The Department presented no evidence at trial showing that any risk of harm to the children remained. In fact, the trial court reunified the Father with his children, and the only obligations placed on the Father in his case plan were to maintain stable housing and employment.

The application of section 39.01(15)(f) requires “the necessity of a continuing risk — not just a risk that existed sometime in the past, but a risk that is alive and merits judicial interference in the parent-child relationship to protect the child’s welfare.” J.O. v. Dep’t of Children & Family Servs., 970 So.2d 395, 399 (Fla. 3d DCA 2007) (Shepherd, concurring). “The purpose of a dependency proceeding is not to punish the offending parent but to protect and care for a child who has been neglected, abandoned, or abused.” R.F. v. Dep’t of Children & Families, 770 So.2d 1189, 1193 (Fla.2000). See § 39.501(2). Because the evidence was insufficient to prove by a preponderance of the evidence that the children were dependent, we reverse.

Reversed.

ALTENBERND and CASANUEVA, JJ., Concur.


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