GUARDIAN AD LITEM AND DEPARTMENT OF CHILDREN AND FAMILIES

v.

L.W., MOTHER OF A.S., A CHILD AND V.S., FATHER OF A.S., A CHILD

FIFTH DISTRICT COURT OF APPEAL

STATE OF FLORIDA

_____________________________

Case No. 5D2024-3420 LT Case No. 2024-11589-CJCI _____________________________

GUARDIAN AD LITEM and

DEPARTMENT OF CHILDREN AND

FAMILIES,

Appellants,

v.

L.W., Mother of A.S., a Child and V.S., Father of A.S., a Child,

Appellees. _____________________________

On appeal from the Circuit Court for Volusia County. David S. Wainer, III, Judge.

Rachel Batten, of Children’s Legal Services, Brooksville, for Appellant, Department of Children and Families.

Sara Elizabeth Goldfarb, Statewide Director of Appeals, and Sarah Todd Weitz, Senior Attorney, of Statewide Guardian ad Litem Office, Tallahassee, for Appellant, Guardian ad Litem o/b/o

A.S.

Richard F. Joyce, Special Assistant Regional Counsel, of Office of Criminal Conflict and Civil Regional Counsel, Casselberry, for Appellee, V.S., Father of A.S., a Child.

Valarie Linnen, Jacksonville, for Appellee, L.W., Mother of A.S., a Child.

2

March 14, 2025

SOUD, J.

The Guardian ad Litem, joined by the Department of Children and Families, appeals the trial court’s Order as to Shelter, whereby the court denied the Department’s sworn shelter petition and ordered the child at issue, A.S., returned to his mother.¹ We reverse, concluding the trial court erred in its determination that the Department failed to establish probable cause to shelter the Child and in its resulting denial of the Department’s petition.

I.

A.S. was born September 27, 2023. Appellee L.W. is the Child’s mother, and Appellee V.S. is the legal father identified on the Child’s birth certificate. Importantly, at the time of the Child’s birth—and at all times while this case was pending below—the Mother had an open 2019 dependency case involving four other children, all of whom were placed in out-of-home foster care and with whom the Mother was allowed only supervised contact. At the time the Department filed its petition, the Mother had not achieved substantial compliance with the Department’s case plan and the goal for the four children was adoption.² The Father was cautioned that the Mother could not care for the Child without supervision because of the 2019 dependency case involving the four

3 After the filing of this appeal, the Department filed a “Status Report Regarding Subsequent Shelter.” The status report attached the trial court’s Order as to Shelter (signed by a different presiding judge) whereby the Child was placed into the care of the Mother and the Father was allowed only supervised contact. This Order was born of the Father’s arrest for aggravated assault with a firearm and possession of a firearm by convicted felon following a February 18, 2025 episode where it is alleged the Father pointed a firearm at the Child’s maternal aunt while he was holding the Child. This order as to the Father is not subject of this appeal and appears to remain in full force and effect.

4

II.

We review de novo the trial court’s order denying the Department’s sworn shelter petition. See Dep’t of Child. & Fams. v. D.H.C., 360 So. 3d 454, 456 (Fla. 5th DCA 2023). Florida law permits the sheltering of a child when “there is probable cause to believe that . . . [t]he 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.” See § 39.402(1)(a), Fla. Stat. (2024); see also D.H.C., 360 So. 3d at 456 (quoting § 39.402(1)(a)). Pertinent here, the statute defines “abuse” to include: [T]he birth of a new child into a family during the course of an open dependency case when the parent . . . has been determined to lack the protective capacity to safely care for the children in the home and has not substantially complied with the case plan towards successful reunification or met the conditions for return of the children into the home. § 39.01(2), Fla. Stat. (2024). Florida Rule of Juvenile Procedure 8.305(b)(3) provides that “[t]he issue of probable cause must be determined in a nonadversarial manner, applying the standard of proof necessary for an arrest warrant.” See D.H.C., 360 So. 3d at 457 (citing Dep’t of Child. & Fams. v. H.M.R., 161 So. 3d 477, 478 (Fla. 5th DCA 2014)). Thus, probable cause in the juvenile dependency context is a “fluid concept” that turns “on the assessment of probabilities in particular factual contexts” to determine whether there is “a reasonable ground of suspicion supported by circumstances strong enough in themselves to warrant a cautious person in belief that” a child has been abused or is in imminent danger of illness or injury resulting from abuse, abandonment, or neglect. See D.H.C., 360 So. 3d at 457 n.3 (citations omitted). In this case, as in D.H.C., the plain language⁴ of sections 39.402 and 39.01 dictates the conclusion that probable cause exists

III.

Since, as a matter of law, the Department established probable cause to shelter A.S., the trial court’s order denying the principle’—namely, the principle that ‘[t]he words of a governing text are of paramount concern, and what they convey, in their context, is what the text means.’” Ham v. Portfolio Recovery Assocs., LLC, 308 So. 3d 942, 946 (Fla. 2020) (quoting Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 56 (2012)).

JAY and KILBANE, JJ., concur.

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Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________