Opinion
No. 3D19-748
02-05-2020
A.W., the mother, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, et al., Appellees.
Kevin G. Thomas, for appellant. Karla Perkins, for appellee Department of Children & Families; McDonald Hopkins LLC, and Mary F. April (West Palm Beach); Thomasina F. Moore (Tallahassee), for appellee Guardian ad Litem Program.
Kevin G. Thomas, for appellant.
Karla Perkins, for appellee Department of Children & Families; McDonald Hopkins LLC, and Mary F. April (West Palm Beach); Thomasina F. Moore (Tallahassee), for appellee Guardian ad Litem Program.
Before EMAS, C.J., and LINDSEY and GORDO, JJ.
PER CURIAM.
Because there is competent substantial evidence to support the trial court's order of adjudication of dependency and determination that the mother, A.W., has exposed the children to a substantial risk of imminent neglect, see sections 39.01(15)(f) and 39.01(50), Florida Statutes (2016), by her failure to provide a proper and safe home environment for her children and failure to comply with her court-ordered visitations, we affirm. See In re M.F., 770 So. 2d 1189, 1194 (Fla. 2000) (holding that a dependency adjudication is to be based upon "the totality of the circumstances surrounding the petition" and will be upheld on appeal if the court applied the correct law and the ruling is supported by competent substantial evidence). See also G.V. v. Dep't of Children & Families, 795 So. 2d 1043, 1047 (Fla. 3d DCA 2001) (noting that, in reviewing a dependency adjudication order, the appellate court may not conduct a de novo review of the evidence or substitute its judgment for that of the trial court); J.D. v. Dep't of Children & Families, 263 So. 3d 60, 62 (Fla. 4th DCA 2019) (holding: "It is not necessary to establish that the child saw or was aware of the domestic violence for a finding of neglect" (citing C.J. v. Dep't of Children & Families, 968 So. 2d 121, 122 (Fla. 4th DCA 2007) (holding, in a dependency petition premised upon neglect (rather than abuse): "[T]he trial court did not have to determine whether C.J. saw or was aware of the violence because such a finding is not required in deciding whether a child is neglected"))).
Although we affirm the adjudication of dependency upon these determinations, we note that the trial court also determined that the mother engaged in "continued substance misuse." We agree with the proper and commendable concession by the Department that the trial court erred in making this determination. This singular finding was not supported by competent substantial evidence. However, the remaining findings are supported by competent substantial evidence, as is the trial court's ultimate determination and adjudication of dependency. We therefore affirm the adjudication of dependency, but remand with directions to amend the dependency order accordingly.
Affirmed and remanded with directions.