Whether married or living in a relationship with minor children can be devastating when the family unit no longer is stable. The adults may find that the legal proceedings which each instigates against the other may alert authorities either at school or in the community that the “welfare of the children” are at risk because of the behavior of the mother and the father.
When the DCF becomes involved the agency is authorized to seek the assistance of the Florida Attorney General’s office, if warranted, which through it’s attorneys can file a petition seeking to determine the child dependent and in need of protective services. The agency may have a petition for dependency served on one of more parents or guardians of child or children to take the children into protective custody at a shelter hearing as provided for under Florida law.
A court may enter an order adjudicating a child dependent if the child is at substantial risk of imminent harm or neglect “based on the conduct of one parent, both parents, or a legal custodian.” §§ 39.01(15)(f); 39.507(7)(a), Fla. Stat. (2013). “Harm” to a child’s health or welfare occurs when the child suffers “physical, mental, or emotional injury.” § 39.01(32)(a) Fla. Stat. (2013). “Neglect” occurs when “a child is deprived of . . . necessary food, clothing, shelter, or medical treatment or . . . is permitted to live in an environment when such deprivation or environment causes the child’s physical, mental, or emotional health to be significantly impaired or to be in danger of being significantly impaired.” § 39.01(44), Fla. Stat. (2013). ” ‘Imminent’ encompasses a narrower time frame and means ‘impending’ and ‘about to occur.’ ” J.B.M. v. Dep’t of Children & Families, 870 So. 2d 946, 951 (Fla. 1st DCA 2004) (citation omitted). In imminent harm or neglect cases, “the parent’s harmful behavior must pose a present threat to the child based on current circumstances” and be “clearly and certainly predicted.” S.S. v. Dep’t of Children & Families, 81 So. 3d 618, 621 (Fla. 1st DCA 2012) (citation omitted); E.M.A. v. Dep’t of Children & Families, 795 So. 2d 183, 187 (Fla. 1st DCA 2001) (citation omitted).
The law in Florida is well settled that, in a dependency proceeding, the allegations contained in the dependency petition must be established by a preponderance of the evidence.” D.A. v. Dep’t of Children & Family Servs., 84 So. 3d 1136, 1138 (Fla. 3d DCA 2012).
This burden is the least stringent burden meaning that the trial judge gets to decide which whether one side’s version is “more likely true than the other side.” The scales of justice merely need to tip 51 percent versus 49 percent.
In one Florida case, the fact that the mother was homeless and unemployed, standing alone, is insufficient to support a finding of a prospective harm or neglect because the mother had not previously rejected offered services. See § 39.01(44), Fla. Stat. (2013) (stating that if circumstances supporting a finding of neglect are “caused primarily by financial inability,” then neglect will not be found “unless actual services for relief have been offered to and rejected by such person”); Brown v. Feaver, 726 So. 2d 322, 324 (Fla. 3d DCA 1999) (“Homelessness, derived solely from a custodian’s financial inability, does not constitute abuse, neglect, or abandonment unless the Department offers services to the homeless custodian and those services are rejected.”). The mother’s residential instability and unemployment do not provide sufficient bases for a finding of imminent risk of neglect or harm.
Florida law is not going to hold a parent accountable and take away the child or children unless there is evidence of intentional neglect or abuse.
Additionally, if there is no testimony or evidence presented at a judicatory hearing that either child was ever “deprived of . . . necessary food, clothing, shelter, or medical treatment” as a result of the mother’s homelessness and unemployment then there is no evidence to constitute imminent risk of neglect. § 39.01(44), Fla. Stat. (2013).
If there is testimony that the children appeare “clean,” “orderly,” and “healthy,” with food, formula, diapers, two beds, and a crib there is nothing to cause concern for the children’s welfare.
Thus, any petition alleging dependency which is not supported by competent, substantial evidence that a parent is subjecting a child to “imminent risk of neglect and harm” will be dismissed or overturned.