Furthermore, we reject DCF’s confession of error based on the Fifth District’s holding in P.S. that section 39.507(7) of the Florida Statutes prohibits a supplemental adjudication of dependency based on prospective abuse or neglect. In P.S., as here, the mother consented to DCF’s petition for dependency and the trial court entered an order adjudicating the children dependent. The father, however, challenged the dependency and the trial court held an evidentiary hearing and entered a second adjudicatory order. P .S., 4 So.3d at 720. On appeal, the Fifth District held that at a subsequent evidentiary hearing of a second parent, actual harm and not a risk of harm must be found. Id. at 721. We disagree.
D.A. v. Department of Children and Family Services, — So.3d —-, 2012 WL 1020012 (Fla. 3rd DCA 2012).
I’m going to chalk this up as a “called it”, even though I wasn’t entirely confident in my predictions. In a two-to-one opinion, the Third has rejected the Fifth’s interpretation of 39.507(7), stating, “the [Fifth’s] interpretation adds the word “actual” [abuse, abandonment, or neglect] which is not in the statute.” There is some discussion of policy (“requiring a finding of actual harm as to the second parent hinders, rather than advances, the purpose behind the statutory prohibition against more than one dependency adjudication”) and Equal Protection (“the Fifth District’s reading of the statute calls for application of two different standards as to each parent for no apparent rationale”), but those seem to be dicta.
In somewhat of a surprise, Judge Schwartz, in dissent, sides with DCF and the Fifth DCA. He points to the recent Fifth DCA case of D.G. v. DCF (I discuss it here), which adds nothing to the original P.S. decision except the sentence: “On remand, the trial court is not without options. See J.P. v. Dep’t of Children & Families, 855 So.2d 175 (Fla. 5th DCA 2003); B.C. v. Dep’t of Children & Families, 864 So.2d 486 (Fla. 5th DCA 2004).” I presume this means Judge Schwartz would have the court order the non-offending parent to participate in services anyway. I cannot say this is an inherently unreasonable interpretation–however, as pointed out by the GAL Program attorney at OA, it is fraught with unknowns that could delay permanency down the road.
There’s no explicit certification of conflict with the Fifth, but it looks like one to me. I can imagine a possible world where the Third thought this statute was just poorly drafted (it was) and it wasn’t going to put forth a lot of effort to fix it–let the Supreme Court or Legislature iron it out if they so choose. In the Third DCA, at least for a while, there is only one order of adjudication and all parents are judged by the same rules.