Opinion
1D21-3180
05-17-2022
D.K., Father of K.K.K., a minor child, Appellant, v. Department of Children and Families, Appellee.
Jeffery D. Toney of the Law Office of Jeffery D. Toney, Crestview, for Appellant. Ronald Ringo, Department of Children and Families, Pensacola; Richard D. Cserep, Blackwater Law Firm, P.A., Pensacola; Andrew McGinley, Department of Children and Families, Tallahassee; Sara Goldfarb, Statewide Guardian ad Litem Office, Tallahassee; Sarah J. Rumph, Children's Legal Services, Tallahassee, for Appellee.
Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331.
On appeal from the Circuit Court for Escambia County. Jennifer J. Frydrychowicz, Judge.
Jeffery D. Toney of the Law Office of Jeffery D. Toney, Crestview, for Appellant.
Ronald Ringo, Department of Children and Families, Pensacola; Richard D. Cserep, Blackwater Law Firm, P.A., Pensacola; Andrew McGinley, Department of Children and Families, Tallahassee; Sara Goldfarb, Statewide Guardian ad Litem Office, Tallahassee; Sarah J. Rumph, Children's Legal Services, Tallahassee, for Appellee.
PER CURIAM
D.K., the father, appeals an order adjudicating his child dependent. We affirm.
I.
In May 2021, the parents of eleven-month-old K.K.K. took the child to the emergency room with head injuries. The father maintained that the child sustained the injuries by falling off a bed and hitting a bedrail. The mother was out running an errand during the incident. After an investigation, the Department of Children and Families petitioned to shelter the child and alleged the father abused the child. A full shelter hearing was held, at which the Department presented several witnesses, photographs of the child's injuries, and the Child Protection Team (CPT) Report. The trial court's shelter order explained that Dr. Caroll Sekhon of the CPT "testified unequivocally that the child's injuries were consistent with a hand slap and not an accidental fall off the bed." Based on this evidence, the trial court granted the shelter petition and placed the child in the mother's care.
About a month later, the Department petitioned for dependency based on abuse and a substantial risk of imminent abuse under section 39.01(14), Florida Statutes. At the dependency hearing, the parties agreed that the central issue was whether the injury was caused by the father or a bedrail. In fact, the father's counsel conceded that if the child's injury resulted from a hand slap, then "of course that's abuse." Additionally, the trial court-without objection-made clear throughout the hearing it was considering evidence, including exhibits and testimony, from the shelter hearing.
The Department called two witnesses, including Sharon Skrabacz, a CPT pediatric nurse practitioner. Ms. Skrabacz testified she observed facial bruising on the child's left cheek. She noted a "pattern bruise of negative imprint that appeared to be a handprint." Based on the photographs of the bedrail, Ms. Skrabacz ruled out the possibility that the bedrail caused the child's injury. The father also called two witnesses: the mother and himself. Both testified the injuries resulted from an accident. The father reiterated that the injuries stemmed from a fall. According to the father, shortly after the mother left the house, the child woke up. The father placed the child on the bed so that the father could go to the kitchen and retrieve a bottle of milk. As he walked out of the room, he saw the child spring up, fall off the bed, and hit the bedrail. After the mother returned home, both parents took the child to the emergency room.
During closing, the father maintained that an accident caused the injury. The trial court outright rejected this argument and found "this is clear as day to me" that a hand slap, not a bedrail, caused the child's injuries. As a result, the trial court found abuse and a risk of future abuse and adjudicated the child dependent. In its written order, the trial court memorialized its oral findings and referenced the photographs and the testimony of the father, Dr. Sekhon, and Ms. Skrabacz. The trial court concluded that "the injury to the child clearly depicts a handprint." (emphasis in original). The trial court also explicitly found that the injury to the child was indicative of child abuse and wholly inconsistent with the father's explanation. The trial court further noted that it was the father's refusal to comply with the safety plan put in place prior to the shelter petition that led to the court's involvement.
II.
The father argues three grounds for reversing the dependency adjudication: (1) the trial court erred in relying on inadmissible hearsay testimony from the shelter hearing, (2) the Department failed to provide sufficient evidence to sustain the dependency adjudication, and (3) the trial court erred by failing to adequately set forth a factual basis to support a finding of dependency.
Because a dependency adjudication presents a mixed question of law and fact, we will uphold a dependency finding where the trial court applies the correct law and the record contains competent, substantial evidence to support the ruling. See E.S. v. Dep't of Child. & Fams., 984 So.2d 647, 649 (Fla. 1st DCA 2008). The Department has the burden of proof in a dependency hearing and must establish its allegations by a "preponderance of evidence." § 39.507(1)(b), Fla. Stat. (2021); see A.T.N. v. Fla. Dep't of Child. & Fam. Servs., 70 So.3d 634, 636 (Fla. 1st DCA 2011).
As for the father's first argument, he did not preserve this claim. The trial court made it abundantly clear throughout the adjudicatory hearing that it was relying on testimony and exhibits from the shelter hearing. At no point during the adjudicatory hearing did the father express any misgivings about the trial court's intention to rely on shelter hearing evidence. In fact, when the trial court stated it was taking judicial notice of the records in the files, the father's counsel affirmatively stated he was not objecting. Because this claim is unpreserved, we decline to address it. Morales v. State, 170 So.3d 63, 66 (Fla. 1st DCA 2015) ("It is axiomatic that an issue cannot be maintained on appeal unless the supposed error is adequately presented to the trial court so that it may be corrected below."); see also Sayles v. Nationstar Mortg., LLC, 268 So.3d 723, 725-26 (Fla. 4th DCA 2018) (finding issue unpreserved when borrower failed to object to Nationstar's request for judicial notice at the hearing).
As to the father's second argument, we affirm because sufficient evidence supports the trial court's dependency adjudication. At the dependency hearing, the Department introduced witnesses and photographs that supported the trial court's finding that the father struck the child and caused the injuries to the child's face. Similarly, the Department provided sufficient evidence at the dependency hearing to support a finding that the child's injuries amounted to abuse. See § 39.01(2), Fla. Stat. (defining "abuse" as "any willful act or threatened act that results in any physical, mental, or sexual abuse, injury, or harm that causes or is likely to cause the child's physical, mental, or emotional health to be significantly impaired"); see also § 39.01(34)(a), Fla. Stat. (defining "harm").
We note that the father now argues that the injury was not serious enough to constitute abuse, despite his counsel's acknowledgment below that, if the injury resulted from a hand slap, then it was enough to constitute abuse. The father contends the child suffered no prior nonaccidental trauma, and the evidence showed a single bruise, which warranted only an ice pack. Particularly, the father relies on the Second District's statement that "a single incident of a serious bruise on the buttock of a child, perhaps caused by corporal punishment, will not support a finding of dependency." L.M.C. v. Dep't of Child. & Fam. Servs., 934 So.2d 623, 627-28 (Fla. 2d DCA 2006). Along with L.M.C., the father cites additional cases involving discipline or corporal punishment to advance his argument.
Neither the father's argument nor his authority is persuasive. Here, an eleven-month-old child sustained a readily discernible facial injury. While not requiring serious medical treatment, the injury consisted of (according to the CPT Report) "significant bruising" to the left side of the face. Multiple witnesses testified they observed a bruise and marks exhibiting the pattern of a hand on the child's left cheek. Ms. Skrabacz attested the hand pattern was still readily visible a day after the incident.
What is more, the father has never suggested that there was any disciplinary justification for the injury. Cf. A.A. v. Dep't of Child. & Fams., 908 So.2d 585, 588 (Fla. 5th DCA 2005) (noting that mother's and brother's heightened response to child was to "put an end to [the child's] feral behavior"); In re W.P., 534 So.2d 905, 905 (Fla. 2d DCA 1988) (describing father's openhand slap to daughter's face in response to daughter's use of profanity toward mother). Rather, his only explanation for the injury was that the child accidentally fell off the bed. Based on the circumstances of the injury (i.e., the child's age and injury location) and the photographs and description of the injury, the Department provided sufficient evidence to sustain the finding of abuse.
We also reject the father's third argument because the trial court made the required factual findings. Florida law mandates, by statute and rule, that when the trial court adjudicates a child dependent, it must also submit a written order reciting the facts that support the adjudication. See § 39.507(6), Fla. Stat.; Fla. R. Juv. P. 8.332(a). The written order need not be extensive; the order need only briefly state facts, which are drawn directly from the evidence presented at the hearing and support a dependency adjudication. See § 39.507(6), Fla. Stat.; see also J.S. v. Dep't of Child. & Fam. Servs., 979 So.2d 1202, 1205 (Fla. 2d DCA 2008); T.P. v. Dep't of Child. & Fams., 954 So.2d 677, 681 (Fla. 5th DCA 2007).
Here, at the end of the hearing, the trial court rejected the father's explanation that the child fell off the bed and hit a bedrail. The trial court found, by a preponderance of the evidence, that the father committed abuse by hitting the child's face. Similarly, in its written order, the trial court found that the Department met its burden of proof and established dependency. The trial court explained it relied on testimony from several witnesses, who suggested that a "hand slap" caused the child's injuries. Independent of these witnesses, the trial court found that the photograph of "the injury to the child clearly depicts a handprint." The trial court also deduced that the father caused the injury as he was in sole control of the child and the evidence was "wholly inconsistent with [his] explanation." In its written order, the trial court made clear the adjudication was based on the father hitting the child in the face, and the trial court drew this finding directly from the evidence presented at the hearing.
We conclude the Department provided sufficient evidence to sustain the trial court's adjudication of dependency, and the trial court made the requisite factual findings in its written adjudication.
Affirmed.
Ray, Nordby, and Long, JJ., concur.