Opinion
No. 2D08-3563.
July 10, 2009.
Appeal from the Circuit Court for Hillsborough County; Rex Martin Barbas, Judge.
Jackson Flyte, Regional Counsel, Second District, Bartow, and Kimberly Nolen Hopkins, Special Assistant Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel, Tampa, for Appellant.
Bill McCollum, Attorney General, Tallahassee, and Kimberly G. Gore, Assistant Attorney General, Tampa, for Appellee Department of Children and Family Services.
Ama N. Appiah, Orlando, for Appellee Guardian ad Litem Program.
N.E.R. appeals an order entitled "Order Withholding Adjudication and Disposition as to the Mother, [N.E.R.] (pursuant to § 39.507(5) Florida Statutes)." In the order, the trial court found the Mother's two children, M.C. and H.C., to be dependent but withheld adjudication of dependency. The Mother also appeals an order that requires her to participate in Family Dependency Treatment Court as a result of the dependency and disposition order. The Department concedes error, and we reverse.
We have jurisdiction to review the order finding the children to be dependent but withholding adjudication of dependency. See P.H. v. Dep't of Children Families, 901 So.2d 277; 277 (Fla. 5th DCA 2005); R.B. v. Dep't of Children Families, 799 So.2d 441, 442 (Fla. 5th DCA 2001); E.M.A. v. Dep't of Children Families, 795 So.2d 183, 184 (Fla. 1st DCA 2001); F.R. v. Dep't of Children Families, 763 So.2d 478, 479 (Fla. 5th DCA 2000).
The Mother argues, and the Department concedes, that the Department failed to prove abuse, abandonment or neglect, or imminent risk thereof. See § 39.01(14)(a), (f), Fla. Stat. (2007). The record supports the Department's concession and that it failed to prove the Mother's "[c]ontinued chronic and severe use of a controlled substance or alcohol" that "demonstrably adversely affected" her children. § 39.01(31)(g)(2); see also J.B.M. v. Dep't of Children Families, 870 So.2d 946, 950 (Fla. 1st DCA 2004).
We note that the Guardian ad Litem (GAL) does not concede error. With respect to the GAL's argument concerning prospective abuse or neglect, the substantial risk of abuse or neglect to the child must be imminent. See § 39.01(14)(f); N.D. v. Dep't of Children Family Servs., 939 So.2d 1192, 1194 (Fla. 2d DCA 2006). The trial court did not make a finding of an imminent risk, and the Department failed to prove an imminent risk.
Therefore, we reverse the order finding the children dependent and withholding adjudication of dependency. We also reverse the order entered as a result of the dependency order that requires the Mother to participate in Family Dependency Treatment Court.
Reversed.
FULMER and NORTHCUTT, JJ., Concur.