Dependency Law Finder

       Third District Court of Appeal
                               State of Florida
                           Opinion filed April 15, 2020.
         Not final until disposition of timely filed motion for rehearing.
                               ________________
                               No. 3D19-1786
                       Lower Tribunal No. 19-15114AC
                             ________________
                             L.C., The Mother,
                                    Appellant,
                                        vs.
              Department of Children and Families, et al.,
                                   Appellees.

      An Appeal from the Circuit Court for Miami-Dade County, Vivianne Del Rio, Judge.
     Eugene F. Zenobi, Criminal Conflict and Civil Regional Counsel, Third Region, and Kevin Coyle Colbert, Assistant Regional Counsel, for appellant.
      Karla Perkins, for appellee Department of Children and Families; Thomasina F. Moore, Statewide Director of Appeals, and Laura J. Lee, Senior Attorney (Tallahassee); Holland & Knight LLP, and Jamie Billotte Moses, B.C.S. (Orlando), for appellee Guardian ad Litem.

Before LOGUE, LINDSEY, and GORDO, JJ.
      LOGUE, J.
       L.C. (the “Mother”) appeals the portions of an Order of Disposition, approval of a Case Plan, and Notice of Hearing that requires her to submit to a substance abuse evaluation. Because good cause for the substance abuse evaluation is absent from this record, we reverse for an evidentiary hearing on this point as the Mother requests.
                                 BACKGROUND
       The Department of Children and Families filed a Dependency Shelter Petition, requesting an order for shelter of the Mother’s three minor children, R.C. (age 15), Ry.C. (age 12), and J.B. (age 8). Both R.C. and Ry.C. have developmental disabilities.
       Among other things, the Shelter Petition requested that the Mother undergo a substance abuse evaluation pursuant to section 39.407(15), Florida Statutes. The request was based on the Department’s unsworn affidavit that alleged the Mother suffered from substance abuse. The affidavit explicitly noted that the allegation was “Not Substantiated.” Without further elaboration, the affidavit alleged that the Mother had a history of substance abuse, had been found “passed out” on a prior occasion, and refused testing in the past.
       On May 14, 2019, the trial court entered an order in which it found probable cause to shelter the three children and awarded L.C. supervised visitation twice a week. The Mother subsequently complied with three court ordered drug tests which proved negative.
      Two weeks after the Shelter Order was entered, the Department filed a Verified Petition for Dependency (the “Dependency Petition”). The Dependency Petition alleged that the Mother failed to provide stable housing, had medically neglected the children, and had abused illicit substances, which impacted her ability to care for her children.
      On August 2, 2019, the trial court entered an order of adjudication based on the Mother’s consent to failure to provide stable housing and medical neglect. Specifically, the Mother consented to the findings in the Adjudication Order that the “children are dependent pursuant to Section 39.01(15)(a) and (f) and 39.01(50) in that the Mother failed to provide stable housing for the Children and did not comply with non-judicial intervention. The Children, R.(C.) and Ry.(C.) have medical needs that were not properly taken care of while in the Mother’s care. These actions place the children at risk of harm.” The Mother did not admit or consent to the substance abuse allegations, and entry of the Adjudication Order was not based on those allegations.
      On August 12, 2019, the Department submitted its Case Plan. One of the tasks required for reunification included that the Mother submit to a substance abuse evaluation. During the Case Plan hearing, the Mother requested an evidentiary hearing to determine whether good cause had been shown. That same day, and without conducting an evidentiary hearing, trial court approved the case plan and entered the Disposition Order.
      This appeal followed.
                             STANDARD OF REVIEW
      We review an order granting or denying an evaluation for abuse of discretion. E.P.V. v. Dept. of Children & Families, 

, 750 (Fla. 3d DCA 2019). “A court’s final ruling of dependency is a mixed question of law and fact and will be sustained on review if the court applied the correct law and its ruling is supported by competent substantial evidence in the record.” M.F. v. Dep’t. of Children & Families, 

 (Fla. 2000) (citing In re Adoption of Baby E.A.W., 

 (Fla. 1995)); see also L.M. v. Dep’t. of Children & Family Svcs., 

 (Fla. 3d DCA 2007).

                                    ANALYSIS

      Section 39.407(16), Florida Statutes, governs whether a person in the

Mother’s circumstances may be ordered to submit to a substance abuse examination.

It requires a showing of good cause before an order to compel a substance abuse

evaluation may be entered:

             At any time after a shelter petition or petition for
             dependency is filed, the court may order a person who has
             custody or is requesting custody of the child to submit to
             a substance abuse assessment or evaluation. The
              assessment or evaluation must be administered by a
              qualified professional, as defined in s. 397.311. The order
              may be made only upon good cause shown. This
              subsection does not authorize placement of a child with a
              person seeking custody, other than the parent or legal
              custodian, who requires substance abuse treatment.

§ 39.407 (16), Fla. Stat. (emphases added).

      Florida Rule of Juvenile Procedure 8.250(b) also addresses the examination,

evaluation, and treatment of a person in the Mother’s circumstances. It also requires

a showing of good cause before an order is entered that requires a substance abuse

evaluation:

              At any time after the filing of a shelter, dependency, or
              termination of parental rights petition, or after an
              adjudication of dependency or a finding of dependency
              when adjudication is withheld, when the mental or
              physical condition, including the blood group, of a parent,
              legal custodian, or other person who has custody or is
              requesting custody of a child is in controversy, any party
              may request the court to order the person to submit to a
              physical or mental examination or a substance abuse
              evaluation or assessment by a qualified professional. The
              order may be made only on good cause shown and after
              notice to the person to be examined and to all parties and
              shall specify the time, place, manner, conditions, and
              scope of the examination and the person or persons by
              whom it is to be made. The person whose examination is
              sought may, after receiving notice of the request for an
              examination, request a hearing seeking to quash the
              request. The court may, on its own motion, order a parent,
              legal custodian, or other person who has custody or is
              requesting custody to undergo such evaluation, treatment,
              or counseling activities as authorized by law.

(Emphases added).
      “Courts are duty-bound to ensure that their dependency orders reflect only

facts proved by competent, substantial evidence presented at the dependency

hearing, and no more.” M.P. v. Dep’t of Children & Families, 

(Fla. 4th DCA 2015) (quoting In re C.Z. v. Department of Children and Family Services, 

 (Fla. 2d DCA 2013)). Further, a case plan must contain a “description of the identified problem being addressed,” and before accepting a case plan the court must consider “[w]hether the plan is meaningful and designed to address facts and circumstances upon which the court based the finding of dependency in involuntary placements.” M.P., 

; see §§ 39.6011(2)(a) & 39.603(1)(f), Fla. Stat.
      On this record, the only reference to the Mother’s alleged substance abuse is found in the allegations set forth in the Shelter and Dependency Petitions. The Department acknowledged those allegations were unsubstantiated. The Mother’s admitted failure to provide stable housing and properly address a child’s medical needs is certainly evidence that the children were placed at risk of harm. However, it does not necessarily follow that the harm flowed from substance abuse. This is particularly true given the Mother submitted to three drug tests while this matter was pending, and the tests proved negative. Moreover, the Mother did not consent to or admit that she suffered from substance abuse. To the contrary, she challenged that issue and requested an evidentiary hearing to determine whether good cause existed. Without the requisite showing of good cause required to compel a substance abuse evaluation, the Disposition Order and the Case Plan do not meaningfully address the facts and circumstances upon which the court based the finding of dependency.
      Our decision in this regard is consistent with our earlier decision in E.P.V. There, E.P.V.’s own admissions in her consent plea supplied good cause to support a mental health evaluation. Even though she did not expressly agree that she suffered from mental health issues, she admitted that she:
             leaves the seven-year-old child home alone for hours, drinks
             every night and takes the Child with her to the homes of adult
             men where she then becomes drunk. . . . [and] on one such
             occasion she fell asleep with a man while other drunk men started
             to touch the Child everywhere and the Child, frightened and
             scared, fled the home alone after 11 p.m. to call her stepfather for
             help. E.P.V., 278 So. 3d at 750, 751. We held these facts, along with the Mother’s “admission in the plea agreement that she lacks impulse control” which directly touched on the issue of mental health, established the required showing of good cause. Id. No such evidence or admission is present in this case.
      We also decline to accept the Department’s argument that the allegations in the Dependency Petition, alone, were enough to establish good cause. While unsubstantiated and conclusory allegations may have been sufficient to provide probable cause for the trial court to enter the Shelter Order, see § 39.402, Fla. Stat., they are not competent, substantial evidence of, and therefore, cannot rise to the level of good cause that must be shown before a court may order a person to submit to a substance abuse evaluation as part of an order of disposition and case plan. § 39.407(16), Fla. Stat.; see Fla. R. Juv. P. 8.250(b).
                                   CONCLUSION
      We reverse the portion of the Order of Disposition regarding the Mother’s substance abuse and remand for an evidentiary hearing to determine whether good cause exists to require the Mother to submit to a substance abuse examination. The Case Plan and Notice of Hearing shall be modified accordingly.