5D00-2722opM.B.-DEPARTMENT

SUPREME COURT CASES

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State: Florida

Court: Florida Fifth District Court

Docket No: 5D00-2722opM.B.-DEPARTMENT

Case Date: 05/21/2001

Preview:IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JANUARY TERM 2001

M.B., AS PARENT OF A.F., A CHILD, Appellant, v. Case No. 5D00-2722 DEPARTMENT OF CHILDREN AND FAMILIES, Appellee. / Opinion filed May 25, 2001 Appeal from the Circuit Court for Orange County, Janet C. Thorpe, Judge. Nickole E. Frederick, Orlando, for Appellant. James A. Sawyer, Jr., Department of Children and Families, Orlando, for Appellee. PER CURIAM. M.B. appeals an order finding her son, A.F., to be dependent and the disposition order placing her son with his father. We vacate the orders as well as the order CORRECTED

terminating supervision by the Department of Children and Families (DCF), terminating supervision by the court, and discharging the guardian ad litem (GAL). M.B. and her three children, including A.F., lived with her parents. A.F. was having difficulty digesting his formula and M.B. substituted evaporated milk, cereal, fruit, rice, water, and apple juice as she had successfully done with her other two children. Unfortunately, A.F. did not respond in the same manner and suffered weight loss and

diarrhea.1 M.B. called a physician about the diarrhea and was told the name of a product to administer to prevent dehydration and was given an appointment four days later. Two days later, the father learned about the problem from M.B., took the child to a clinic, and was told that A.F. needed hospitalization. The father and M.B. complied and had the child admitted. A physician attributed A.F.'s weight loss to the mother's poor education and lack of knowledge of nutritional requirements of a child. He also noted a urinary tract infection that did not result from a lack of care. M.B. stayed at the hospital with her child, attended to his needs, and successfully completed a parenting class offered by the hospital. After being treated in the hospital for about one week, A.F. was scheduled to return home when DCF advised M.B. that A.F. was going to be removed from her custody. Thereafter, the child was placed with M.B.'s parents, then ultimately with the father at a disposition hearing. The trial court committed several errors during the hearing that require reversal. More specifically, we find the trial court erred in: 1. Holding that A.F. was a dependent child. The instant case is similar to In the Interest of C.W., 490 So. 2d 195 (Fla. 5th DCA 1988) where the child suffered a temporary set-back as a result of the mother's lack of education and experience, rather than through the neglect and mistreatment prohibited by section 39.01(14)(a), Florida Statutes. There is no indication that A.F. could not have been monitored at home to ensure M.B. would comply with a case plan and feeding program. Waiving the preparation and filing of a case plan. A case plan is required to be filed with the court, served upon a parent, and provided

2.

Although M.B. indicated that A.F. was teething during this time period, there was no evidence in the record as to the cause of the diarrhea, which had only existed for one day before M.B. called a physician. 2

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to the GAL within 72 hours before the disposition hearing. See Fla. Stat.

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