NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING

MOTION AND, IF FILED, DETERMINED

IN THE DISTRICT COURT OF APPEAL

OF FLORIDA

SECOND DISTRICT

In the Interest of E.T., Jr., Y.T., and D.T., )

children. )

___________________________________)

)

E.T., )

)

Appellant, )

)

v. ) Case No. 2D18-2537

)

DEPARTMENT OF CHILDREN AND )

FAMILIES and GUARDIAN AD LITEM )

PROGRAM, )

)

Appellees. )

)

Opinion filed February 6, 2019. 

Appeal from the Circuit Court for Pinellas 

County; James Pierce, Acting Circuit 

Judge.

Ita M. Neymotin, Regional Counsel, 

Second District, Office of Criminal 

Conflict and Civil Regional Counsel, Fort 

Myers; David C. Chafin, Assistant 

Regional Counsel, Clearwater; and 

Joseph Thye Sexton, Assistant Regional 

Counsel, Bartow, for Appellant.

Bernie McCabe, State Attorney, and 

Leslie M. Layne, Assistant State 
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Attorney, Clearwater, for Appellee 

Department of Children and Families.

Thomasina Moore, Statewide Director of 

Appeals, and Laura J. Lee, Appellate 

Counsel, Tallahassee, for Appellee 

Guardian ad Litem Program.

BLACK, Judge.

E.T., the Father of the children, appeals from an order that supplements a 

prior order adjudicating the children dependent and finds that he engaged in conduct 

constituting abuse, abandonment, and neglect of the children within the meaning of 

section 39.01(15)(a), Florida Statutes (2017). We affirm the order without further 

comment insofar as it makes findings that the Father engaged in conduct that 

constitutes abuse, abandonment, and neglect. However, we reverse the order to the 

extent that it makes dispositional findings and directs the Father to complete certain 

case plan tasks without first holding a separate disposition hearing, and we remand for 

the court to hold a disposition hearing as instructed in this opinion. The court's nocontact order and the children's current placement shall remain in effect pending a 

disposition hearing. 

I. Background 

After the children were sheltered, the Department of Children and Families 

filed a petition for dependency alleging that the Father had abused, neglected, and 

abandoned the children; allegations of abuse and neglect were also made against the 

children's mother. The children's mother consented to the dependency, and the trial 

court entered an order adjudicating them dependent. The court continued the petition 

against the Father, who had requested mediation. 
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At a subsequent evidentiary hearing concerning the allegations against 

the Father, the trial court accepted the Department's position that because the children 

had already been adjudicated dependent based upon the mother's consent, it should 

supplement "the adjudicatory order, disposition order, and the case plan as necessary." 

Notwithstanding the Department's position, the court heard evidence concerning the 

allegations in the petition against the Father. However, the court rejected the Father's 

argument that a separate disposition hearing was required under section 39.507(8) if it 

found that the Father had abused, abandoned, or neglected the children. And it agreed 

with the Department's argument that it need not find that the Father actually harmed the 

children to conclude that he contributed to their dependency. After the evidentiary 

hearing, the court entered a supplemental order finding that the Father had engaged in 

conduct that constituted abuse, abandonment, and neglect of the children under section 

39.01(15)(a). It also made dispositional findings, directed the Department to file a case 

plan that would be accepted if no party objected within ten days, and directed the Father 

to complete certain case plan tasks. The court ordered that the Father have no contact 

with the children until further order of the court and kept the children in their current 

placement.

II. Discussion

The Father argues on appeal that the court erred in conducting the 

disposition hearing contemporaneously with the adjudicatory hearing and in failing to 

provide him with proper notice of the disposition hearing. He asserts that upon finding 

that the Department established the allegations against him, the court should have 

provided him with written notice of a disposition hearing to take place within thirty days 
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after the adjudicatory hearing under section 39.507(8). In addition, he argues that at an 

adjudicatory hearing the court was required to find that his conduct resulted in actual 

harm to the children as opposed to imminent harm.1 The Father's issues involve 

questions of law, and our review is de novo. See M.M. v. Fla. Dep't of Children & 

Families, 189 So. 3d 134, 137 (Fla. 2016).

A. Separate disposition hearing was required for the Father

In arguing that a separate disposition hearing was not required, the 

Department and the Guardian ad Litem Program rely upon the language in section 

39.507(7)(b) that "[i]f a second parent is served and brought into the proceeding after 

the adjudication and if an evidentiary hearing for the second parent is conducted, the 

court shall supplement the adjudicatory order, disposition order, and the case plan, as 

necessary." (Emphasis added.) They interpret this language to mean that the trial court 

can hold a single hearing to determine whether the Father contributed to the children's 

dependency and then supplement the adjudicatory order, disposition order, and the 

case plan "as necessary," without conducting a separate disposition hearing. We 

disagree. This language does not eliminate the need for a disposition hearing as 

contemplated under section 39.507(8) and Florida Rules of Juvenile Procedure 

1The Father also argues that the court erred in accepting the Department's 

position that because the children had already been adjudicated dependent based upon 

the mother's consent, it was not necessary to conduct an adjudicatory hearing with 

regard to the allegations against him in the petition for dependency. But as the 

Department and Guardian ad Litem Program point out, the court did in effect conduct an 

adjudicatory hearing as required, see § 39.507(7)(b); Fla. R. Juv. P. 8.315(a)(3); Fla. R. 

Juv. P. 8.347(f)(2), (g)(1), and therefore no procedural error occurred with respect to the 

court's determination that the Father contributed to the children's dependency by 

engaging in conduct that constituted abuse, abandonment, and neglect of the children 

under section 39.01(15)(a).
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8.347(h)(2) and 8.347(i). 

"[O]nly one order adjudicating each child in the case dependent shall be 

entered." § 39.507(7)(a). "However, the court must determine whether each parent or 

legal custodian identified in the case abused, abandoned, or neglected the child . . . ." § 

39.507(7)(b). Further, section 39.507(8) provides as follows:

At the conclusion of the adjudicatory hearing, if the child 

named in the petition is found dependent, the court shall 

schedule the disposition hearing within 30 days after the last 

day of the adjudicatory hearing. All parties shall be notified 

in writing at the conclusion of the adjudicatory hearing by the 

clerk of the court of the date, time, and location of the 

disposition hearing.

Clearly section 39.507(8) contemplates that a separate disposition hearing should be 

held following an adjudicatory hearing. Rule 8.347(h)(2) similarly provides that following 

supplementation of the order of adjudication to include a second parent, "[i]f necessary, 

the court shall schedule a supplemental disposition hearing within 15 days." That is, if 

after a hearing on the allegations against a second parent the court concludes that the 

second parent should be included in the adjudicatory order, it becomes necessary to 

schedule a supplemental disposition hearing. The supplemental disposition hearing 

must be conducted "pursuant to the same procedures for a disposition hearing and case 

plan review hearing as provided by law." Fla. R. Juv. P. 8.347(i)(1). Rule 8.347 further 

requires that the "written case plan and reports required by law . . . must be filed with 

the court[] [and] served upon the parents of the child . . . no less than 72 hours before 

the supplemental disposition hearing." Fla. R. Juv. P. 8.347(i)(2)(A). In addition, rule 

8.347(i)(3) specifically directs what the court should include in a supplemental order of 

disposition. These provisions reflect that a second parent who is included in a 
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supplemental adjudicatory order is entitled to the same procedures for a disposition 

hearing and case plan review as the first parent.

Section 39.507(7)(b) contemplates that if the court holds an evidentiary 

hearing for a second parent it should thereafter supplement the adjudicatory order, 

disposition order, and case plan "as necessary." As with rule 8.347(h)(2), we interpret 

this language to mean that if after holding an adjudicatory hearing for a second parent 

the court determines that the second parent contributed to a child's dependency under 

the statutory definition of a dependent child, the court is authorized to supplement its 

prior adjudicatory and disposition orders and case plan "as necessary." However, the 

provision does not eliminate the procedures for holding a disposition hearing under 

section 39.507(8), rule 8.347(h)(2), or rule 8.347(i) before supplementing the disposition 

order and case plan. Therefore, the Father was entitled to a separate disposition 

hearing after notice. 

As to the timing of the separate disposition hearing, we note that although 

section 39.507(8) and rule 8.347(h)(2) provide different timeframes, they are not in 

conflict. Compare § 39.507(8) (requiring "the court [to] schedule the disposition hearing 

within 30 days after the last day of the adjudicatory hearing"), with Fla. R. Juv. P. 

8.347(h)(2) (requiring "the court [to] schedule a supplemental disposition hearing within 

15 days" of the adjudicatory hearing). The requirement under rule 8.347(h)(2) that a 

supplemental disposition hearing be held within fifteen days falls within the broader 

requirement under section 39.507(8) that a disposition hearing be held within thirty 

days. Because the Father is the second parent following the mother's consent to the 

children's dependency, we conclude that the more specific provisions of rule 8.347(h)(2) 
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that address supplemental disposition hearings for a second parent control the timing of 

a supplemental disposition hearing as to the Father. See M.W. v. Davis, 756 So. 2d 90, 

106 n.31 (Fla. 2000) ("In construing statutes, a specific statute governing a particular 

subject takes precedence over a conflicting more general statute."); Cricket Props., LLC 

v. Nassau Pointe at Heritage Isles Homeowners Ass'n, 124 So. 3d 302, 307 (Fla. 2d 

DCA 2013) (noting same). Thus, the trial court was required to hold a disposition 

hearing within fifteen days of the entry of the supplemental order of adjudication. 

B. Department was not required to prove actual harm 

The Father also argues that the Department was required to establish that 

he actually harmed the children in order for the court to find that he contributed to their 

dependency. Focusing on the language in section 39.507(7)(b) that "a second parent is 

served and brought into the proceeding after the adjudication," the Father argues that 

the statute creates two classes of parents: one includes parents who are served with 

the petition for dependency before the children are adjudicated dependent and the other 

includes parents who are served after the children have been adjudicated dependent. 

The Father argues that the language in section 39.507(7)(b) that "[t]he petitioner is not 

required to prove actual harm or actual abuse by the second parent" does not apply to 

him because section 39.507(7)(b) references parents "served and brought into the 

proceeding after the adjudication" of dependency and he was served with the petition 

before the children were adjudicated dependent. According to the Father, the 

Department was required to prove that his conduct resulted in actual harm and not 

prospective harm to the children. We disagree and conclude that section 39.507(7)(b) 

applies uniformly to "the second parent"—the parent who objects to the allegations of 
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dependency when the other parent consents. 

Prior to the amendment to section 39.507(7)(b) in 2017, there was a 

conflict between the Fifth and Third Districts regarding whether the Department was 

required to prove that a second parent caused actual harm to a child in a supplemental 

adjudication after the child was adjudicated dependent based upon the actions of the 

other parent or whether it could prove prospective harm against the second parent. 

Compare P.S. v. Dep't of Children & Families, 4 So. 3d 719, 720-21 (Fla. 5th DCA 

2009) (requiring the Department to establish actual harm by the children's father after 

the mother consented to the children's dependency and the Department thereafter filed 

a petition alleging that the father contributed to the children's dependency), with D.A. v. 

Dep't of Children & Family Servs., 84 So. 3d 1136, 1139-41 (Fla. 3d DCA 2012) 

(disagreeing with P.S. and holding that the Department could prove prospective harm at 

an adjudicatory hearing for the father when the children were alleged to be dependent 

based upon allegations against the mother and the father, the mother consented to 

dependency, and the petition proceeded to an adjudicatory hearing for the father). In 

concluding that either actual or prospective harm could be established against the 

second parent, the Third District observed that section 39.507(7)(b) plainly stated that 

"the court must determine whether each parent or legal custodian identified in the case 

abused, abandoned, or neglected the child in a subsequent evidentiary hearing." 84 

So. 3d at 1140. Section 39.507(7)(b) did not include the word "actual" as contemplated 

by the Fifth District's holding in P.S., and the Fifth District's interpretation disregarded 

chapter 39's statutory definitions, which incorporated prospective risk of harm as a basis 

for determining whether a child is dependent. The Third District further observed that it 
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would be absurd to read section 39.507(7)(b) to require the Department, with no 

apparent rationale, to apply two different standards of proof to parents by imposing a 

higher burden of proof for a second parent in a supplemental proceeding than for the 

consenting parent: "The second parent, who in most cases will be the more fractious, 

arbitrarily will receive the benefit of holding [the Department] to a higher level of proof." 

84 So. 3d at 1140. 

The legislature amended section 39.507(7)(b) in 2017 to state that a "court 

must determine whether each parent . . . abused, abandoned, or neglected the child or 

engaged in conduct that placed the child at substantial risk of imminent abuse, 

abandonment, or neglect." Ch. 2017-151, § 10, at 17, Laws of Fla. (emphasis added to 

reflect the addition of new language). It also added the language that a "petitioner is not 

required to prove actual harm or actual abuse by the second parent in order for the 

court to make supplemental findings regarding the conduct of the second parent." Id. 

By adding the foregoing language, the legislature made clear that the same burden of 

proof applies to each parent. See also Fla. H.R. Comm. on Health & Human Servs., 

Subcomm. on Children, Families & Seniors, HB 1121 (2017) Staff Analysis (Mar. 12, 

2017) (observing the conflict between the Third and Fifth Districts and noting that the 

proposed legislation "clarifies that the petitioner is not required to show actual harm by 

the second parent in order for the court to make supplemental findings regarding the 

conduct of the second parent"). Thus, the trial court applied the correct burden and its 

finding that the Father contributed to the children's dependency under the statutory 

definition was properly supported by proof of his conduct that placed them at imminent 

risk of harm.
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III. Conclusion 

Based upon the foregoing discussion, we affirm the trial court's findings 

that the Father engaged in conduct that constitutes abuse, abandonment, and neglect 

of the children under section 39.01(15)(a). We reverse the order on review to the extent 

that the trial court made findings concerning the most appropriate protections, services, 

and placement for the children without the required notice and separate hearing. On 

remand, the trial court shall enter an amended supplemental order of adjudication 

without the dispositional findings and provisions. Upon written notice to the Father and 

within fifteen days of the entry of the amended supplemental order, the court must hold 

a disposition hearing. The court's continuation of its no-contact order shall remain in 

effect pending a disposition hearing. 

Affirmed in part, reversed in part, and remanded.

LaROSE, C.J., and SILBERMAN, J., Concur.