IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FIFTH DISTRICT

NOT FINAL UNTIL TIME EXPIRES TO

FILE MOTION FOR REHEARING AND

DISPOSITION THEREOF IF FILED

J.W., FATHER OF J.W., Z.R.W., AND

Z.W., CHILDREN,

Appellant, 

v. Case No. 5D22-0045

LT Case No. 2020-30407-CJCI

DEPARTMENT OF CHILDREN AND 

FAMILIES,

Appellee. 

________________________________/

Opinion filed May 3, 2022

Appeal from the Circuit Court

for Volusia County, 

A. Kathleen McNeilly, Judge.

Richard F. Joyce, Special Assistant 

Regional Counsel, of Office of Criminal 

Conflict & Civil Regional Counsel, 

Casselberry, for Appellant. 

Ward L. Metzger, of Children’s Legal 

Services, Tallahassee, for Appellee, 

Department of Children and Families. 
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EVANDER, J.

The Father of J.W., Z.R.W., and Z.W. appeals an order finding his 

children dependent based on his violent behavior during altercations with the 

children’s mother. We affirm the trial court’s order as to the youngest child, 

J.W., who was present and physically impacted during one incident of

domestic violence. Competent, substantial evidence supports the trial 

court’s determination that the father engaged in violent behavior that 

demonstrated a wanton disregard for the presence of J.W. that could have 

reasonably resulted in serious injury to the child. See § 39.01(35)(i), Fla.

Stat. (2019).

We reverse the trial court’s order finding J.W.’s two older sisters 

dependent. There was no competent evidence that these siblings were 

aware of the domestic violence, nor was there sufficient evidence to support 

a finding of prospective abuse. 

We conclude that the other arguments raised by the Father are either 

unpreserved or without merit.

AFFIRMED, in part; REVERSED, in part; REMANDED. 

COHEN, J., concurs.

EISNAUGLE, J., concurs in result only, with opinion.
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Case No. 5D22-45

LT Case No. 2020-30407-CJCI

EISNAUGLE, J., concurring in result only with opinion. 

I agree with the majority that there was no competent, substantial 

evidence to support the trial court’s adjudication of dependency as to Z.R.W. 

and Z.W. We must therefore reverse as to J.W.’s two older sisters. 

However, while I would affirm as to J.W., I do not agree with the 

majority’s reason for doing so. On appeal, Father argues that the evidence 

was insufficient because the trial court relied on inadmissible hearsay. While 

that is true, Father failed to preserve this argument with a timely objection at 

trial. See Sunset Harbour Condo. Ass’n v. Robbins, 914 So. 2d 925, 928 

(Fla. 2005) (“In order to be preserved for further review by a higher court, an 

issue must be presented to the lower court and the specific legal argument 

or ground to be argued on appeal or review must be part of that presentation 

if it is to be considered preserved.” (quoting Tillman v. State, 471 So. 2d 32, 

35 (Fla. 1985))). This argument is therefore without merit.

Notably, Father does not argue on appeal that the trial court’s findings 

lack evidentiary support even if we consider, as we must, the unobjected-to 

hearsay evidence. Cf. Wilson v. Dep’t of Child. & Fams., 326 So. 3d 170, 

171 (Fla. 5th DCA 2021) (“Whether a better argument for reversal could have 

been made here by [appellant] is not our task to address. Simply put, it is 
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neither the function nor role of an appellate court to make an argument for a 

party.” (citation omitted)); Rosier v. State, 276 So. 3d 403, 407 (Fla. 1st DCA 

2019) (“In his initial brief, Rosier argued only that the trial court failed to hold 

a competency hearing. Now on rehearing, he argues, for the first time, that 

the hearing was inadequate. Because Rosier did not challenge the adequacy 

of the competency hearing in his initial brief, he may not raise it now on 

rehearing.” (citations omitted)). For that reason, I would affirm as to J.W.