DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

O.M., the father,

Appellant,

v.

DEPARTMENT OF CHILDREN AND FAMILIES and

GUARDIAN AD LITEM,

Appellees.

No. 4D2023-3046

[May 22, 2024]

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, 

Broward County; Yael Gamm, Judge; L.T. Case No. 23-001805-DP. 

Kevin G. Thomas, Sunny Isles Beach, for appellant.

Carolyn Schwarz of Children’s Legal Services, Fort Lauderdale, for 

appellee, Department of Children and Families. 

Sara Elizabeth Goldfarb, Statewide Director of Appeals, and Sarah Todd 

Weitz, Statewide Director of Appeals, Statewide Guardian ad Litem Office, 

Tallahassee, for appellee, Guardian ad Litem.

KLINGENSMITH, C.J.

The father appeals an order of dependency. The Department of 

Children and Families (“DCF”) initiated these proceedings after the child

was born drug-positive, suffering from severe withdrawal symptoms.

The mother consented to dependency, and the circuit court adjudicated 

the child dependent as to the father following a bench trial, finding (1) the 

father had failed to protect the child from the mother’s substance abuse

while pregnant, and (2) the father’s own drug use posed a substantial risk 

of imminent harm or neglect to the child. Because competent substantial 

evidence does not support a dependency adjudication on the grounds cited 

by the trial court, we reverse.

A 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 
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ruling is supported by competent substantial evidence in the record.” C.A. 

v. Dep’t of Child. & Fams., 958 So. 2d 554, 557 (Fla. 4th DCA 2007)

(quoting R.S. v. Dep’t of Child. & Fams., 881 So. 2d 1130, 1132 (Fla. 4th 

DCA 2004)).

In dependency cases, DCF carries the burden to prove that a child is 

dependent by a preponderance of the evidence. § 39.507(1)(b), Fla. Stat. 

(2023). A child may be declared dependent when the court finds that the 

child has been “abandoned, abused, or neglected by the child’s parent or 

parents,” or the child is “at substantial risk of imminent abuse, 

abandonment, or neglect.” § 39.01(14)(a), (f), Fla. Stat. (2023).

To the extent “the evidence is conflicting or turns on credibility of the 

witnesses, all credence and presumption of correctness must be given to 

the trial court.” C.A., 958 So. 2d at 557 (quoting F.R. v. Dep’t of Child. & 

Fams., 826 So. 2d 449, 450 (Fla. 5th DCA 2002)). “While a trial court’s 

discretion in child welfare proceedings is very broad, reversal is required 

where the evidence is legally insufficient” to sustain the court’s findings. 

Id. (quoting R.S., 881 So. 2d at 1132).

I. The evidence is insufficient to prove that the father failed to 

protect the child from the mother’s substance abuse.

To support a finding that the father neglected the child by failing to 

protect the child from the mother’s drug abuse during pregnancy, DCF 

carried the burden to prove that the father (1) knew or should have known 

about the mother’s drug use while pregnant, and (2) was capable of 

preventing the child’s exposure but failed to do so. See M.F. v. Dep’t of 

Child. & Fams., 975 So. 2d 622, 624 (Fla. 4th DCA 2008); C.A., 958 So. 2d 

at 560.

The facts of this case are similar to our decisions in M.F. and C.A., 

where we held that DCF failed to prove each father’s knowledge of the 

mother’s substance abuse.

In M.F., after one of the parents’ multiple children was born cocainepositive, DCF sought a dependency adjudication as to the father, alleging 

in part that he failed to protect the child from the mother’s drug abuse. 

M.F., 975 So. 2d at 623. The father admitted that he was present in the 

home on a regular basis but testified that he did not know the mother was 

using drugs while pregnant. Id. at 624. The trial court discredited the 

father’s testimony and found that he knew the mother was using drugs. 

Id.
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On appeal, we reversed the order of dependency, finding the evidence 

was legally insufficient to prove the father’s knowledge of the mother’s drug 

use. Id. We explained our reasoning, in pertinent part, as follows:

[T]he department did not put forth any evidence to counter the 

father’s testimony that he did not know the mother was using 

drugs while pregnant. The father’s testimony that he was 

present in the home on a regular basis may raise an inference 

of knowledge but does not contradict his testimony that he did 

not know the mother was using cocaine while pregnant.

Id.

In C.A., after the mother suffered a drug overdose in front of the child, 

DCF petitioned for a dependency adjudication as to the father, alleging he 

failed to protect the child from the mother’s substance abuse. C.A., 958 

So. 2d at 556-57. The evidence at trial showed that, during the case 

investigation, the father admitted he had done drugs with the mother in 

the past. Id. at 557. However, the father testified he did not know the 

mother continued to abuse drugs. Id. at 558. Like in M.F., the trial court 

rejected the father’s testimony, finding he knew or should have known of 

the mother’s substance abuse. Id. Again, we reversed that finding because 

DCF presented no evidence to contradict the father’s testimony that he did 

not know the mother still used drugs. Id. at 560.

In the present case, as in M.F. and C.A., DCF failed to prove the father

had knowledge of the mother’s substance abuse. The father admitted that 

he lived with the mother “on and off” for nearly two years before the child’s 

birth, that he was financially responsible for the mother, and that the 

mother had a habit of leaving the home after arguments. However, those 

facts are insufficient to prove that he knew or should have known the 

mother used drugs while pregnant. See M.F., 975 So. 2d at 624; C.A., 958

So. 2d at 560.

Further, the child protective investigator (“CPI”)—the only witness 

whom DCF called at trial—testified the father had denied knowledge of the 

mother’s drug use when she had interviewed him at the hospital after the 

child’s birth. The father told the CPI he was not aware the mother had 

been using drugs, he did not know how she obtained drugs, he did not 

understand why the child was receiving medical treatment, and he did not 

know the child had been exposed to drugs.

Accordingly, the record evidence in this case is legally insufficient to 

support the trial court’s finding that the father knew or should have known 
4

of the mother’s drug use while pregnant, and, by extension, that he failed 

to protect the child.

II. The evidence is legally insufficient to support a finding that 

the father’s own substance abuse posed a substantial risk of 

imminent harm to the child.

To support a dependency adjudication on the alternative basis that the 

father’s own drug use posed a substantial risk of imminent harm or neglect 

to the child, DCF was required to prove that (1) the father has an ongoing 

substance abuse problem, (2) his substance abuse adversely affected his 

ability to care for the child, and (3) the child suffered harm or injury—

physical, mental or emotional—as a consequence of the father’s drug use. 

See M.F., 975 So. 2d at 625 (first citing C.A., 958 So. 2d at 560-61; and 

then citing R.S., 881 So. 2d at 1134).

In determining whether a parent’s drug abuse problem is “ongoing,” 

courts consider “the proximity in time between an alleged act of drug use 

and the dependency proceeding.” Id. (first citing J.B.M. v. Dep't of Child. & 

Fams., 870 So. 2d 946, 949 (Fla. 1st DCA 2004); and then citing R.S., 881 

So. 2d at 1134).

In this case, the father admitted that he regularly used edible 

marijuana without a prescription before the child’s birth. The father also

tested positive for cocaine and THC only a short time before the 

dependency hearing. He initially contested the positive test result for 

cocaine, but he then called the CPI to explain how he may have been 

exposed to that substance.

Taken together, that evidence supports a finding that the father has an 

“ongoing” substance abuse problem. Compare R.S., 881 So. 2d at 1134

(holding DCF failed to demonstrate the father had an “ongoing” drug abuse 

problem where he last used drugs over a year before the dependency 

hearing); with M.F., 975 So. 2d at 626 (holding the father’s recent positive 

test for cocaine established his present drug use).

However, “evidence that the parent has a drug or alcohol problem, 

standing alone, is insufficient to support a finding of dependency.” C.A., 

958 So. 2d at 560 (emphasis added) (quoting J.B.M., 870 So. 2d at 951). 

Rather, DCF must also prove that the parent’s drug use poses a

“substantial” risk of “imminent” harm to the child. M.F., 975 So. 2d at 625

(citing C.A., 958 So. 2d at 560-61). Although the child need not be present 

for the parent’s drug use, “the totality of the circumstances must show an 

imminent risk of harm.” Id. (citing C.A., 958 So. 2d at 560-61). A parent’s 
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drug use is harmful if it is “chronic and severe,” and the child is 

“demonstrably adversely affected.” C.A., 958 So. 2d at 559 (quoting T.G. 

v. Dep’t of Child. & Fams., 927 So. 2d 104, 106-07 (Fla. 1st DCA 2006)); 

accord § 39.01(34)(g)2., Fla. Stat. (2022).

Here, DCF produced no evidence that the father’s drug use adversely 

affects his ability to care for the child, or that the child has suffered harm 

or injury because of his drug use.

Our holding in M.F. is equally instructive on this point. There, in 

addition to alleging that the father had failed to protect his daughter from 

the mother’s substance abuse, DCF also alleged that the father’s own drug 

use posed a substantial risk of imminent harm to his children. M.F., 975 

So. 2d at 623. DCF presented evidence that the father had previously been 

arrested on drug possession charges and had recently tested positive for 

cocaine. Id. at 625-26. Further, the parties disputed whether the father

had failed to purchase supplies for the daughter before her birth. Id. at 

626 n.4. The trial court granted the dependency petition. Id. at 624.

We reversed, holding the evidence could not support a finding that the 

father’s drug use placed the children at substantial risk of imminent harm 

or neglect because the only evidence of harm—that the daughter was born 

cocaine-positive—was attributable only to the mother. Id. at 626 n.4. 

Further, the father’s failure to purchase supplies for the daughter, even if 

true, was not indicative of harm to a child. Id.

In this case, like in M.F., the trial court apparently concluded that the 

father’s drug use posed a substantial risk of imminent harm to the child

because she was born drug-positive, and the father failed to obtain

adequate baby supplies ahead of her birth.

However, because the evidence is insufficient to prove that the father

knew or should have known about the mother’s drug use, the severe harm 

that the child suffered by being born drug-positive is attributable only to 

the mother. See id.; see also C.A., 958 So. 2d at 559 (holding that, 

although the mother’s drug overdose adversely affected the child, DCF 

failed to prove the child was affected by any alleged drug use on the part 

of the father).

Additionally, even accepting the trial court’s finding that the father had 

failed to purchase adequate supplies ahead of the child’s birth, that fact is 

not indicative of harm or neglect to the child in the legal sense. See M.F., 

975 So. 2d at 626 n.4. Further, although the trial court apparently 

reasoned that the father’s drug use poses a prospective risk of harm 
6

because he continues to live with the mother, that fact alone does not 

meaningfully distinguish the present case.

DCF otherwise produced no evidence that the father’s drug use affects 

his ability to care for the child, or that the child has suffered harm or injury 

because of his drug use. The CPI readily acknowledged that she saw the 

father at the hospital “several times,” and he never appeared to be under 

the influence of any substance. The CPI also recognized she had received 

no evidence that the father is a “chronic” drug user, or that his drug use 

would affect his ability to care for a child. Therefore, the record in this 

case cannot support a finding that the father’s own drug use posed a 

substantial risk of imminent harm to the child.

Because the evidence is legally insufficient to support a dependency 

adjudication as to the father on either ground cited by the trial court, we 

reverse the order of dependency.

Reversed.

WARNER and KUNTZ, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.