Monday, August 7, 2006

Case Law Development: Father's Attempted Murder of Mother in Presence of Children Sufficient Basis for Dependency Action Against Father

The Florida Court of Appeals has reversed a trial court's dismissal of a dependency petition in an action based on Father's attempted murder of Mother, which the children witnessed.  The case presents yet another context for asking what degree of decision-making should be allocated to victims of domestic violence in protecting themselves and their children?

Mother had  obtained an ex parte protection order against Father, after which he attacked her in the home with a hammer.  Mother was hospitalized and the children were taken into custody of the Department of Children and Families.  Mother thereafter obtained a permanent injunction against Father's contact with either her or the children and custody was returned to her.  DCF filed a dependency petition against Father.  Mother had requested that the action be dismissed.  The trial court dismissed the petition on the basis that there had been no expert testimony regarding the emotional harm to the children from witnessing the attack and no expert testimony regarding a cycle of violence to support a threat of future harm.  The trial court reasoned that a dependency action would provide no greater protectionf or the children than was already provided by the permanent injunction in place.

The Court of Appeals reversed, holding that "It is unnecessary to present evidence of a "cycle" of domestic violence committed in front of the children in every case to sustain a finding of dependency.... a single act of domestic violence in front of the children, if it is sufficiently horrific, as here, is adequate."  Further the court found that the permanent injunction did not provide as much protection as would a dependency action:

Ample grounds exist to base a finding of dependency regarding the father as to these children based on both abuse and prospective abuse. A dependency adjudication against the father would presumably bar him from contact with the children, as does the permanent injunction, but it could also require him to attend domestic violence and anger management programs and address the basic causes of the problems which have brought him to this point in his life and that of his children.

One judge dissented, stating:

I  do not see that oversight by the Department can afford the mother any realistic protection from her homicidal husband beyond that which she has already procured from the court, i.e., a permanent injunction. The prospect of additional protection via "anger management" counseling strikes me as naive. There is no reason to impose the intrusions of the Department upon the mother's life against her wishes. Based upon the record before us, she is blameless, and the lower court has so determined.

Morcroft v. J.H., 2006 Fla. App. LEXIS 13040 (August 4, 2006)
Opinion on the web (last visited August 6, 2006 bgf)

http://lawprofessors.typepad.com/family_law/2006/08/case_law_develo_4.html

Child Abuse, Domestic Violence | Permalink

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