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IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
JULY TERM 2004

G.S.H., The Father and DEPARTMENT OF
the child who was born in 1998 until she was
CHILDREN AND FAMILY SERVICES,
three, he paid child support at all times and he

was prevented from seeing her by the mother for
Appellants,
two years. A home study of the father prepared

by DCF was filed with the court. The home
v.
study provides that the custody by the father is

approved only if he continues to live with his
K.H., The Mother,
parents. He testified that he has no intention of

leaving.
Appellee.

M.H.'s case worker testified that she had not

met the father but believed that the child would
CASE NO. 4D04-2008
be well taken care of in the father's home as

long as he remains with his parents. M.H. is

doing well in her maternal grandparents' home
Opinion filed October 6, 2004
and has bonded with her older sister who lives

there with her. The mother, however, has had
Appeal of a non-final order from the Circuit
ample time to satisfy her case plan but has
Court for the Fifteenth Judicial Circuit, Palm
missed some sessions and not completed certain
Beach County; Ronald V. Alvarez, Judge; L.T.
required courses.
Case No. CJDP 03-300498 JK.

In denying the motion, the trial court found
John Brewer, Lake Worth, for appellant
that M.H. was in a stable placement with her
G.S.H., The Father.
maternal grandmother and her sister and that the

mother visits with M.H. frequently. These visits
No brief filed for appellant Department of
would be limited if M.H. lived with her father in
Children and Family Services.
Citrus County, Florida. The trial court

concluded, "[i]t is not in the best interest of the
No appearance for appellee.
child to separate her from her sibling in order to

be placed with her father."
PER CURIAM.

Section 39.521(3)(b), Florida Statutes (2003),
G.S.H., the father, files this appeal from the
entitled "Disposition hearings; powers of
trial court's denial of his motion to modify
disposition," provides:
placement of his child, M.H., pursuant to section

39.521(3)(b), Florida Statutes (2003). He argues
3) When any child is adjudicated by a court to
that the trial court applied the wrong legal
be dependent, the court shall determine the
standard in denying the motion and that there
appropriate placement for the child as follows:
was insufficient evidence to support that denial.
. . .
We agree and reverse.
(b) If there is a parent with whom the child

was not residing at the time the events or
After the mother, K.H., consented, the trial
conditions arose that brought the child within
court entered an Order of Adjudication of
the jurisdiction of the court who desires to
Dependency which provided that M.H. remain
assume custody of the child, the court shall
in the physical and legal custody of her maternal
place the child with that parent upon
grandparents. The father filed his motion to
completion of a home study, unless the court
modify custody alleging that he had custody of
finds that such placement would endanger the

safety, well-being, or physical, mental, or

emotional health of the child. Any party with
was familiar with agencies that could provide
knowledge of the facts may present to the
assistance to the father and child. There were
court evidence regarding whether the
also family members available to assist them.
placement will endanger the safety, well-

being, or physical, mental, or emotional health
The trial court denied the father's motion
of the child. . . .
because of his "less than forthright" testimony

about his detox admissions. Id. at 307. It also
As the court held in M.M. v. Department of
determined that the fact that the fianc�e was in a
Children & Families, 777 So. 2d 1209 (Fla. 5th
wheelchair limited her ability to care for the
DCA 2001):
child and although the father had arranged for

full-time child care, the trial court thought that
This statute requires the court to place a child
this would be difficult to maintain because of the
adjudicated to be dependent as to one parent
late hours.
with the child's remaining (non-residential)

parent upon request, unless the court "finds
On appeal, the district court held:
that such placement would endanger the

safety, well-being, or physical, mental, or
The "best interest" standard does not apply
emotional health of the child." The decision is
under this section, and in the absence of
not optional with the court--the statute says the
evidence of endangerment, the non-offending
court "shall" make such a placement.
parent is entitled to custody. See D.S. v. Dep't

of Children & Families, 832 So. 2d 838 (Fla.
Id. at 1212 (citations omitted); see also L.P. v.
5th DCA 2002). A natural parent cannot be
Dep't of Children & Families, 871 So. 2d 306
denied custody of his child unless evidence
(Fla. 1st DCA 2004); D.S. v. Dep't. of Children
demonstrates compelling reasons that the
& Families, 832 So. 2d 838 (Fla. 5th DCA
parent is unfit or otherwise unable to exercise
2002); Roberts v. Fla. Dep't of Children &
custody, and that placing the child with the
Families, 687 So. 2d 51 (Fla. 3d DCA 1997).
parent would endanger the child's safety and

well-being. See In the interest of M.K.S., 726
In making its decision below, the trial court
So. 2d 309 (Fla. 2d DCA 1998).
used the improper standard of "best interest of

the child" and did not make the indispensable
Id. at 308. The district court found that those
finding concerning endangerment.
compelling reasons did not exist and the trial

court abused its discretion in denying custody to
In L.P. v. Department of Children & Families,
the father. It reversed and remanded for the trial
871 So. 2d 306 (Fla. 1st DCA 2004), the father
court to place the child in the father's custody.
of a seventeen-month-old developmentally

disabled son sought custody of his son under
Here, the trial court's findings do not show
section 39.521(3)(b), Florida Statutes (2002).
"compelling reasons" to deny the father's
The father had not been married to the mother
motion. The father's home study was positive
but now lived with his fianc�e who was in a
and his mother was available to care for M.H.
wheelchair. The father had a steady job and
There is insufficient evidence from which the
home, worked the evening shift until 11:00
trial court could make a finding of endangerment
P.M., and prior to the child's birth had five
to the child.
admissions to a detox facility for two days each.

There were two home studies, the first of which
Without compelling reasons which show the
was positive and the second of which did not
child would be endangered in the father's
recommend placement solely because there was
custody, the trial court abused its discretion in
no suitable or specific arrangement for the child
denying the father's motion. We reverse and
while the father was at work. The fianc�e had
remand for the trial court to place M.H. in the
worked at the Center for Independent Living and
father's custody.

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REVERSED and REMANDED for
proceedings consistent with this opinion.
STEVENSON, GROSS and HAZOURI, JJ.,
concur.

NOT FINAL UNTIL DISPOSITION OF ANY
TIMELY FILED MOTION FOR REHEARING.

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