In re Francisco R.
Appellate Court
Released December 9, 2008 NEGLECT/PREDICTIVE NEGLECT:
This case is an appeal from
the trial court's adjudication of neglect as to Francisco R., an
adjudication based on the doctrine of predictive neglect. Respondent
father claimed that the trial court's adjudication of neglect was
clearly erroneous because there was no evidence that the child had
been harmed, abused, neglected, or uncared for prior to or on the
date of the neglect petition. The appellate court affirmed the judgment
of the trial court.
Respondent is the natural
father of Francisco R., a child who resides with the respondent,
with the child's mother, and with the mother's other children. Respondent
also had three biological daughters who resided with their mother,
in a different home. Two of respondent's biological daughters alleged
that respondent, on multiple occasions, sexually assaulted them.
At least one of the alleged assaults took place in the home where
respondent and Francisco R. reside. DCF subsequently investigated
the allegations and informed the mother that respondent was not
to return to the home or have contact with the children until further
notice. Both respondent and Francisco R.'s mother refuted the allegations
and only complied with the department's order at the direction of
the police.
A neglect petition was filed
pertaining to Francisco R. on June 21, 2007, and a trial was held
on November 20, 2007. The trial court found by a preponderance of
evidence that Francisco R. and the other children in respondent's
care were similarly situated to the respondent's biological daughters
alleging the assault. As a result, the court concluded that on the
date of the filing of the petition, Francisco R. was denied proper
care and attention, physically and emotionally, due to the potential
for him to live under conditions, circumstances, or associations
injurious to his well-being. Respondent appealed the adjudication.
On appeal, the appellate
court emphasized that the neglect adjudication is not premised on
parental fault, but rather on the condition of the child. Further,
the state has clear authority to act before harm occurs to protect
the health and welfare of children who may be adversely affected
through injury or neglect. The state does not need to wait until
the child has been harmed before intervening. Based on the record,
the appellate court concluded that the trial court had appropriately
adjudicated the child neglected. Respondent had been accused of
committing several sexual assaults of his biological children, at
least one of which in the home of Francisco R. Francisco R.'s mother
did not believe the allegations, was reluctant to agree with the
department's service plan, and continued her relationship with respondent
despite the allegations. Finally, and despite the fact that respondent
had complied with the department's orders, there was nothing in
place to prevent respondent from returning to Francisco R.'s home.
The appellate court affirmed
the trial court's adjudication of neglect.
