In re Francisco R.

Appellate Court

December 9, 2008


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.

This case can be accessed on the Judicial Branch’s website at

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