ROBERTS v. ROBERTS (2026)

Michael Roberts, the father, appeals from the final judgment of injunction for protection against domestic violence. Because the trial court erred in relying on child hearsay, without which the trial court's finding of abuse is not supported by competent substantial evidence, we reverse.

On March 19, 2024, Halide Roberts, the mother, filed a petition for injunction for protection against domestic violence pursuant to section 741.30, Florida Statutes (2023), on behalf of the minor child, alleging that the father had sexually abused the child and requesting that the trial court terminate the father's time-sharing of the child. A temporary injunction was entered that same day prohibiting the father from having contact with the child and scheduling an evidentiary hearing on March 28, 2024. See § 741.30(5)(a). The hearing was later rescheduled and finally took place over the course of four days in May and June 2024. The parties stipulated that the child was unavailable to testify due to his age, though the father objected to the admission of child hearsay statements.

The mother testified as to the nature of the alleged abuse, explaining that it had been reported to her by the child. The mother also testified regarding her observations of the child's behavior and the area of the child's body where the abuse had allegedly occurred. The mother took the child to the hospital, where a police officer interviewed the child. The officer testified that the child reported the abuse to her. A detective investigated the incident, and as part of that investigation she reviewed the child's forensic interview and medical examination conducted by members of the Child Protective Team; the findings of the interview and examination were negative for sexual abuse. The detective determined that there was no probable cause to believe that the child had been sexually abused. A few days after the visit to the hospital, the child was examined by a pediatrician, and nothing abnormal was observed. The child's therapist testified that the child had not reported any abuse to her. A licensed marriage and family therapist, who had reviewed documentation concerning the alleged abuse but did not interview the child, testified that it was cause for concern that the child's disclosures about the incident were inconsistent. According to this therapist, it was also “noteworthy” that the child had not reported the alleged abuse to the child's therapist. She further testified that due to other circumstances surrounding the child's disclosure to the mother—which did not involve the father—the child may have been motivated to make the statement of abuse to the mother.

At the conclusion of the hearing, the court found the child hearsay statements to be “admissible and reliable and corroborated” and therefore that there was competent substantial evidence of sexual abuse.¹ The court then entered the final judgment of injunction, prohibiting the father from having contact with the child. The injunction is to remain in effect until November 2036.

“An order granting an injunction in the domestic violence context is reviewed for abuse of discretion.” Chiscul v. Hernandez, 311 So. 3d 55, 57 (Fla. 4th DCA 2021) (citing Selph v. Selph, 144 So. 3d 676, 677 (Fla. 4th DCA 2014)). “A trial court abuses its discretion by entering a domestic violence injunction when the ruling is not supported by competent, substantial evidence.” Id. at 57-58 (quoting Selph, 144 So. 3d at 677-78). An injunction entered pursuant to section 741.30 cannot be supported by child hearsay statements unless those statements are properly admitted. See De Hoyos v. Bauerfeind, 286 So. 3d 900, 904 (Fla. 1st DCA 2019) (“This case involves the domestic violence injunction statute, section 741.30, Florida Statutes, not the sexual violence injunction statute, 784.046, Florida Statutes. Unlike the sexual violence injunction statute, the domestic violence injunction statute contains no language suggesting that child hearsay statements in a sworn petition filed by a parent (against either another parent or a nonparent) can support an injunction.”). “We review the admission of child hearsay for an abuse of discretion.” Oliver v. State, 397 So. 3d 104, 108 (Fla. 2d DCA 2024) (citing Smith v. State, 333 So. 3d 255, 261 (Fla. 1st DCA 2022)). Where, as here, the child declarant is unable to testify, a court may admit the child's hearsay statements if it determines that they are reliable and from a trustworthy source and if other evidence is presented to corroborate the statements. See State v. Townsend, 635 So. 2d 949, 957 (Fla. 1994); see also § 90.803(23), Fla. Stat. (2024).

In the context of section 90.803(23), corroborative evidence “means evidence other than the alleged child victim's out-of-court statements which tends to confirm that the charged offense occurred.” Jones v. State, 728 So. 2d 788, 791 (Fla. 1st DCA 1999). Corroborative evidence may include physical evidence of abuse, similar fact evidence from someone other than the child, or statements made by the individual accused of abusing the child. See R.U. v. Dep't of Child. & Fams., 777 So. 2d 1153, 1159-60 (Fla. 4th DCA 2001); see also Delacruz v. State, 734 So. 2d 1116, 1121 (Fla. 1st DCA 1999) (“By way of example, and not by limitation, corroborative evidence may include any of the following: testimony from an eyewitness, other than the unavailable child-victim, whose statement is offered into evidence, that the offense occurred; statements of other children who were present when the act was committed against the victim; medical or scientific evidence indicating that the child was sexually assaulted; expert opinion evidence that the child-victim experienced post-traumatic stress consistent with the perpetration of the offense described by the child; evidence of other similar offenses committed by the defendant; the defendant's confession to the crime; or other independent evidence, including competent and relevant expert opinion testimony, tending to establish the commission of the act described in the child's statement.” (quoting People v. Bowers, 801 P.2d 511, 525 (Colo. 1990))).

None of the evidence presented by the mother served to corroborate the child's statement to her. And while the child did report the abuse to one police officer at the hospital, that evidence cannot serve to corroborate the statement made by the child to the mother. Cf. R.U., 777 So. 2d at 1160 (“Here, the only evidence being used to support N.M.’s hearsay statements is other hearsay statements made by the same child to the same therapist who testified as to the original declarations. The child declarant's hearsay statements cannot be ‘other’ corroborating evidence within the meaning of section 90.803(23)(a)2.b.”).

Because no evidence was presented to corroborate the child's hearsay statements, the trial court erred in finding those statements admissible. And in the absence of the child hearsay statements, there was no competent substantial evidence of abuse. We therefore reverse and remand for the trial court to vacate the final judgment of injunction for protection against domestic violence.

Reversed and remanded.

FOOTNOTES

1.   After announcing that the child hearsay statements were “admissible and reliable and corroborated,” the trial court stated that it would “set forth its details in the written order that will follow.” That did not occur, however. And as argued by the father on appeal, the trial court erred by failing to make specific factual findings in support of its determination that the child hearsay statements were admissible pursuant to section 90.803(23), Florida Statutes (2024). But because the father failed to raise this issue in a motion for rehearing below, it has not been preserved. See Fla. Fam. L. R. P. 12.530(a).

PER CURIAM.

VILLANTI, KHOUZAM, and BLACK, JJ., Concur.