B.S., Grandmother of P.S.A. and W.H.A., etc. v. Department of Children and Families , 246 So. 3d 479 ( 2018 )

FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
_____________________________
No. 1D17-2515
_____________________________
B.S., Grandmother of P.S.A. and
W.H.A., Minor Children,
Appellant,
v.
DEPARTMENT OF CHILDREN AND
FAMILIES,
Appellee.
_____________________________
On appeal from the Circuit Court for Santa Rosa County.
Ross M. Goodman, Judge.
April 25, 2018
WINOKUR, J.
Appellant, B.S., appeals the circuit court’s dismissal of her
petition for adoption of her grandchildren, P.S.A. and W.H.A., as
well as the circuit court’s denial of her motion for rehearing.
Because we find that an adoption following a termination of
parental rights (TPR) is governed by the Florida Rules of
Juvenile Procedure, and because this appeal is untimely under
those rules, we dismiss the appeal.
I.
In February 2014, the trial court 1 adjudicated P.S.A. and
W.H.A. dependent. The Department of Children and Families
(DCF) created a case plan with the goal of family reunification,
but the parents failed to reunify with the children. As a result, a
permanent guardianship was established with an aunt and uncle.
The guardianship order expressly limited B.S. to supervised
visitation.
Two years later guardianship was revoked and both children
were sheltered, due in part to B.S.’s unsupervised contact with
the children. B.S.’s visitation rights were suspended. The trial
court reinstated DCF’s supervision two months later,
incorporated a case plan goal of adoption, and reinstated B.S.’s
supervised visitation. Upon DCF’s petition, the court terminated
both parents’ parental rights in November 2016.
A Unified Home Study advised against placing the children
with B.S. Consequently, the trial court found that it was in the
best interest of both children to remain in the custody of DCF.
In December 2016, upon motion of the Guardian Ad Litem
Program (GAL), the court suspended B.S.’s supervised visitation
and ordered that the children remain in the custody of DCF for
the purpose of adoption. B.S. did not seek appellate review of the
order suspending her visitation.
B.S. then filed a petition to adopt P.S.A. and W.H.A, and
moved for reinstatement of her visitation rights. The trial court
summarily denied the motion for reinstatement. On May 2, 2017,
the trial court dismissed B.S.’s adoption petition, finding that the
petition was simply a vehicle for B.S. to revisit the already-
litigated issue of her visitation rights. On May 11, 2017, B.S. filed
a motion for reconsideration and hearing. On May 25, 2017, the
1 All the proceedings in this dependency case took place in
the juvenile division of the circuit court for Santa Rosa County.
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trial court denied the motion. On June 20, 2017, B.S. filed a
notice of appeal.
II.
GAL argues that B.S.’s notice of appeal was untimely
because it was not filed within thirty days of rendition of the May
2, 2017 order dismissing the adoption petition. B.S. argues that
her motion for reconsideration tolled rendition until the court
denied it on May 25, 2017, so the June 20, 2017 notice of appeal
was timely.
A party has thirty days from rendition of an order to file a
notice of appeal. Fla. R. App. P. 9.110(b). Unless another
applicable rule of procedure specifically provides to the contrary,
an authorized and timely motion for rehearing of the order tolls
rendition until a written order is issued disposing of the motion.
Fla. R. App. P. 9.020(i)(1).
The Florida Family Law Rules of Procedure contain no
provision regarding tolling of orders until a motion for rehearing
is resolved. As such, a motion for rehearing of an order subject to
the Family Law Rules tolls rendition, in accordance with Florida
Rule of Appellate Procedure 9.020(i)(1). In contrast, the Florida
Rules of Juvenile Procedure explicitly state that a motion for
rehearing “shall not toll the time for the taking of an appeal.” Fla.
R. Juv. P. 8.265(b)(3). Accordingly, if the Family Law Rules of
Procedure govern the order under review, this appeal is timely,
but if the Rules of Juvenile Procedure govern the order, the
appeal is untimely because B.S. did not file this appeal until
forty-nine days after the order under review was rendered.
The Family Law Rules of Procedure govern family law
actions, including adoptions, “except as otherwise provided by the
Florida Rules of Juvenile Procedure or the Florida Probate
Rules.” Fla. Fam. L. R. P. 12.010(a)(1). The Rules of Juvenile
Procedure “govern the procedures in the juvenile division of the
circuit court . . . [and] the procedures for dependency cases in the
juvenile court.” Fla. R. Juv. P. 8.000 (emphasis added).
Because dependency cases are governed by the Rules of
Juvenile Procedure, a motion for rehearing does not toll the time
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for filing a notice of appeal in dependency cases. In re A.W.P., Jr.,
14 So. 3d 1240 (Fla. 2d DCA 2009); In Interest of Baby Boy L., 545
So. 2d 434 (Fla. 4th DCA 1989). This rule is consistent with
legislative intent that dependency proceedings are not prolonged
so “that permanent placement with the biological or adoptive
family is achieved as soon as possible for every child in foster care
and that no child remains in foster care longer than 1 year.”
§ 39.001(1)(h), Fla. Stat.
Adoptions are governed by Chapter 63 of the Florida
Statutes. However, section 63.037, Florida Statutes, provides
that “[a] case in which a minor becomes available for adoption
after the parental rights of each parent have been terminated by
a judgment entered pursuant to chapter 39 shall be governed by
s. 39.812 and this chapter” (emphasis added). Chapter 39 sets out
requirements for dependency proceedings, which again, are
governed by the Rules of Juvenile Procedure. See § 39.013(1), Fla.
Stat. (“All procedures, including petitions, pleadings, subpoenas,
summonses, and hearings, in [chapter 39] shall be conducted
according to the Florida Rules of Juvenile Procedure unless
otherwise provided by law.”).
III.
B.S. argues that, because adoptions are governed by Chapter
63, the Family Law Rules of Procedure apply. Post-TPR adoption
proceedings, however, are governed by the Rules of Juvenile
Procedure.
First, as noted above, section 63.037 specifically references
section 39.812. Subsection (5) of this statute establishes the
procedures for adoption following TPR, requiring that a post-TPR
adoption petition be filed in the court that terminated parental
rights. § 39.812(5), Fla. Stat. The parental rights to P.S.A. and
W.H.A. were terminated as a result of a dependency case in the
juvenile division of Santa Rosa County Circuit Court. Indeed,
B.S.’s adoption petition was filed in the same juvenile division.
Again, the Rules of Juvenile Procedure control in juvenile court
and in dependency proceedings.
Second, the fact that Chapter 63 governs adoptions does not
alter this conclusion. The procedures and substantive rights
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governing TPR proceedings are codified in Chapter 39. Moreover,
section 39.013(1) clearly states that “all procedures” in chapter 39
are governed by the Florida Rules of Juvenile Procedure.
Section 39.813 provides that “[t]he court which terminates
the parental rights of a child who is the subject of termination
proceedings . . . shall retain exclusive jurisdiction in all matters
pertaining to the child’s adoption pursuant to chapter 63.” See
also Fla. R. Juv. P. 8.535(c); B.B. v. Dep’t of Children & Families,
854 So. 2d 822, 825 (Fla. 1st DCA 2003) (“The dependency court
is not divested of jurisdiction after a TPR trial simply because
subsequent adoption proceedings will be conducted pursuant to
Chapter 63”). Consequently, the juvenile division of Santa Rosa
County retains sole jurisdiction of B.S.’s adoption petition.
Because the juvenile court retains jurisdiction, the Rules of
Juvenile Procedure apply.
B.S. correctly notes that section 39.812(5), while directing
parties to file a petition for adoption following TPR in the
dependency division of the circuit court, requires that an
adoption proceeding under that subsection “is governed by
Chapter 63.” This does not mean, however, that Chapter 63, and
by extension the Family Law Rules of Procedure, control these
proceedings. Because the proceeding remains in dependency
court, the Rules of Juvenile Procedure must apply. More
importantly, we have previously found that this sentence in
section 39.812(5) means only that the standards of Chapter 63
govern the adoption, even if the procedure is controlled by Rules
of Juvenile Procedure. See e.g. Dep’t of Children & Family Servs.,
v. P.S., 932 So. 2d 1195 (Fla. 1st DCA 2006); I.B. v. Dep’t of
Children & Families, 876 So. 2d 581 (Fla. 5th DCA 2004). While
substantive rights governing post-TPR adoptions remain in
chapter 63, the procedures regarding post-TPR adoptions fall
within the ambit of Chapter 39. If not, there would have been no
need for the Legislature to codify section 63.037 differentiating
post-TPR adoptions from other forms of adoption. Section
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39.812(5) would be equally superfluous. Every provision enacted
by the Legislature must be given effect. 2
IV.
In conclusion, the proceedings involving P.S.A. and W.H.A.
are in dependency court, which included the termination of their
parents’ parental rights. Consequently, B.S.’s adoption petition
falls within the procedural requirements of dependency court,
specifically chapter 39. As such, the Florida Rules of Juvenile
Procedure applied to the order below. Pursuant to Florida Rule of
Juvenile Procedure 8.265(b)(3), B.S.’s motion for reconsideration
did not toll the time to appeal the trial court’s dismissal of her
adoption petition. Thus, B.S.’s notice of appeal is untimely. We,
therefore, dismiss this appeal for lack of jurisdiction.
DISMISSED.
ROBERTS and ROWE, JJ., concur.
_____________________________
Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
_____________________________
Valarie Linnen, Atlantic Beach, for Appellant.
Sarah J. Rumph, Appellate Counsel, Department of Children and
Families, Tallahassee, for Appellee; Sara E. Goldfarb, Appellate
Counsel, Guardian ad Litem Program, Sanford.
2 See State v. Goode, 830 So. 2d 817, 824 (Fla. 2002) (noting
that “a basic rule of statutory construction provides that the
Legislature does not intend to enact useless provisions, and
courts should avoid readings that would render part of a statute
meaningless”).
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