M.K. and JAMES WALSH, Attorney ad Litem, on behalf of A.P., a Minor Child v. Department of Children & Families ( 2023 )

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
M.K., and JAMES WALSH,
Attorney ad Litem, on behalf of A.P., a minor child,
Appellants,
v.
DEPARTMENT OF CHILDREN & FAMILIES, STATEWIDE GUARDIAN
AD LITEM PROGRAM, ELLEN KAPLAN, ESQ. (Adoption Entity),
T.P., the Mother, and D.C., the Father,
Appellees.
No. 4D2023-1044
[December 20, 2023]
Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Melanie Dale Surber, Judge; L.T. Case No.
502021DP000060XXXXSB.
Alan I. Mishael of Alan I. Mishael, P.A., Boca Raton, for appellant M.K.
James Walsh, Attorney ad Litem, Foster Children’s Project & Juvenile
Advocacy Project, Legal Aid Society of Palm Beach County, West Palm
Beach, for appellant James Walsh.
Sara Elizabeth Goldfarb, Statewide Director of Appeals, and Sarah Todd
Weitz, Senior Attorney, Appellate Division, Statewide Guardian ad Litem
Office, Tallahassee, for appellee Guardian ad Litem.
Andrew Feigenbaum, Appellate Counsel, Children’s Legal Services,
West Palm Beach, for appellee Department of Children & Families.
Ellen Kaplan of The Law Offices of Ellen M. Kaplan, P.A., Coral Springs,
for appellees Adoption Entity and Prospective Adoptive Parent.
WARNER, J.
M.K., a foster parent, and the attorney ad litem for the child A.P., appeal
the denial of M.K.’s motion to recognize her standing as a party, and her
motion for intervention in the proceedings involving the foster child. Those
proceedings commenced as a dependency action followed by a petition to
terminate parental rights filed by the Department. M.K. sought party
status based upon her own private petition to terminate parental rights,
or alternatively she sought to intervene in the section 63.082(6), Florida
Statutes (2022), proceedings regarding the child’s placement and best
interests. We affirm the denial of M.K.’s standing as a party in the
dependency proceedings and the denial of her motion to intervene. The
Florida Rules of Juvenile Procedure which govern dependency and
termination proceedings do not make M.K. a party to the dependency
proceeding on the basis of her petition to terminate parental rights. The
rules also do not permit intervention in dependency proceedings. See K.N.
v. Dep’t of Child. & Fams., 359 So. 3d 741, 743 (Fla. 4th DCA 2023),
decision clarified on denial of reh’g, 359 So. 3d 792 (Fla. 4th DCA 2023),
rev. granted, No. SC23-0665, 2023 WL 5011735 (Fla. Aug. 7, 2023).
The child in this proceeding was born in November 2020, suffering from
withdrawal symptoms due to the mother’s drug abuse. This prompted the
Department of Children & Families to file a shelter petition and then a
petition for dependency against the parents. The trial court granted both
petitions. The Department placed the child with appellant M.K., who has
been the child’s foster mother since January 2021. After the parents failed
at case plan requirements and other issues, the Department, Guardian ad
Litem, and the Attorney ad litem for the child filed a joint petition in April
of 2022 to terminate the parents’ parental rights. The petition alleged that
the child was bonded to the foster mother who was willing to adopt the
child.
On the day of the father’s TPR hearing, in October of 2022, the father
filed a waiver of his rights to, and custody of, the child, and consented to
his relative, A.S.L., adopting the child. The mother’s rights had already
been terminated by constructive consent. The father’s relative, A.S.L., filed
a motion to intervene as a party in the dependency case based on section
63.082, Florida Statutes (2022). The first motion was legally insufficient,
but a revised motion with the proper information was filed. Shortly
thereafter, M.K. filed a petition to terminate the parents’ parental rights.
New counsel, acting as Adoption Entity petitioners, filed a motion to
intervene as an Adoption Entity and party of interest under section
63.082(6), a motion to stay the TPR proceedings, and an order setting a
“best interest hearing,” pending termination of the father’s parental rights
and A.S.L.’s adoption of the child. M.K. filed a response in opposition to
the motion to stay the TPR, arguing that she had party status to object as
a petitioner in her TPR petition. Alternatively, M.K. moved the court,
pursuant to Florida Family Law Rule of Procedure 12.230, to permit her
to intervene in the Adoption Entity’s section 63.082(6) proceeding.
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After a hearing, the trial court granted the Adoption Entity’s motion to
intervene and rejected M.K.’s claim of party status in the proceedings. The
court noted, “Everything pending before the Court concerning the ongoing
Chapter 39 proceeding and/or the Adoption Entity’s section 63.082(6)
motion to intervene therein are filed in the original Dependency Case . . . .”
Because M.K. had never served her TPR petition, the court concluded that
filing alone was insufficient to convey party status. The court found:
[M.K.’s private petition to terminate rights] does not make the
Foster Mother a Party to the Termination of Parental Rights
Petition filed by the Department, which is the action to which
the Adoption entity seeks to intervene. Thus, the Foster
Mother is not a Party to the Termination of Parental Rights
Petition filed by the Department, rather she is a participant as
defined by Florida Law.
The court also denied intervention to M.K., concluding:
[A]lthough the evidentiary hearing regarding modification of
placement has yet to be heard, this does not change the
analysis that the parent’s choice of placement with a
prospective parent when their parental rights are still intact
is an exclusively parental decision under the law. The
decision was subject only to the trial court determining that
the prospective parent is properly qualified and that the
adoption is in the best interests. This Court therefore must
address the Adoption entity motion for change of placement
pending adoption prior to any other potential adoption entities
requests to intervene. 1
From this order, M.K. brings this appeal.
1 The trial court incorrectly relied on R.L. v. W.G., 147 So. 3d 1054 (Fla. 5th DCA
2014), to support its conclusion that prior to termination a parent has exclusive
decision-making as to placement of the child, subject only to the trial court’s
determination whether the prospective parent is qualified and that the adoption
by that prospective parent is in the child’s best interests. See id. at 1055. R.L.,
however, was decided pursuant to an earlier version of the statute, section
63.082(6)(d), Florida Statutes (2014). The 2022 version applicable to this case
provided that the “right of the parent to determine an appropriate placement for
the child” was but one factor to be weighed by the dependency court to determine
the best interests of the child. See § 63.082(6)(e)8., Fla. Stat. (2022).
3
Although the standard of review for an order denying a motion to
intervene is abuse of discretion, where the issue is standing, the review is
de novo. K.N., 359 So. 3d at 743. Appellate review of issues involving the
interpretation of statutes is also de novo. B.Y. v. Dep’t of Child. & Fams.,
887 So. 2d 1253, 1255 (Fla. 2004).
Foster Parent as Party
M.K. argues that she was entitled to party status in the pending
dependency action by virtue of filing a TPR petition, making her a party
pursuant to section 39.01(58), Florida Statutes (2022), and Florida Rule
of Juvenile Procedure 8.210(a). Adoption Entity and GAL argue that M.K.
did not become a party petitioner in the Department’s dependency action.
The statute and rules compel us to agree with Adoption Entity and GAL.
Pursuant to section 39.01(58), a “party” “means the parent or parents
of the child, the petitioner, the department, the guardian ad litem . . . and
the child.” § 39.01(58) (2022) (emphasis added). Similarly, Florida Rule
of Juvenile Procedure 8.210(a) provides that a “party” to a proceeding
“shall include the petitioner, the child, the parent(s) of the child, the
department, and the guardian ad litem[.]” Fla. R. Juv. P. 8.210(a)
(emphasis added). Also, rule 8.210(b) defines “participant” as:
[A]ny person who is not a party but who should receive notice
of hearings involving the child. Participants include foster
parents or the legal custodian of the child, identified
prospective parents, actual custodians of the child,
grandparents entitled to notice of an adoption proceeding as
provided by law, the state attorney, and any other person
whose participation may be in the best interest of the child.
Thus, the rules permit the trial court to add participants, but do not
allow the trial court to add parties. Both petitions for dependency and
petitions for termination of parental rights may be filed by any person
“ha[ving] knowledge of the facts.” See §§ 39.501(1); 39.802(1), Fla. Stat.
(2022); Fla. R. Juv. P. 8.310(a)(1) (“A dependency petition may be filed as
provided by law.”); Fla. R. Juv. P. 8.500(a)(2) (“A petition for termination of
parental rights may be filed at any time by . . . any person having
knowledge of the facts.”). The juvenile rules also contemplate that more
than one termination petition may be filed. See Fla. R. Juv. P. 8.500(a)(2)
(emphasis added) (“Each petition shall be titled a petition for termination
of parental rights.”).
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The question presented is whether a person who files a petition for
termination of parental rights is a “party” to another petition filed by a
different person or agency or to the dependency proceeding arising out of
the other petition. We conclude the language of the statute and rule do
not contemplate that a petitioner is a party to all the proceedings arising
out of another petition simply by filing her own petition. Section 39.01(58)
and rule 8.210(a) define a “party” as including “the petitioner.” The use of
the definitive article defines the noun “petitioner.” Because each petition
filed has a different petitioner, the petitioner is a party only to proceedings
arising out of her own petition.
J.H . v. Department of Children and Families, 279 So. 3d 316 (Fla. 4th
DCA 2019), also supports the conclusion that M.K.’s petition did not give
her party status in the DCF proceeding. In J.H., the Department filed a
petition to terminate both parents’ rights to the child, and a grandmother
filed her own petition to terminate the rights of one of the parents but not
J.H. Id. at 318–19. The trial court terminated both parents’ rights and
rejected the grandmother’s petition. Id. at 322.
The grandmother appealed the termination of J.H.’s parental rights.
We held that the grandmother had no standing to appeal the termination,
because the grandmother was not a party to the Department’s petition. Id.
at 324. We stated:
Although section 39.802(1), Florida Statutes (2018) would
allow the maternal grandmother to be a petitioner seeking to
terminate parental rights, that section does not authorize her
to challenge the final judgment terminating J.H.’s rights. She
was not a party to DCF’s petition to terminate J.H.’s rights.
Id. (emphasis added).
Additionally, and more importantly here, M.K. was not a party to the
dependency proceeding. The juvenile rules made her a participant, but
nothing in the rules suggests that the filing of a TPR petition would make
her a party to the dependency, where she did not file a petition for
dependency. See Fla. R. Juv. P. 8.210(b).
M.K. points out that section 63.082 was substantially amended by the
Legislature in 2023, with the amendments going into effect a mere three
months after the order denying M.K. party status. See Ch. 2023-257,
§ 63.082(6)(a), Laws of Fla. (2023). The statute now directs the trial court
to grant party status to a foster parent “who is a prospective adoptive
placement for the limited purpose of filing motions and presenting
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evidence pursuant to this subsection.” § 63.082(6)(e), Fla. Stat. (2023).
That statute went into effect on July 1, 2023. In addition to creating party
status for the foster parent who is a prospective adoptive placement, the
Legislature determined that “the right of a parent to determine an
appropriate placement for a child who has been found dependent is not
absolute and must be weighed against other factors that take the child’s
safety, well-being, and best interests into account.” § 63.082(6)(a)3., Fla.
Stat. (2023). To that end, the statute creates a rebuttable presumption
that the child’s placement with the current caregiver is stable, and it is in
the child’s best interests to remain in that current stable placement when
“the child has been in his or her current placement at least 9 continuous
months or 15 of the last 24 months immediately preceding the filing of the
motion to intervene [by the adoption entity.]” § 63.082(6)(e), Fla. Stat.
(2023). The statute creates substantive rights, and therefore we cannot
apply it retroactively. 2 See Arrow Air, Inc. v. Walsh, 645 So. 2d 422, 425
(Fla. 1994) (“The presumption against retroactive application of a law that
affects substantive rights, liabilities, or duties is a well-established rule of
statutory construction.”).
For these reasons, we conclude that M.K. cannot be considered a party
to the dependency proceeding in this case.
Intervention
M.K. also sought to intervene in the adoption proceedings, pursuant to
Florida Family Law Rule of Procedure 12.230. That rule permits
intervention in family law proceedings. The family procedural rules apply
“to all actions concerning family matters, including injunctions for
protection against domestic, repeat, dating, and sexual violence, and
stalking, 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).
A “family law matter” includes adoptions. Id. But “[t]he form, content,
procedure, and time for pleading in all proceedings shall be as prescribed
by the statutes governing the proceeding unless these rules or the Florida
Rules of General Practice and Judicial Administration, where applicable,
specifically provide to the contrary.” Fla. Fam. L. R. P. 12.010(2).
The 2022 version of section 63.082, Florida Statutes, in effect for this
proceeding provides the procedure for obtaining the consent of a parent
2 M.K. also advises that the best interest hearing, which concluded prior to July
1, 2023, was reopened and evidence taken after the effective date of the statute.
The question of whether the amendments to the statute would apply to the
reopened case is not before us.
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for adoption where the child is subject to the jurisdiction of the
dependency court:
(6)(a) If a parent executes a consent for adoption of a minor
with an adoption entity or qualified prospective adoptive
parents and the minor child is under the supervision of the
department, or otherwise subject to the jurisdiction of the
dependency court as a result of the entry of a shelter order, a
dependency petition, or a petition for termination of parental
rights pursuant to chapter 39, but parental rights have not
yet been terminated, the adoption consent is valid, binding,
and enforceable by the court.
(b) Upon execution of the consent of the parent, the adoption
entity shall be permitted to intervene in the dependency
case as a party in interest and must provide the court that
acquired jurisdiction over the minor, pursuant to the shelter
order or dependency petition filed by the department, a copy
of the preliminary home study of the prospective adoptive
parents and any other evidence of the suitability of the
placement.
(c) If an adoption entity files a motion to intervene in the
dependency case in accordance with this chapter, the
dependency court shall promptly grant a hearing to
determine whether the adoption entity has filed the required
documents to be permitted to intervene and whether a change
of placement of the child is in the best interests of the child.
Absent good cause or mutual agreement of the parties, the
final hearing on the motion to intervene and the change of
placement of the child must be held within 30 days after the
filing of the motion, and a written final order shall be filed
within 15 days after the hearing.
(d) If after consideration of all relevant factors, including those
set forth in paragraph (e), the court determines that the
prospective adoptive parents are properly qualified to adopt
the minor child and that the adoption is in the best interests
of the minor child, the court shall promptly order the transfer
of custody of the minor child to the prospective adoptive
parents, under the supervision of the adoption entity. . . .
....
7
(f) The adoption entity shall be responsible for keeping
the dependency court informed of the status of the
adoption proceedings at least every 90 days from the date of
the order changing placement of the child until the date of
finalization of the adoption.
§ 63.082(6), Fla. Stat. (2022) (emphasis added). The statute clearly
contemplates that the hearings to determine whether to permit the
adoption entity to intervene and whether a change of the child’s placement
is in the best interests of the child are to be held in the dependency action,
separate for the adoption proceeding. The juvenile rules apply in
dependency court, not the family law rules. The family law rules apply
“except as otherwise provided in the Florida Juvenile Rules of Procedure,”
see Fla. Fam. L. R. P. 12.010(a)(1), and the family law rules state the
procedure shall be “as prescribed by the statutes governing the
proceeding[.]” See Fla. Fam. L. R. P. 12.010(a)(2). Thus, because section
63.082 requires the Adoption Entity to intervene in the dependency court,
the juvenile rules apply.
We recently held in K.N. that the juvenile rules do not permit the trial
court to grant intervention to foster parents in dependency proceedings.
359 So. 3d at 745. Therefore, consistent with K.N., we find no authority
pursuant to the juvenile rules to allow intervention by M.K. in the
dependency proceedings pursuant to section 63.082.
Certification of Conflict
On rehearing in K.N., we certified conflict with T.R.-B. v. Department of
Children & Families, 335 So. 3d 729 (Fla. 3d DCA 2022). K.N., 359 So. 3d
at 794. The supreme court has granted review and the matter is presently
pending a decision. We certify the same conflict with T.R.-B. in this case.
Conclusion
We hold that the filing of a petition for termination of parental rights
does not provide the filer with party status in dependency proceedings
involving the child. We also conclude that the 2022 version of section
63.082, in effect at the time of M.K.’s petition, did not authorize party
status for a foster parent. Neither the rules nor the 2022 version of section
63.082 permitted intervention in the dependency court proceedings.
Therefore, we affirm the trial court’s rulings denying party status and
intervention to M.K.
Affirmed.
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CIKLIN and KUNTZ, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
9