K.N. and D.N. v. DEPARTMENT OF CHILDREN & FAMILIES

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
K.N. and D.N.,
Appellants,
v.
DEPARTMENT OF CHILDREN AND FAMILIES,
and GUARDIAN AD LITEM,
Appellees.
No. 4D22-2273
[April 12, 2023]
Appeal from the Circuit Court for the Nineteenth Judicial Circuit,
Indian River County; Robert B. Meadows, Judge; L.T. Case No.
312018DP000042.
Katie Jay and Sarah J. Campbell of Jay & Campbell, PLLC, Stuart, for
appellants.
Stephanie C. Zimmerman, Deputy Director & Statewide Director of
Appeals, Children’s Legal Services, Bradenton, and Andrew Feigenbaum,
Children’s Legal Services, West Palm Beach, for appellee Department of
Children and Families.
Sara Elizabeth Goldfarb, Statewide Director of Appeals, and Sarah Todd
Weitz, Senior Attorney, Statewide Guardian ad Litem Office, Tallahassee,
for appellee Guardian ad Litem.
ON APPELLANTS’ MOTION FOR CLARIFICATION OR REHEARING,
AND/OR CERTIFICATION
WARNER, J.
We grant appellants’ motion to certify conflict to the supreme court and
certify conflict with T.R.-B. v. Department of Children & Families, 335 So.
3d 729 (Fla. 3d DCA 2022). T.R.-B. was not mentioned in our opinion,
because the facts were distinguishable from this case. On further
reflection, however, our opinion conflicts with the Third District’s decision
regarding the applicability of Florida Rule of Civil Procedure 1.230 to
dependency proceedings.
In T.R.-B., the trial court denied a grandmother’s motion to intervene
as an interested party in the dependency proceeding of her grandchild.
335 So. 3d at 730. The proceedings prior to the grandmother’s motion to
intervene were a tangled web of conflict between the grandmother and the
Department of Children and Families (“DCF”). Importantly, after DCF
rejected the grandmother’s application to adopt the child, and the trial
court granted DCF’s request for visitation between the child and DCF’s
approved adoptive parent, the grandmother filed a formal adoption petition
in family court and then moved to intervene in the dependency case. Id.
at 731. The grandmother then had her case transferred to the juvenile
division and moved to waive DCF’s consent to adoption while her motion
to intervene was pending. Id. at 731–32.
To prepare for the hearing on her motion to waive DCF’s consent, the
grandmother sought to depose the guardian ad litem (“GAL”), but the GAL
moved to quash the notice of deposition and moved for a protective order,
arguing that the grandmother was not a party to the dependency case but
only a participant, and only parties may take depositions. Id. The trial
court granted the GAL’s motion for a protective order because the
grandmother was only a participant and not a party entitled to discovery,
relying on section 39.812(5), Florida Statutes (2021). T.R.-B., 335 So. 3d
at 733; see also § 39.01(58), Fla. Stat. (2021) (defining “party” as “the
parent or parents of the child, the petitioner, the department, the guardian
ad litem or the representative of the guardian ad litem program when the
program has been appointed, and the child”). The trial court later denied
the grandmother’s motion to intervene on the same grounds. T.R.-B., 335
So. 3d at 734. As a result, the grandmother filed a petition for writ of
certiorari, which the Third District granted.
The Third District applied Florida Rule of Civil Procedure 1.230 and
held that the legal test to determine party status is that the movant’s
interest “must be in the matter in litigation, and of such a direct and
immediate character that the intervenor will either gain or lose by the
direct legal operation and effect of the judgment.” Id. The court found
that the grandmother satisfied this test by being the child’s grandmother
and custodial caregiver for over the past four years and as petitioner in
her adoption petition. Id. at 739.
In our opinion in this case, we held that rule 1.230 does not apply in
juvenile proceedings. Our ruling is thus expressly contrary to the holding
in T.R.-B. We certify conflict with that decision.
We deny all other motions.
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CIKLIN and FORST, JJ., concur.
* * *
Final Upon Release; No Motion for Rehearing Will Be Considered.
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