Kingsley v. Kingsley

• Decision Date: 18 August 1993
• Docket Number: Nos. 92-2430,92-2446,s. 92-2430
• Citation: 623 So.2d 780
• Court: Florida District Court of Appeals
• Parties: 18 Fla. L. Week. D1852 Rachel KINGSLEY, Appellant/Cross-Appellee, v. Gregory KINGSLEY, et al., Appellees/Cross-Appellants.

Page 780

623 So.2d 780

18 Fla. L. Week. D1852

Rachel KINGSLEY, Appellant/Cross-Appellee, v. Gregory KINGSLEY, et al., Appellees/Cross-Appellants.

Nos. 92-2430, 92-2446.

District Court of Appeal of Florida Fifth District.

Aug. 18, 1993.

Jane E. Carey, Harry Morall, and Cecilia Norton Ford, Orlando, for appellant, cross-appellee.

Jerri A. Blair, Blair & Cooney, P.A., Tavares, for appellee, cross-appellant Gregory K.

Catherine A. Tucker, Legal Aid Soc. of Orange County Bar Ass'n, Inc., Orlando, for guardian ad litem.

George H. Russ, Sellar, Sewell, Russ & Saylor, P.A., Leesburg, for appellees, cross-appellants George R., Lizabeth R., Robert R., Amy R., Tiffany R., Bryan R., John R. and Melanie R.

James A. Sawyer, Dist. Legal Counsel, Orlando, for appellee Dept. of Health and Rehabilitative Services.

A. Matthew Miller, Hollywood, Nancy S. Palmer, Maitland, and Deborah Marks, North Miami, for amicus curiae The Family Law Section of FL Bar.

Lewis Pitts and Gayle Korotkin, Southern Justice Institute, Durham, NC, and Lou Tally, Mt. Dora, for amici curiae Nat. Child Rights Alliance, et al.

Christina A. Zawisza, Director, Children First, Legal Services of Greater Miami, Inc., Miami, and Michelle Hankey of Legal Aid Soc. of Palm Beach County, West Palm Beach, for amici curiae Children First and Legal Aid Soc. of Palm Beach County.

DIAMANTIS, Judge.

Rachel Kingsley, the natural mother of Gregory, a minor child, appeals the trial court's final orders terminating her parental rights based upon findings of abandonment and neglect, and granting the petition for adoption filed by Gregory's foster parents, George and Elizabeth Russ. ¹ George Russ, on behalf of Gregory, appeals the trial court's order denying his motion for summary judgment regarding the applicable burden of proof. We affirm the trial court's orders terminating Rachel's parental rights and denying the motion for summary judgment; however, we reverse the trial court's order granting the adoption petition.

On June 25, 1992, Gregory, then 11 years of age, filed in the juvenile division of the circuit court a petition for termination of the parental rights of his natural parents. He separately filed, in the civil division of the circuit court, a complaint for declaration of rights and adoption by his foster parents. This adoption was later transferred to the juvenile division by court order. On July 21, 1992, the trial court ruled that Gregory, as a natural person who had knowledge of the facts alleged, had standing to initiate the action for termination of parental rights. In that order, the trial court implicitly accorded Gregory capacity to file the petition although he was an unemancipated minor. Prior to entering this order, the trial court, noting that there was a distinction between the roles of guardian ad litem and attorney ad litem, appointed one of Gregory's attorneys, Jerri A. Blair, as his attorney ad litem. ² The trial court made no ruling concerning Gregory's standing to file the adoption petition; however, Gregory's foster parents filed a petition for adoption on September 3, 1992, with the written consent of Gregory and Gregory's natural father. ³ Between August 11, 1992, and September 11, 1992, four additional petitions for termination of parental rights were filed on behalf of Gregory: the August 11, 1992, petition by George Russ, the foster father; the August 25, 1992, petition by Catherine A. Tucker, Gregory's guardian ad litem; the September 10, 1992, petition by the Department of Health and Rehabilitative Services (HRS); and the September 11, 1992, petition by Elizabeth Russ, the foster mother. ⁴ On September 17, 1992, Gregory filed an amended petition for termination of parental rights, and on September 18, 1992, Gregory's foster family filed a notice that its members were joining in, and adopting, Gregory's amended petition for termination of parental rights.

This matter proceeded to trial on September 24 and September 25, 1992. The court, over Rachel's objection, tried the termination of parental rights proceeding and the adoption proceeding at the same time pursuant to its earlier order allowing the two cases to travel together. After the various parties had presented their positions, the trial court, orally on the record, terminated Rachel's parental rights. Rachel immediately filed her notice of appeal in open court, contending that the appeal suspends and supersedes the adoption proceeding. ⁵ The trial court, however, proceeded orally to grant the adoption petition filed by Gregory's foster parents. Subsequently, on October 13, 1992, nunc pro tunc to September 25, 1992, the trial court entered a written judgment which terminated Rachel's parental rights and a separate written judgment which granted the adoption.

1. CAPACITY

Rachel contends that the trial court erred in holding that Gregory has the capacity to bring a termination of parental rights proceeding in his own right. Specifically, Rachel argues that the disability of nonage prevents a minor from initiating or maintaining an action for termination of parental rights. We agree.

Capacity to sue means the absence of a legal disability which would deprive a party of the right to come into court. Keehn v. Joseph C. Mackey & Co., 420 So.2d 398, 399 n. 1 (Fla. 4th DCA 1982); Argonaut Insurance Co. v. Commercial Standard Insurance Co., 380 So.2d 1066, 1067 (Fla. 2d DCA), rev. denied, 389 So.2d 1108 (Fla.1980); General Development Corp. v. Kirk, 251 So.2d 284, 286 (Fla. 2d DCA 1971); Earls v. King, 785 S.W.2d 741, 743 (Mo.Ct.App.1990); Parker v. Bowron, 40 Cal.2d 344, 254 P.2d 6, 9 (1953); 59 Am.Jur.2d Parties Secs. 24, 30 (1987). See also Moorhouse v. Ambassador Insurance Co., 383 N.W.2d 219 (Mich.Ct.App.1985).

In Earls v. King, 785 S.W.2d 741 (Mo.Ct.App.1990), the court succinctly set forth the legal effect of the concept of capacity to sue:

Capacity to sue is the right to come into court which exists if one is free of general disability, such as infancy or insanity. Nearly all adults have capacity to sue.

Earls, 785 S.W.2d at 743.

Courts historically have recognized that unemancipated minors do not have the legal capacity to initiate legal proceedings in their own names. This historic concept is incorporated into Florida Rule of Civil Procedure 1.210(b), which provides as follows:

Rule 1.210 Parties

* * * * * *

(b) Infants or Incompetent Persons. When an infant or incompetent person has a representative, such as a guardian or other like fiduciary, the representative may sue or defend on behalf of the infant or incompetent person. An infant or incompetent person who does not have a duly appointed representative may sue by next friend or by a guardian ad litem. The court shall appoint a guardian ad litem for an infant or incompetent person not otherwise represented in an action or shall make such other order as it deems proper for the protection of the infant or incompetent person. ⁶

See also Art. III, Sec. 11(a)(17), Fla. Const.; Secs. 743.01-.07, Fla.Stat. (1991) (recognizing the disability of nonage of minors).

The necessity of a guardian ad litem or next friend, the alter ego of a guardian ad litem, to represent a minor is required by the orderly administration of justice and the procedural protection of a minor's welfare and interest by the court and, in this regard, the fact that a minor is represented by counsel, in and of itself, is not sufficient. Brown v. Ripley, 119 So.2d 712 (Fla. 1st DCA 1960). See also Roberts v. Ohio Casualty Insurance Co., 256 F.2d 35, 39 (5th Cir.1958); Zaro v. Strauss, 167 F.2d 218 (5th Cir.1948). Unless a child has a guardian or other like fiduciary, a child must sue by his next friend; however, the next friend does not become a party to the suit. Brown v. Caldwell, 389 So.2d 287, 288 (Fla. 1st DCA 1980). Where the next friend brings the suit, the minor is the real party in interest. Youngblood v. Taylor, 89 So.2d 503, 506 (Fla.1956).

This disability of nonage has been described as procedural, rather than jurisdictional, in character because if a minor mistakenly brings an action in his own name such defect can be cured by the subsequent appointment of a next friend or guardian ad litem. Smith v. Langford, 255 So.2d 294, 297 (Fla. 1st DCA 1971). See also Brown v. Ripley, 119 So.2d 712, 714-15 (Fla. 1st DCA 1960). Thus, the concept of capacity determines the procedure which a minor must invoke in order to pursue a cause of action.

Section 39.461(1), Florida Statutes (Supp.1992), provides that petitions for termination of parental rights may be initiated either

by an attorney for [HRS], or by any other person who has knowledge of the facts alleged or is informed of them and believes that they are true.

This court has construed the term "any other person who has knowledge" to mean

someone who is in a peculiar position so that such knowledge can be reasonably inferred; for example, the judge familiar with the file, the guardian or attorney for the children, neighbors or friends of the parties who, because of their proximity, would be expected to have such knowledge.

In re C.B., 561 So.2d 663, 666 (Fla. 5th DCA 1990) (holding that guardian who was paternal grandmother of one of the children was proper party to bring petition on behalf of both children). ⁷ This construction contemplates the situation which arose here--that Jerri Blair, an attorney, would file a termination petition on Gregory's behalf. She must do so, however, as his next friend. The next friend may be an attorney, but need not be one. Under this long-recognized and well-tested procedure, the child is the real party in interest, but the courts require that an adult person of reasonable judgment and integrity conduct the litigation for the minor as the latter's next friend. ⁸ Garner v. I.E. Schilling Co., 128 Fla. 353, 174 So. 837 (Fla.1937). ⁹ This procedural burden on the conduct of litigation on behalf of a child is only marginally greater than the...