D.R. v. Heidrich

• Decision Date: 02 July 2020
• Docket Number: Case Nos. 5D19-2431,5D19-2432
• Parties: D.R., Mother, Appellant, v. Elizabeth Ashely HEIDRICH, as Guardian of J.A.R. and S.H.R., Children, Appellee.
• Court: Florida District Court of Appeals

312 So.3d 517

D.R., Mother, Appellant,

v.Elizabeth Ashely HEIDRICH, as Guardian of J.A.R. and S.H.R., Children, Appellee.

Case Nos. 5D19-2431

5D19-2432

District Court of Appeal of Florida, Fifth District.

Opinion filed July 2, 2020

Christi Leigh McCullars, of McCullars Law Firm, PLLC, Orlando, and Nicholas A. Shannin and Carol B. Shannin, of Shannin Law Firm, P.A., Orlando, for Appellant.

Renee Vermette Peppy, of The Elder Law Center of Kirson & Fuller, Orlando, for Appellee.

ORFINGER, J.

D.R. ("Mother") appeals an order appointing Elizabeth Ashely Heidrich as the guardian of the person of her minor children, J.A.R. and S.H.R. For the reasons discussed below, we reverse.

MS. HEIDRICH'S PETITION AND THE TRIAL COURT'S RULING

In early January 2019, Mother's husband, and the minor children's father, died in the family home. Shortly thereafter, Mother asked one of her sisters, Tiffany Joyce, and her stepfather, Robert Aquino, to come to Florida from Ohio to stay with the two minor children in the event she became unavailable. Ms. Joyce and Mr. Aquino travelled to Florida and lived in the family home with Mother and the minor children for several weeks until Mother was arrested and charged with the murder of her husband. Mother had planned for the children to stay with Ms. Joyce and Mr. Aquino in Florida until school ended in May 2019, and then to move the children to Ohio where their maternal relatives reside. However, Mother took no legal action to authorize anyone to care for the children during this time.

Eight days after Mother's arrest, Ms. Heidrich, an unrelated acquaintance, filed a petition for appointment as plenary guardian of the minor children pursuant to chapter 744, Florida Statutes. Shortly thereafter, Ms. Joyce and Mr. Aquino filed a petition for temporary custody of the minor children pursuant to chapter 751, Florida Statutes. Several weeks later, with Mother's consent, Ms. Joyce and another sister, Kristen Carraway, petitioned to be appointed as co-guardians of the person of the minor children.

Following an evidentiary hearing, the trial court entered its Order Determining Guardian of Person of the Minor Children. While the trial court found that all of the petitioners were "fit and able" to act as guardian, it chose Ms. Heidrich as the minor children's guardian of the person, concluding that it was in their best interests. The court reasoned:

The competing petitions were filed by the children's maternal relatives, Kristin Carraway and Tiffany Joyce ("Carraway and Joyce") who reside in Ohio, and a family friend and temporary custodian, Elizabeth Ashley Heidrich ("Heidrich") who resides in Winter Park, Orange County, Florida.

Section 744.312, Florida Statutes (2019) provides that the court "may appoint any person who is fit and proper and qualified to act as guardian, whether related to the ward or not." The court is directed to give preference to the appointment of a person who:

(a) Is related by blood or marriage to the ward;

(b) Has educational, professional, or business experience relevant to the nature of the services sought to be provided; (c) Has the capacity to manage the financial resources involved; or

(d) Has the ability to meet the requirements of the law and the unique needs of the individual case.

Additionally, the court must consider:

(a) the wishes expressed by an incapacitated person as to who shall be appointed guardian.

(b) the preference of a minor who is age 14 or over as to who should be appointed guardian.

(c) any person designated as guardian in any will in which the ward is a beneficiary.

(d) the wishes of the ward's next of kin, when the ward cannot express a preference.

Testimony before the court established that Carraway, Joyce and Hei[ ]drich all appear qualified as fit and proper persons who could be appointed Guardian of the minors. However, the Court has determined that it is in the children's best interests to continue in the care and custody of Hei[ ]drich. Although not related by blood to the children, Hei[ ]drich is the person most able to provide stability and continuity in the children's lives. Continuing to reside with Hei[ ]drich will allow the children to remain in familiar surroundings and as well as their current schools. Hei[ ]drich has expressed to the Court her willingness to have the children maintain contact with their out-of-state relatives once the guardianship issue is resolved. Further, [J.A.R.] is almost 16 years old and has stated that she wishes to remain in Hei[ ]drich's custody. Being over the age of 14 and able to express a preference, a child's wishes must be considered by the court. Although the children's mother has expressed her desire to have the children reside with her relatives in Ohio, the court notes that it is the mother's own actions which have placed the children in this situation, and for that reason the Court does not believe the mother's wishes override those of the children; nor are they considered by the Court to be in the best interests of the children.

[J.A.R.]'s therapist testified that the child considers Heidrich and her home as a "safe haven," and both the therapist and the Guardian ad Litem testified that the children unequivocally wish to remain in Orlando. The court finds it in the best interests of the children that as siblings, they remain together, and that they maintain relationships with their current therapists.

Florida case law is clear that the best interest of the child trumps any preference given to relatives in guardianship cases. See In re Guardianship of Stephens, 965 So. 2d 847, 852 (Fla. 2d DCA 2007) (holding that "any ‘preference’ for family applies only within certain discretionary bounds. The guardianship statute does not confer upon certain family members an absolute and automatic right to be appointed guardian."); Miller v. Goodell, 958 So. 2d 952, 954 (Fla. 4th DCA 2007) ("The best interests of the Ward - which include choosing a qualified guardian of the Ward - come first. Family member preference in and of itself is secondary, regardless of how well qualified the family members are."); Morris v. Knight, 1 So. 3d 123[6], 1239 [(Fla. 4th DCA 2009)] ("[I]t is the best interest of the ward that trumps other considerations in the appointment of a guardian.")

The trial court then entered orders appointing Ms. Heidrich as the guardian of the person of J.A.R. and S.H.R. and letters of guardianship after denying Mother's rehearing motion without a hearing.

On appeal, Mother argues that the trial court erred in choosing a guardian by using the "best interests of the ward" standard rather than placing greater weight on her fundamental right to direct the upbringing of her children in the absence of a finding that her decision would cause demonstrable harm to the children. We agree.

Generally, we review a court's appointment of a guardian under an abuse of discretion standard. Wilson v. Robinson, 917 So. 2d 312, 313 (Fla. 5th DCA 2005). However, a trial court's decision that involves issues of the interpretation of a statute is reviewed de novo. See, e.g., State v. Burris, 875 So. 2d 408, 410 (Fla. 2004) ("This question of statutory interpretation is subject to de novo review.").

CHAPTER 744 AND PARENTS’ CONSTITUTIONAL RIGHT OF PRIVACY

Ms. Heidrich, a non-relative, petitioned to be appointed guardian of the person of the minor children alleging that the minor children had no "natural guardians" with whom they could be entrusted and that it was in their best interests to appoint her as guardian. Chapter 744, Florida Statutes, the Florida Guardianship Law, governs guardianship proceedings in this state. See Hayes v. Guardianship of Thompson, 952 So. 2d 498, 502 (Fla. 2006). The "overwhelming" public policy of guardianship law "is the protection of the ward." Id. at 505 ; see § 744.1012(3), Fla. Stat. (2019) (declaring that purpose of guardianship statutes is "to promote the public welfare" by protecting rights of incapacitated persons).

Section 744.312(2), Florida Statutes (2019), entitled "Considerations in appointment of guardian," provides that a trial court may appoint "any person who is fit and proper and qualified to act as guardian, whether related to the ward or not.". The statute then gives preference in appointment as follows:

The court shall give preference to the appointment of a person who:

(a) Is related by blood or marriage to the ward;

(b) Has educational, professional, or business experience relevant to the nature of the services sought to be provided;

(c) Has the capacity to manage the financial resources involved; or

(d) Has the ability to meet the requirements of the law and the unique needs of the individual case.

The statute also requires the court to consider the preference of a minor who is age 14 or over as to who should be appointed guardian. Id. § 744.312(3)(d).

Hence, under section 744.312, "a person who is related by blood or marriage to the ward" receives preference in appointment. But, the inquiry does not end there. The court has the discretion to appoint a non-relative who possesses particular experience or ability to serve as guardian in meeting the unique needs of the individual case. See, e.g., Treloar v. Smith, 791 So. 2d 1195, 1197 (Fla. 5th DCA 2001) (finding that while next of kin are given first consideration, statute does not mandatorily require that appointment; rather, statute specifically provides that court may appoint any person who is qualified, whether related to ward or not). Similarly, while the wishes of the ward are considered in appointing a guardian, they are not controlling. § 744.312(3)(a), Fla. Stat.; Ahlman v. Wolf, 413 So. 2d 787, 788 (Fla. 3d DCA 1982).

In Florida, parents are the natural guardians of their minor children unless the court enters an order stating otherwise. See § 744.301(1), Fla. Stat. (2019) ("The parents jointly are the natural guardians of their own children and of their adopted children, during minority, unless the parents' parental rights have...