T.r.-B. v. Dep't of Children & Families

Decision Date26 January 2022
Docket Number3D21-1716
Parties T.R.-B., Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, et al., Appellees.
CourtFlorida District Court of Appeals

Jay & Campbell, PLLC, and Katie Jay (Stuart), for appellant.

Karla Perkins, for appellee Department of Children and Families; Sara Elizabeth Goldfarb and Laura J. Lee (Tallahassee), for appellee Guardian ad Litem.

Before FERNANDEZ, C.J., and HENDON, and BOKOR, JJ.

FERNANDEZ, C.J.

Appellant/petitioner below T.R-B. ("the petitioner") appeals the trial court's final order denying her amended motion to intervene as an interested party in her minor grandson's underlying dependency proceeding. Because the trial court erred in denying the petitioner's motion, we reverse the order on appeal and remand to the juvenile court for further proceedings consistent with this opinion.

The petitioner is the maternal grandmother and custodian of D.W., the minor child in the underlying dependency case. On May 26, 2017, Florida's Department of Children and Families ("DCF") sheltered D.W. Immediately, the petitioner sought custody of D.W. DCF initially objected to the trial court placing D.W. with the petitioner due to the thirty-year-old criminal conviction of petitioner's husband, D.W.’s step-grandfather. Almost thirty years ago, the step-grandfather was convicted of grand theft and cocaine distribution/possession and served ten years in jail.

On October 22, 2018, D.W.’s mother's parental rights were terminated, and D.W has no legal father. Thereafter, the petitioner obtained a home study. The home study was positive and indicated that the step-grandfather had lived the past twenty years as an "upstanding citizen." The home study showed that the step-grandfather had a stable and respectable job for the last twenty years and was able to financially care for his children with his wife, the petitioner; he was a role model to his children and society; and D.W. was very safe with him and was very well cared for and loved by the step-grandfather. Thus, the home study found that the step-grandfather's criminal history should not be a deterrent for the adoption to proceed. The home study further indicated that D.W. is bonded to the petitioner, his step-grandfather, and petitioner's family, namely: the petitioner's mother (D.W.’s great grandmother), the petitioner and her husband's biological daughter who lives with them and is approximately D.W.’s age (D.W.’s aunt), and the petitioner and her husband's biological son who lives with them and is fifteen-year-old (D.W.’s uncle).

In August 2017, the trial court overruled DCF's objection and awarded custody of D.W. to the petitioner and the petitioner's mother, C.G., who lives with the petitioner and her family. The trial court found it was in D.W.’s best interest to be placed in the custody of his grandmother (the petitioner). DCF or GALP have never sought to remove D.W. from the petitioner's home.

The petitioner then applied to adopt D.W. On August 27, 2020, DCF's Adoption Applicant Review Committee ("AARC") denied the petitioner's application, mainly due to the petitioner's husband's criminal record. The AARC also cited an alleged lack of a bond between the petitioner and D.W. as another reason for denying the petitioner's application. Instead, the AARC approved the application submitted by D.M., a non-relative caregiver of D.W.’s infant biological sibling, A.W. D.W. has never resided with D.M.1

The petitioner claims that although DCF was aware that the petitioner wanted to adopt D.W., DCF failed to provide her with notice of hearings and meetings and/or ask for her input, as is required by section 39.4087, Florida Statute (2021). Accordingly, on September 21, 2020, the petitioner filed a formal complaint with the Family Resource Center listing the statutory violations.

On December 28, 2020, the petitioner filed her petition in the family court division to adopt D.W. In her adoption petition, the petitioner requested that, pursuant to section 63.062(7), Florida Statute (2021), the trial court find that DCF was unreasonably withholding its consent to her adoption of D.W.

On January 11, 2021, DCF asked the court for unsupervised weekly visitation between D.W. and A.W. to be supervised by D.M., the approved adoptive applicant, which the trial court granted on January 12, 2021.2 The petitioner alleges neither she nor her counsel were notified. On January 20, 2021, the petitioner filed her Amended Petition for Adoption by Relative. On January 29, 2021, the petitioner filed her "Motion to Intervene as an Interested Party and to Stay 01/12/2021 Visitation Order."

On February 17, 2021, after the petitioner moved to have the family adoption case transferred to the juvenile division, the trial court in the family division transferred the adoption case to the Unified Children's Court Division and ordered that a "juvenile adoption case" be created and assigned through the Office of the Clerk of the Courts, Juvenile Division.

In March 2021, the petitioner moved to waive DCF's consent to adoption. In preparation for the hearing before the trial court on this motion, in April 2021, the petitioner gave notice in the adoption proceeding to the GALP for the virtual depositions of the certified guardian ad litem and the GALP assistant circuit director. On April 29, 2021, the GALP filed an emergency motion to quash notice of taking deposition and motion for protective order and requested an emergency hearing. The GALP filed this motion in the dependency case, in which the GALP was a party but in which the petitioner was not. The GALP argued that the petitioner intended to depose the GALP's employees in the adoption matter to which the GALP was not a party but to which the trial court retained exclusive jurisdiction. In addition, it argued only parties may take depositions, and the petitioner was not a party to the dependency action, only a participant.

On May 3, 2021, the petitioner filed her "Emergency Motion to Stay Hearing." The trial court denied the stay. The next day, the trial court held the hearing on the GALP's motion to quash the petitioner's notice of deposition. The trial court acknowledged that on June 8, 2021, it would address the issue of whether DCF unreasonably withheld consent for the petitioner to adopt D.W., decided to give both parties more time to research the deposition issue, and thus rescheduled the hearing to May 18, 2021. Over the petitioner's objection, the trial court directed her to file her response in the dependency action to the GALP motion to quash.

Thereafter, at the May 18, 2021 hearing, the trial court found that adoption proceedings initiated under Chapter 39 are exempt from the jurisdiction of section 63.087, as that section dealt with the termination of parental rights pending adoption, which was not the case here. The court found that section 39.812(5) applied. The court stated it was aware a hearing was set for June 8, 2021 on the petitioner's motion as to whether DCF unreasonably withheld its consent to the petitioner adopting D.W. The petitioner's attorney corrected the trial court because the June 8 hearing was, instead, set as a hearing on the petitioner's motion to intervene in the dependency proceeding.

The GALP reiterated that it requested the protective order because the petitioner was not a party to the dependency proceeding. The trial court asked DCF why it would grant the protective order if the petitioner's motion on DCF unreasonably withholding its consent was going to be heard on June 8, and the information the petitioner needed to prove her case would be obtained by taking the GALP's deposition. The trial court noted that the deposition would assist the petitioner in her presentation of evidence to show that DCF unreasonably withheld its consent. DCF replied to the court that the petitioner was not a party to the dependency case and thus could not depose a party because she was merely a participant. In response, the petitioner's attorney contended that although the petition for adoption was filed in the family court, it was transferred to the dependency court in February 2021. Thus, the petition was correctly in the juvenile division and correctly before this trial court.

At the end of the hearing, the court found that the petitioner at that point in time was not a party. The court found that the petitioner could become a party on June 8 if the court found at that hearing that DCF unreasonably withheld its consent to adoption. Thus, the court granted the GALP's motion for protective order because the petitioner was not a party who could conduct discovery. The court stated it was relying on section 39.812(5) because DCF's consent was required once a TPR was entered. In addition, the trial court ruled that D.W. and his sibling, A.W., would have weekly visitation. That same day, the petitioner voluntarily dismissed her adoption petition because the trial court had ruled that the juvenile rules applied to adoption proceedings arising from dependency proceedings. Thus, the petitioner had no way to amend her petition because the juvenile rules did not provide for amendments.

Thereafter, the petitioner filed her "Verified Petition for Adoption of Minor Child" on June 1, 2021, adding DCF and the GALP as parties. In the petition, the petitioner asked the court to find that DCF had abused its discretion by withholding its consent to the adoption of D.W. On June 3, 2021, the petitioner filed her amended motion to intervene as an interested party and to stay the January 12, 2021 visitation order.

On June 4, 2021, the GALP filed its "Motion to Review the Appropriateness of the Department's Adoptive Selection and Memorandum of Law in Support of the Maternal Grandmother's Motion to Waive the Department's Consent." The GALP now supported the petitioner's adoption and stated it was in D.W.’s best interest that the petitioner adopt D.W. The GALP also stated it was in...

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