YH v. FLH

Decision Date15 May 2001
Docket NumberNo. 1D00-1832.,1D00-1832.
Citation784 So.2d 565
PartiesY.H., Appellant, v. F.L.H. and K.W.H., Appellees.
CourtFlorida District Court of Appeals

John W. Gardner, of John W. Gardner, P.A., Brandon, for Appellant.

Michael J. Korn, Korn & Zehmer, P.A., Jacksonville and Michael A. Shorstein, Shorstein & Kelly, P.A., Jacksonville, for Appellees.

BENTON, J.

Y.H., who seeks to adopt her infant— perhaps by now toddling—granddaughter, S.L.H., appeals the trial court's order denying her motion to intervene in the adoption proceedings that F.L.H. and K.W.H. initiated, with the consent of S.L.H.'s parents, in order to adopt S.L.H. themselves. We affirm.

I.

On January 12, 2000, S.L.H. was born to Y.H.'s unmarried, minor daughter, who lived with Y.H. while she was pregnant. The day after her granddaughter was born, Y.H. filed a petition for adoption in Hillsborough County. The following day, January 14, 2000, F.L.H. and K.W.H. filed their petition to adopt S.L.H. in Duval County, alleging that an intermediary had placed S.L.H. with them that day.

On February 16, 2000, Y.H. filed a motion to intervene in the Duval County proceeding and to consolidate that case with the Hillsborough County case. Earlier in the Duval County proceeding, F.L.H. and K.W.H. had filed waivers of right to counsel, affidavits of birthparents, and consents for adoption, all of which S.L.H.'s biological parents had signed, agreeing to relinquish custody of and all rights to S.L.H. As grounds for intervention and consolidation, Y.H. cited section 63.0425(1), Florida Statutes (1999), which provides:

When a child who has lived with a grandparent for at least 6 months is placed for adoption, the agency or intermediary handling the adoption shall notify that grandparent of the impending adoption before the petition for adoption is filed. If the grandparent petitions the court to adopt the child, the court shall give first priority for adoption to that grandparent.

Y.H. asserted priority on the theory that her granddaughter while yet unborn had lived with her for the six months required by the statute. In denying the motion to intervene and to consolidate, the trial court found that S.L.H. had not lived with her maternal grandmother at any time subsequent to her birth, and that the biological parents had executed valid waivers of right to counsel, affidavits of birthparents, and consents for adoption. See § 63.082(5), Fla.Stat. (1999) ("Consent may be withdrawn only when the court finds that the consent was obtained by fraud or duress.").

II.

An order denying a motion to intervene is final as to and appealable by the movant. See, e. g., City of Sunrise v. Town of Davie, 472 So.2d 458, 459 (Fla. 1985)

. On appeal as below, however, Y.H. also argues that it was error not to consolidate the case pending in Duval County with the case she had initiated in Hillsborough County. But no appeal lies from a non-final order denying consolidation, even where a party has filed the motion to consolidate. In authorizing review of non-final orders that concern venue, Florida Rule of Appellate Procedure 9.130(a)(3)(A) creates no exception for cases where no venue question arises if consolidation does not occur. See Wetherington v. State Farm Mut. Auto. Ins. Co., 661 So.2d 1276, 1277 (Fla. 2d DCA 1995).

Only in rare cases, moreover, is "it appropriate to grant certiorari relief from orders denying motions to consolidate. See, e.g., Tommie v. LaChance, 412 So.2d 439 (Fla. 4th DCA 1982)

." Pages v. Dominguez, 652 So.2d 864, 866 (Fla. 4th DCA 1995).

The decision to consolidate actions ordinarily falls within the sound discretion of the trial court. Barnes v. Meece, 530 So.2d 958 (Fla. 4th DCA 1988); Brody Constr. Inc. v. Fabri-Built Structures, Inc., 322 So.2d 61 (Fla. 4th DCA 1975). In order to justify granting certiorari relief from pretrial orders, there must be a departure from the essential requirements of law which will cause material injury that cannot be rectified on plenary appeal. Barnes, 530 So.2d at 959.

652 So.2d at 866. Here the trial judge had no authority to consolidate the case below with a case pending in another circuit. Florida Rule of Civil Procedure 1.270(a), applicable by virtue of Florida Family Law Rule of Procedure 12.270, authorizes consolidation only "[w]hen actions involving a common question of law or fact are pending before the [same] court." See Wetherington, 661 So.2d at 1277

("[T]he trial court acted in excess of its jurisdiction by ordering that a case pending outside the confines of its territorial jurisdiction be consolidated with a case over which it did have jurisdiction.").

III.

Florida Family Law Rule of Procedure 12.230 provides that intervention is to be governed by Florida Rule of Civil Procedure 1.230, which provides in turn:

Anyone claiming an interest in pending litigation may at any time be permitted to assert a right by intervention, but the intervention shall be in subordination to, and in recognition of, the propriety of the main proceeding, unless otherwise ordered by the court in its discretion.

This language has been definitively construed to require more than merely asserting a putative right. See Union Cent. Life Ins. Co. v. Carlisle, 593 So.2d 505, 507 (Fla.1992)

; Morgareidge v. Howey, 75 Fla. 234, 78 So. 14, 15 (1918). The Florida Supreme Court has described two steps that the analysis of motions to intervene requires:

First, the trial court must determine that the interest asserted is appropriate to support intervention. Once the trial court determines that the requisite interest exists, it must exercise its sound discretion to determine whether to permit intervention.

Carlisle, 593 So.2d at 507 (citation omitted). The question whether the asserted interest supports intervention can itself usefully be subdivided into two parts.

The asserted interest must both a) already be at issue in the proceeding, and b) be of a kind the would-be intervenor is a proper party to raise. Our supreme court has said The rule authorizing intervention has been stated as follows:

"... [T]he interest must be that created by a claim to the demand in suit or some part thereof, or a claim to, or lien upon, the property or some part thereof, which is the subject of litigation." 17 Am. & Eng. Ency. of Law (2d Ed.) 181; Horn v. Volcano Water Co., 13 Cal. 62, 73 Am. Dec. 569; Smith v. Gale, 144 U.S. 509, 12 Sup. Ct. 674, 36 L.Ed. 521; Isaacs v. Jones, 121 Cal. 257, 53 Pac. 793, 1101[795]; Wightman v. Evanston Yaryan Co., 217 Ill. 371, 75 N.E. 502, 108 Am. St. Rep. 258, 3 Ann. Cas. 1089.

In the latter case the court said:

"From the foregoing text and decisions we understand the rule to be no more nor less than that parties having an interest in the subject-matter of the suit in equity, and who are either necessary or proper parties to such suit, if not made so by the plaintiff, may come in by way of application to intervene and be made parties complainant or defendant, to the end that their interests may be adjudicated and protected."

Morgareidge, 78 So. at 15 (emphasis supplied). (By definition, a necessary party is a proper party.) Y.H. contends that the trial court erred in concluding that she was not a proper party to the adoption proceeding F.L.H. and K.W.H. initiated.

The Morgareidge court also held that the asserted interest must be such that the would-be intervenor "will either gain or lose by the direct legal operation ... of the judgment." 78 So. at 15 (quoting 17 Am. & Eng. Encyclopedia of Law 181 (2d Ed. 1896)). At issue here is whether Y.H. has demonstrated that the trial court erred in concluding that biological grand-motherhood, without more, gives rise to no legal rights that may be gained or lost, once the grandchild's parents have consented to adoption.

Recently, with respect specifically to adoption proceedings, our supreme court opined, in ruling against a biological father whose parental rights had been terminated:

In In re Adoption of a Minor Child, 593 So.2d 185 (Fla.1991), we concluded that a child's natural grandparents were entitled to intervene in the child's adoption proceedings as legally interested parties. We determined that the grandparents had acquired a legal interest in maintaining a relationship with their grandchild based upon a New Jersey custody order issued earlier that year granting them visitation rights. Intervention in the adoption proceeding allowed them to protect these rights which might have been terminated by the adoption order.
Contrasted with In re Adoption of a Minor Child is the case before us. As one whose parental rights have been terminated through judicial proceedings, Rivera has no direct interest which may be affected by the adoption proceedings because his parental rights no longer exist. He stands as a stranger to the proceedings, and the fact that he is the child's biological father is now legally irrelevant. As such, he has no standing to intervene in a third-party adoption proceeding involving the child.
Our holding is consistent with section 63.062(4), Florida Statutes (Supp.1992), which states that if parental rights to a minor have previously been terminated, then only the consent of the licensed child-placing agency handling the adoption is required. Id.; see also § 39.47(1), Fla.Stat. (1991); § 63.072(2), Fla.Stat. (1991). Thus, the Legislature has determined that one whose parental rights have been terminated does not have a sufficient interest in the matter to warrant requiring his or her consent for the child's adoption. Likewise, we believe that once parental rights to a child have been terminated, the parent also lacks the legal interest necessary to establish standing to intervene and contest for the adoption of the child.

Stefanos v. Rivera-Berrios, 673 So.2d 12, 13-14 (Fla.1996) (emphasis supplied and footnote omitted). Importantly, the Stefanos court acknowledged that the father, whose parental rights had been terminated for neglect and...

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