GUARDIAN AD LITEM STATEWIDE v. DEPARTMENT OF CHILDREN & FAMILIES, A. A., THE MOTHER AND J. H., THE FATHER

• Court: District Court of Appeal of Florida
• Decided: March 8, 2024
• Docket: 23-2724
• Status: Published

Opinion

SIXTH DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________

Case No. 6D23-2724 Lower Tribunal No. 2013-DP-104 _____________________________

In the Interest of K.H., a child.

STATEWIDE GUARDIAN AD LITEM,

Petitioner,

v.

DEPARTMENT OF CHILDREN AND FAMILIES, A.A., the mother, and J.H., the father,

Respondents.

_____________________________

Petition for Writ of Certiorari to the Circuit Court for Osceola County. Laura Shaffer, Judge.

March 8, 2024

STARGEL, J.

The Statewide Guardian Ad Litem Office (“GAL”) seeks a writ of certiorari

quashing an order striking its “Motion to Reinstate Protective Services,

Reappointment of the Guardian ad Litem, and Change of Goal.” Finding that the

GAL, having been previously discharged from the underlying dependency case,

lacked the authority to seek relief on the minor’s behalf, we dismiss the GAL’s

petition. Background

In August 2018, the trial court entered an order placing K.H., who was then

eleven years old, in a permanent guardianship. The order placing K.H. in a

permanent guardianship allowed K.H.’s mother supervised visitation at least two

hours per month and required no contact with K.H.’s father, who was serving a

fifteen-year prison sentence for attempted sexual battery. The trial court’s order

retained jurisdiction over K.H. and terminated supervision by the Department of

Children and Families. The trial court later discharged the GAL by separate order.

When K.H was fifteen years old, the permanent guardian and K.H. filed a

letter to the court requesting a status hearing to reopen the case, as both the

permanent guardian and K.H. wished to pursue adoption. The letter alleged that the

mother had not exercised her supervised visitation and had no relationship with

K.H., and the father remained incarcerated and under a no-contact order with K.H.

The permanent guardian wished to adopt K.H. for several reasons, including to

provide security for K.H. in the event of the permanent guardian’s illness or death

and to assist in completing applications to secure funding for K.H. to attend college

since her biological parents are not involved in her life.

The trial court held two status hearings after it received the letter but declined

to reopen the case, believing it lacked the authority to modify the permanent

guardianship. The court stated it would only consider reopening the case if both of

K.H.’s parents agreed to voluntarily surrender their parental rights. During both

2 hearings, the GAL asked to be reappointed so it could investigate the possibility of

the parents voluntarily surrendering their rights, but the court stated that it saw no

reason to appoint the GAL and instructed the permanent guardian to reach out to

K.H.’s parents herself. Several months later, without the trial court having entered

a written order on the permanent guardian and K.H.’s request to reopen the case, the

GAL filed a “Motion to Reinstate Protective Services, Reappointment of the

Guardian ad Litem, and Change of Goal.” The following day, the trial court entered

an order striking the GAL’s motion on the grounds that the GAL had been

discharged and was “no longer a party to the case.” The GAL then filed the instant

petition.

Analysis

To obtain relief by way of certiorari, the petitioner must show “(1) a departure

from the essential requirements of the law, (2) resulting in material injury for the

remainder of the case (3) that cannot be corrected on postjudgment appeal.” Reeves

v. Fleetwood Homes of Fla., Inc., 889 So. 2d 812, 822 (Fla. 2004) (quoting Bd. of

Regents v. Snyder, 826 So. 2d 382, 387 (Fla. 2d DCA 2002)). The latter two

elements, otherwise known as “irreparable harm,” are jurisdictional and must be

analyzed first. Williams v. Oken, 62 So. 3d 1129, 1132 (Fla. 2011); see also State,

Dep’t of Child. & Fams. v. B.D., 102 So. 3d 707, 708 (Fla. 1st DCA 2012) (“Because

they determine jurisdiction, the ‘material injury’ and ‘lack of adequate remedy on

direct appeal’ elements are threshold factors.”).

3 Here, the trial court was correct that because the GAL had been discharged, it

was no longer a party to the case and therefore lacked the authority to seek relief on

K.H.’s behalf. See § 39.01(58), Fla. Stat. (2022) (defining “party” in the context of

chapter 39 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”)(emphasis added); § 39.807(2)(b)3

(“The guardian ad litem has the . . . responsibilit[y] . . . [t]o represent the best

interests of the child until the jurisdiction of the court over the child terminates or

until excused by the court.”)(emphasis added). As a result, the GAL cannot establish

the requisite irreparable harm to invoke this Court’s certiorari jurisdiction, and we

must dismiss the GAL’s petition.

Still, based on the record before us, it is clear the permanent guardian and

K.H.’s letter requested that the court consider reopening the case to pursue adoption

rather than permanent guardianship as the permanency plan based on the changed

circumstances. The trial court did not enter a written order on the permanent

guardian and K.H.’s letter. Instead, a notice was filed stating that the letter was

returned as an improper ex parte communication or motion, and a motion with

proper notice to all parties could be resubmitted. Absent a written order from the

trial court ruling on a proper motion, including notice to all parties, neither a

permanent guardian nor a ward are able to obtain relief from an appellate court. See

Marinelli v. State, 706 So. 2d 1374, 1376 (Fla. 2d DCA 1998) (noting that appellate

4 courts “lack[] jurisdiction to review orders which have not been reduced to writing”);

see also State v. Maldonado, 156 So. 3d 589, 589 (Fla. 3d DCA 2015) (dismissing

certiorari petition for lack of jurisdiction where the trial court had not rendered a

written order). Thus, our dismissal of the GAL’s petition is without prejudice to any

right the permanent guardian and K.H. may have to file a proper motion or pleading

seeking relief from the trial court, including seeking to reopen the case and to

reappoint the GAL. 1

DISMISSED.

WHITE and MIZE, JJ., concur.

Sara Elizabeth Goldfarb, Statewide Director of Appeals, and Stephanie E. Novenario, Senior Attorney, Appellate Division, Tallahassee, for Petitioner.

Kelley Schaeffer, Appellate Counsel of Children’s Legal Services, Bradenton, for Respondent, Department of Children and Families.

No Appearance for Respondents, A.A., the mother, and J.H., the father.

NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

1 See Fla. R. Juv. P. 8.215(a) (“At any stage of the proceedings, any party may request or the court may appoint a guardian ad litem to represent any child alleged to be dependent.”) (emphasis added).