Kas v. Ret

914 So. 2d 1056, 2005 WL 3179763
CourtDistrict Court of Appeal of Florida
DecidedNovember 30, 2005
Docket2D04-4973
StatusPublished

This text of 914 So. 2d 1056 (Kas v. Ret) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kas v. Ret, 914 So. 2d 1056, 2005 WL 3179763 (Fla. Ct. App. 2005).

Opinion

914 So.2d 1056 (2005)

K.A.S., as Guardian of the Property of T.J.M.; and G.M., Appellants,
v.
R.E.T. and S.L.T., as Co-Guardians of the Person of T.J.M., Appellees.

No. 2D04-4973.

District Court of Appeal of Florida, Second District.

November 30, 2005.

*1058 Robert L. Donald of Law Office of Robert L. Donald, Fort Myers, for Appellants.

Robert P. Henderson of Simpson, Henderson, Carta & Randolph, Fort Myers, for Appellees.

WALLACE, Judge.

In this case we are called upon to decide whether the probate court has the power to order the nonparental guardians of the person of a minor ward to permit visitation between the ward and one of his grandparents. We hold that the probate court has the inherent power to order the guardians to permit such visitation. Accordingly, we reverse the order of the probate court that held to the contrary, and we remand this case for the probate court to reconsider, in light of our holding, the grandparent's petition for visitation with the minor ward. We also decide that the probate court did not err in denying a petition for the appointment of a guardian ad litem in the proceedings below, because the petition for appointment of a guardian ad litem was not presented to the probate court for a ruling until the day scheduled for the final hearing on the visitation petition.

FACTS AND PROCEDURAL HISTORY

T.J.M. (the Ward) was born on May 10, 1999. Although both of the Ward's parents are living, neither of them is involved in the care and custody of the Ward. In September 2003, with the parents' consent, the probate court established a guardianship of the person and property of the Ward. The probate court appointed the Ward's maternal grandparents, R.E.T. and S.L.T. (the Guardians of the Person), as the guardians of the person of the Ward. The probate court also appointed K.A.S. (the Guardian of the Property) as the guardian of the property of the Ward.

G.M. (the Grandmother) is the Ward's paternal grandmother. The Ward's paternal grandfather is deceased. For reasons not material to our decision, the Guardians of the Person refused to permit the Grandmother to visit with the Ward. In February 2004, the Guardian of the Property filed a petition for interim judicial review in accordance with section 744.3715, Florida Statutes (2003), and Florida Probate Rule 5.705. In her petition, the Guardian of the Property asked the probate court "to review the actions of the Guardians of the Person and to order [them] to act in the long-term best interest of the ... Ward" by allowing "frequent and regular visits with the ... [G]randmother." The Grandmother promptly joined in this petition.

The Guardian of the Property subsequently petitioned for the appointment of a guardian ad litem for the Ward in accordance with section 744.391 and rule 5.120. In her petition, the Guardian of the Property alleged that the interests of the Guardians of the Person concerning the subject matter of the petition for interim judicial review were adverse to the interests of the Ward. The Guardian of the Property did not present her petition for *1059 the appointment of a guardian ad litem to the probate court for a ruling until the day scheduled for the final hearing on the petition for interim judicial review.

THE PROBATE COURT'S RULING

After an evidentiary hearing, the probate court denied the petition for interim judicial review and declined to order the Guardians of the Person to permit the Grandmother to visit the Ward. In pertinent part, the probate court found as follows:

2.... Testimony developed at hearing shows that [the Grandmother] has joined in this petition for interim judicial review in order to assert her rights to grandparent visitation with the [W]ard. This Court does not believe that [the Grandmother] has a "right" to grandparent visitation with the [W]ard. See Sullivan v. Sapp, 866 So.2d 28 (Fla. 2004).
3. Counsel for [the Grandmother] also asserts that the [W]ard, pursuant to § 744.3215(1)(m), Fla. Stat. (2003)[,] retains the right to receive visitors and communicate with others. This Court finds that this maybe [sic] true with an adult ward, but the ward in question here is a minor and therefore is incapacitated by reason of nonage as well as being incapacitated by reason of having both a guardian of his person and property. Therefore, by reason of nonage the guardian of his person would have the exclusive right and obligation to determine what visitors and/or communications the [W]ard could receive.
4. The Court finds that [the] Guardians of the Person of the Ward[ ] have not acted unreasonably in limiting the contact of the [W]ard with the [Grandmother].

The probate court also denied the petition for appointment of a guardian ad litem for the Ward. The Guardian of the Property and the Grandmother have appealed the trial court's order denying the petition for interim judicial review and the petition for appointment of a guardian ad litem.[1]

THE PETITION FOR INTERIM JUDICIAL REVIEW

A. A Preliminary Note on Standing

As an initial matter, we doubt that a guardian of the property of a minor ward has standing to petition the probate court for an order directing the guardian of the minor's person to permit a third party to visit the minor. The parties did not address this issue in their briefs or at oral argument, and they have not directed us to any authority on this point. However, the Grandmother undoubtedly has standing to request visitation with the Ward. The Grandmother not only joined in the petition for interim judicial review, she was also a full participant in the proceedings in the probate court. Therefore, we do not need to reach the issue of whether the Guardian of the Property had the requisite standing to file the petition for interim judicial review.

*1060 B. The Issue

The probate court ruled that the Grandmother has no "right" to visitation with the Ward and that the Guardians of the Person "have the exclusive right and obligation" to determine what visitors the Ward can receive. These rulings are questions of law that we review de novo. See Blanton v. City of Pinellas Park, 887 So.2d 1224, 1226 (Fla.2004). However, we conclude that the probate court misconceived the issue before it as turning on the respective "rights" of the parties. Granted, the guardian of the person of a minor can determine what persons may have access to and visit with the minor.[2]See generally 39 C.J.S. Guardian and Ward § 54 (2003). As we see it, the issue before us is whether the probate court has the power to act in the best interests of the Ward to control the discretion exercised by the Guardians of the Person in determining what persons will be permitted to visit the Ward. We begin our examination of this question by considering the only Florida case that touches on the power of the probate court to control the exercise of the guardian's discretion concerning what persons may visit a minor ward.

C. The Probate Court's Power to Control Visitation with a Minor Ward.

1. The Florida Authority: State ex rel. Watland v. Hurley

State ex rel. Watland v. Hurley, 137 Fla. 488, 188 So. 771 (1938), was an original proceeding on a writ of habeas corpus filed in the Supreme Court of Florida. Id. at 772. In Watland, a father sought to regain custody of his two daughters from their court-appointed guardian.

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Bluebook (online)
914 So. 2d 1056, 2005 WL 3179763, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kas-v-ret-fladistctapp-2005.