Opinion
Case Nos. 5D19-2431 5D19-2432
07-02-2020
D.R., Mother, Appellant, v. Elizabeth Ashely HEIDRICH, as Guardian of J.A.R. and S.H.R., Children, Appellee.
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.
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 been terminated ...."). As natural guardians, parents would generally be the ones who would file a petition for appointment of guardian of a minor, but any person interested in the welfare of a minor may file such a petition without the necessity to adjudicate the minor incapacitated as set forth in section 744.331, when such protection is necessary. See §§ 744.3021, 744.332, Fla. Stat. (2019); Fla. Prob. R. 5.555.
For this reason, we reject, without further discussion, Mother's argument that the trial court lacked subject matter jurisdiction to consider Ms. Heidrich's petition.
Chapter 744 notwithstanding, as natural guardians, parents have a fundamental liberty right in the care, custody, and management of their children. Troxel v. Granville, 530 U.S. 57, 65–66, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000) (plurality opinion); D.M.T. v. T.M.H., 129 So. 3d 320, 334 (Fla. 2013). That parental authority over decisions involving their minor children stems from the liberty interests emanating from the Fourteenth Amendment to the United States Constitution and the guarantee of privacy in article I, section 23 of the Florida Constitution. Glob. Travel Mktg., Inc. v. Shea, 908 So. 2d 392, 398 (Fla. 2005). Consequently, a state may not "infringe on the fundamental right of parents to make child rearing decisions simply because a state judge believes a ‘better’ decision could be made." Troxel, 530 U.S. at 72–73, 120 S.Ct. 2054 (plurality opinion). Nor does that fundamental liberty interest "evaporate simply because they have not been model parents." J.B. v. Fla. Dep't of Child. & Fam. Servs., 768 So. 2d 1060, 1064 (Fla. 2000) (quoting Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982) ). Hence, judicial intervention in parental decisions may usurp parental control only when the child is threatened with significant harm as a result of a parent's decisions. See, e.g., Kirton v. Fields, 997 So. 2d 349, 353 (Fla. 2008) (reiterating that parental rights with respect to child-rearing are not absolute, and state as parens patriae may, in certain situations, usurp parental control); Von Eiff v. Azicri, 720 So. 2d 510, 514 (Fla. 1998) ("Neither the legislature nor the courts may properly intervene in parental decision-making absent significant harm to the child threatened by or resulting from those decisions.").
Here, it is not disputed that Mother is currently confined, and thus, her minor children cannot reside with her. It is equally undisputed that Mother's parental rights are still intact and there has been no determination that Mother is not fit to make decisions regarding the care, custody, and control of her minor children, including the selection of her sisters to act as the minor children's co-guardians. The question before us is, under the circumstances presented here, whether Mother's wishes should carry the day absent significant harm to the children or was the trial court correct in applying the general "best interests of the ward" standard found in chapter 744?
The Florida Constitution's privacy provision provides "greater protection than is afforded by the federal constitution" and includes specific protection against State interference in "parents' fundamental right to raise their children except in cases where the child is threatened with harm." Beagle v. Beagle, 678 So. 2d 1271, 1275, 1276 (Fla. 1996). In a contest between the wishes of a parent and the wishes of a non-parent, a parent cannot be deprived of the companionship, care, custody, and management of his or her children unless there has been a finding, after notice required by due process, of demonstrable harm to the child. Id. at 1275–76. Only if the trial court finds demonstrable harm to the children from the parent's choice may the court apply the general "best interests of the ward" standard when appointing a guardian for the minor child. See Wilson, 917 So. 2d at 313 (explaining that trial court's discretion in appointing guardian is limited in sense that it must be exercised consistent with law).
Here, Mother selected her sisters to serve as co-guardians and consented to their petition. The trial court did not find that Mother's decision to allow her sisters to act as the minor children's co-guardians was harmful to the minor children. Accord Reiner v. Wright, 942 So. 2d 944, 947 (Fla. 5th DCA 2006) ("Detriment is something more than the normal trauma of uprooting a child from familiar surroundings. It is mental, physical or emotion[al] harm of a lasting nature, transcending the normal adjustment period associated with such custody changes." (citing Ward v. Ward, 874 So. 2d 634, 638 (Fla. 3d DCA 2004) )). In fact, the trial court specifically found that Ms. Carraway and Ms. Joyce to be fit and proper persons to serve as guardians of the minor children. Without a finding of harm to the children, the trial court should not have engaged in a "best interests of the ward" evaluation in appointing a guardian under section 744.312. Instead, it should have appointed Ms. Joyce and Ms. Carraway as the minor children's co-guardians. Cf. § 744.3046(7), Fla. Stat. (2019) (stating that if court finds preneed guardian to be qualified to serve as guardian, appointment of guardian must be confirmed); § 744.304(1), (4), Fla. Stat. (2019) (stating that on natural guardian's petition, court may appoint standby guardian of person or property of minor, and if court finds standby guardian to be qualified to serve as guardian under sections 744.309 and 744.312, appointment of guardian must be confirmed).
The trial court's order interferes with Mother's fundamental right to raise her minor children without any finding that they were threatened with harm by her choice to have her sisters serve as co-guardians of her minor children. We have previously cautioned against this type of interference when we explained that permitting "an interested person" acting against a parent entitled to determine the care and custody of the child was outside the procedures authorized by the Florida Statutes and the filing of the case alone was the clear cause of "irreparable harm." MMMA v. Jonely, 677 So. 2d 343 (Fla. 5th DCA 1996). The parent/child relationship is not subject to interference by third parties unless and until the Legislature authorizes it, consistent with the state and federal constitutions.
For these reasons, we reverse the trial court's order appointing Ms. Heidrich as guardian of the person of Mother's minor children, J.A.R. and S.H.R. On remand, the trial court shall appoint Ms. Joyce and Ms. Carraway as the co-guardians of the person of the minor children. In addition, the trial court shall structure a transition plan for the children to ensure that they are in the custody of the co-guardians at least two weeks before the start of school.
REVERSED and REMANDED with instructions.
EVANDER, C.J., and LAMBERT, J., concur.