James Walsh, Attorney Ad Litem, on Behalf of A.K.P., a Minor Child, and Statewide Guardian Ad Litem Office v. Department of Children and Families

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

JAMES WALSH, ATTORNEY AD LITEM, on behalf of A.K.P.,

a minor child, and STATEWIDE GUARDIAN AD LITEM OFFICE,

Appellants,

v.

DEPARTMENT OF CHILDREN & FAMILIES, et al.,

Appellees.

Nos. 4D2023-2009 and 4D2023-2092

[September 4, 2024]

Consolidated appeals from the Circuit Court for the Fifteenth Judicial

Circuit, Palm Beach County; Melanie Surber, Judge; L.T. Case No.

502021DP000060.

James Walsh of Foster Children’s Project & Juvenile Advocacy Project,

Legal Aid Society of Palm Beach County, West Palm Beach, for appellant

James Walsh, Attorney ad Litem, on behalf of A.K.P.

Sara Elizabeth Goldfarb, Statewide Director of Appeals, and Sarah Todd

Weitz, Senior Attorney, Appellate Division, Statewide Guardian ad Litem

Office, Tallahassee, for appellee Statewide Guardian ad Litem Office.

Ellen Kaplan of The Law Offices of Ellen M. Kaplan, P.A., Coral Springs,

for Adoption Entity and Adoptive Parent.

WARNER, J.

In M.K. v. Department of Children & Families, 380 So. 3d 469 (Fla. 4th

DCA 2023), we held that a foster mother did not have party status in an

Adoption Entity’s section 63.082(6) intervention proceeding regarding the

child’s custody placement and best interests. Id. at 471. In that opinion,

we noted that the Legislature in 2023 made significant amendments to

section 63.082(6) designed to provide greater protections for the best

interest of the child. Id. at 473. Because the foster parent was denied

party status prior to the amendment’s effective date, we did not apply the

amendments to the appeal. Id. at 474.

The trial court reopened the placement proceedings after the effective

date but refused to apply the amendments. We now hold that the court

erred in failing to apply the amended version of section 63.082 to the best

interest hearing and reverse.

We state the facts as contained in M.K.:

The child in this proceeding was born in November 2020,

suffering from withdrawal symptoms due to the mother’s drug

abuse. This prompted the Department of Children & Families

to file a shelter petition and then a petition for dependency

against the parents. The trial court granted both petitions.

The Department placed the child with appellant M.K., who has

been the child’s foster mother since January 2021. After the

parents failed at case plan requirements and other issues, the

Department, Guardian ad Litem [(“GAL”)], and the Attorney ad

litem [(“AAL”)] for the child filed a joint petition in April of 2022

to terminate the parents’ parental rights. The petition alleged

that the child was bonded to the foster mother who was willing

to adopt the child.

On the day of the father’s TPR hearing, in October of 2022,

the father filed a waiver of his rights to, and custody of, the

child, and consented to his relative, A.S.L., adopting the child.

The mother’s rights had already been terminated by

constructive consent. The father’s relative, A.S.L., filed a

motion to intervene as a party in the dependency case based

on section 63.082, Florida Statutes (2022). The first motion

was legally insufficient, but a revised motion with the proper

information was filed. Shortly thereafter, M.K. filed a petition

to terminate the parents’ parental rights.

New counsel, acting as Adoption Entity petitioners, filed a

motion to intervene as an Adoption Entity and party of interest

under section 63.082(6), a motion to stay the TPR

proceedings, and an order setting a “best interest hearing,”

pending termination of the father’s parental rights and

A.S.L.’s adoption of the child. M.K. filed a response in

opposition to the motion to stay the TPR, arguing that she had

party status to object as a petitioner in her TPR petition.

Alternatively, M.K. moved the court, pursuant to Florida

Family Law Rule of Procedure 12.230, to permit her to

intervene in the Adoption Entity’s section 63.082(6)

proceeding.

2

After a hearing, the trial court granted the Adoption Entity’s

motion to intervene and rejected M.K.’s claim of party status

in the proceedings.

Id. at 471.

M.K. appealed in March 2023. During the pendency of the appeal, the

trial court heard evidence as to whether a change of placement from M.K.

to A.S.L. would be in the child’s best interest, including testimony from

A.S.L., M.K., and bonding and attachment experts. The court permitted

written closing arguments and did not rule on the record.

On June 27, 2023, before the trial court ruled, the AAL moved to reopen

the evidence based upon the child’s recent diagnosis with autism spectrum

disorder to determine how this affected his best interests. The following

day, June 28, 2023, the court granted the motion to modify custody to

A.S.L. applying the best interest factors in the 2022 version of section

63.082(6) and at the same time stayed the order pending a hearing on the

motion to reopen the evidence. A few days later, on July 1, 2023,

amendments to section 63.082 went into effect.

On July 24, 2023, the court reopened the evidence and heard testimony

from experts as to the child’s condition. The AAL and M.K. both argued

that the new statutory amendments should apply, which provided, among

other changes, that for a child who is in a current placement for

prospective adoption for at least nine months (which this child was), a

rebuttable presumption exists that it is in the child’s best interest to

remain in that placement. § 63.082(6)(e), Fla. Stat. (2023). To rebut that

presumption, the intervening adoption entity must prove by clear and

convincing evidence that it is in the child’s best interests to disrupt that

placement. Id. The trial court declined to apply the amended version of

section 63.082 retroactively to the reopened proceedings because it

concluded the amendments created substantive rights. The court then

granted the motion to change custody of the child to A.S.L.

The AAL and the GAL both appeal the court’s ruling, each asserting

that the court erred by failing to apply the amended version of section

63.082. 1

1 The Department filed a notice asserting that, as the Department had opposed

the Adoption Entity’s motion at trial, it would not take a different position on

appeal, and noted the GAL had filed an initial brief.

3

Analysis

We first address the basis for our jurisdiction in this case. 2 A

disagreement exists among the districts as to whether an order changing

placement is appealable or should be the subject of a petition for writ of

certiorari. While we originally designated this as a nonfinal appeal, there

is no authority pursuant to Florida Rule of Appellate Procedure 9.130 for

review of nonfinal placement orders in dependency. See, e.g., Guardian

Ad Litem Program v. Dep’t of Child. & Fams., 972 So. 2d 871, 871 (Fla. 4th

DCA 2007) (“Rule 9.130(a)(3)(C)(iii), which allows for appeals from orders

determining custody in family law matters, does not encompass non-final

orders in termination and dependency proceedings.”). This Court and the

First District have reviewed orders modifying custody pursuant to section

63.082(6) as final appeals. W.K. v. Dep’t of Child. & Fams., 230 So. 3d

905, 907 (Fla. 4th DCA 2017); M.A. v. Dep’t of Child. & Fams., 906 So. 2d

1226 (Fla. 1st DCA 2005). The Fifth and Second Districts have reviewed

these orders by certiorari. See, e.g., Int. of K.B., 371 So. 3d 975 (Fla. 2d

DCA 2023); Guardian Ad Litem Program v. Campbell, 348 So. 3d 1177,

1181 (Fla. 5th DCA 2022). Because of W.K., we treat this as a final

appeal. 3 However, were we to review this as a petition for writ of certiorari,

we would hold that the trial court departed from the essential

requirements of law in failing to apply the correct law.

We also note that the AAL appealed the original order modifying

placement. But because the trial court stayed the placement order the

same day it signed and then reopened the evidence, the first order

modifying placement was not final or independently appealable. We

therefore dismiss the appeal in Case No. 4D2023-2009.

Whether a statute is substantive or procedural and whether it can be

applied retroactively are questions of law which require de novo review.

See Love v. State, 286 So. 3d 177, 183 (Fla. 2019).

2 AAL also contends that the trial court did not have subject matter jurisdiction

to proceed with the Adoption Entity’s motion to modify custody, arguing that the

court lost jurisdiction when M.K. appealed the denial of her party status. We

disagree. The court had the ability to determine the best interest placement of

the child. See Fla. R. App. P. 9.146(d) (“Retention of Jurisdiction.

Transmission of the record to the court does not remove the jurisdiction of the

circuit court to conduct judicial reviews or other proceedings related to the health

and welfare of the child pending appeal.”).

3 But we note that, as discussed in this opinion, the legal standard for

determining a child’s placement pursuant to section 63.082(6) has changed

substantially since W.K.

4

“[S]ubstantive law prescribes duties and rights and procedural law

concerns the means and methods to apply and enforce those duties and

rights.” Alamo Rent-A-Car, Inc. v. Mancusi, 632 So. 2d 1352, 1358 (Fla.

1994). “Remedial statutes operate to further a remedy or confirm rights

that already exist[.]” Maronda Homes, Inc.. of Fla. v. Lakeview Rsrv.

Homeowners Ass’n, Inc., 127 So. 3d 1258, 1272 (Fla. 2013). Further,

The rule for procedural/remedial changes, in contrast to the

presumption against retroactive application for substantive

changes, is as follows:

Remedial statutes or statutes relating to remedies or

modes of procedure, which do not create new or take

away vested rights, but only operate in furtherance of

the remedy or confirmation of rights already existing, do

not come within the legal conception of a retrospective

law, or the general rule against retrospective operation

of statutes.

City of Lakeland v. Catinella, 129 So. 2d 133, 136 (Fla. 1961)

(emphasis added). Moreover, the “presumption in favor of

prospective application generally does not apply to ‘remedial’

legislation; rather, whenever possible, such legislation should

be applied to pending cases in order to fully effectuate the

legislation’s intended purpose.” Arrow Air, Inc. v. Walsh, 645

So. 2d 422, 424 (Fla. 1994) (citing City of Orlando v.

Desjardins, 493 So. 2d 1027 (Fla. 1986)). Finally, a statute

that achieves a “remedial purpose by creating substantive new

rights or imposing new legal burdens” is treated as a

substantive change in the law. Arrow Air, Inc., 645 So. 2d at

424.

Smiley v. State, 966 So. 2d 330, 334 (Fla. 2007). A statute is not applied

retroactively merely because it is applied to a case arising from conduct

that precedes the statute. “Rather, the court must ask whether the new

provision attaches new legal consequences to events completed before its

enactment.” Love, 286 So. 3d at 187 (quoting Landgraf v. USI Film Prods.,

511 U.S. 244, 269–70 (1994)).

When the dependency action commenced and later when the Adoption

Entity sought to intervene, section 63.082 provided as follows:

(6)(a) If a parent executes a consent for adoption of a minor

with an adoption entity or qualified prospective adoptive

5

parents and the minor child is under the supervision of the

department, or otherwise subject to the jurisdiction of the

dependency court as a result of the entry of a shelter order, a

dependency petition, or a petition for termination of parental

rights pursuant to chapter 39, but parental rights have not

yet been terminated, the adoption consent is valid, binding,

and enforceable by the court.

(b) Upon execution of the consent of the parent, the adoption

entity shall be permitted to intervene in the dependency case

as a party in interest and must provide the court that acquired

jurisdiction over the minor, pursuant to the shelter order or

dependency petition filed by the department, a copy of the

preliminary home study of the prospective adoptive parents

and any other evidence of the suitability of the placement.

...

(c) If an adoption entity files a motion to intervene in the

dependency case in accordance with this chapter, the

dependency court shall promptly grant a hearing to determine

whether the adoption entity has filed the required documents

to be permitted to intervene and whether a change of

placement of the child is in the best interests of the child.

Absent good cause or mutual agreement of the parties, the

final hearing on the motion to intervene and the change of

placement of the child must be held within 30 days after the

filing of the motion, and a written final order shall be filed

within 15 days after the hearing.

(d) If after consideration of all relevant factors, including

those set forth in paragraph (e), the court determines that

the prospective adoptive parents are properly qualified to

adopt the minor child and that the adoption is in the best

interests of the minor child, the court shall promptly order

the transfer of custody of the minor child to the prospective

adoptive parents, under the supervision of the adoption entity.

...

(e) In determining whether the best interests of the child are

served by transferring the custody of the minor child to the

prospective adoptive parent selected by the parent or adoption

entity, the court shall consider and weigh all relevant factors,

including, but not limited to:

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1. The permanency offered;

2. The established bonded relationship between the child

and the current caregiver in any potential adoptive

home in which the child has been residing;

3. The stability of the potential adoptive home in which

the child has been residing as well as the desirability

of maintaining continuity of placement;

4. The importance of maintaining sibling relationships, if

possible;

5. The reasonable preferences and wishes of the child, if the

court deems the child to be of sufficient maturity,

understanding, and experience to express a preference;

6. Whether a petition for termination of parental rights has

been filed pursuant to s. 39.806(1)(f), (g), or (h);

7. What is best for the child; and

8. The right of the parent to determine an appropriate

placement for the child.

§ 63.082, Fla. Stat. (2021, 2022) (emphasis supplied).

In 2023, the Legislature substantially amended these provisions as

follows:

(6)(a) 1. The Legislature finds that there is a compelling state

interest in ensuring that a child involved in chapter 39

proceedings is served in a way that minimizes his or her

trauma, provides safe placement, maintains continuity of

bonded placements, and achieves permanency as soon as

possible.

2. The Legislature finds that the use of intervention in

dependency cases for the purpose of adoption has the

potential to be traumatic for a child in the dependency system

and that the disruption of a stable and bonded long-term

placement by a change of placement to a person or family with

whom the child has no bond or connection may create

additional trauma.

7

3. The Legislature finds that the right of a parent to

determine an appropriate placement for a child who has

been found dependent is not absolute and must be

weighed against other factors that take the child’s safety,

well-being, and best interests into account.

4. It is the intent of the Legislature to reduce the

disruption of stable and bonded long-term placements

that have been identified as prospective adoptive

placements.

(b) If a parent executes a consent for adoption of a child

with an adoption entity or qualified prospective adoptive

parents and the child is under the supervision of the

department, or otherwise subject to the jurisdiction of the

dependency court as a result of the entry of a shelter order, a

dependency petition, or a petition for termination of parental

rights pursuant to chapter 39, the adoption consent is

valid, binding, and enforceable by the court. For the

purposes of this subsection, a consent to adoption of a child

with an adoption entity or qualified prospective adoptive

parents is valid if executed during the pendency of the chapter

39 proceeding up to and including the 30th day after the filing

of the petition for termination of parental rights pursuant to

s. 39.802.

(c) Upon execution of the consent of the parent, the adoption

entity may file a motion to intervene and change placement of

the child in the dependency case as a party in interest and

must provide the court that acquired jurisdiction over the

child, pursuant to the shelter order or dependency petition

filed by the department, a copy of the preliminary home study

of the prospective adoptive parents selected by the parent or

adoption entity and any other evidence of the suitability of the

placement.

(d)1. If an adoption entity files a motion to intervene and

change placement of the child in the dependency case in

accordance with this chapter, the dependency court must

promptly grant an evidentiary hearing to determine whether:

a. The adoption entity has filed the required documents to be

allowed to intervene;

8

b. The preliminary home study is adequate and provides the

information required to make a best interests

determination; and

c. The change of placement of the child is in the best interests

of the child.

2. Absent good cause or mutual agreement of the parties, the

final hearing on the motion to intervene and change

placement of the child must be held within 30 days after the

filing of the motion, and a written final order shall be filed

within 15 days after the hearing.

(e) If the child has been in his or her current placement

for at least 9 continuous months or 15 of the last 24

months immediately preceding the filing of the motion to

intervene, and that placement is a prospective adoptive

placement, there is a rebuttable presumption that the

placement is stable and that it is in the child’s best

interests to remain in that current stable placement. The

court shall grant party status to the current caregiver who

is a prospective adoptive placement for the limited

purpose of filing motions and presenting evidence

pursuant to this subsection. This limited party status

expires upon the issuance of a final order on the motion

to intervene and change of placement of the child. To

rebut the presumption established in this paragraph, the

intervening party must prove by clear and convincing

evidence that it is in the best interests of the child to

disrupt the current stable prospective adoptive

placement using the factors set forth in paragraph (f) and any

other factors that the court deems relevant.

(f) At a hearing to determine whether it is in the best interests

of a child to change placement to the prospective adoptive

parents selected by the parent or adoption entity, the court

shall consider and weigh all relevant factors, including, but

not limited to:

1. The permanency offered by both the child’s current

placement and the prospective adoptive placement selected by

the parent or adoption entity;

9

2. The established bond between the child and the

current caregiver with whom the child is residing if that

placement is a prospective adoptive placement;

3. The stability of the prospective adoptive placement in

which the child has been residing, which must be

presumed stable if the placement meets the requirements

of paragraph (e), as well as the desirability of maintaining

continuity of placement;

4. The importance of maintaining sibling relationships, if

possible;

5. The reasonable preferences and wishes of the child, if the

court deems the child to be of sufficient maturity,

understanding, and experience to express a preference;

6. Whether a petition for termination of parental rights has

been filed pursuant to s. 39.806(1)(f), (g), or (h); and

7. What is best for the child.

(g) 1. If after consideration of all relevant factors, including

those set forth in paragraph (f), the court determines that the

home study is adequate and provides the information

necessary to make a determination that the prospective

adoptive parents are properly qualified to adopt the child and

that the change of placement is in the best interests of the

child, the court must order the change of placement to the

prospective adoptive placement selected by the parent or

adoption entity, under the supervision of the adoption entity.

§ 63.082, Fla. Stat. (2023) (emphasis supplied).

The changes to section 63.082 did not create any new legal rights or

burdens based upon past conduct. The prior version of section 63.082

and the amendments thereto both focus on the best interest of the child

and look to the current condition of the child. While the Adoption Entity

contends that the amended version of section 63.082 removes the father’s

rights to direct his child’s adoption, the parent never had an unfettered

right under the prior version of section 63.082 to choose the child’s

adoptive parent. The parent’s right to designate an adoptive parent was

always circumscribed by the determination of the best interest of the child,

and section 63.082 listed multiple factors for the court to consider in

10

determining the best interest of the child, including the continuity of

placement. The parent’s right to designate placement was only one of

multiple factors for the trial court’s consideration. See E.Q. v. Dep’t of

Child. & Fams., 208 So. 3d 1258, 1260 (Fla. 3d DCA 2017) (“[T]he wishes

of the parents are a factor, but those wishes must be considered with the

other three [now seven] factors, which relate to a determination of what is

in the best interest of the child.”). The amended version of section 63.082

merely emphasizes this in the legislative finding that “the right of a parent

to determine an appropriate placement for a child who has been found

dependent is not absolute and must be weighed against other factors that

take the child’s safety, well-being, and best interests into account.” §

63.082(6)(a)3., Fla. Stat. (2023).

A significant change in the law is the establishment of a rebuttable

presumption in favor of a prospective adoptive placement if the child has

been in the placement for a lengthy time. That presumption can be

overcome by the Adoption Entity proving with clear and convincing

evidence that disruption of that placement is in the child’s best interest.

The rebuttable presumption created in the amended version section

63.082(6)(e) is a presumption “affecting the burden of proof.” § 90.304,

Fla. Stat. (2023). As discussed in Love, amendments to the burden of proof

are procedural. 286 So. 3d at 185–86; see also Brown v. L.P. Sanitation,

689 So. 2d 332, 333 (Fla. 1st DCA 1997) (“Abolition of this rebuttable

presumption changed only the procedural means and methods of

establishing entitlement to benefits or offsets which flow from substantive

rights that have remained unchanged since the date of Mr. Brown’s

industrial accident.”), superseded by statute on other grounds. Therefore,

retroactive application of this procedural aspect of section 63.082’s

amended version is proper.

The amended version of section 63.082 also now provides that the

child’s current caregiver who is a prospective adoptive parent can be given

limited party status for the purpose of filing motions and providing

evidence. While granting limited party status may seem to provide a

substantive right, this statutory amendment is procedural, because it

simply affects how the proceeding is conducted, giving the caregiver access

to additional information and greater ability to be heard. Nothing in the

amended version of section 63.082 gives the caregiver any rights beyond

some procedural due process rights in the section 63.082(6) proceeding to

aid the court in determining the child’s best interest.

Certain provisions of the amended version of section 63.082 are clearly

substantive, including new time limits for a parent to file the adoption

consent. The Adoption Entity contends that section 63.082’s amendments

11

must be considered as a whole and cannot be broken up into procedural

provisions which could be retroactive and substantive provisions which

cannot. However, we have previously recognized that procedural and

substantive aspects of a statute may be severable for purposes of

retroactivity. See Cole v. Univ. Prop. & Cas. Ins. Co., 363 So. 3d 1089,

1094–95 (Fla. 4th DCA 2023) (“One provision that is substantive in scope

does not act as a bar to enforcement of another provision that is able to be

applied retroactively.”) (citing Leapai v. Milton, 595 So. 2d 12, 15 (Fla.

1992)).

Whether considered substantive or procedural, the amended provisions

of section 63.082 that concern the best interest of the child apply to the

child’s present circumstances. The best interest amendments do not

interfere with vested rights. The reopened proceedings were a

continuation of the inquiry as to what is the best interest of the child. The

court erred in not applying the amended provisions of section 63.082 to

this determination, including the rebuttable presumption of the

appropriateness of the current placement and the requirement that the

adoption entity rebut that presumption with clear and convincing

evidence.

Because our reversal will require a new hearing on the change in

placement, we briefly comment on an evidentiary issue. The AAL contends

that the court erred in admitting the testimony of the Adoption Entity’s

psychologist as to the effect of the child’s autism on any change of

placement decision. This was opinion testimony based upon the expertise

of the witness, but it did not satisfy the requirements of section 90.702,

Florida Statutes (2023), which is a codification of the Daubert test 4 for

expert opinion testimony. To permit such testimony, the court must find

that:

(1) The testimony is based upon sufficient facts or data;

(2) The testimony is the product of reliable principles and

methods; and

(3) The witness has applied the principles and methods

reliably to the facts of the case.

§ 90.702, Fla. Stat. (2022). Courts have recognized that Daubert is difficult

to apply to testimony of a psychologist or other mental health expert, but

4 Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed.

2d 469 (1993).

12

the Daubert approach is flexible, and the court must still perform its

gatekeeping function. See Andrews v. State, 181 So. 3d 526, 528 (Fla. 5th

DCA 2015).

The trial court acknowledged the psychologist was not qualified as an

expert in diagnosing autism. However, the court allowed the psychologist’s

testimony regarding the child’s placement transition because the

psychologist testified that he had at least two court cases in the last year

where children with autism were transitioned to new placements and

because neuropsychology and autism spectrum disorder diagnoses are a

regular part of his practice as a clinical psychologist. We can find no

reference in the record where this expert had testified that

neuropsychology was part of his practice, and the anecdotal evidence

provided by two placement transitions under conditions different than

those facing this child does not appear to qualify as sufficient facts or data

to qualify this psychologist to testify as to the effect of the child’s autism

on any change of placement decision.

Based upon this record, the court erred in admitting Adoption Entity’s

psychologist’s expert opinion testimony regarding transitioning placement

of the child with autism. Our conclusion is without prejudice to the

submission of additional evidence to support the introduction of the

expert’s opinion in any subsequent hearing.

Conclusion

The trial court erred in failing to apply the amended version of section

63.082(6), Florida Statutes, to the modification of placement proceedings

for this child. We reverse and remand for the court to conduct a new

hearing, applying the presumptions and burden of proof of the amended

statute. We also dismiss the appeal of the first modification order in Case

No. 4D2023-2009 as nonfinal and non-appealable.

Reversed and remanded.

KLINGENSMITH, C.J., and CONNER, J., concur.

* * *

Not final until disposition of timely filed motion for rehearing.

13