# 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 Florida · September 4, 2024

URL: https://www.frixlaw.com/law-library/cases/10570862

## Case

- **Court:** District Court of Appeal of Florida
- **Decided:** September 4, 2024
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10570862. Public record. Not legal advice.