B.B.S., a minor child, G.S.S., a

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

B.B.S., a minor child, G.S.S., a minor child, by and with their next

friend, A.S.S., and K.S.S.,

Appellants,

v.

MARIA RAQUEL RODRIGUEZ-MURGUIA,

Appellee.

No. 4D15-0257

[May 11, 2016]

Appeal from the Circuit Court for the Nineteenth Judicial Circuit, St.

Lucie County; Barbara W. Bronis, Judge; L.T. Case No. 562014DR002854.

Charles E. Jarrell of Benincasa Law Firm, P.A., Vero Beach, for

appellants.

Maria Raquel Rodriguez-Murguia, Port St. Lucie, pro se.

CONNER, J.

Appellants (“the Children”) appeal the trial court’s order dismissing

their cause of action to determine maternity. We reverse because the trial

court should have allowed the Children to establish maternity by way of a

declaratory action under Chapter 86, Florida Statutes.

The Children filed a petition as “an action for paternity and to determine

parental responsibility, time-sharing, and/or child support under chapter

742, Florida Statutes, or, in the alternative, for a declaratory judgment

establishing maternity pursuant to Florida Statute § 86.011.” (emphasis

added). The petition was filed against Appellee, who was alleged to be the

biological and legal mother of the Children. In the petition, the Children

alleged that the person listed as their mother on their birth certificates is

“a fictitious or nonexistent person.” The petition requested that

“maternity” be established under Chapter 742 or 86, Florida Statutes, and

also requested a parenting plan and child support. Appellee admitted all

allegations and agreed to all of the relief requested.

On its “own motion,” the trial court entered an order dismissing the

case with prejudice. Attached to the dismissal order was a copy of another

dismissal order entered in a separate case, previously filed by Appellee,

before the same court. In the previous case, Appellee and the Children’s

father filed a joint petition seeking to establish the maternity of the

Children by way of a petition filed pursuant to Chapter 742. In the

previous case, the trial court entered an order to show cause as to why the

case should not be dismissed for failure to state a cause of action. In

response to the order to show cause, Appellee explained that on the

Children’s birth certificate, a female’s name appears as the mother of the

Children. Appellee signed the birth certificate as the mother using a false

name because she was not in the country legally. When Appellee tried to

amend the Children’s birth certificates to correctly identify herself as their

mother, each state where the Children were born would not authorize the

change without a court order. Also, both states would not authorize a

court proceeding to change the name of the birth mother because the

Children were no longer living in those states. As grounds for amending

the birth certificates, each state apparently would recognize a foreign order

which establishes the fact of parentage. 1 Just as in this case, the trial

court dismissed the action in the previous case because “[i]n the view of

this court, no cause of action exists under Florida law to determine

paternity of a biological mother.”

We determine that the trial court erred in failing to grant the Children

relief pursuant to Chapter 86, Florida Statutes. Section 86.011, Florida

Statutes (2014), states:

The circuit and county courts have jurisdiction within their

respective jurisdictional amounts to declare rights, status, and

other equitable or legal relations whether or not further relief is

or could be claimed. No action or procedure is open to

objection on the ground that a declaratory judgment is

demanded. The court’s declaration may be either affirmative

or negative in form and effect and such declaration has the

force and effect of a final judgment. The court may render

declaratory judgments on the existence, or nonexistence:

(1) Of any immunity, power, privilege, or right; or

1

An order pursuant to a petition to change name would not have been sufficient,

as both states require a judicial determination as to parentage.

2

(2) Of any fact upon which the existence or nonexistence of such

immunity, power, privilege, or right does or may depend,

whether such immunity, power, privilege, or right now exists

or will arise in the future. Any person seeking a declaratory

judgment may also demand additional, alternative, coercive,

subsequent, or supplemental relief in the same action.

§ 86.011, Fla. Stat. (2014) (emphasis added). Both the United States

Supreme Court, and our supreme court, have recognized the fundamental

rights of parents. See, e.g., Troxel v. Granville, 530 U.S. 57, 66 (2000)

(“[W]e have recognized the fundamental right of parents to make decisions

concerning the care, custody, and control of their children.”); D.M.T. v.

T.M.H., 129 So. 3d 320, 338 (Fla. 2013) (“As the United States Supreme

Court has pronounced and this Court has stated, therefore, a biological

connection gives rise to an inchoate right to be a parent that may develop

into a protected fundamental constitutional right based on the actions of

the parent.”). Therefore, there is clearly a right, even a fundamental one,

for which a fact, maternity, depends. Thus, the trial court had jurisdiction

to establish maternity under Chapter 86. Our supreme court has also

recognized the right of a parent to bring a declaratory judgment action to

establish parentage “where such adjudication is necessary to the

determination of existing rights or duties between parties to an actual

controversy or dispute.” Kendrick v. Everheart, 390 So. 2d 53, 57-58 (Fla.

1980). Since the Children brought the action against Appellee to establish

maternity in conjunction with a request for child support and a parenting

plan, there is a dispute for which a determination of maternity is

dependent. 2

We therefore reverse the trial court’s order dismissing the Children’s

complaint, and remand for proceedings consistent with this opinion.

Reversed and remanded.

CIKLIN, C.J. and KLINGENSMITH, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.

2

We do not address in this appeal the propriety of the trial court’s ruling

dismissing the prior proceeding under Chapter 742.

3