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M.L. v. Department of Children and Families

Florida Court of Appeals, Fourth District

May 3, 2017

M.L., the father, Appellant,
v.
DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.

         Not final until disposition of timely filed motion for rehearing.

         Appeal from the Circuit Court for the Nineteenth Judicial Circuit, St. Lucie County; Michael C. Heisey, Judge; L.T. Case No. 56-2015-DP-000026A.

          Andrea J. White of Florida Rural Legal Services, Fort Pierce, and Stephen R. Senn of Peterson & Myers, P.A., Lakeland, for appellant.

          Kelley Schaeffer, Appellate Counsel, Department of Children & Families, Children's Legal Services, Bradenton, for appellee.

          Laura J. Lee and Thomasina F. Moore, Appellate Counsel, Sanford, for Guardian Ad Litem Program.

          Christopher N. Bellows and Kevin Paule of Holland & Knight, LLP, Miami for Amicus Curiae, Florida's Children First, Inc.

          GROSS, J.

         We affirm the denial of M.L.'s motion to intervene in the mother's termination of parental rights proceeding. We write to explain that while a biological father who is a stranger to an existing marriage into which a child is born is not wholly without rights, he must demonstrate an enduring commitment to being a full-time parent, and do so expeditiously, in order to avail himself of those rights. Where he fails to act with such expediency, and displays only a casual interest in fatherhood, a trial court does not abuse its discretion by denying a potential biological father's motion to intervene in the legal parents' termination proceedings.

         The child, J.L., was sheltered on January 30, 2015, when he was just 6-days-old, after he tested positive for cocaine and was undergoing withdrawal symptoms. At the shelter hearing, the trial court was advised that, although the mother was married to the husband at the time of the child's birth, the mother identified M.L. as the biological father. M.L. was also listed as the father on the child's birth certificate. The Department of Children and Families ("DCF") advised the court that the husband stated he had "no interest in this child." Because the mother and husband were married at the time of the child's birth, the trial court ruled that the husband was the father "in the eyes of the law."

         Court notes from a February 26, 2015 hearing indicate that the mother, husband, and prospective biological father were all in attendance. Disestablishment proceedings were in progress for the husband, who wanted a DNA test. The record also shows that, by July 9, 2015, the prospective biological father had been advised on how to establish paternity and the husband had been advised on how to disestablish paternity.

         On June 23, 2016, DCF filed a petition to terminate the parental rights of the mother and husband. The foster parents, with whom the child had been placed for half of his life, informed DCF that they were willing to adopt the child.

         On September 19, 2016, the prospective biological father filed an emergency motion to intervene and stay any TPR or adoption proceedings until he had an opportunity to be heard. The prospective biological father alleged that he was the child's biological father and was present at the child's birth. Attached to the motion was the prospective biological father's "petition to determine paternity and related relief" filed on July 28, 2016, which was pending before a different judge. He also attached a notice of acknowledgment from the Florida Department of Health of his registration with the Florida Putative Father Registry submitted on July 28, 2016.

         At the hearing on the motion, counsel for the prospective biological father explained that, once she realized there was a pending dependency case, she sought a way to get her client involved, because the prospective biological father "had been left out of the case essentially because the parties were married." She requested the court allow the prospective biological father to be "a part of this case."

         The court understood the prospective biological father's "sympathetic" position, but explained that, "under the current state of the law, if a child is born into an intact marriage, that husband is the child's father for all intents and purposes in the eyes of the law regardless of who the biological father may be." The court noted the more "frustrating" aspect of the case was that the husband was present and ready "to have his rights terminated as to the child." Nevertheless, the court explained that, before the prospective biological father could establish his paternity, the husband had to ...


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