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In re M.L.H.

Florida Court of Appeals, Second District

August 3, 2018

In the Interest of M.L.H. and D.H.H., children. J.S.H., Appellant,
v.
DEPARTMENT OF CHILDREN AND, FAMILIES and GUARDIAN AD LITEM PROGRAM, Appellees.

         NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

          Appeal from the Circuit Court for Hillsborough County; Katherine G. Essrig, Judge.

          J.S.H., pro se.

          Mary Soorus, Assistant Attorney General, Tampa, for Appellee Department of Children and Families.

          Laura J. Lee, Appellate Counsel, Sanford, for Appellee Guardian ad Litem Program.

          SILBERMAN, Judge.

          J.S.H. challenges the order denying his motion for joinder in a termination of parental rights proceeding involving twins who were sheltered at birth due to exposure to controlled substances. J.S.H. is the children's biological father, but the children's Mother was married to C.M. at the time of conception and birth. Despite the fact that neither the Mother nor C.M. has expressed any interest in raising the children, the trial court has concluded as a matter of law that J.S.H. lacks standing to assert his rights as the father. We conclude that this was error and reverse.

         J.S.H. was at the hospital when the twins were born in April 2016, and he is named as the father on their birth certificates. After the children were sheltered the court appointed counsel for J.S.H. and granted him visitation. However, the Department learned that the Mother was married to C.M. at the time of conception and birth, making him the children's legal father.[1] In June 2016, the court entered an order informing J.S.H. that he was no longer a party and suspending his visitation.

         In July 2016, J.S.H. filed paternity test results indicating he was the children's biological father. On August 29, 2016, J.S.H. filed a petition for determination of paternity. In the petition, J.S.H. indicated that he had filed a claim of paternity with the Putative Father Registry.[2] He asserted he had provided blankets and clothing for the children and set up a bedroom for them. He said he had attended every scheduled visitation. Finally, he noted neither the Mother nor C.M. had been involved with the children.

          Meanwhile, C.M. failed to appear, and the Department filed an affidavit of diligent search. On September 19, 2016, the Department filed a petition for termination of the Mother and C.M.'s parental rights. The petition sought termination on several bases, all stemming from the legal parents' abandonment of the children.

         The court addressed J.S.H.'s petition for paternity at a status conference in October 2016. The record does not contain a transcript of that hearing, and the court did not enter an order on the petition. However, in the order now before us, the court has indicated that it declared C.M. as "the legal father by virtue of the fact he was married to the mother at the time of conception and birth." The court also "found that [J.S.H.] was not a party to this case, as he had no legal standing." The court allowed counsel for J.S.H. to withdraw.

         Having no final order to appeal and no court-appointed attorney, J.S.H. filed several pro se motions seeking party status, visitation, and custody. He also filed documents he believed were proof of his fitness as a parent. Finally, he filed a motion for appointment of counsel. In February 2017, the court conducted a judicial review/permanency hearing at which it considered J.S.H.'s pro se motions. Again the record does not contain a transcript of this hearing. However, the court entered an order denying J.S.H.'s pro se motions and request for appointment of counsel. In the order, the court indicated that J.S.H. had been advised by his previous attorney to pursue a judgment of paternity in family court.

         J.S.H. retained counsel and filed a petition for determination of paternity in the domestic relations division (family court) in March 2017. While J.S.H.'s petition for paternity was pending in family court, the dependency court conducted an advisory hearing to address the merits of the petition for termination. In June 2017, the dependency court entered a final judgment of termination based on the parents' failure to appear.

         J.S.H. obtained a final judgment of paternity in family court in July 2017. J.S.H. immediately filed a pro se motion for reunification in dependency court.[3] He also filed a motion to compel party status. The dependency court conducted a status review on August 21, 2017. The record does not contain a transcript of this hearing, but the docket reflects that the ...


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