Full Opinion

DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT In the Interest of A.L., a child. GUARDIAN AD LITEM PROGRAM, Appellant, v. T.M.; E.L.; and DEPARTMENT OF CHILDREN AND FAMILIES, Appellees. No. 2D22-2501 December 2, 2022 Appeal from the Circuit Court for Lee County; Gilberto Perez, Judge. Laura J. Lee, Assistant Director of Appeals, and Sara Elizabeth Goldfarb, Statewide Director of Appeals, Statewide Guardian ad Litem Office, Tallahassee, for Appellant Guardian ad Litem Program. Thomas J. Butler of Thomas Butler, P.A., Miami Beach, for Appellee T.M. Meredith K. Hall, Children's Legal Services, Bradenton, for Appellee Department of Children and Families. No appearance for Appellee E.L. PER CURIAM. The Guardian ad Litem Program (GALP) appeals the supplemental adjudication of dependency as to T.M. We reverse because the trial court erred in failing to entertain on the merits the GALP's challenge to T.M.'s status as a legal parent. The mother, E.L., gave birth to the child, A.L., who was immediately sheltered.1 T.M. was identified on the child's birth certificate as the father. Although T.M. and the mother represented that they were married at the time of the child's birth, their marriage certificate indicates that they were married afterwards.2 Moreover, according to the mother, the biological father of the child was not T.M. but an unknown male she met only once and whose name she could not recall. The GALP orally objected to an adjudication of T.M. as the child's legal parent. The magistrate expressly declined to rule on the objection, reasoning that the birth certificate created a presumption of paternity that would have to be challenged by the 1 The details of the dependency allegations against the mother are not relevant for purposes of this appeal. 2 T.M. and the mother claimed that the paperwork had been delayed because of the COVID-19 pandemic. 2 filing of an appropriate written pleading. The magistrate's report recommended that T.M. be adjudicated the child's legal parent, and the trial court adopted the magistrate's report. The Department initially filed a motion challenging T.M.'s status as a legal parent, but it withdrew the motion and instead petitioned for a supplemental dependency adjudication as to T.M. Thereafter, the GALP moved to dismiss the supplemental dependency petition and to set aside the presumption of T.M.'s paternity. The GALP maintained that the inclusion of T.M. on the birth certificate had been based on the fraudulent representation that T.M. and the mother were married at the time. The court denied the motion, refusing to consider the GALP's motion on the merits. The court concluded that the GALP should have filed exceptions to the magistrate's report and that because it had failed to do so, its objections were untimely and otherwise barred. The court then entered a supplemental dependency adjudication as to T.M. On appeal, T.M. asserts that the trial court correctly concluded that it could not revisit the paternity determination as to T.M. because the GALP failed to challenge it in exceptions to the 3 magistrate's report and recommendations. However, the court has inherent authority to reconsider and change its ruling "prior to entry of the final judgment or order terminating an action." See Avael Law Firm, PLLC v. Sechrist, 347 So. 3d 424, 426 (Fla. 3d DCA 2022) (recognizing that a trial court has "inherent authority to reconsider and, if deemed appropriate, alter or retract any of its nonfinal rulings prior to entry of the final judgment or order terminating an action" (quoting Seigler v. Bell, 148 So. 3d 473, 478– 79 (Fla. 5th DCA 2014))). The GALP properly invoked the court's authority to revisit its order by filing a motion pursuant to Florida Rule of Juvenile Procedure 8.270. Rule 8.270(b) empowers the court to provide "[e]xtraordinary [r]elief" to parties "from an order, judgment, or proceeding" under certain circumstances that include "[m]istake" and "[f]raud (intrinsic or extrinsic), misrepresentation, or other misconduct of any other party." Fla. R. Juv. P. 8.270(b)(1), (4).3 The evidence indicated that T.M. had been listed on the child's 3 This court and others have held that Florida Rule of Civil Procedure 1.540(b)—the rule of civil procedure analogous to rule 8.270—only allows parties to seek relief from final orders. See Fla. R. Civ. P. 1.540(b); Stubbs v. Fed. Nat'l Mortg. Ass'n, 250 So. 3d 151, 152 (Fla. 2d DCA 2018); Garcia v. Navy Fed. Credit Union, 224 4 birth certificate solely based on the fraudulent representation by T.M. and the mother that they were married at the time; therefore, the GALP correctly argued that the trial court should grant relief from its order determining T.M. to be A.L.'s father because the order was based on a parental designation on the birth certificate that had been obtained through fraud or misrepresentation. The trial court refused to consider the GALP's motion under rule 8.270(b) on the ground that it was not filed "within a reasonable time" as required by the rule. See Fla. R. Juv. P. Rule 8.270(b) (requiring a motion on the bases asserted by the GALP to So. 3d 339, 340–41 (Fla. 5th DCA 2017); Bryant v. Wells Fargo Bank, N.A., 182 So. 3d 927, 929–30 (Fla. 3d DCA 2016). While case law interpreting rules of civil procedure is generally persuasive for interpreting comparable rules of juvenile procedure, the case law limiting rule 1.540(b) motions for relief from orders to final orders is not applicable to rule 8.270. In relevant part, rule 1.540(b) provides that "[o]n motion and upon such terms as are just, the court may relieve a party or a party's legal representative from a final judgment, decree, order, or proceeding." (Emphasis added.) This court and others have concluded that the adjective "final" modifies "judgment, decree, order, or proceeding," and thus limits 1.540(b) motions to final orders. However, in relevant part, rule 8.270(b) provides that "[o]n motion and upon such terms as are just, the court may relieve a party or the party's legal representative from an order, judgment, or proceeding." Fla. R. Juv. P. 8.270(b). The language of rule 8.270(b)—unlike rule 1.540—does not limit motions for relief from orders to final orders. See id. 5 be "made within a reasonable time and . . . not more than 1 year after the judgment, order, or proceeding was taken"). We do not condone the GALP's delay, particularly in light of the magistrate's clear direction concerning how to proceed. That said, there may be considerations of equal or greater importance than a party's diligence in seeking otherwise timely relief from an order. Cf. Fields v. Beneficial Fla., Inc., 208 So. 3d 278, 280 (Fla. 5th DCA 2016) ("Although we do not doubt that a party's diligence in seeking relief plays a role in determining whether to grant relief from involuntary dismissal, we note that the plain language of rule 1.540(b)(1) contains no such requirement. Instead, the rule requires the motion be brought within a reasonable time, not to exceed one year. Fla. R. Civ. P. 1.540(b)."). Under the facts of this case, the court's refusal was an abuse of discretion because it foreclosed both the child's right to challenge the determination that T.M. is its legal father and also any rights the biological father may have. In dependency proceedings, the GALP does not advocate on its own behalf but for the best interests of the child. See §§ 39.820(1); 39.8296(1). The child had no say as to when the motion was filed, and "[t]he courts are charged with the duty of ensuring that the 6 best interests of the children are advanced." B.Y. v. Dep't of Child. & Fams., 887 So. 2d 1253, 1256 (Fla. 2004). Moreover, the biological father, if identified and located, is entitled to notice as a prospective parent and the opportunity to assert parenthood. Fla. R. Juv. P. 8.226(b). In light of the foregoing, the trial court had the authority to entertain and in fact should have entertained the merits of the GALP's motion to dismiss the petition for supplemental proceedings and to set aside the determination of paternity. Accordingly, we reverse the supplemental adjudication of dependency as to T.M. and remand for further proceedings consistent with this opinion. Reversed and remanded for further proceedings. NORTHCUTT and ROTHSTEIN-YOUAKIM, JJ., Concur. ATKINSON, J., Concurs specially with opinion. ATKINSON, Judge, Concurring specially. I join the majority opinion because the trial court erred in refusing to consider the GALP's challenge on the merits. I write separately because, based on the record before us, this court can and should resolve the merits of the paternity determination in the GALP's favor. Cf. Bell v. Battaglia, 332 So. 3d 1094, 1104 (Fla. 2d 7 DCA 2022) (Lucas, J., concurring separately) (noting that "we, as a district court of appeal, are constitutionally charged with deciding plenary appeals within our jurisdiction" (citing McFadden v. State, 177 So. 3d 562, 566 (Fla. 2015))). In the trial court and on appeal the GALP advanced the argument that the facts belie the conclusion that T.M. was the father in light of the statutory scheme governing paternity determinations. The GALP is correct, and this court should not only remand with instructions to set aside the paternity determination as to T.M. but also hold that the paternity determination was erroneous based on the facts of this case and the applicable law and remand with instructions to enter an order determining T.M. not to be the father of the child. Cf. Bell, 332 So. 3d at 1107 (Lucas, J., concurring separately) (cautioning against "depriv[ing] a litigant who has properly invoked our jurisdiction of relief to which that litigant is entitled"). The mother and T.M. were involved in a same-sex relationship. Although the mother and T.M. consistently represented to the trial court that they were married at the time of A.L.'s birth, their marriage certificate indicates otherwise. The mother also 8 consistently represented to the trial court that an unknown male— and not her then-wife, T.M.—was A.L.'s biological father. Chapter 39 of the Florida Statutes governs proceedings relating to children, including dependency. Section 39.01(56) defines "parent" in pertinent part as "a woman who gives birth to a child and a man whose consent to the adoption of the child would be required under s. 63.062(1). The term 'parent' also means legal father as defined in this section." If the mother was not married to a man at the time of birth or conception of the child, the term ["Legal father"] means a man named on the birth certificate of the child pursuant to s. 382.013(2), a man determined by a court order to be the father of the child, or a man determined to be the father of the child by the Department of Revenue as provided in s. 409.256. § 39.01(40) (emphasis added). Pursuant to section 39.503(1), if the identity of a parent is unknown at the time a dependency petition is filed, the trial court must conduct an inquiry of the mother or another person likely to know the facts to ascertain the identity of the unknown parent—an inquiry that, according to its language, entails locating the actual father of the child that is the subject of the petition. See § 39.503(1)(a)–(h). As part of the inquiry, the trial court must ask 9 "[w]hether a man is named on the birth certificate of the child pursuant to s. 382.013(2)." § 39.503(1)(f) (emphasis added). Section 382.013, Florida Statutes (2021), governs birth registration for purposes of vital statistics. Under that section, one way for a man's name to make its way onto the birth certificate is to have been married at the time of the child's conception or birth. See § 382.013(2)(a); cf. G.F.C. v. S.G., 686 So. 2d 1382, 1384 (Fla. 5th DCA 1997) (discussing the presumption of legitimacy). However, both the magistrate and the trial court were aware that the mother and T.M. had misrepresented the date of their marriage; although they professed to have been married before the birth of A.L., they were not actually married until after. In relevant part, section 382.013 provides that if a mother is unmarried at the time of the birth of the child to be registered, "the name of the father may not be entered on the birth certificate without the execution of an affidavit signed by both the mother and the person to be named as the father." § 382.013(2)(c). This affidavit of paternity, incorporated into Florida Administrative Code Rule 64V-1.0032(3), requires the mother and the person to be named the father to acknowledge under penalty of perjury that the 10 person to be named the father is the "natural" father of the child to be registered. It can be safely inferred from the record that their misrepresentation regarding the chronology of their marital status obviated any need for the mother and T.M. to execute such an affidavit, and if they had done so, it too would have been fraudulent—contrary to the mother's testimony that someone other than T.M. was the actual father of the child and untrue because T.M. could not be the biological father of the child. Therefore, under the facts of this case, T.M.'s inclusion on the birth certificate, standing alone, cannot support a determination that she was A.L.'s parent as defined by chapter 39. Related to chapter 39 and chapter 382, chapter 742 of the Florida Statutes also governs the determination of parentage, including the establishment of paternity for children born out of wedlock. Section 742.10(1), Florida Statutes (2021), provides that one method of establishing paternity is the existence of a voluntary acknowledgment of paternity as provided by section 382.013(2). The pertinent provisions of each of these chapters—chapter 39, chapter 382, and chapter 742, and all of them in pari materia — were designed to determine who the biological father of a particular 11 child is. The GALP's description of the statutory process is well- taken: "Neither the law nor public policy intends that any person have parental rights over a non-marital child not their biological issue without adoption." (Emphasis added.) Chapter 742, for example, was "enacted . . . to convert the father's moral obligation to provide child support to a legal obligation and in order to relieve the public of the need to provide support for the child." Kendrick v. Everheart, 390 So. 2d 53, 56 (Fla. 1980). With the exception of provisions that create a presumption of fatherhood based on timely marriage to the mother, the language of the paternity provisions of the Florida Statutes and rules of procedure indicates that they are designed to ascertain the identity of the male who sired the child— not to select another individual whom the mother of the child intends or desires to assume parental responsibility and gain parental rights. Cf. McGovern v. Clark, 298 So. 3d 1244, 1249 (Fla. 5th DCA 2020) ("Legitimacy refers to the status of a child born to legally married parents, while paternity refers to the status of being the only one natural, or biological, father of a child." (emphasis added) (citing Daniel v. Daniel, 695 So. 2d 1253, 1254–55 (Fla. 1997))); § 742.12(1) ("In any proceeding to establish paternity, the 12 court on its own motion may require the child, mother, and alleged fathers to submit to scientific tests that are generally acceptable within the scientific community to show a probability of paternity."). T.M. and the mother were not married at the time A.L. was conceived or born. It can be presumed from the record that T.M. has not adopted the child. And T.M. cannot be the biological father of the child. The record indicates that the mother has at all times maintained that it was another unnamed individual who sired the child. To the extent that chapters 39, 382, and 742 are concerned with determining who the parents of a particular child born to an unmarried mother are—for purposes of dependency, vital statistics, and paternity, respectively—each statute employs language directed at identifying the person who sired the child, that is, the natural or biological father of the child. " 'Parent' means a woman who gives birth to a child and a man whose consent to the adoption of the child would be required under s. 63.062(1). The term 'parent' also means legal father as defined in this section." § 39.01(56). "Legal father" means a man married to the mother at the time of conception or birth of their child, unless paternity has been otherwise determined by a court of competent 13 jurisdiction. If the mother was not married to a man at the time of birth or conception of the child, the term means a man named on the birth certificate of the child pursuant to s. 382.013(2), a man determined by a court order to be the father of the child, or a man determined to be the father of the child by the Department of Revenue as provided in s. 409.256. § 39.01(40) (emphasis added). If the identity or location of a parent is unknown and a petition for dependency or shelter is filed, the court shall conduct under oath the following inquiry of the parent or legal custodian who is available . . . (a) Whether the mother of the child was married at the probable time of conception of the child or at the time of birth of the child. (b) Whether the mother was cohabiting with a male at the probable time of conception of the child. (c) Whether the mother has received payments or promises of support with respect to the child or because of her pregnancy from a man who claims to be the father. (d) Whether the mother has named any man as the father on the birth certificate of the child or in connection with applying for or receiving public assistance. (e) Whether any man has acknowledged or claimed paternity of the child in a jurisdiction in which the mother resided at the time of or since conception of the child, or in which the child has resided or resides. (f) Whether a man is named on the birth certificate of the child pursuant to s. 382.013(2). 14 (g) Whether a man has been determined by a court order to be the father of the child. (h) Whether a man has been determined to be the father of the child by the Department of Revenue as provided in s. 409.256. § 39.503(1) (emphasis added). If the mother is not married at the time of the birth, the name of the father may not be entered on the birth certificate without the execution of an affidavit signed by both the mother and the person to be named as the father. . . . If the mother and father marry each other at any time after the child's birth, upon receipt of a marriage license that identifies any such child, the department shall amend the certificate with regard to the parents' marital status as though the parents were married at the time of birth. § 382.013(2)(c), (f) (emphasis added); see also § 742.091 ("If the mother of any child born out of wedlock and the reputed father shall at any time after its birth intermarry, the child shall in all respects be deemed and held to be the child of the husband and wife, as though born within wedlock . . . ." (emphasis added)); Fla. Admin. Code R. 64V-1.0032(3) (incorporating by reference an acknowledgement of paternity affidavit—DH Form 432—to be used to support a request to amend a birth certificate pursuant to section 382.016(1)(b) that in relevant part states the following: "ACKNOWLEDGEMENT BY NATURAL PARENTS. Under penalties of 15 perjury, WE HEREBY DECLARE . . . that the mother was unwed at the time of birth, that no other man is listed on the birth record as father, and that we are the natural parents of the child named above . . . ." (emphasis added)); Man, American Heritage Dictionary (5th ed. 2011) ("An adult male human."); Male, American Heritage Dictionary (5th ed. 2011) ("Of, relating to, or designating the sex that has organs to produce spermatozoa for fertilizing ova."); Father, American Heritage Dictionary (5th ed. 2011) ("A male whose sperm unites with an egg, producing an embryo. . . . A male whose impregnation of a female results in the birth of a child. . . . A man who adopts a child. . . . A man who raises a child."). T.M. could not have been designated the father by virtue of an acknowledgement of paternity affidavit pursuant to section 382.013(2)(c) because such an affidavit would have been fraudulent. She would have to declare under penalty of perjury that she is the biological father, see Fla. Admin. Code R. 64V- 1.0032(3), and—even leaving aside the fact that T.M. cannot be a biological father—the mother had already established by her testimony that the father is someone other than T.M. 16 For the same reason, T.M. cannot be determined to be the father of A.L. by virtue of being a "reputed father" pursuant to section 742.091. It has already been established by the mother that someone other than T.M. is A.L.'s biological father. T.M. cannot be a person who is widely believed to be the biological father. And to the extent that case law of other districts has defined "reputed father" as including a person who has held himself out to be the father and willingly assumed the responsibilities of fatherhood,4 this definition does not correspond to the ordinary meaning of the word "reputed" used in the statute. Merely holding oneself out to be the father cannot meet the definition of "reputed," which term indicates how others perceive you, not how you perceive yourself. See Repute, American Heritage Dictionary (5th ed. 2011) ("To ascribe a particular fact or characteristic to."); Reputation, American Heritage Dictionary (5th ed. 2011) ("The general opinion or judgment of the public about a person or thing." (emphasis added)). Without going so far as concluding that the factual matter has been settled, the majority opinion's conclusion is based on the 4 See McGovern, 298 So. 3d at 1249. 17 premise that evidence was adduced to support that T.M. and the mother misrepresented the date of their marriage. However, even presuming for the sake of analysis that T.M. and the mother could prove—contrary to the facts in the current record—that they were married prior to the time of conception or birth, T.M. could not be adjudicated the father of the child. Her route to paternity by way of marriage would be through provisions that—consistent with other provisions setting forth the process of paternity determination— utilize the terms man and father, the ordinary meanings of which do not apply to her. See § 39.01(40) (" 'Legal father' means a man married to the mother at the time of conception or birth of their child . . . ." (emphasis added)); § 382.013(1)(g), (2)(a) ("Regardless of any plan to place a child for adoption after birth, the information on the birth certificate as required by this section must be as to the child's birth parents unless and until an application for a new birth record is made under s. 63.152. . . . If the mother is married at the time of birth, the name of the husband shall be entered on the birth certificate as the father of the child." (emphasis added)); § 39.01(40) (providing that the name on the birth certificate is relevant to the definition of "Legal father . . . [i]f the mother was not married to a 18 man at the time of birth or conception of the child," but requiring that the individual is "a man named on the birth certificate pursuant to section 382.013(2)" (emphasis added)); Husband, American Heritage Dictionary (5th ed. 2011) ("A man joined to another person in marriage; a male spouse." (emphasis added)); see also Alachua County v. Watson, 333 So. 3d 162, 169 (Fla. 2022) ("[W]hen called on to resolve a dispute over a statute's meaning, [we] normally seek[] to afford the law's terms their ordinary meaning at the time [the legislature] adopted them." (second, third, and fourth alterations in original) (quoting Niz-Chavez v. Garland, 141 S. Ct. 1474, 1480 (2021))). The GALP correctly recognized in its Initial Brief that "an accurate parentage determination is necessary to provide [biological parents] the full panoply of procedural due process governing" the state's involvement in the care, custody, and control of a child in dependency proceedings. Before being withdrawn after a hearing, the Department's Motion to Challenge T.M.'s Party Status and to Undertake Further Paternity Inquiry shed light on the significance of the paternity determination designed to identify the child's biological father: 19 Nominally, the Department does not object to [T.M.'s] legal parentage. There is a strong public interest in ensuring two parents for a child rather than one. In this case, however, the biological father has a limited window to contest paternity if this case should turn for the worse. Given the child's age and situation, finding additional possible support systems for the child can only benefit him. And should this case proceed towards Termination of Parental Rights—certainly a worst case scenario with limited likelihood at this time—paternity must be established as firmly as possible, rather than based on a clearly improper birth certificate. Because the record before us establishes conclusively that the paternity determination reached by the general magistrate and the trial court cannot be supported, there is no reason for this court to stop short of resolving that issue on the merits in favor of the GALP. Had the general magistrate and the trial court entertained the GALP's arguments against paternity and looked beyond the birth certificate, which they should have done, the facts and law would have precluded them from determining T.M. to be the father of A.L. For the foregoing reasons, I agree the dependency order must be reversed and T.M.'s paternity determination set aside, but this court should also remand with instructions that the trial court enter an order ruling that T.M. is not the biological father of A.L. 20 based on the facts of the case and the applicable law as the GALP advocated on behalf of the child. Opinion subject to revision prior to official publication. 21