Full Opinion

DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT In the Interest of K.P.L., a child. I.T., Appellant, v. P.G.U., Appellee. No. 2D21-558 February 11, 2022 Appeal pursuant to Fla. R. App. P. 9.130 from the Circuit Court for Lee County; Amy Hawthorne, Judge. Blair J. Deminico and Andrew J. Banyai of Lee County Legal Aid Society, Inc., Fort Myers, for Appellant. No appearance for Appellee. BLACK, Judge. I.T., the maternal grandmother, moved to vacate the final judgment of adoption entered in the paternal grandfather's case petitioning for adoption of K.P.L. We reverse the trial court's denial of the motion to vacate and remand for further proceedings consistent with this opinion.1 On December 27, 2018, the paternal grandfather filed a petition for the adoption of K.P.L., one of his two young grandchildren, following the deaths of the grandchildren's parents on December 9, 2018. On January 31, 2019, I.T. filed a petition for custody of both children, who are siblings. The paternal grandfather's case proceeded as to K.P.L. despite—and apparently without consideration of—I.T.'s pending petition for custody of both children or the paternal grandfather's pending petition to adopt the 1 In conjunction with her motion to vacate, I.T. also filed a motion to intervene and a motion to consolidate. The trial court determined that the motions to intervene and to consolidate were moot in light of its denial of the motion to vacate. Our reversal will necessitate consideration of these motions on their merits. See Fla. Fam. L. R. P. 12.230, .270; Fla. R. Jud. Admin. 2.545(d)(1), (2), (5), (6); In re Adoption of a Minor Child, 593 So. 2d 185, 190 (Fla. 1991) (concluding that grandparents were entitled to intervene postjudgment and reiterating that postjudgment intervention in the interests of justice should be permitted); C.E.G. v. S.W., 695 So. 2d 1260, 1262-63 (Fla. 2d DCA 1997) (reversing order entered after a hearing where the facts established "that the maternal grandmother had an interest in the adoption proceedings and that the court should have allowed her to intervene"). We note that at the time the final judgment was rendered in this case, there were three pending cases involving the custody or adoption of one or both of the siblings. A fourth case was initiated in 2020, prior to the trial court's ruling on I.T.'s motion to vacate. 2 younger child, which was filed separately from the petition to adopt K.P.L. A final judgment of adoption on the paternal grandfather's petition to adopt K.P.L. was rendered on June 4, 2019; K.P.L. was three years old. In her motion to vacate the final judgment, filed December 3, 2020, I.T. raised multiple concerning allegations. I.T. alleged that the paternal grandfather had falsely testified that there were no other pending cases regarding K.P.L. and that no other person had or claimed a right to the child, that the paternal grandfather is not legally eligible to adopt a child because he is not a U.S. Citizen, and that the paternal grandfather had been arrested for obstructing an officer without violence following a failed solicitation attempt less than one month before the trial in this case and while K.P.L. was in his care. She also alleged that she had not been provided with notice that the paternal grandfather had filed the petition for adoption, despite the paternal grandfather's knowledge that the younger child was in I.T.'s care, that the Department of Children and Families (DCF) was involved with both children, and that K.P.L. had resided with I.T. from his birth through at least August 2017. I.T. alleged that while she had served the paternal grandfather with 3 her petition for custody of the children, the paternal grandfather had not served I.T. with his petition for adoption of K.P.L. The trial court denied the motion to vacate the final judgment of adoption without a hearing. In its order, the court detailed most of I.T.'s allegations and determined that her motion was filed pursuant to Florida Family Law Rule of Procedure 12.540(b)(3), as a motion raising claims of fraud or other misconduct and was untimely because it was not filed within a year from the date the judgment was entered.2 However, despite acknowledging I.T.'s allegation that she was not provided with notice of the petition for adoption and was entitled to such notice, the court failed to consider I.T.'s motion as having been filed, in part, pursuant to rule 12.540(b)(4), as a motion alleging that the judgment is void. As provided in rule 12.540(b), a motion alleging that a judgment is void is not subject to the one-year filing timeframe. See 2 The court did not take into consideration the following language, also from rule 12.540(b): "This rule does not limit the power of a court to entertain an independent action or supplemental proceeding . . . to set aside a judgment for fraud on the court." See, e.g., Rickard v. McKesson, 774 So. 2d 838, 840-41 (Fla. 4th DCA 2000) (discussing allegations involving fraud as sufficient to bring and maintain an independent action to set aside a judgment). 4 Schmidt v. Nipper, 287 So. 3d 1289, 1292 (Fla. 1st DCA 2020) ("Under rule[] 12.540(b)(4) and [Florida Rule of Civil Procedure] 1.540(b)(4), the trial court may grant relief from a void judgment at any time."); see also Tata v. Tata, 207 So. 3d 933, 937 (Fla. 4th DCA 2016) ("[A] void order is a nullity."). I.T. has asserted that the younger of the two siblings has been and continues to be in her care, that K.P.L. had previously been in her care, that DCF has been involved in the cases, and that DCF had requested that the children stay together and reside with her during the pendency of these proceedings. Cf. Fla. Dep't of Health & Rehab. Servs. v. Doe, 659 So. 2d 697, 698-99 (Fla. 1st DCA 1995) (citing cases and concluding that "it would be unwise to extend [the right of intervention] to intervenors who have no formal legal or personal relationship with the child prior to the adoption proceedings"). Based on the allegations in I.T.'s motion, whether the judgment of adoption is void rests on whether I.T. was entitled to notice of the paternal grandfather's petition to adopt K.P.L. And although the court determined that I.T. was not entitled to notice of the petition for adoption pursuant to sections 63.062 and 63.088, Florida Statutes (2018), it did not take into consideration the potential 5 applicability of section 63.0425 or the Florida Supreme Court's holding in In re Adoption of a Minor Child, 593 So. 2d 185 (Fla. 1991), that "the determination that notice was not statutorily required is not dispositive" of whether grandparents are entitled to notice of an adoption proceeding because "[n]otice to legally interested parties so that they can assert their claims is the essence of the procedural due process protections provided by the Florida Constitution." Id. at 189 (citing Art. I, § 9, Fla. Const.).3 A motion to vacate or set aside a judgment should not be dismissed without a hearing unless it fails to allege colorable entitlement to relief. Chancey v. Chancey, 880 So. 2d 1281, 1282 3 The court also cited section 63.182 to support its determination that I.T.'s motion was untimely. Section 63.182(1) provides that "an action or proceeding of any kind to vacate, set aside, or otherwise nullify a judgment of adoption . . . may not be filed more than 1 year after the entry of the judgment terminating parental rights." However, the trial court gave no indication that a judgment terminating parental rights had been entered in this case. Cf. M.N. v. Dep't of Child. & Fams., 161 So. 3d 1290, 1291 (Fla. 4th DCA 2015) (affirming denial of motion to set aside final judgment of adoption where order terminating father's parental rights had been entered more than one year prior to the filing of the motion). Neither did the court consider the language of rule 12.010(a)(2) that "[t]he form, content, procedure, and time for pleading in all proceedings shall be prescribed by the statutes governing the proceeding unless these rules . . . specifically provide to the contrary." 6 (Fla. 2d DCA 2004) (citing Schindler v. Schiavo (In re Guardianship of Schiavo), 800 So. 2d 640, 644 (Fla. 2d DCA 2001)). I.T.'s motion stated a colorable claim of entitlement to relief—the denial of due process; it should not have been denied without an evidentiary hearing. See Romero v. Brabham, 300 So. 3d 665, 667 (Fla. 4th DCA 2020); cf. Taylor v. Taylor, 67 So. 3d 359, 362 (Fla. 4th DCA 2011). It appears that the court was or should have been aware at the time of the final judgment of adoption in this case that K.P.L. had a sibling and that I.T. had petitioned for custody of both children. Rule 12.010(b) provides, in part, that the Family Law Rules are intended "to enable the court to coordinate related cases and proceedings to avoid multiple appearances by the same parties on the same or similar issues and to avoid inconsistent court orders." Yet, at the time the final judgment in this case was rendered, there were three pending cases involving the adoption or custody of these two siblings and the cases had not been consolidated or, apparently, coordinated. Cf. In re Amendments to Fla. Fam. Law Rule 12.010, 997 So. 2d 401, 402 (Fla. 2008) (reiterating the goal of creating a "fully integrated, comprehensive approach to handling all 7 cases involving children and families" (quoting In re Report of Fam. Ct. Steering Comm., 794 So. 2d 518, 519 (Fla. 2001))). "[W]e must ensure that when courts are deciding these issues in the first instance, they have all of the pertinent information and appropriate parties before them." In re Adoption of a Minor Child, 593 So. 2d at 191. Given the multiple pending cases involving these children, and certainly if I.T.'s allegations can be established, the court had neither all of the information nor all of the appropriate parties before it when it entered the final judgment of adoption in this case. If, on remand, I.T. presents evidence supporting her assertions, the motion to vacate should be granted. See id. at 190-91 ("[I]f pursued, the grandparents' motion to vacate the final judgment of adoption must be granted. To rule otherwise would severely diminish the grandparents' right to have been heard in the first instance. . . . Vacating the judgment is the only meaningful way to afford the grandparents due process of law." (footnote omitted)); Goodman v. Goodman, 126 So. 3d 310, 314 (Fla. 3d DCA 2013) (concluding that the final judgment entered in the adoption proceeding was void for lack of notice); cf. C.E.G. v. S.W., 695 So. 2d 1260, 1262-63 (Fla. 2d DCA 1997) (reversing order 8 denying intervention where evidence established entitlement to intervene). Accordingly, we reverse the order denying the motion to vacate the final judgment of adoption and remand for further proceedings consistent with this opinion. Reversed and remanded. LaROSE and SMITH, JJ., Concur. Opinion subject to revision prior to official publication. 9