Full Opinion

DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT C.H., SR., Appellant, v. IN THE ADOPTION OF: N.K. AND N.K., Appellee. No. 2D20-1990 June 11, 2021 Appeal from the Circuit Court for Hillsborough County; Anne-Leigh Gaylord Moe, Judge. Samuel Pastor and J. Michael Shea of St. Michael's Legal Center for Women and Children, Inc., Riverview, for Appellant. ATKINSON, J. C.H., Sr., appeals from the order dismissing his petition to adopt his two grandchildren, N.K. and N.K., for lack of standing. Although the trial court erred in concluding that C.H. lacked standing, we affirm the trial court's dismissal of C.H.'s adoption petition because it was filed improperly and prematurely. However, for the reasons explained below, the affirmance is without prejudice to C.H. filing an adoption petition with the dependency court. Background On October 18, 2019, C.H. (the Grandfather) filed a petition in the domestic-relations division of Hillsborough County Circuit Court to adopt his two minor grandchildren, N.K. and N.K., after the death of their mother (the Domestic Relations Case). The Grandfather had previously filed the petition on September 5, 2019, with the dependency court in the proceedings to terminate the parental rights of his grandchildren's father (the TPR Case).1 The TPR Case concluded with a final judgment of involuntary termination entered on June 1, 2020. The Grandfather filed several other motions in the TPR Case: a motion to intervene and establish visitation rights with 1 This court takes judicial notice of the appellate record filed in the TPR Case. See Pacheco v. Gonzalez, 254 So. 3d 527, 533 n.5 (Fla. 3d DCA 2018) ("An appellate court can take judicial notice of its own files and records."); Straitiff v. State, 228 So. 3d 1173, 1175 n.2 (Fla. 5th DCA 2017) ("This court can take judicial notice of its own records." (quoting Scheffer v. State, 893 So. 2d 698, 699 (Fla. 5th DCA 2005))). 2 memorandum of law in support, a motion to enforce visitation, an objection to administration of psychiatric medications, and an emergency motion to stay permanency proceedings and to consolidate. The Grandfather also moved to consolidate the TPR Case with the Domestic Relations Case. In the TPR Case, the guardian ad litem program (GALP) filed motions to strike the motion to enforce visitation, the objection to administration of medication, and the emergency motion. In each of these motions to strike, the GALP argued that the Grandfather was not a party to the proceedings, citing section 39.01(58), Florida Statutes (2019), and Florida Rules of Juvenile Procedure 8.210(a) and 8.235(a). The GALP also contended that the Grandfather could not "be made a party by the court" pursuant to J.P. v. Department of Children & Family Services, 12 So. 3d 253 (Fla. 2d DCA 2009), and J.L. v. G.M., 687 So. 2d 977 (Fla. 4th DCA 1997).2 The dependency court entered an order upholding in part and denying in part the GALP's motion to strike the Grandfather's motion to enforce the 2 In the motion to strike the emergency motion, the GALP merely states that "the maternal grandparents do not have standing in this matter." 3 visitation order. The dependency court also entered an order upholding the GAL's motion to strike the Grandfather's objection to the use of psychotropic medications. The Grandfather filed a motion to set aside a default that had been entered in the Domestic Relations Case due to his failure to appear at a Zoom status conference. The Domestic Relations court held a hearing on the Grandfather's motion to set aside the default. The following day, the Domestic Relations court entered an order granting the motion to set aside the default. However, it also dismissed the Grandfather's October 18, 2019, adoption petition for "lack of standing" without further explanation. Analysis The Grandfather argues that the Domestic Relations court erred by dismissing his petition for lack of standing. He also contends that his right to equal protection and due process of law under both the federal and state constitutions have been violated by provisions of chapters 63 and 39 that constitute an absolute bar to his right to petition to adopt his grandchildren. Section 63.037, Florida Statutes (2019), provides that "[a] case in which a minor becomes available for adoption after the parental 4 rights of each parent have been terminated by a judgment entered pursuant to chapter 39 shall be governed by s. 39.812 and this chapter." Section 39.812(5), Florida Statutes (2019), provides the following, in relevant part: The petition for adoption must be filed in the division of the circuit court which entered the judgment terminating parental rights, unless a motion for change of venue is granted pursuant to s. 47.122. . . . The prospective adoptive parents may not file a petition for adoption until the judgment terminating parental rights becomes final. An adoption proceeding under this subsection is governed by chapter 63. (Emphasis added.) Section 39.812(4) also mandates the dependency court's retention of jurisdiction over children placed in the department's custody until adoption. See § 39.812(4) ("The court shall retain jurisdiction over any child placed in the custody of the department until the child is adopted."); Dep't of Child. & Fams. v. Statewide Guardian Ad Litem Program, 186 So. 3d 1084, 1090 (Fla. 1st DCA 2016) ("The dependency court never loses jurisdiction after a TPR trial, and continues to retain exclusive jurisdiction throughout the adoption process." (quoting B.B. v. Dep't of Child. & Fams., 854 So. 2d 822, 825 (Fla. 1st DCA 2003))). 5 Here, the Grandfather filed his petition in a division different from the one in which the dependency proceedings took place. Furthermore, he filed the petition prematurely—months before the TPR court entered the final judgment terminating the father's parental rights. As a result, the trial court arguably did not err by dismissing his petition, even if it was for the wrong reasons. See Malu v. Sec. Nat'l Ins. Co., 898 So. 2d 69, 73 (Fla. 2005) ("[T]he 'tipsy coachman rule[]' . . . allows an appellate court to affirm a decision despite a finding of error in the lower court's reasoning as long as there is an alternative basis to justify affirming the decision."); Dade Cnty. Sch. Bd. v. Radio Station WQBA, 731 So. 2d 638, 644 (Fla. 1999) ("[I]f a trial court reaches the right result, but for the wrong reasons, it will be upheld if there is any basis which would support the judgment in the record."). The issue was one of procedural compliance with the statutes governing adoption, not one of standing. Standing means that an individual has "a sufficient stake in an otherwise justiciable controversy" so that he or she can "obtain judicial resolution of that controversy." Jamlynn Invs. Corp. v. San Marco Residences of Marco Condo. Ass'n, 544 So. 2d 1080, 1082 (Fla. 2d DCA 1989) (citing Jumar Corp. v. Nopal Lines, Ltd., 6 462 So. 2d 1178, 1182 (Fla. 3d DCA 1985)). The Grandfather's stake in the adoption of his grandchildren was sufficient to confer his standing in the Domestic Relations Case, even though that was not the proper place to file the petition under the circumstances. In support in his constitutional challenge, the Grandfather mistakenly contends that chapters 63 and 39 constitute an absolute bar to his right to petition to adopt his grandchildren. Adoption proceedings following the termination of parental rights are governed by section 39.812 and chapter 63. See § 63.037; B.S. v. Dep't of Child. & Fams., 246 So. 3d 479, 481 (Fla. 1st DCA 2018) ("[S]ection 63.037 specifically references section 39.812. Subsection (5) of this statute establishes the procedures for adoption following TPR, requiring that a post-TPR adoption petition be filed in the court that terminated parental rights."). Section 63.042(2)(c) permits a married person to adopt any nonspouse without the other spouse joining . . . if: 1. The other spouse is a parent of the person to be adopted and consents to the adoption; or 2. The failure of the other spouse to join in the petition or to consent to the adoption is excused by the court for good cause shown or in the best interest of the child. 7 As such, the Grandfather does have the legal ability to petition to adopt his grandchildren. The Grandfather contends that section 39.01(58) precludes him from joining the TPR Case as a party. That section defines a "party" as "the parent or parents of the child, the petitioner, the department, the guardian ad litem or the representative of the guardian ad litem program when the program has been appointed, and the child." § 39.01(58). Courts have interpreted the language of this section as excluding biological grandparents. See, e.g., J.P., 12 So. 3d at 254 ("The plain language of the statute does not include grandparents within the definition of a party."); cf. C.V. v. Dep't of Child. & Fams. Servs., 19 So. 3d 381, 383 (Fla. 2d DCA 2009) (holding that grandparents are not parties and do not have standing to appeal from an order rejecting their request for predisposition placement of the grandchildren). The fact that the Grandfather lacked the ability to join the TPR Case as a party does not bar him from petitioning that court to adopt his grandchildren after the entry of the judgment terminating the parental rights of his grandchildren's father pursuant to sections 63.037 and 39.812. Because there is no statutory bar to 8 his adoption petition, his constitutional rights could not have been violated in the manner he describes.3 But even if they had, the Grandfather would need to preserve the issue for review by obtaining a ruling in the trial court, which he failed to do. See Fla. Dep't of Agric. & Consumer Servs. v. Mendez, 98 So. 3d 604, 608 (Fla. 4th DCA 2012) ("Part of the preservation requirement [in a case involving an as-applied constitutional challenge] is the securing of a ruling . . . ." (citing Hamilton v. R.L. Best Int'l, 996 So. 2d 233, 235 (Fla. 1st DCA 2008))). Because the Grandfather has the ability to file a petition with the dependency court now that the judgment of involuntary termination is final, see § 39.812(5), we affirm without prejudice to the Grandfather filing his adoption petition with the dependency court. Affirmed. MORRIS and BLACK, JJ., Concur. 3 This does not, by implication, reach the issue of the effect a complete statutory foreclosure of a grandparent's right to petition for adoption of his grandchild might have on that grandparent's constitutional rights. 9 Opinion subject to revision prior to official publication. 10