DEPARTMENT OF CHILDREN AND FAMILIES v. D.A., Father of D.A., a Child and Guardian Ad Litem, Respondents. (2019)

The Department of Children and Families (DCF) seeks certiorari review of an order directing it to pay for DNA testing of a putative father in a dependency matter concerning a child born into an intact marriage. Because we find that the order departs from the essential requirements of law and will cause irreparable harm that cannot be cured on plenary appeal, we grant the petition, quash the order, and remand for further proceedings.

D.A., the putative father of D.A., a minor child, requested DNA testing at a dependency arraignment hearing. DCF objected because, at that time, the putative father had not filed a petition to establish paternity, and the biological mother's husband, who was presumed to be the legal father, had not been served and was not present to express his intentions as to the child. As explained below, we agree with DCF that the order should be quashed.

First, this Court has jurisdiction to review the order because error in an order requiring a child to submit to paternity testing cannot be corrected on plenary appeal once the testing is completed. See Dep't of Rev. ex rel. Meeker v. Silva, 214 So. 3d 766, 768 (Fla. 5th DCA 2017) (citing State, Dep't of Rev. ex rel. Striggles v. Standifer, 990 So. 2d 659, 661 (Fla. 1st DCA 2008)). Second, the order departs from the essential requirements of law because no party has put the issue of paternity into controversy and there was no evidence or testimony to support the trial court's oral findings of good cause. See id. at 769 (citing Dep't of Rev. ex rel. Corbitt v. Alletag, 156 So. 3d 1110, 1112 (Fla. 1st DCA 2015)). The putative father has not filed any pleadings raising a claim of paternity, see id., and the biological mother's husband is presumed by law to be the child's legal father. See Simmonds v. Perkins, 247 So. 3d 397, 400–02 (Fla. 2018). Finally, because it may become an issue on remand, we note that the circuit court departed from the essential requirements of law when it ordered DCF to pay for the paternity testing. See Dep't of Child. & Fams. v. K.R., 946 So. 2d 106, 107 (Fla. 5th DCA 2007) (“[A]n order of a trial court compelling a governmental department or agency to pay for a service or to incur another expense to the benefit of a private party ‘interferes with both legislative discretion in determining the funds required of an agency and executive discretion in spending those appropriated funds, in derogation of the doctrine of separation of powers.’ ” (quoting Dep't of Juv. Just. v. C.M., 704 So. 2d 1123, 1125 (Fla. 4th DCA 1998))).

PETITION FOR WRIT OF CERTIORARI GRANTED; ORDER QUASHED.

PER CURIAM.

ORFINGER and EDWARDS, JJ., and JACOBUS, B.W., Senior Judge, concur.