CARTER v. BROMBERG (2020)

Bonnie Carter appeals the order appointing a successor plenary guardian of the person and property for her incapacitated, autistic adult son (“the Ward”) and a subsequent order denying her motion to have her Letters of Guardianship reinstated.¹ The crux of Carter's appeal is that she was denied her due process right to participate in the proceedings because the trial court erroneously concluded that she was not an “interested person” under the applicable guardianship statutes and rules. We agree and, therefore, reverse.

In November 2016, Carter was appointed to be the plenary guardian of her incapacitated son following the resignation of her ex-husband as their son's guardian. Approximately one year later, the Department of Children and Families (“DCF”) filed a separate petition under chapter 415, Florida Statutes (2017), for the entry of an order authorizing protective services to protect the Ward from “abuse, neglect, or exploitation,” as defined in section 415.102, Florida Statutes, while under Carter's care. Following an evidentiary hearing, the trial court entered an order authorizing DCF to provide the protective services, including changing the residence of the Ward. In its order, the court “suspended” any guardianship orders. A separate order was entered in the guardianship case that “suspended” the Letters of Guardianship issued to Carter for a period of “sixty (60) days or until further order of the court.”²

Several months later, DCF and the Ward's court-appointed counsel filed a “joint motion to intervene” in the guardianship proceedings seeking the issuance of an order disqualifying Carter under section 744.309(3), Florida Statutes, from serving as the Ward's guardian.³ This subsection lists certain persons who are disqualified from being appointed to act as guardian, including convicted felons and any person who has been judicially determined to have committed abuse, abandonment, or neglect against a child as defined in section 39.01 or section 984.03(1), (2), and (37), Florida Statutes. Pertinent here, DCF and the Ward's counsel alleged that Carter should be disqualified from being appointed as the Ward's guardian based on a 1997 dependency proceeding in Broward County, Florida, in which Carter was allegedly judicially determined to have abused and neglected the Ward when he was still a child.

In December 2018, a professional guardian ⁴ petitioned to be appointed successor plenary guardian of the Ward. Carter also moved to reinstate her Letters of Guardianship. Although it does not appear that an order had been entered on the joint motion to disqualify Carter from acting as guardian or to otherwise remove her as the plenary guardian, the trial court held an evidentiary hearing on the professional guardian's petition to be the Ward's successor plenary guardian. Carter was present at this hearing, but the court did not permit her to participate.

The trial court granted the petition and entered an order appointing the professional guardian to be the Ward's successor plenary guardian of the person and property. Shortly thereafter, the court, without a hearing, entered a separate order denying Carter's motion for reinstatement of her Letters of Guardianship. The court found in this order that (1) Carter was not an “interested person,” (2) she had failed to demonstrate a change in circumstances from the time her Letters of Guardianship were suspended to justify reinstatement, and (3) a professional guardian had just been appointed.

We conclude that the trial court erred in precluding Carter from participating at the evidentiary hearing on the petition to appoint a successor guardian for her incapacitated adult son. Section 744.3371(1), Florida Statutes (2018), provides that if a petition for appointment of a guardian is heard on a date after a person has been determined to be incapacitated, “reasonable notice of the hearing must be served on the incapacitated person, the person's attorney, if any, any guardian then serving, the person's next of kin, and such other interested persons as the court may direct.” The term “next of kin” is defined as “those persons who would be heirs at law of the ward or alleged incapacitated person if the person were deceased and includes the lineal descendants of the ward or the alleged incapacitated person.” See § 744.102(14), Fla. Stat. (2018).

Carter is a “next of kin” of her son. Further, the hearing held on the appointment of her son's successor plenary guardian was held long after he was determined to be incapacitated. Thus, Carter was entitled to reasonable notice of the hearing to appoint the successor plenary guardian. Reasonable notice in this circumstance included the right to participate at the hearing. See Hayes v. Guardianship of Thompson, 952 So. 2d 498, 506 (Fla. 2006) (“Where either the Florida Guardianship Law or the Florida Probate Rules expressly require that a person receive notice, the purpose of the provision is to inform the person of the proceeding and give the person an opportunity to participate in the proceeding if he or she chooses.”). Carter, therefore, had standing to participate at this hearing. See id.

“[W]here a person has both standing and notice, a right to due process is triggered to insure that participation is meaningful.” Zelman v. Zelman, 175 So. 3d 871, 878 (Fla. 4th DCA 2015). Accordingly, Carter was entitled to meaningfully participate at the hearing to appoint her son's successor guardian, which would have included not only her right to testify, but also to call witnesses, cross-examine witnesses, and make argument to the court, and the denial of this right constituted fundamental error. See id.; see also Pettry v. Pettry, 706 So. 2d 107, 108 (Fla. 5th DCA 1998) (“Due process requires that a party be given the opportunity to be heard and to testify and call witnesses on his behalf, and the denial of this right is fundamental error.” (citation omitted)).

DCF's argument that the trial court committed no error in excluding Carter from participating at this hearing because Carter is allegedly disqualified from serving as her son's guardian is misplaced. First, to the extent that DCF's and the Ward's counsel's joint motion to disqualify Carter from acting as the Ward's guardian can be construed as a petition to remove her as guardian under section 744.474(18), Florida Statutes,⁵ as previously indicated, no court order has apparently been entered disqualifying Carter under section 744.309(3) from being able to act as guardian. Second, assuming that Carter is, in fact, statutorily disqualified to act as guardian, the plain language of the statutes defining “next of kin” and entitling the next of kin to notice of the hearing on the appointment of a guardian does not exclude the next of kin's right to meaningful participation at the hearing if they do not seek to be appointed as the plenary guardian or, as alleged in this case, cannot be appointed to act as the guardian

Accordingly, we reverse, without prejudice, the orders appointing the successor plenary guardian and denying Carter's motion to reinstate her Letters of Guardianship, and we remand for an evidentiary hearing on the petition and motion that is consistent with this opinion.

REVERSED and REMANDED for additional proceedings.

I fully concur with the majority opinion but write to briefly address two observations.

First, the majority opinion should not be construed by the parties or the trial court as precluding either the reappointment of the successor plenary guardian by the court or the removal of Carter as the Ward's guardian based on any provision of section 744.474, Florida Statutes, if such determinations are supported by the evidence presented at the subsequent hearing at which Carter is given the opportunity to fully participate. Further, if the trial court removes or disqualifies Carter from acting as the Ward's plenary guardian, it must also enter an appropriate order doing so with findings supported in the record.

Second, if Carter is removed by the trial court as the plenary guardian, her status as the Ward's next of kin does not automatically entitle her to full participation at all future hearings pertaining to her son's guardianship. While the majority opinion correctly recognized that Carter, as next of kin, was statutorily entitled to meaningfully participate in the hearing to appoint her son's guardian, there is no bright-line rule as to whether a person qualifies as an “interested person” with standing to participate in every guardianship proceeding or hearing. Hayes, 952 So. 2d at 508; see also Rudolph v. Rosecan, 154 So. 3d 381, 385 (Fla. 4th DCA 2014) (“A person's status as an ‘interested person’ with standing in a guardianship proceeding is dependent upon whether the person would be affected by the outcome of the proceedings. Simply being next of kin does not confer ‘interested person’ status.”).

FOOTNOTES

1.   Carter appealed a third order denying her motion to have the trial judge disqualified. Because she has not raised any argument in her initial brief regarding this order, Carter has abandoned this claim. See Hagood v. Wells Fargo N.A., 112 So. 3d 770, 772 (Fla. 5th DCA 2013) (“[A]n issue not raised in an initial brief is deemed abandoned ․” (alteration in original) (quoting J.A.B. Enters. v. Gibbons, 596 So. 2d 1247, 1250 (Fla. 4th DCA 1992))).

2.   The same judge entered the order in both cases.

3.   The joint motion also sought to disqualify the Ward's father (Carter's ex-husband) from serving as his guardian. The Ward's father has not participated in these proceedings.

4.   A “professional guardian” is defined as “any guardian who has at any time rendered services to three or more wards as their guardian. A person serving as a guardian for two or more relatives as defined in [section] 744.309(2) is not considered a professional guardian.” § 744.102(17), Fla. Stat. (2018).

5.   Section 744.474(18) provides that a guardian may be removed if, after appointment, the guardian becomes a disqualified person as set forth in section 744.309(3).

PER CURIAM.

EVANDER, C.J., and EISNAUGLE, J., concur. LAMBERT, J., concurs specially with opinion.