IN RE: Name Change Petition of A.T. (2023)

A.T. appeals the trial court's “Order Denying Petition for Change of Name (Adult) and Motion to Determine Confidentiality of Court File.” We have jurisdiction. See Fla. R. App. P. 9.030(b)(1)(A). We must reverse. Despite its best intentions, the trial court engaged in improper ex parte communications with an unidentified third party about A.T.'s case.¹

Background

Allegedly fearing persecution and continued prosecution on allegedly meritless criminal charges, A.T., a citizen of an authoritarian regime, fled his homeland for the United States. He applied for asylum. A.T. petitioned the trial court for a name change. He also asked the trial court to deem his court file confidential and have it sealed.

At an evidentiary hearing, A.T. testified that he did not seek a name change “for any wrongful or fraudulent or ulterior purpose.” Rather, he feared for his safety.

The trial court volunteered that it “took particular interest in not only ․ the name change but also the request to seal the file, which is unusual, and that caused me to see if it was appropriate to grant both [requests for] relief.” The trial court continued:

Frankly [I] wanted to grant the relief ․

I went so far in the interest of frankly hoping I could grant the relief that I reached out to someone in federal law enforcement and asked them to please look into this because I wanted it to be true and I wanted to be able to grant the relief.

The response that I got back was telling, that it is –– whether it's a common practice or not an unusual practice, for people who come to this country ․ that when –– not everybody, but it is a common practice that when people come here and apply for asylum if it becomes somewhat questionable or they lose confidence that they will get it they seek a name change and that they do it for the purpose of trying to hide or evade the United States federal government and stay here illegally in our country and make it harder that they be found or detected. I was sorry to hear that. I was not familiar with that. But the person I heard it from was very adamant about that.

Thereafter, the trial court denied A.T.'s petition. It reasoned that A.T. sought the name change for a fraudulent or illegal purpose. The trial court found that A.T. had not been candid and forthright in complying with the trial court's requests for documentation about A.T.'s pending asylum petition. The trial court also denied A.T.'s request to seal the court file.

Analysis

Section 68.07(3), Florida Statutes (2021), details the requirements for a facially sufficient name change petition. If a trial court denies a facially sufficient petition, it must provide a factual basis for doing so. Medina v. State, 310 So. 3d 426, 427 (Fla. 4th DCA 2021) (first citing In re Zimmer, 207 So. 3d 1006, 1007 (Fla. 4th DCA 2017); and then citing Barton v. Cir. Ct. of the Nineteenth Jud. Cir., 659 So. 2d 1262, 1263 (Fla. 4th DCA 1995)). Ordinarily, “a facially sufficient petition for a name change should be granted where there is no evidence of a wrongful or fraudulent purpose.” Brown v. Name Change, 611 So. 2d 1355, 1356 (Fla. 2d DCA 1993) (citing Isom v. Cir. Ct. of the Tenth Jud. Cir., 437 So. 2d 732 (Fla. 2d DCA 1983)).

Usually, we review the denial of a name change petition under an abuse of discretion standard. In re Zimmer, 207 So. 3d at 1007. Here, we need not determine whether the trial court abused its discretion. Rather, we conclude that the trial court violated A.T.'s due process rights by engaging in ex parte communications. In doing so, the trial court departed from its role as a neutral arbiter. See State v. McClain, 572 So. 2d 23, 24 (Fla. 4th DCA 1990).

Only under limited circumstances, none of which are applicable here, may a trial judge engage in ex parte communications. See Fla. Code Jud. Conduct, Canon 3B(7). Critically, a judge should not independently investigate facts before it in a pending case. Id. (“A judge shall not initiate, permit, or consider ex parte communications ․ outside the presence of the parties concerning a pending or impending proceeding ․”).

“Due process mandates that in any judicial proceeding, the litigants must be afforded the basic elements of notice and opportunity to be heard.” Bayview Loan Servicing, LLC v. Dzidzovic, 249 So. 3d 1265, 1267 (Fla. 2d DCA 2018) (quoting E.I. DuPont De Nemours & Co. v. Lambert, 654 So. 2d 226, 228 (Fla. 2d DCA 1995)). The trial court's consultation with an unidentified federal law enforcement employee “was most likely motivated by a[ ] ․ desire to arrive at a correct decision.” Teeft v. Luna Cheese Corp. of Fla., 577 So. 2d 1004, 1005 (Fla. 5th DCA 1991).

Unfortunately, the trial court did not disclose the witness's identity to A.T., nor did it advise A.T. that the garnered information would be considered against him. Our record does not suggest that the trial court provided A.T. an opportunity to prepare meaningfully for and challenge the third-party's hearsay information. See, e.g., Albert v. Rogers, 57 So. 3d 233, 236 (Fla. 4th DCA 2011) (“By initiating [ex parte] communication with the children's school administration and independently investigating the facts, the trial judge abandoned his role as a neutral arbiter of the dispute. The independent investigation served to deny the mother due process.”).

Conclusion

We reverse the “Order Denying Petition for Change of Name (Adult) and Motion to Determine Confidentiality of Court File.” On remand, we direct that A.T.'s case be reassigned to a different judge.

Reversed and remanded for further proceedings consistent with this opinion.

FOOTNOTES

1.   Our disposition on this issue renders A.T.'s remaining issues on appeal moot.

LaROSE, Judge.

CASANUEVA and SILBERMAN, JJ., Concur.