M.K., the Foster Mother, James Walsh, Esq., Attorney Ad Litem for A.K.P., the Child, Statewide Guardian Ad Litem Office, and Department of Children & Families, Appellants, v. KAPLAN (2026)

The instant child custody case comes before us for a third time, following our party status determination in M.K. v. Department of Children & Families, 380 So. 3d 469 (Fla. 4th DCA 2023) (“M.K.”), and our reversal and remand in Walsh on behalf of A.K.P. v. Department of Children & Families, 393 So. 3d 718 (Fla. 4th DCA 2024) (“Walsh”). In Walsh, we reversed and remanded for the trial court to apply a rebuttable statutory presumption under section 63.082(6), Florida Statutes, that took effect on July 1, 2023, while the underlying case was pending. See id. at 728.

Following remand, the trial court conducted a new evidentiary hearing and entered an order transferring custody of A.K.P. (“the Child”) from M.K., the foster mother (“the Foster Mother”), to A.S.L., a second cousin of D.C., the Child's father (“the Father”). This custody transfer was in accord with a proposed adoptive placement selected by the Father.

On appeal, appellants the Foster Mother, the attorney ad litem (“AAL”), and the guardian ad litem (“GAL”) contend that the trial court misapplied the statutory presumption that favored the Foster Mother as the Child's current caregiver and abused its discretion when it modified the Child's placement to A.S.L.²

We respectfully disagree with appellants and affirm. We also affirm on all other arguments raised without discussion.

Background

The Child was born in late 2020, “suffering from withdrawal symptoms due to the mother's drug abuse.” M.K., 380 So. 3d at 471. In early 2021, when the Child was roughly two months old, the Child was sheltered and adjudicated dependent, and DCF placed the Child in licensed foster care with the Foster Mother. Id. “After the parents failed at case plan requirements and other issues, the Department, Guardian ad Litem, and the Attorney ad litem for the [C]hild filed a joint petition in April of 2022 to terminate the parents’ parental rights. The petition alleged that the [C]hild was bonded to the [F]oster [M]other who was willing to adopt the child.”³ Id.

In October 2022, the Father “filed a waiver of his rights to, and custody of, the [C]hild, and consented to his relative, A.S.L., adopting the [C]hild.” Id. “The [F]ather's relative, A.S.L., filed a motion to intervene as a party in the dependency case based on section 63.082, Florida Statutes (2022). The first motion was legally insufficient, but a revised motion with the proper information was filed.” Id. Around that time, A.S.L. began visits with the Child twice per week at a family center, and the Father was also present for these visits. Additionally, “[n]ew counsel, acting as Adoption Entity petitioners, filed a motion to intervene as an Adoption Entity and party of interest under section 63.082(6), a motion to stay the TPR proceedings, and [requested] an order setting a ‘best interests hearing,’ pending termination of the [F]ather's parental rights and A.S.L.’s adoption of the [C]hild.” Id.

In early 2023, a hearing was held on Adoption Entity's motion to intervene. At the start of the hearing, Adoption Entity's counsel stated that she had acquired the Father's “valid, binding, and enforceable” consent and presented the “requisite” documents to proceed. DCF, GAL, AAL, the Child's mother, and the Father expressed “no objection” to Adoption Entity's motion to intervene.⁴ The trial court granted Adoption Entity's motion to intervene “without objection.” A written order followed, granting Adoption Entity's motion to intervene “without opposition” and denying the Foster Mother's motion for party status. The Foster Mother appealed that order, which we affirmed in M.K.

While the M.K. appeal was pending, “the trial court heard evidence as to whether a change of placement from [the Foster Mother] to A.S.L. would be in the [C]hild's best interest, including testimony from A.S.L., [the Foster Mother], and bonding and attachment experts.” Walsh, 393 So. 3d at 721. The trial court modified custody from the Foster Mother to A.S.L., but the best interest hearing was reopened for presentation of additional evidence concerning the Child's recent autism diagnosis. Id.

The reopened hearing occurred after section 63.082(6)’s 2023 amended version became effective, prompting disagreement as to whether this amended version applied. See id. The trial court declined to apply the amendments, reasoning that the amendments created substantive rights and, therefore, applied only prospectively. Id. at 722. AAL and GAL appealed that ruling, which ultimately resulted in our Walsh opinion. Id.

In Walsh, we held that “[c]ertain provisions of the amended version of section 63.082 are clearly substantive, including new time limits for a parent to file the adoption consent,” but “the amended provisions of section 63.082 that concern the best interest of the child apply to the child's present circumstances” and “the reopened proceedings were a continuation of the inquiry as to what is the best interest of the child.” Id. at 727. We also stated that “[n]othing in the amended version of section 63.082 gives the caregiver any rights beyond some procedural due process rights in the section 63.082(6) proceeding to aid the court in determining the child's best interest.” Id. Accordingly, we “reverse[d] and remand[ed] for the [trial] court to conduct a new hearing, applying the presumptions and the burden of proof of the amended statute.” Id. at 728.

Around when the second appeal (Walsh) was initiated (roughly August 2023), the Child began spending three overnights per week (Friday, Saturday, and Sunday) with A.S.L. The Child spent the remaining weeknights at the Foster Mother's home. This was the living arrangement in effect when the trial court conducted the new best interest evidentiary hearing, which began in December 2024 and concluded in May 2025. The trial court later emphasized that this split-custody arrangement was a “significant change since the first hearing.” The hearing spanned multiple days, and the trial court heard testimony from various witnesses, including, but not limited to, the Foster Mother, A.S.L., the Father, behavioral specialists, a dependency case manager and supervisor, DCF's licensing chief, and the GAL.

At various points during this extensive evidentiary hearing, the trial court acknowledged the rebuttable statutory presumption and asked counsel how certain questions and documents were “relevant” to the best interest factors and to rebutting the statutory presumption.

The trial court's written modification order spanned fourteen pages, which relayed the procedural posture; recited section 63.082(6)’s 2023 amended version (including the statutory rebuttable presumption), the statutory factors, and the clear and convincing evidentiary standard; described the witness testimonies; made credibility findings and applied weights to the testimonies; and concluded that “after careful consideration of ALL evidence presented[,] this Court finds that the [Adoption Entity] has rebutted the presumption regarding the stability of the current placement by clear and convincing evidence, and the request to modify custody is in the Child's best interests.”

 Weighing Witness Testimony

The trial court's order reasoned why it placed greater weight on certain testimony and found some witnesses more credible than others. For example, DCF's licensing chief testified that she had not reviewed the case file in over two years, had not met the Child, the Father, or A.S.L., and was “not following the case.” The trial court's order indicated that this witness's testimony that the Child should not be removed from the Foster Mother was given minimal weight “given her lack of knowledge regarding the current circumstances, and her apparent lack of desire to give an informed recommendation, given that she has not reviewed the case in 2 years.”

In another example, AAL called a licensed psychologist as an expert, but the trial court referred to this witness as “incoherent,” “unclear,” and “not provid[ing] any testimony of value.” During this witness's testimony, the trial court requested AAL to direct the witness to answer the specific questions posed, because the witness was “going on in narrative manner” and the trial court was “not even sure what answers he's given you that have answered the questions that you have asked.” Moreover, the Foster Mother called as an expert a licensed clinical psychologist who testified about the strong bond between the Child and the Foster Mother, but the trial court referred to her testimony as “inconsistent” at times with other testimony, and “confusing” and “lacking common sense” with respect to the expert's description of the Child as “developmentally fragile” and receiving “the most intensive therapy outside hospitalization.”

The trial court's order revealed that the trial court opted to weigh more heavily the testimony of those who interact with the Child on a regular basis, such as the Foster Mother, A.S.L., the Father, the applied behavioral analysis (“ABA”) tech ⁵ who worked with the Child every weekday, and the ABA tech's supervisor. The trial court found that “the testimony of the ABA therapist, the ABA supervisor, the Foster [Mother], the Father, and A.S.L., [provides] the best evidence of how the [C]hild is doing and how he transitions between school and homes since being diagnosed with Autism 2 years ago.”

Several witnesses testified to improvements in the Child's behavior starting in late 2023, which coincides with the commencement of the split-custody arrangement. Specifically, the ABA tech testified that the Child had made “good progress” since the ABA tech began working with the Child in late 2023, and the Child's maladaptive behaviors—including spitting, screaming, head banging, and throwing toys—had decreased. The supervisor echoed this assessment, testifying to this reduction in negative behaviors, and adding that the Child “is showing a huge success in calming down on his own as opposed to before” and “[n]ow he does fairly well with change.” A.S.L. testified that the Child interacted well with other children at a recent birthday party, and A.S.L. did not see the Child engage in the referenced maladaptive behaviors. When the Father was asked about whether he had seen the Child engage in any of these behaviors at A.S.L.’s home, the Father testified that he had not. The Foster Mother also testified about the ABA services which the Child receives, the extent of her involvement, and the Child's progress.

 The trial court's best interest of the Child determination

The trial court noted that the Foster Mother and A.S.L. have strong bonds with the Child and each desires to provide a permanent home for the Child. The trial court also acknowledged that the Child maintained additional relationships. The Foster Mother was raising another foster son who had formed a “brother-like” bond with the Child. On the other hand, while staying with A.S.L., the Child was able to regularly interact with the Father, the Child's paternal grandmother, and other members of the Father's family.

Regarding permanency, the Foster Mother testified she was aware that if modification was not granted, the Child would remain in foster care, and a termination of parental rights proceeding as to the Father would occur. Additionally, the Foster Mother acknowledged that she did not know how long such a process could take, but that it would delay permanency. A dependency case manager through ChildNet (the agency with which DCF contracts), who had been assigned to the case for over three years, testified that modification of custody to A.S.L. would be in the Child's best interests. The dependency case manager reasoned that the Child's bond with A.S.L. had “strengthened over time,” and modification would provide permanency by maintaining the Child's familial bonds with A.S.L., the Father, and the Child's paternal grandmother. Further testimony was elicited that the Child spends time with his Father, A.S.L., and paternal grandmother during weekends while A.S.L. is caring for the Child, including involving the Child in church, activities, and cultural traditions. The dependency case manager's supervisor echoed this sentiment, and the trial court's order cited both witnesses’ testimony. The trial court's order specified that “time is of the essence when determining permanency,” and placement with A.S.L. would provide quicker permanency.

The trial court also noted that the Child is bonded with the Father, and the Father had executed a consent for A.S.L. to adopt the Child, which would maintain paternal familial bonds. Additionally, the trial court specified that the Foster Mother and the Father once enjoyed a close relationship, but the relationship had since “broke[n] down” and “never recovered” after the Foster Mother hired a private investigator to follow A.S.L. The relationship's deterioration was confirmed by multiple witnesses’ testimony. Within the six pages devoted to the “what is best for the child” statutory factor, the trial court's order specified that the trial court “cannot see a scenario in which this relationship can be restored.”

Finally, the trial court found “[t]his is not a scenario where the Child has had no opportunity to bond with A.S.L. [I]n fact, the opposite has occurred since the last hearing. The Child has spent significant time fostering a relationship and a bond with A.S.L.”

After reciting the evidence and findings, the trial court's order stated:

This Court recognizes the rebuttable presumption that the placement with the Foster [Mother] is stable and that it is in the Child's best interests to remain in that current stable placement. However, based upon a review of the evidence as detailed above, the intervening party rebutted that presumption by clear and convincing evidence that it is in the best interests of the Child to disrupt the current stable prospective adoptive placement using the factors reviewed above.

This appeal follows.

Analysis

The application of an evidentiary presumption presents an issue of law that is reviewed de novo. In re Est. of Murphy, 184 So. 3d 1221, 1227 (Fla. 2d DCA 2016). “Whether or to what extent the predicate facts giving rise to a legal presumption or its rebuttal were established is an issue of fact, which we review for competent, substantial evidence.” Id. “A trial court's determination regarding the best interests of a child is reviewed for an abuse of discretion.” Lane v. Lane, 254 So. 3d 570, 572 (Fla. 3d DCA 2018).

 Section 63.082, Florida Statutes (2023)

“A significant change in [section 63.082(6)] is the establishment of a rebuttable presumption in favor of a prospective adoptive placement if the child has been in the placement for a lengthy time.” Walsh, 393 So. 3d at 726. The Legislature recognized that “there is a compelling state interest in ensuring that a child involved in chapter 39 proceedings is served in a way that minimizes his or her trauma, provides safe placement, maintains continuity of bonded placements, and achieves permanency as soon as possible.” § 63.082(6)(a)1., Fla. Stat. (2023). Additionally, in enacting the amended version of section 63.082(6), the Legislature specified that “the disruption of a stable and bonded long-term placement by a change of placement to a person or family with whom the child has no bond or connection may create additional trauma.” § 63.082(6)(a)2., Fla. Stat. (2023) (emphasis added).

Section 63.082(6)’s 2023 amended version states in pertinent part:

(e) If the child has been in his or her current placement for at least 9 continuous months or 15 of the last 24 months immediately preceding the filing of the motion to intervene, and that placement is a prospective adoptive placement, there is a rebuttable presumption that the placement is stable and that it is in the child's best interests to remain in that current stable placement․ To rebut the presumption established in this paragraph, the intervening party must prove by clear and convincing evidence that it is in the best interests of the child to disrupt the current stable prospective adoptive placement using the factors set forth in paragraph (f) and any other factors that the court deems relevant.

(f) At a hearing to determine whether it is in the best interests of a child to change placement to the prospective adoptive parents selected by the parent or adoption entity, the court shall consider and weigh all relevant factors, including, but not limited to:

1. The permanency offered by both the child's current placement and the prospective adoptive placement selected by the parent or adoption entity;

2. The established bond between the child and the current caregiver with whom the child is residing if that placement is a prospective adoptive placement;

3. The stability of the prospective adoptive placement in which the child has been residing, which must be presumed stable if the placement meets the requirements of paragraph (e), as well as the desirability of maintaining continuity of placement;

4. The importance of maintaining sibling relationships, if possible;

5. The reasonable preferences and wishes of the child, if the court deems the child to be of sufficient maturity, understanding, and experience to express a preference;

6. Whether a petition for termination of parental rights has been filed pursuant to s. 39.806(1)(f), (g), or (h); and

7. What is best for the child.

§ 63.082(6)(e), (f), Fla. Stat. (2023) (emphasis added).

 The trial court recognized the section 63.082(6)(e) presumption, but found the presumption was rebutted by clear and convincing evidence

The Foster Mother, AAL, and GAL argue that the trial court misapplied the referenced statutory presumption and gave it “minimal weight.” We note that under section 63.082(6)(f)3. of the best interests analysis, the trial court's order stated: “While the home is presumed stable, it is clear that the [C]hild has adjusted to living with A.S.L. with little to no challenges. This Court gives this presumption minimal weight in light of the split living arrangements that have been in place for 2 years.”

We acknowledge that the trial court's “minimal weight” comment was not the most artful wording, but we do not view this comment as proof that the trial court failed or refused to apply the rebuttable presumption to the Child's present living circumstances.⁶ The presumption was mentioned several times during the extensive multi-day evidentiary hearing, with the trial court often inquiring of the parties’ counsel how certain questions and evidence were relevant to the presumption and the best interest factors. Further, the trial court's detailed fourteen-page order specifically addressed sections 63.082(6)(e) and (f)3., stating “[t]his Court has considered the stability of the prospective adoptive placement in which the [C]hild has been residing, which is presumed stable” and “has considered the desirability of maintaining continuity of placement.” At another point in the order, the trial court stated, “[i]t is also undisputed that the Foster Mother has provided a safe and stable home for the [C]hild since he came into [her] care. [I]n fact, this is the presumption that must be rebutted.”

 The Child had formed a bond with A.S.L. due to the Child being placed with A.S.L. in a co-custody arrangement for a significant period preceding the evidentiary hearing

Rather than view the “minimal weight” comment in isolation, we view this comment as the trial court reconciling application of the rebuttable presumption to the unique living arrangement that came into effect after the prior hearing—one where the Child had spent significant time in both the Foster Mother's and A.S.L.’s homes for eighteen months by the time the new evidentiary hearing transpired, resulting in the Child forming strong bonds with A.S.L. and other paternal family members.

Significantly, this is not the typical situation addressed by section 63.082(6), wherein the Legislature expressed concern that “a change of placement to a person or family with whom the child has no bond or connection” would be disruptive and “may create additional trauma.” § 63.082(6)(a)2., Fla. Stat. (2023); cf. Interest of K.B., 371 So. 3d 975, 985 (Fla. 2d DCA 2023) (affirming the trial court's decision to deny modification from a foster parent whom the child referred to as “mommy” to an unfamiliar home with prospective adoptive parents who were “near-total strangers to the child”); E.Q v. Fla. Dep't of Child. & Fams., 208 So. 3d 1258, 1261 (Fla. 3d DCA 2017) (“The trial court found that the children have had no meaningful contact with the paternal grandparents since before they were placed in foster care in 2012, and that the children would suffer substantial and irreparable harm if they were uprooted and transferred to the custody of the paternal grandparents.”); Guardian ad Litem Program v. Campbell, 348 So. 3d 1177, 1179–80 (Fla. 5th DCA 2022) (the proposed adoptive placement was with the paternal grandparents who lived out of state and a witness testified negatively about the bonding assessment between the grandparents and the child).

As the trial court aptly stated, “this is not a scenario where the Child has had no opportunity to bond with A.S.L. [I]n fact, the opposite has occurred since the last hearing. The Child has spent significant time fostering a relationship and a bond with A.S.L.” The Child generally was within the Foster Mother's custody from Monday morning to Friday afternoon. However, during most of that time, the Child was either sleeping or in day care/preschool (every weekday from about 8:30 a.m. to 5:00 p.m.), as the Foster Mother generally worked from Monday to Friday. For the past three years (since August 2023), the Child has spent his weekends (Friday afternoon to Monday morning) with A.S.L. Thus, in addition to questioning whether A.S.L.’s adoption of the Child would disrupt a “stable and bonded long-term placement[ ]” of the Child with the Foster Mother, contrary to the Legislature's language in section 63.082(6)(a)4., Fla. Stat. (2023), the trial court could also reasonably question whether the Foster Mother's adoption of the Child would disrupt a “stable and bonded long-term” living arrangement, of three years at this point, of the Child with A.S.L.

 Adoption by A.S.L. offers a quicker path to permanency than adoption by the Foster Mother

This case's other “unusual” feature weighing against finding an abuse of discretion is the Father's willingness to consent to A.S.L.’s adoption of the Child, in contrast to the likelihood of the Father contesting any effort to terminate his parental rights to provide for the Child's adoption by the Foster Mother. The trial court found that the Foster Mother's relationship with the Father had largely deteriorated, which the testimony corroborates.

While a parent's choice of an adoptive placement is not absolute, section 63.082(6) directs the trial court to weigh “all relevant factors,” including, but not limited to those specifically listed. The first “relevant factor” listed is “[t]he permanency offered by both the child's current placement and the prospective adoptive placement selected by the parent or adoption entity[.]” § 63.082(6)(f)1., Fla. Stat. (2023). During the Foster Mother's testimony, she acknowledged: 1) the Child is not legally cleared to be adopted by her; 2) the Father's parental rights remain intact; and 3) termination of the Father's parental rights would need to occur before the Child could obtain permanency with the Foster Mother. Two witnesses, the dependency case manager and her supervisor, both supported modification of custody to A.S.L. because it would be in the Child's best interest and lead to permanency. The trial court also recognized under the permanency factor that “time is of the essence” when establishing permanency. See R.S. v. Dep't of Child. & Fams., State of Fla., 956 So. 2d 1242, 1243 (Fla. 4th DCA 2007) (“The Legislature finds that time is of the essence for establishing permanency for a child in the dependency system.” (quoting § 39.0136(1), Fla. Stat. (2006))).

 The trial court gave due consideration to both the Child's bond with the Foster Mother and to the other statutory considerations set forth in section 63.082(6)(f), Florida Statutes

“The clear and convincing evidence standard requires that ‘[t]he evidence must be credible; the memories of the witnesses must be clear and without confusion; and the sum total of the evidence must be of sufficient weight to convince the trier of fact without hesitancy.’ ” B.N. v. Dep't of Child. & Fams., 292 So. 3d 796, 800 (Fla. 4th DCA 2020) (citation omitted). The appellate court's task “is not to conduct a de novo proceeding or reweigh the evidence by determining independently whether the evidence as a whole satisfies the clear and convincing standard.” C.F. v. Dep't of Child. & Fams., 334 So. 3d 351, 352 (Fla. 1st DCA 2022) (citation omitted). “Instead, [the appellate court] determine[s] only ‘whether the record contains competent substantial evidence to meet the clear and convincing evidence standard.’ ” Id. (citation omitted). The appellate court “provide[s] great deference” to the trial court's credibility determinations and the weight it gives to the evidence. Hertz v. State, 941 So. 2d 1031, 1037 (Fla. 2006). “A trial court abuses its discretion only when its action ‘is arbitrary, fanciful, or unreasonable,’ meaning no reasonable person ‘would take the view adopted by the trial court.’ ” Kenyon v. State, 429 So. 3d 473, 487 (Fla. 4th DCA 2025) (quoting Canakaris v. Canakaris, 382 So. 2d 1197, 1203 (Fla. 1980)).

In exercising its discretion from the superior vantage point of this extensive multi-day evidentiary hearing, the trial court considered and weighed all relevant statutory factors under section 63.082(6)’s 2023 amended version, and specified in its detailed order whether each factor weighed in favor of modification, against modification, or remained neutral. In doing so, the trial court described witness testimony in detail, reasoned why it was affording that witness's testimony more, less, or no weight, and specified when testimony was inconsistent, unclear, based on outdated circumstances, or the “best evidence.” See V.S. v. Dep't of Child. & Fams., 322 So. 3d 1153, 1160 (Fla. 4th DCA 2021) (“[T]he trial court may accept or reject the testimony of an expert witness just as the judge may accept or reject the testimony of any other witness.” (citation omitted)); see also C.F., 334 So. 3d at 352 (“[W]here the trial court has weighed the evidence and reached a conclusion, its judgment enjoys a presumption of correctness and ‘will not be overturned on appeal unless clearly erroneous or lacking in evidentiary support.’ ” (citation omitted)). In our appellate role, we are not in a position to substitute our judgment for that of the trial court, nor to find certain witnesses more or less credible. See H.A.R. v. Dep't of Child. & Fams., 313 So. 3d 1173, 1174 (Fla. 4th DCA 2021) (“[T]he appellate court has no authority to reweigh testimony and find it credible.”). Despite the trial court's order containing the aforementioned inartful wording regarding the statutory presumption, the record is clear that the trial court heeded our instructions on remand, and correctly applied the statutory presumption, before finding it was rebutted.

Conclusion

Our Walsh remand required application of section 63.082(6)’s amended presumption and burden of proof. As detailed above, the trial court recognized the presumption, shifted the burden, applied the clear-and-convincing evidentiary standard, weighed each statutory factor, resolved conflicts in testimony after a multi-day hearing, and entered detailed findings.

One might expect the 63.082(6)(e) presumption to be determinative in most ordinary adoption cases in which that presumption is applicable. However, it is a rebuttable presumption and, as discussed above, this is not an ordinary case, due to the shared custody of the Child over the past three years and the fact that the Father's parental rights have not been terminated. Here, the trial court adequately explained why the presumption was rebutted.

Because competent substantial evidence supports the trial court's modification determination, and we cannot state that the trial court abused its discretion under these unique circumstances, we affirm the modification order under review.

Affirmed.

I respectfully dissent.

This is an extraordinarily difficult case involving a child fortunate enough to have two prospective adoptive parents who plainly love him and wish to provide him a permanent home. After an extensive evidentiary hearing, the trial court entered a thoughtful and unusually detailed order explaining why it believed placement with A.S.L. to be in the Child's best interests. Were our task simply to determine whether competent substantial evidence supports the trial court's factual findings, I would have little difficulty joining the majority.

But that is not the question before us.

This case returns to us following our express mandate in Walsh, 393 So. 3d 718. There, we held that the trial court erred by failing to apply section 63.082(6) 2023 amended version, and we “reverse[d] and remand[ed] for the court to conduct a new hearing, applying the presumptions and burden of proof of the amended statute.” Id. at 728.

The legislature has directed that, when a child has resided for the requisite period in a prospective adoptive placement, “there is a rebuttable presumption that the placement is stable and that it is in the child's best interests to remain in that current stable placement.” § 63.082(6)(e), Fla. Stat. (2023). To rebut that presumption, the intervening party must prove by clear and convincing evidence that disruption of the current stable prospective adoptive placement is in the child's best interests. Id.

On remand, the trial court recognized both the presumption and the heightened burden of proof. But in applying the statutory factors, the trial court stated:

[W]hile the home is presumed stable, it is clear that the child has adjusted to living with A.S.L. with little to no challenges. This Court gives this presumption minimal weight in light of the split living arrangements that have been in place for 2 years.

The majority acknowledges that the trial court's “minimal weight” statement was “not the most artful wording,” but concludes that, viewed in the context of the extensive hearing and the remainder of the fourteen-page order, the trial court nevertheless properly applied the statutory presumption. I respectfully cannot reach that conclusion.

I do not isolate this statement from the remainder of the trial court's comprehensive order. To the contrary, I recognize that the trial court repeatedly identified the presumption, recited the clear-and-convincing standard, considered the statutory factors, and ultimately stated that the presumption had been overcome. The difficulty is that the same order also expressly tells us how the court treated that presumption in performing its analysis: the court gave the presumption “minimal weight.” Recitation of the correct legal standard elsewhere in an order does not eliminate an express statement that the standard was applied differently.

Nor can the challenged language fairly be dismissed as an unfortunate turn of phrase which escaped the trial court's attention.

Following entry of the original order, the Adoption Entity—the prevailing party below—specifically sought clarification concerning the court's treatment of the statutory presumption. The Adoption Entity called attention to the trial court's statement giving the presumption “minimal weight,” and requested clarification that the court had applied the presumption as mandated by the amended section 63.082(6)(e) and found the presumption rebutted by clear and convincing evidence. The Father joined that request, and specifically asked the trial court to clarify “[t]hat the rebuttable presumption under § 63.082(6)(e) was properly applied and expressly rebutted by clear and convincing evidence.” The Father explained that the purpose was to ensure the order was “fortified against avoidable appellate issues” and accurately reflected the statutory framework.

Thus, the very parties who prevailed below recognized the potential significance of the “minimal weight” finding, and afforded the trial court an opportunity to clarify that finding.

The trial court did not do so. Instead, the court denied the request for clarification, and thereafter entered an amended order correcting other matters while retaining the challenged treatment of the presumption. And here we are.

That procedural history matters. This is not a case in which an appellate court has seized upon an isolated phrase which neither the parties nor the trial court had occasion to consider. The “minimal weight” finding upon which this appeal turns was identified to the trial court after entry of its original order, and clarification of its treatment of the presumption was expressly requested. The trial court amended its order in other respects but left that analysis intact.

Under those circumstances, I am especially reluctant to attribute to the trial court an analysis different from the one expressed in its written order. Our obligation to read an order as a whole does not permit us to rewrite a legal conclusion which the trial court was specifically invited to clarify but did not.

More fundamentally, a statutory presumption affecting the burden of proof is not itself a piece of evidence to which a fact finder may assign greater or lesser weight. The presumption establishes the legal starting point from which the evidence must be evaluated and fixes the burden required to overcome the presumption. Once the presumption's predicate facts are established, it has the force the legislature assigned to it unless and until the party bearing the burden rebuts it by the prescribed quantum of proof. This presumption has no degrees.

The distinction is particularly important here. The evidence concerning the Child's extensive time with A.S.L., his bond with her, his successful transitions between the two homes, and his relationships with his paternal family is unquestionably relevant and may ultimately constitute clear and convincing evidence sufficient to rebut the presumption.

But those facts are evidence offered to overcome the presumption. Those facts cannot first be used to diminish the presumption itself and then be weighed against the diminished presumption. Otherwise, the stronger the evidence offered to rebut the presumption, the less force the presumption receives before the court determines whether the presumption has been rebutted. The analysis becomes circular: the evidence which must overcome the presumption is first employed to weaken the very presumption which must be overcome.

A related problem arises from the majority's reliance on the Child's extensive time with A.S.L. and the resulting bond between them. The majority reasons that this is not the typical case contemplated by section 63.082(6), because the proposed adoptive placement is not with a stranger and the Child has developed substantial bonds with A.S.L. and his paternal family.

Certainly, those circumstances are highly relevant to whether the statutory presumption has been overcome. But the legislature identified the qualifying current prospective adoptive placement and expressly afforded that placement the presumption. We should be cautious not to create, even implicitly, a competing presumption based upon a second bonded relationship which the legislature did not provide.

The unusual passage of time in this case does not alter that conclusion. The Child's relationship with A.S.L. has understandably deepened during years of litigation, including proceedings following our prior reversal. That passage of time may profoundly affect the evidence bearing upon whether the presumption has been overcome. However, the passage of time cannot progressively diminish the legal force of the presumption itself. Otherwise, a statutory protection designed to preserve continuity in a child's long-term placement could eventually consume itself through the very litigation concerning whether that placement should be disturbed.

None of this means that the trial court was required to leave the Child with the Foster Mother. Nor would I reweigh the testimony, second-guess the trial court's credibility determinations, or hold that the evidence is legally incapable of satisfying the clear-and-convincing standard. Those matters belong, in the first instance, to the trial judge who heard these witnesses over many days and is far better positioned than we are to evaluate them.

Indeed, that is precisely why I believe remand is required. Our obligation to defer to the trial court's factual findings does not include authority to revise the court's stated legal analysis. And that principle carries particular force where, as here, the asserted error concerns the very statutory presumption and burden of proof for which this court previously remanded the case.

I am acutely mindful that this Child has already endured years of litigation, and another remand delays finality. The legislature itself recognized a compelling interest in minimizing trauma, maintaining continuity of bonded placements, and achieving permanency as soon as possible. § 63.082(6)(a), Fla. Stat. (2023).

But permanency and correctness are not competing statutory objectives. The legislature demanded both. Indeed, its decision to establish this presumption and require clear and convincing evidence before disrupting a qualifying stable placement reflects its judgment about the potentially profound consequences of getting this particular decision wrong. The understandable desire to bring this litigation to an end cannot substitute for application of the legal standard governing how it must end.

Nor would I necessarily require another lengthy evidentiary hearing. I would leave to the trial court, after hearing from the parties, whether the existing record is sufficient or additional evidence is necessary. My point is considerably narrower: the ultimate determination must be made with the statutory presumption accorded the full legal effect which the legislature intended.

The majority understandably seeks to harmonize the “minimal weight” statement with the remainder of a careful and comprehensive order. Were that statement merely an isolated verbal misstep, I might be more receptive to doing so. But the prevailing parties themselves identified the problem, expressly sought clarification to avoid this very appellate issue, and the trial court thereafter entered an amended order without clarifying its treatment of the presumption.

At that point, I do not believe our place is to supply the clarification which the trial court declined to provide.

Accordingly, I would reverse and remand once more—not with directions as to the result, but for the trial court to apply the statutory presumption with its full legal effect and determine whether the Adoption Entity has rebutted that presumption by clear and convincing evidence.

For these reasons, I respectfully dissent.

FOOTNOTES

2.   Section 63.082(6)(e)’s amended version states: “If the child has been in his or her current placement for at least 9 continuous months or 15 of the last 24 months immediately preceding the filing of the motion to intervene, and that placement is a prospective adoptive placement, there is a rebuttable presumption that the placement is stable and that it is in the child's best interests to remain in that current stable placement.” § 63.082(6)(e), Fla. Stat. (2023).

3.   The mother's parental rights were soon thereafter terminated by constructive consent. See Walsh, 393 So. 3d at 721.

4.   Because the threshold intervention occurred while section 63.082(6)’s 2022 version was in effect, the Foster Mother had “participant” status rather than party status. See M.K., 380 So. 3d at 473–74. Section 63.082(6)’s 2023 version directs the trial court to “grant party status to the current caregiver who is a prospective adoptive placement for the limited purpose of filing motions and presenting evidence pursuant to this subsection. This limited party status expires upon issuance of a final order on the motion to intervene and change of placement of the child.” § 63.082(6)(e), Fla. Stat. (2023).

5.   ABA encompasses approaches and strategies geared to assist individuals with behaviors and learning disabilities.

6.   The dissenting opinion emphasizes the attempt of the Adoption Entity (joined by the Father) to have the trial court clarify this “minimal weight” comment, to avoid an appellate argument that the trial court “diluted the presumption.” Although the trial court did not retract the “minimal weight” language, the court responded that granting reconsideration of a different best interest factor “would not change this Court's order and does not change this Court's finding that the Adoption [E]ntity has rebutted the presumption that the placement is stable and that is in the [C]hild's best interests to remain in that current stable placement.” (emphases added).

Forst, J.

Shaw, J., concurs. Ciklin, J., dissents with opinion.