DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

CAYMAN FOSTER, by and through his Guardian, TERRI L. FOSTER,

Appellant,

v.

GUARDIANSHIP OF CAYMAN FOSTER,

Appellee.

Nos. 4D21-2229 and 4D21-2263

[January 4, 2023]

Consolidated appeals from the Circuit Court for the Nineteenth Judicial 

Circuit, Martin County; Steven J. Levin, Judge; L.T. Case No. 

432014GA000527.

Karen O’Brien Steger of Steger Law, Stuart, and Stephanie Langer of 

Disability Independence Group, Inc., Miami, for appellant.

Sabarish P. Neelakanta of SPN Law, LLC, West Palm Beach, for 

appellee.

PER CURIAM.

This appeal arises from the guardianship established for the benefit of 

Cayman Foster (the ward), an individual whose incapacity arises from an 

autism spectrum disorder. The ward’s autism impacts his ability to 

expressly communicate his wishes regarding the level of contact which he 

desires to maintain with his family, such that those wishes can be 

effectuated consistent with sections 744.3215 and 744.361(13), Florida 

Statutes (2016). We affirm the order on appeal, which concerns the level 

of contact which the guardian is required to facilitate between the ward 

and his father, because the issues raised by the guardian and the ward in 

these consolidated appeals lack merit.

Our affirmance is necessarily without prejudice to the ability of either 

the ward or “any interested person” to petition for judicial review pursuant 

to section 744.3715(1), Florida Statutes (2016), should the circumstances 

surrounding the ward’s desire to have contact with his father—as 

determined by the trial court—change during the remainder of this

guardianship.
2

Affirmed.

CIKLIN and ARTAU, JJ., concur.

WARNER, J., concurs in part and dissents in part with an opinion.

WARNER, J., concurring in part and dissenting in part.

In this guardianship case, a guardian and adult ward both appeal a 

trial court order requiring the guardian to allow visitation with the ward 

by his father and delegating to a speech pathologist the ultimate decision 

making as to whether visitation would continue with the father. While I 

agree that the trial court could order visitation, I would reverse the trial 

court’s delegation of authority to a speech pathologist to determine 

whether visitation would continue.

The proceedings are lengthy and complicated. I set forth a very 

abbreviated recitation of the important aspects for the purposes of this 

opinion.

The ward is a developmentally disabled adult diagnosed with an autism 

spectrum disorder. Because of this disorder, his communication abilities 

are hampered such that he often responds to questions in short one-word 

phrases, and he is largely unable to engage in reciprocal or sustained 

conversations.

After a highly contentious divorce between the ward’s parents, the 

mother petitioned and was appointed as the ward’s guardian. Then, as 

guardian, she refused to allow the father to communicate or visit with the 

ward. In response, the father filed a petition for judicial review pursuant 

to section 744.3715, Florida Statutes (2016), arguing that the guardian 

had denied him visitation. The father claimed that the guardian violated 

section 744.361(13)(b), Florida Statutes (2016), which requires a guardian 

to “[a]llow the ward to maintain contact with family and friends unless the 

guardian believes that such contact may cause harm to the ward.” The 

guardian answered, denying the father’s allegations.

After the court appointed a monitor, the court conducted several days 

of evidentiary hearings to determine the ward’s wishes. Several teachers 

and former therapists of the ward all testified to their association with the 

ward and their opinion that the ward could appropriately verbalize his 

desires. They all testified that he did not wish to see his father. The court 

then paused the hearings and ordered that the ward be examined by a 

qualified and licensed speech and language pathologist who could 

determine whether “no” meant “no” when the ward stated he did not want 
3

to visit with his father. The court appointed a speech pathologist who, 

after examining the ward, determined that the ward did want to visit the 

father. The evidentiary hearings resumed with the testimony from the 

speech pathologist and others.

After the hearings were concluded, the court granted the father’s 

petition, adopting the speech pathologist’s conclusion that the ward 

wanted to see his father. The order then established a procedure for onehour weekly meetings. The meetings would take place at a neutral site in 

the presence of witnesses, the ward’s former therapists and teachers being 

among the designated witnesses. The court order required that if the 

witnesses thought the meetings were detrimental to the ward, they shall 

contact the court appointed speech pathologist, who “as the neutral and 

detached individual appointed by this Court, shall decide whether the 

meetings stop, move forward, or require different approaches or ideas.” 

From this order, both the ward and the guardian appeal.

Both the guardian and the ward contend that the court had no 

authority to order visitation between the ward and the father. However, I 

find that section 744.3715 must be construed to permit the court to order 

visitation when the court finds that the guardian is not allowing visitation 

with family members and such visitation is desired by the ward and in the 

ward’s best interests. That section pertinently provides:

(1) At any time, any interested person, including the ward, 

may petition the court for review alleging that the guardian . . 

. is denying visitation between the ward and his or her 

relatives in violation of s. 744.361(13), or is not acting in 

the best interest of the ward. The petition for review must 

state the nature of the objection to the guardian's action or 

proposed action. Upon the filing of any such petition, the 

court shall review the petition and act upon it 

expeditiously.

§ 744.3715(1), Fla. Stat. (2016) (emphasis supplied). The statute 

specifically permits an interested person to file a petition to review whether 

the guardian is denying visitation, and the statute specifically requires the 

court to act on the petition. Id. It thus seems evident that, in acting on a 

petition regarding denied visitation to the ward’s relatives, the court can 

within its discretion order visitation. Where a statute is silent on the 

means to accomplish its provisions, a trial court maintains discretion to 

accomplish its purpose. Cf. Cook v. State, 896 So. 2d 870, 873 (Fla. 2d 

DCA 2005) (where statute was silent on whether defendant’s ability to pay 

should be considered in imposing costs on a defendant, trial court had 
4

discretion to consider defendant’s finances); State v. Carlton, 138 So. 612, 

621 (Fla. 1931) (where statute is silent on how a board should administer 

a fund, board has some discretion on administration of fund). I thus agree 

that the court had discretion to require visitation, where it found that the 

ward wanted to see his father, but the guardian refused to make visitation 

available.1

To implement visitation, the court established a monitoring system, but 

it left the determination of whether visits would continue to the speech 

pathologist whom it had appointed to examine the ward. I would reverse 

this portion of the order, as I can find no authority for the court to delegate 

its decision-making authority to this private party.

In Shugar v. Shugar, 924 So. 2d 941, 942 (Fla. 1st DCA 2006), the trial 

court determined that the guardian ad litem appointed for the benefit of 

the parties’ minor son had the authority to make all decisions regarding 

visitation. The First District found that under section 61.13, Florida 

Statutes, a trial court was required to determine custody and visitation in 

a divorce proceeding. Id. at 942. In granting the petition and remanding, 

the court concluded, “[c]ourts may not delegate their statutory authority 

to determine visitation to GALs, attorneys, or experts.” Id. (citations 

omitted).

Similarly, in this case, section 744.3715 provides that where visitation 

by a guardian is denied to the ward’s relatives, it is the court which must 

determine visitation. Thus, the guardian’s exercise of authority over 

visitation pursuant to section 744.361(13) must ultimately yield to the 

court’s determination upon a petition for judicial review under section 

744.3715, as is the case here. The statutes do not confer the power to 

compel or deny visitation to a third party, like a speech pathologist, as the 

trial court ordered in this case. The determination of whether visits 

continue rests with the trial court. While the court may take advice from 

experts and monitors, the court ultimately must make these 

determinations.

For these reasons, while I agree that the court had authority to order 

the father’s visitation of the ward, I dissent from the majority’s decision to 

1 While the majority of the witnesses, all of whom had worked with the ward for 

years and knew him well, determined that he did not want to visit with his father, 

the speech pathologist who saw the ward once determined that he did express a 

desire to visit the father. The court had competent substantial evidence to 

support its finding of fact, even though it might seem to a reader of this record 

that the evidence supporting a contrary finding was exceptionally strong.
5

affirm the delegation of authority to the speech pathologist to decide 

whether visitation will continue.

* * *

Not final until disposition of timely filed motion for rehearing.