DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

M.K., and JAMES WALSH,

Attorney ad Litem, on behalf of A.P., a minor child,

Appellants,

v.

DEPARTMENT OF CHILDREN & FAMILIES, STATEWIDE GUARDIAN

AD LITEM PROGRAM, ELLEN KAPLAN, ESQ. (Adoption Entity),

T.P., the Mother, and D.C., the Father,

Appellees.

No. 4D2023-1044

[December 20, 2023]

Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm 

Beach County; Melanie Dale Surber, Judge; L.T. Case No. 

502021DP000060XXXXSB.

Alan I. Mishael of Alan I. Mishael, P.A., Boca Raton, for appellant M.K.

James Walsh, Attorney ad Litem, Foster Children’s Project & Juvenile 

Advocacy Project, Legal Aid Society of Palm Beach County, West Palm 

Beach, for appellant James Walsh.

Sara Elizabeth Goldfarb, Statewide Director of Appeals, and Sarah Todd 

Weitz, Senior Attorney, Appellate Division, Statewide Guardian ad Litem 

Office, Tallahassee, for appellee Guardian ad Litem.

Andrew Feigenbaum, Appellate Counsel, Children’s Legal Services, 

West Palm Beach, for appellee Department of Children & Families.

Ellen Kaplan of The Law Offices of Ellen M. Kaplan, P.A., Coral Springs, 

for appellees Adoption Entity and Prospective Adoptive Parent.

WARNER, J.

M.K., a foster parent, and the attorney ad litem for the child A.P., appeal 

the denial of M.K.’s motion to recognize her standing as a party, and her 

motion for intervention in the proceedings involving the foster child. Those 

proceedings commenced as a dependency action followed by a petition to 
2

terminate parental rights filed by the Department. M.K. sought party 

status based upon her own private petition to terminate parental rights, 

or alternatively she sought to intervene in the section 63.082(6), Florida 

Statutes (2022), proceedings regarding the child’s placement and best 

interests. We affirm the denial of M.K.’s standing as a party in the 

dependency proceedings and the denial of her motion to intervene. The 

Florida Rules of Juvenile Procedure which govern dependency and 

termination proceedings do not make M.K. a party to the dependency 

proceeding on the basis of her petition to terminate parental rights. The 

rules also do not permit intervention in dependency proceedings. See K.N. 

v. Dep’t of Child. & Fams., 359 So. 3d 741, 743 (Fla. 4th DCA 2023), 

decision clarified on denial of reh’g, 359 So. 3d 792 (Fla. 4th DCA 2023), 

rev. granted, No. SC23-0665, 2023 WL 5011735 (Fla. Aug. 7, 2023).

The child in this proceeding was born in November 2020, suffering from 

withdrawal symptoms due to the mother’s drug abuse. This prompted the 

Department of Children & Families to file a shelter petition and then a 

petition for dependency against the parents. The trial court granted both 

petitions. The Department placed the child with appellant M.K., who has 

been the child’s foster mother since January 2021. After the parents failed 

at case plan requirements and other issues, the Department, Guardian ad 

Litem, and the Attorney ad litem for the child filed a joint petition in April 

of 2022 to terminate the parents’ parental rights. The petition alleged that 

the child was bonded to the foster mother who was willing to adopt the 

child.

On the day of the father’s TPR hearing, in October of 2022, the father 

filed a waiver of his rights to, and custody of, the child, and consented to 

his relative, A.S.L., adopting the child. The mother’s rights had already 

been terminated by constructive consent. The father’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. Shortly

thereafter, M.K. filed a petition to terminate the parents’ parental rights.

New 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 an order setting a 

“best interest hearing,” pending termination of the father’s parental rights 

and A.S.L.’s adoption of the child. M.K. filed a response in opposition to 

the motion to stay the TPR, arguing that she had party status to object as 

a petitioner in her TPR petition. Alternatively, M.K. moved the court,

pursuant to Florida Family Law Rule of Procedure 12.230, to permit her 

to intervene in the Adoption Entity’s section 63.082(6) proceeding.
3

After a hearing, the trial court granted the Adoption Entity’s motion to 

intervene and rejected M.K.’s claim of party status in the proceedings. The 

court noted, “Everything pending before the Court concerning the ongoing 

Chapter 39 proceeding and/or the Adoption Entity’s section 63.082(6) 

motion to intervene therein are filed in the original Dependency Case . . . .” 

Because M.K. had never served her TPR petition, the court concluded that 

filing alone was insufficient to convey party status. The court found:

[M.K.’s private petition to terminate rights] does not make the 

Foster Mother a Party to the Termination of Parental Rights 

Petition filed by the Department, which is the action to which 

the Adoption entity seeks to intervene. Thus, the Foster 

Mother is not a Party to the Termination of Parental Rights 

Petition filed by the Department, rather she is a participant as 

defined by Florida Law.

The court also denied intervention to M.K., concluding:

[A]lthough the evidentiary hearing regarding modification of 

placement has yet to be heard, this does not change the 

analysis that the parent’s choice of placement with a 

prospective parent when their parental rights are still intact 

is an exclusively parental decision under the law. The 

decision was subject only to the trial court determining that 

the prospective parent is properly qualified and that the 

adoption is in the best interests. This Court therefore must 

address the Adoption entity motion for change of placement 

pending adoption prior to any other potential adoption entities 

requests to intervene.1

From this order, M.K. brings this appeal.

1 The trial court incorrectly relied on R.L. v. W.G., 147 So. 3d 1054 (Fla. 5th DCA 

2014), to support its conclusion that prior to termination a parent has exclusive 

decision-making as to placement of the child, subject only to the trial court’s 

determination whether the prospective parent is qualified and that the adoption 

by that prospective parent is in the child’s best interests. See id. at 1055. R.L.,

however, was decided pursuant to an earlier version of the statute, section 

63.082(6)(d), Florida Statutes (2014). The 2022 version applicable to this case 

provided that the “right of the parent to determine an appropriate placement for 

the child” was but one factor to be weighed by the dependency court to determine

the best interests of the child. See § 63.082(6)(e)8., Fla. Stat. (2022).
4

Although the standard of review for an order denying a motion to 

intervene is abuse of discretion, where the issue is standing, the review is 

de novo. K.N., 359 So. 3d at 743. Appellate review of issues involving the 

interpretation of statutes is also de novo. B.Y. v. Dep’t of Child. & Fams., 

887 So. 2d 1253, 1255 (Fla. 2004).

Foster Parent as Party

M.K. argues that she was entitled to party status in the pending 

dependency action by virtue of filing a TPR petition, making her a party 

pursuant to section 39.01(58), Florida Statutes (2022), and Florida Rule 

of Juvenile Procedure 8.210(a). Adoption Entity and GAL argue that M.K. 

did not become a party petitioner in the Department’s dependency action. 

The statute and rules compel us to agree with Adoption Entity and GAL.

Pursuant to section 39.01(58), a “party” “means the parent or parents 

of the child, the petitioner, the department, the guardian ad litem . . . and 

the child.” § 39.01(58) (2022) (emphasis added). Similarly, Florida Rule 

of Juvenile Procedure 8.210(a) provides that a “party” to a proceeding 

“shall include the petitioner, the child, the parent(s) of the child, the 

department, and the guardian ad litem[.]” Fla. R. Juv. P. 8.210(a)

(emphasis added). Also, rule 8.210(b) defines “participant” as:

[A]ny person who is not a party but who should receive notice 

of hearings involving the child. Participants include foster 

parents or the legal custodian of the child, identified 

prospective parents, actual custodians of the child, 

grandparents entitled to notice of an adoption proceeding as 

provided by law, the state attorney, and any other person 

whose participation may be in the best interest of the child.

Thus, the rules permit the trial court to add participants, but do not 

allow the trial court to add parties. Both petitions for dependency and 

petitions for termination of parental rights may be filed by any person 

“ha[ving] knowledge of the facts.” See §§ 39.501(1); 39.802(1), Fla. Stat.

(2022); Fla. R. Juv. P. 8.310(a)(1) (“A dependency petition may be filed as 

provided by law.”); Fla. R. Juv. P. 8.500(a)(2) (“A petition for termination of 

parental rights may be filed at any time by . . . any person having 

knowledge of the facts.”). The juvenile rules also contemplate that more 

than one termination petition may be filed. See Fla. R. Juv. P. 8.500(a)(2)

(emphasis added) (“Each petition shall be titled a petition for termination 

of parental rights.”).
5

The question presented is whether a person who files a petition for 

termination of parental rights is a “party” to another petition filed by a 

different person or agency or to the dependency proceeding arising out of 

the other petition. We conclude the language of the statute and rule do 

not contemplate that a petitioner is a party to all the proceedings arising 

out of another petition simply by filing her own petition. Section 39.01(58)

and rule 8.210(a) define a “party” as including “the petitioner.” The use of 

the definitive article defines the noun “petitioner.” Because each petition 

filed has a different petitioner, the petitioner is a party only to proceedings 

arising out of her own petition.

J.H . v. Department of Children and Families, 279 So. 3d 316 (Fla. 4th 

DCA 2019), also supports the conclusion that M.K.’s petition did not give 

her party status in the DCF proceeding. In J.H., the Department filed a 

petition to terminate both parents’ rights to the child, and a grandmother 

filed her own petition to terminate the rights of one of the parents but not 

J.H. Id. at 318–19. The trial court terminated both parents’ rights and 

rejected the grandmother’s petition. Id. at 322.

The grandmother appealed the termination of J.H.’s parental rights. 

We held that the grandmother had no standing to appeal the termination,

because the grandmother was not a party to the Department’s petition. Id. 

at 324. We stated:

Although section 39.802(1), Florida Statutes (2018) would 

allow the maternal grandmother to be a petitioner seeking to 

terminate parental rights, that section does not authorize her 

to challenge the final judgment terminating J.H.’s rights. She 

was not a party to DCF’s petition to terminate J.H.’s rights.

Id. (emphasis added).

Additionally, and more importantly here, M.K. was not a party to the 

dependency proceeding. The juvenile rules made her a participant, but 

nothing in the rules suggests that the filing of a TPR petition would make 

her a party to the dependency, where she did not file a petition for 

dependency. See Fla. R. Juv. P. 8.210(b).

M.K. points out that section 63.082 was substantially amended by the 

Legislature in 2023, with the amendments going into effect a mere three 

months after the order denying M.K. party status. See Ch. 2023-257, 

§ 63.082(6)(a), Laws of Fla. (2023). The statute now directs the trial court 

to grant party status to a foster parent “who is a prospective adoptive 

placement for the limited purpose of filing motions and presenting 
6

evidence pursuant to this subsection.” § 63.082(6)(e), Fla. Stat. (2023). 

That statute went into effect on July 1, 2023. In addition to creating party 

status for the foster parent who is a prospective adoptive placement, the 

Legislature determined that “the right of a parent to determine an 

appropriate placement for a child who has been found dependent is not 

absolute and must be weighed against other factors that take the child’s 

safety, well-being, and best interests into account.” § 63.082(6)(a)3., Fla. 

Stat. (2023). To that end, the statute creates a rebuttable presumption 

that the child’s placement with the current caregiver is stable, and it is in 

the child’s best interests to remain in that current stable placement when 

“the child has been in his or her current placement at least 9 continuous 

months or 15 of the last 24 months immediately preceding the filing of the 

motion to intervene [by the adoption entity.]” § 63.082(6)(e), Fla. Stat. 

(2023). The statute creates substantive rights, and therefore we cannot 

apply it retroactively.2 See Arrow Air, Inc. v. Walsh, 645 So. 2d 422, 425 

(Fla. 1994) (“The presumption against retroactive application of a law that 

affects substantive rights, liabilities, or duties is a well-established rule of 

statutory construction.”).

For these reasons, we conclude that M.K. cannot be considered a party 

to the dependency proceeding in this case.

Intervention

M.K. also sought to intervene in the adoption proceedings, pursuant to 

Florida Family Law Rule of Procedure 12.230. That rule permits 

intervention in family law proceedings. The family procedural rules apply 

“to all actions concerning family matters, including injunctions for 

protection against domestic, repeat, dating, and sexual violence, and 

stalking, except as otherwise provided by the Florida Rules of Juvenile 

Procedure or the Florida Probate Rules.” Fla. Fam. L. R. P. 12.010(a)(1). 

A “family law matter” includes adoptions. Id. But “[t]he form, content, 

procedure, and time for pleading in all proceedings shall be as prescribed 

by the statutes governing the proceeding unless these rules or the Florida 

Rules of General Practice and Judicial Administration, where applicable, 

specifically provide to the contrary.” Fla. Fam. L. R. P. 12.010(2).

The 2022 version of section 63.082, Florida Statutes, in effect for this 

proceeding provides the procedure for obtaining the consent of a parent 

2 M.K. also advises that the best interest hearing, which concluded prior to July 

1, 2023, was reopened and evidence taken after the effective date of the statute.

The question of whether the amendments to the statute would apply to the 

reopened case is not before us.
7

for adoption where the child is subject to the jurisdiction of the 

dependency court:

(6)(a) If a parent executes a consent for adoption of a minor 

with an adoption entity or qualified prospective adoptive 

parents and the minor child is under the supervision of the 

department, or otherwise subject to the jurisdiction of the 

dependency court as a result of the entry of a shelter order, a 

dependency petition, or a petition for termination of parental 

rights pursuant to chapter 39, but parental rights have not 

yet been terminated, the adoption consent is valid, binding, 

and enforceable by the court.

(b) Upon execution of the consent of the parent, the adoption 

entity shall be permitted to intervene in the dependency 

case as a party in interest and must provide the court that 

acquired jurisdiction over the minor, pursuant to the shelter 

order or dependency petition filed by the department, a copy 

of the preliminary home study of the prospective adoptive 

parents and any other evidence of the suitability of the 

placement.

(c) If an adoption entity files a motion to intervene in the 

dependency case in accordance with this chapter, the 

dependency court shall promptly grant a hearing to 

determine whether the adoption entity has filed the required 

documents to be permitted to intervene and whether a change 

of placement of the child is in the best interests of the child. 

Absent good cause or mutual agreement of the parties, the 

final hearing on the motion to intervene and the change of 

placement of the child must be held within 30 days after the 

filing of the motion, and a written final order shall be filed 

within 15 days after the hearing.

(d) If after consideration of all relevant factors, including those 

set forth in paragraph (e), the court determines that the 

prospective adoptive parents are properly qualified to adopt 

the minor child and that the adoption is in the best interests 

of the minor child, the court shall promptly order the transfer 

of custody of the minor child to the prospective adoptive 

parents, under the supervision of the adoption entity. . . .

. . . .
8

(f) The adoption entity shall be responsible for keeping 

the dependency court informed of the status of the

adoption proceedings at least every 90 days from the date of 

the order changing placement of the child until the date of 

finalization of the adoption.

§ 63.082(6), Fla. Stat. (2022) (emphasis added). The statute clearly 

contemplates that the hearings to determine whether to permit the 

adoption entity to intervene and whether a change of the child’s placement 

is in the best interests of the child are to be held in the dependency action, 

separate for the adoption proceeding. The juvenile rules apply in 

dependency court, not the family law rules. The family law rules apply 

“except as otherwise provided in the Florida Juvenile Rules of Procedure,” 

see Fla. Fam. L. R. P. 12.010(a)(1), and the family law rules state the 

procedure shall be “as prescribed by the statutes governing the 

proceeding[.]” See Fla. Fam. L. R. P. 12.010(a)(2). Thus, because section 

63.082 requires the Adoption Entity to intervene in the dependency court, 

the juvenile rules apply.

We recently held in K.N. that the juvenile rules do not permit the trial 

court to grant intervention to foster parents in dependency proceedings. 

359 So. 3d at 745. Therefore, consistent with K.N., we find no authority 

pursuant to the juvenile rules to allow intervention by M.K. in the 

dependency proceedings pursuant to section 63.082.

Certification of Conflict

On rehearing in K.N., we certified conflict with T.R.-B. v. Department of 

Children & Families, 335 So. 3d 729 (Fla. 3d DCA 2022). K.N., 359 So. 3d 

at 794. The supreme court has granted review and the matter is presently 

pending a decision. We certify the same conflict with T.R.-B. in this case.

Conclusion

We hold that the filing of a petition for termination of parental rights 

does not provide the filer with party status in dependency proceedings 

involving the child. We also conclude that the 2022 version of section 

63.082, in effect at the time of M.K.’s petition, did not authorize party 

status for a foster parent. Neither the rules nor the 2022 version of section 

63.082 permitted intervention in the dependency court proceedings. 

Therefore, we affirm the trial court’s rulings denying party status and 

intervention to M.K.

Affirmed.
9

CIKLIN and KUNTZ, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.