5D03-1921 Wixtrom v. DCF

SUPREME COURT CASES

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State: Florida

Court: Florida Fifth District Court

Docket No: 5D03-1921

Case Date: 01/05/2004

Preview:IN THE DISTRICT COURT OF THE STATE OF FLORIDA FIFTH DISTRICT JANUARY TERM 2004

In Re: Guardianship of J.D.S., JENNIFER WIXTROM, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee. ____________________________________/ Opinion filed January 9, 2004. Appeal from the Circuit Court for Orange County, Lawrence R. Kirkwood, Judge. Edward P. Jordan, II, of Edward P. Jordan, II, Julie Sternberg, Diana Kasdan and Jaya Ramji for P.A., Clermont, for Appellant. ACLU Reproductive Freedom Project, New York, Amicus Curiae. Rod Taylor of Rod Taylor, P.A., Gotha, for J.D.S. Susan A. England for Florida NOW, Inc., Fern Park, Amicus Curiae. Charles J. Crist, Jr., Attorney General, George Waas, Senior Attorney General, Mathew D. Staver, Erik W. Stanley and and Lynn C. Hearn, Deputy Solicitor General, Anita L. Staver for Right To Life, Inc., Longwood, Tallahassee, for the State of Florida. Amicus Curiae. Randall C. Marshall for American Civil Liberties Laura L. Whiteside, for Advocacy Center for Union of Florida, Miami, Amicus Curiae. Persons with Disabilities, Inc., Tampa, Amicus Curiae. Bebe J. Anderson for Center of Reproductive Rights, New York, Amicus Curiae. Susan Frietsche and David S. Cohen, for Women's Law Project, Pittsburgh, PA, CASE NO. 5D03-1921

Amicus Curiae. THOMPSON, J. INTRODUCTION Jennifer Wixtrom appeals an order denying her petition to be appointed guardian of the fetus of J.D.S., an incapacitated female.1 We conclude that the trial court correctly denied the petition and affirm. FACTS AND PROCEDURAL HISTORY On 6 May 2003, pursuant to section 415.1051(2), Florida Statutes, the Department of Children and Family Services ("Department") filed a petition seeking an order authorizing emergency adult protective services for J.D.S. In its petition, the Department alleged that J.D.S. was in need of temporary emergency protective services because it had received a report that J.D.S. was pregnant as a result of a sexual battery, which occurred while she was residing in a group home. The petition stated that J.D.S. was a 22-year old woman suffering from severe mental retardation, cerebral palsy, autism, and seizure disorder and that she was unable to adequately provide for her own care and protection. The petition also stated that J.D.S. was nonverbal, unable to make decisions, and unable to comprehend her own mental, physical, or environmental limitations. The petition alleged that J.D.S. was taking numerous medications, which could be detrimental to the fetus. The petition requested appointment of a guardian for J.D.S. and protective supervision for J.D.S. On 13 May 2003, the Department filed an amended petition seeking appointment

The State of Florida and the Department of Children and Family Services filed a joint amicus brief in support of Wixtrom. Right To Life, Inc., also filed an amicus brief in support of Wixtrom. The Center for Persons with Disabilities, the American Association of Disabled People, the American Civil Liberties Union, the American Civil Liberties Union of Florida, the Florida National Organization for Women, Inc., and the Center for Reproductive Rights filed amicus briefs in opposition to Wixtrom. -2-

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of a guardian for J.D.S. and a separate guardian for the fetus. The Department alleged that J.D.S.'s interests and needs were potentially adverse to those of the fetus. The Department stated that J.D.S.'s guardian was required to avoid conflicts of interest, but that a conflict of interest was likely because J.D.S.'s medications could be detrimental to the fetus. On 14 May 2003, the trial court ordered protective services for J.D.S. because she was a vulnerable adult who had been abused. On the same day, Emelia Belford, a professional guardian, instituted a separate proceeding under Chapter 744, which governs guardianships. Belford petitioned the court to determine whether J.D.S. was incapacitated and petitioned to be appointed plenary guardian of J.D.S. Responding to Belford's petition, the trial court appointed an attorney for J.D.S. and appointed a committee to determine if J.D.S. was incapacitated. Belford also filed a petition to be appointed emergency temporary guardian for J.D.S., but the court denied Belford's petition stating that J.D.S. was not then in danger. Upon entry of the order denying Belford's petition to be appointed temporary guardian of J.D.S., Jennifer Wixtrom filed a petition to be appointed guardian of J.D.S.'s fetus. Wixtrom alleged that the appointment was essential because J.D.S. lacked the mental capacity to provide proper prenatal care and to make necessary decisions for the protection and enhancement of the fetus during its formative months. Citing In re T.W., 551 So. 2d 1186, 1190 (Fla. 1989), the trial court ruled that it is error to appoint a guardian ad litem for a fetus. The trial court also cited several cases2 which held that a fetus is not a

In re T.W., 551 So. 2d 1186, 1190 (Fla. 1989); Hernandez v. Garwood, 390 So. 2d 357, 358 (Fla. 1980); Duncan v. Flynn, 358 So. 2d 178, 178 (Fla. 1978); Stern v. Miller, 348 So. 2d 303, 308 (Fla. 1977); Love v. State, 450 So. 2d 1191, 1193 (Fla. 4th DCA 1984); and Styles v. Y.D. Taxi Corp., Inc., 426 So. 2d 1144, 1145 (Fla. 3d DCA 1983). -3-

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"person" within the meaning of certain statutes. Furthermore, the court noted that Chapter 744, Florida Statutes, does not provide for the appointment of a guardian for a fetus. Finally, the court denied the petition because Wixtrom neglected to provide her home address on her guardianship application and because she did not certify notice to all parties. On 2 June 2003, Wixtrom filed a motion for rehearing with a corrected certificate of service. On the same day, the trial court heard testimony regarding J.D.S.'s capacity. The trial court found that J.D.S. was totally incapacitated3 and ordered the appointment of a plenary guardian for J.D.S. The trial court denied a motion to intervene filed by the Department and the Attorney General.4 After Wixtrom's motion

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The trial court found: 1) The nature and scope of the Ward's incapacities are: severe mental retardation, cerebral palsy with a history of autism. 2) The following facts demonstrate that the Ward is totally without capacity to care for the Ward's person or property: The ward may respond to verbal or visual stimuli or follow commands. She is unable to communicate and unable to make her needs known. She requires assistance with ambulation and requires total assistance with all activities of daily living. She cannot hold a pen, cannot write, doesn't know her name or very basic information. She is unable to follow simple commands [sic] and is unable to express basic needs. Her intellectual deficit and inability to make her needs known significantly impairs her ability to make informed decisions in all areas of her life. 3) The Ward lacks total capacity to make informed decisions about care and treatment or to meet the essential requirements for the Ward's physical or mental health or safety; is subject to total legal disability; is incapable of exercising any rights; and a guardian must exercise all delegable rights of the Ward and have full powers and duties with respect to the Ward and the Ward's person and property . . . .

The Department and the Attorney General did not appeal the trial court's order denying intervention, thereby waiving the right to contest the court's ruling on intervention. -4-

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for rehearing was denied, Wixtrom filed a notice of appeal. Thereafter, the trial court entered an order stating that J.D.S.'s guardian had created a plan for J.D.S. which stated that an abortion would not be performed on J.D.S. JURISDICTION In her petition seeking appointment as guardian, Wixtrom alleged that J.D.S.'s guardian owed a fiduciary duty to J.D.S. and that in fulfilling that duty, the guardian might elect to have the fetus aborted or fail to consider that several medications being taken by J.D.S. would have an adverse effect on the fetus. After oral argument, this court was informed that J.D.S. delivered a child.5 We have elected to decide this case on the merits, notwithstanding its mootness, because we consider this issue to be of great public importance and capable of recurring. Enterprise Leasing Co. v. Jones, 789 So. 2d 964 (Fla. 2000); In re T.W.; Holly v. Auld, 450 So. 2d 217 (Fla. 1984); In re Fey, 624 So. 2d 770 (Fla. 4th DCA 1993). STANDARD OF REVIEW The issue before this court is whether the trial court had the authority to appoint a fetal guardian pursuant to Florida's guardianship statutes. Because this case involves the application of statutory law, and is a pure question of law, the standard of review is de novo. Walter v. Walter, 464 So. 2d 538, 539-540

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The attorney representing J.D.S. filed a Suggestion of Birth with this court on 12 September 1. That on Saturday, August 30, 2003 at 10:00 o'clock a.m. in Orange County, Florida, J.D.S. gave birth by cesarean section to a baby girl known as Baby S. 2. Baby S weighed 6 pounds, 7 ounces and her length was 21

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