5D03-3217 Buckner v. Family Services of Central Florida

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State: Florida

Court: Florida Fifth District Court

Docket No: 5D03-3217

Case Date: 07/19/2004

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

JEFFREY BUCKNER and DEBBIE BUCKNER, Appellants, v. Case No. 5D03-3217 FAMILY SERVICES OF CENTRAL FLORIDA, INC., et al., Appellees. / Opinion Filed July 23, 2004 Appeal from the Circuit Court for Lake County, Lawrence J. Semento, Judge. Jerri A. Blair of Lockett & Blair, P.A., Tavares, for Appellants. Ralph J. McMurphy, Wildwood, for Department of Children and Family Services, for Appellees. PER CURIAM. Jeffrey and Debbie Buckner ("the Buckners") appeal from a final order dismissing their petition against the State of Florida, Department of Children and Families ("DCF"). The Buckners filed suit against DCF individually and as next friend of a minor child, S.H. The Buckners sought declaratory relief, visitation and adoption concerning S.H. According to the petition, the Buckners had previously served as foster parents for S.H. The thrust of the petition is that a strong parent/child relationship developed between them and S.H. and that DCF has refused to approve their adoption of S.H. and has precluded contact

between them and S.H. In dismissing the petition with prejudice for failure to state a cause of action, the trial court ruled that it had no authority: (1) over placement of the child except to review the appropriateness of the adoptive placement, or (2) to interfere with DCF's selection of an adoptive family. The court added that the Buckners failed to allege facts showing that they have legal standing to pursue the action on behalf of S.H. Our review is de novo. Palumbo v. Moore, 777 So. 2d 1177 (Fla. 5th DCA 2001). We conclude that the trial court correctly dismissed the Buckners' petition. The Buckners' reliance on Kingsley v. Kingsley, 623 So. 2d 780 (Fla. 5th DCA 1993), for the proposition that an adult with knowledge of the facts is an appropriate person to file an action such as this as next friend of the minor, S.H., is misplaced. In Kingsley, this court explained the procedure applicable where an adult seeks to file a termination of parental rights petition on behalf of a child. The court stated that an un-emancipated minor does not have the legal capacity to initiate legal proceedings in his or her own name and continued: This historic concept is incorporated into Florida Rule of Civil Procedure 1.210(b), which provides as follows: Rule 1.210 Parties .... (b) Infants or Incompetent Persons. When an infant or incompetent person has a representative, such as a guardian or other like fiduciary, the representative may sue or defend on behalf of the infant or incompetent person. An infant or incompetent person who does not have a duly appointed representative may sue by next friend or by a guardian ad litem. The court shall appoint a guardian ad litem for an infant or incompetent person not otherwise represented in an action or shall make such other order as it deems proper for the protection of the infant or incompetent person. 2

See also Art. III,

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