| Florida Court of Appeals |
| CASE NO. 98-2605 |
| 738 So.2d 425, 1999.FL.45949 |
| July 07, 1999 |
| L.B. AND B.B., APPELLANTS, v. C.A. AND DEPARTMENT OF CHILDREN AND FAMILIES, APPELLEES. |
| Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Karen L. Martin, Judge; L.T. Case No. CJ 96-300001-JL. |
| Eric C. Cheshire, West Palm Beach, for appellants. Lawrence M. Fuchs
of Fuchs and Jones, P.a., Royal Palm Beach, for Appellee-C.A.. Judith
Levine of the Child Legal Services Unit State Attorneys Office, West
Palm Beach, for Appellee-The Department of Children and Families. |
| The opinion of the court was delivered by: Klein, J. |
| T.B. is a child born out of wedlock. After a petition for adjudication
of dependency was filed pursuant to Chapter 39 of the Florida Statutes,
T.B. was temporarily placed with her maternal grandparents, but was
ultimately reunited with her mother, C.A.. Her grandparents appeal an
order holding that they have no standing to seek custody, visitation, or
modification of that order. We affirm. |
| T.B. was born in 1989. Her parents were not married, and her father
has not been involved with her life or in this action. She has lived
with her mother, with her mother and her maternal grandparents, and with
her grandparents. |
| In 1994 T.B.'s mother got married. In 1996 an investigator for the
Department of Children and Families filed a petition for adjudication of
dependency, because of allegations of abuse made against T.B.'s
stepfather. |
| T.B. was then placed in a temporary shelter with her grandparents, but
after allegations against T.B.'s grandfather, and further court
proceedings, the mother and the grandparents participated in mediation
which resulted in T.B. remaining temporarily with the grandparents. |
| T.B.'s mother and stepfather complied with the terms of the mediation
agreement, and in February 1997, the court entered an order providing
that T.B. would be reunited with her mother, with the court continuing
protective supervision and retaining jurisdiction. In July, 1997 T.B.
and her mother and stepfather, who is in the military, moved to the
state of Washington, and the supervision of them was transferred by
Florida to a Washington agency. The Washington agency ultimately
recommended that protective supervision be terminated and that T.B. be
allowed to visit her grandparents only with her parents. |
| In April, 1998 the grandparents, asserting that the Florida dependency
action was still pending, filed the petition in this case for custody,
modification, visitation and telephone contact. The
petition did not allege any harm to T.B. other than things which had
occurred prior to the 1997 order returning T.B. to her mother.
T.B.'s mother and The Department of Children and Families responded with
a motion to dismiss the petition for adjudication of dependency and
termination of protective supervision. The grandparents' petition was
denied on the ground that they had no standing, and they appeal. The
resolution of the petition to terminate supervision is not in this
record. |
| In Brunetti v. Saul, 724 So. 2d 142 (Fla. 4th DCA 1998), rev. granted,
No. 94,843 (Fla. June 17, 1999), we concluded that section 752.01(1)(d),
Florida Statutes (1997), authorizing grandparent visitation for children
born out of wedlock was unconstitutional. We arrived at that Conclusion
based on Beagle v. Beagle, 678 So. 2d 1271 (Fla. 1996) and Von Eiff v.
Azicri, 720 So. 2d 510 (Fla. 1998), in which the Florida Supreme Court
held other provisions of the grandparent visitation statute
unconstitutional. |
| The grandparents attempt to distinguish the present case on the ground
that there were proceedings under Chapter 39, Florida Statutes. Chapter
39, however, only authorizes grandparent visitation after a child has
been adjudicated dependent, and terminates those visitation rights when
a child has been returned to the physical custody of a parent or others.
§ 39.4105, Fla. Stat. T.B. was
never declared dependent, and accordingly the grandparents have no right
to visitation simply because of the Chapter 39 proceeding. |
| We disagree with the contrary result reached in Clinebell v.
Department of Children and Families, 711 So. 2d 194 (Fla. 5th DCA 1988).
The Clinebell court concluded that grandparent visitation could be
imposed under similar circumstances; however, it reached that decision
based on language in Beagle limiting Beagle to "situations in which
a child is living with both natural parents." Beagle, 678 So. 2d at
1272. The Clinebell court did not have the benefit of Von Eiff, in which
the court broadened the Beagle rationale to one parent families. We are
not certifying conflict with Clinebell because we believe that it is
overruled by Von Eiff. |
| We thus conclude that the
trial court was correct in dismissing the grandparents' petition for
visitation. We also affirm denial of the other relief claimed because
there are no allegations of any harm occurring after the order reuniting
T.B. with her mother in 1997. |
| TAYLOR and HAZOURI, JJ., concur. |
| NOT FINAL UNTIL THE DISPOSITION OF ANY TIMELY FILED MOTION FOR
REHEARING. |