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2013 Adoption Case Law Update

By: Peggy Senentz on Feb 2, 2014

2013 ADOPTION CASE LAW UPDATE

ADOPTION CASE LAW UPDATE

Adoption case law has a heavy emphasis on analysis of due process considerations, notice and procedural provisions.  This case law update is limited to cases arising from Florida Statute Chapter 63. 

PROCEDURAL FOCUS

Home at Last Adoption Agency v. V.M., 126 So. 3d 1236 (Fla. 5th DCA 2013)
(Long review, but a very intriguing case)

•  Adoption Agency sought to terminate the parental rights of the legal father, V.M., under a theory of abandonment.  Child born in April, 2010 and case not resolved until November, 2013 when child was three and one-half years old. 

•  Mother executed voluntarily consent to adoption, did not disclose she was married at the time the child was born and adoption agency treated father as unmarried biological father. Termination of Parental Rights petition as initially filed in May 2010 stated father served Notice of Intended Adoption Plan but failed to register with the Florida Putative Father Registry.  With the failure of registration, the father was deemed to have surrendered his parental rights. Agency subsequently learns the mother was married and amends its petition in November 2010 and alleges the father had abandoned his child. Allegations include physical, emotional abuse of mother during pregnancy.  Father appointed counsel and father denies the allegations.  Trial held on June 13, 2011. 

•  Upon conclusion of trial, court verbally advises parties that amended petition for termination of parental rights is denied but did believe evidence supported a finding of dependency.  A plan for visitation was developed and the parties agreed the child was to remain in the care of the prospective adoptive parents.  Father filed motion for rehearing and this rehearing heard six months later.  At rehearing, it is determined father not exercising visitation or paying child support as no written order by Court. Court then allows adoption agency to file second amended petition because may be additional grounds for termination.

•  On December 21, 2011, trial court enters its written order entitled, “Order of Adjudication and Findings of Fact, Order of Disposition and Case Plan Acceptance.”  Adoption Agency files the second amended petition to terminate parental rights on December 22, 2011.  Appeal filed by father as to the December 21, 2011 Order three weeks later.

•  On March 16, 2012, second trial held on termination petition.  Father did not call any witnesses and moved to dismiss the petition. Court requested memoranda of law from parties and deferred ruling.

•  On July 24, 2012, 5th DCA issued its ruling on the appeal from the December 21, 2011 ruling.  They upheld the denial of the original termination of parental rights petition but found the trial court erred in proceeding to adjudicate the child dependent in a Chp. 63 proceeding. 

•  Upon receiving the 5th DCA decision, the trial Court then entered a final judgment dismissing the second amended termination of parental rights petition.  In its Order of the Dismissal, the court found that the father had failed to pay child support or visit the child from the date of the child’s birth through the date of the second termination of parental rights trial.  But based upon the issued 5th DCA opinion, the trial court with its dismissal stated the father is under no legal obligation to comply with any case plan task, including support or visitation and the case was dismissed.

•  Adoption agency then filed an appeal and the 5th DCA clarified for the trial court the ruling it had made in its decision.  Specifically, it restated for the trial court that it could not order a chp. 39 dependency case plan in a chp. 63 termination of parental rights proceeding.  It further affirmed that the father has an obligation independent of any erroneously imposed case plan requirements to support and maintain contact with his minor child. 

•  The placement of the child with prospective adoptive parent did not relieve the father of his obligation to demonstrate his commitment to the responsibilities of parenthood.  These obligations are present in ongoing litigation.  It then remanded the case to the district court on a very short time period to respond due to the protracted litigation and its effect on the child.

THINGS TO TAKE AWAY:

(While this case is very lengthy in its procedural path, it provides several helpful markers when dealing with contested cases.)
 
>>  It is not uncommon for a birth mother to withhold information as to father identification especially in cases where a birth mother is fearful of the father due to DV or other concerns (drug use by the father).  It is prudent to undertake an investigation of the mother placing the child.  In this case, perhaps the agency could have located a marriage license or arrest record upon a background or public records search.

>>  Adoption litigation can be lengthy and the duty to support does not cease due to the litigation.  A child support order will more than likely not be in place so work to create the framework for payment either via court depository account or escrow account of attorney. Support can come in many forms.

>>  It is always troubling when adoption litigation cases languish on the court docket.  If case has slowed or a judge does not recognized the expedited nature of the matter, try to work to set a case management conference to determine if any mechanism can be set into motion for expedited hearing.  (See J.A. v. Heart of Adoptions, 954 So. 2d. 1155 (2007). under footnote 9 - “When the life of a child is at stake, it is critical that all parties and all courts cooperate to expedite proceedings when it is possible to do so. Of course, expediency can never come at the expense of justice”.

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K.H. v. The Children’s Home Society of Florida, 120 So. 3d 104 (4th DCA, 2013)

•  As a foundation to understand this case, an indigent parent is entitled under case law to the appointment of counsel.

•  In this case, the court is defining when the right to the appointment of counsel vest.  The court held entitlement to counsel is only present if the Father acts upon his inchoate interest pursuant to the statutory requirements of Florida Statute Chp. 63.  Until the father complies with the statutory requirements, he has no constitutional protected right to counsel. 

•  The court notes but rejects reasoning found in 2ndDCA case of (S.C. v. Gift of Life Adoptions) also examining the same issue of right to counsel for involuntarily termination. (See next case)

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S.C. v. Gift of Life Adoptions, 100 So. 3d 774 (2nd DCA, 2012)

•  Father served Notice of Intended Adoption Plan (NOIAP).  The plan states the father must to comply with certain requirements to assert his parental rights to the child.  The Father files a one sentence answer which acknowledges his opposition to the planned adoption.  The father did not file the other statutory required response including affidavit of pledge of commitment, parenting plan for the child and his agreement to contribute support.  He did not register with the Putative Father Registry. 

•  After the birth of the child, Gift of Life Adoptions files a Petition to Terminate Parental Rights and counsel was appointed for the father.  The hearing on the termination was continued for several months but eventually petition granted with findings of abandonment.  Father appeals and argues counsel should have been appointed earlier to him in the proceedings. 

•  The Court disagrees with the Father as findings of abandonment were present and the father did have counsel when that determination made by trial court.  However, the court reasons that its conclusion might not be the same if the termination petition was only granted based upon the failure to reply to the Notice of Intended Adoption Plan. 

THINGS TO TAKE AWAY:

>>  Prior to seeking an Order Defaulting Father upon his failure to respond to NOIAP, analyze if concerns of S.C. are present and respond appropriately, especially if in 2nd DCA.

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F.R. v. Adoption of Baby Boy Born November 2, 2010, 37 Fla. L. Weekly D1198a,  (1st DCA, 2012)

•  Trial Court abused its discretion by dismissing with prejudice mother’s motion for relief from judgment terminating her parental rights based upon mother’s allegations of fraud.

•  The fraud claim was based upon the mother’s consent to adoption not being translated into the mother’s native language of Swahili and she could not speak or understand English.

•  Appellate court found an evidentiary hearing required and if the allegations are true, the lack of translation into the native language of the mother could undermine the fundamental fairness of the entire proceedings.  The court in footnote also provides an interesting discussion of statute of respose.

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NOTICE AND DUE PROCESS FOCUS CASES

D.M. v. Elizabeth Berkowitz, P.A., 112 So. 3d 575 (4thDCA, 2013)

•  Birth father executed an Affidavit of Non Paternity about six weeks before the birth of the child.  After the birth, the birth father sought to set aside his Affidavit of Non Paternity alleging he was under fraud/duress and did not understand the consequences.  He moved for access to the Court file to review pleadings.  He did not seek access to pleadings of the mother, child or adoptive parents under their right of privacy. The trial court denied access relying heavily upon the statutory provision that adoption records are confidential and only subject to release by order of the court.

•  The appellate court found the father was named in the petition for termination of parental rights and is a party.  He has constitutional rights at risk and therefore is entitled to access.  The court did rule any identifying information as to child, adoptive parents, or mother be redacted. 

THINGS TO TAKE AWAY:

>>  When working with a parent seeking to challenge his consent or affidavit of non paternity, access to court file is a big hurdle.  It is not uncommon for adoption entity to take a position of no access under the confidentiality provision of Chp. 63 or even the Clerk to deny access to file if seeking to file a response.  The right for parent to access is present and it will more than likely take filing the appropriate motion. This case is helpful to counter the absolute bar to no access that opposing counsel may sometimes present.

>>  In terms of language barrier, it is not uncommon in our geographic area to encounter language barriers or lack of or low literacy.  It is vital to confirm a parent has no barriers to understanding the consent document they are signing. 

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J.C., Father of J.M.T. v. Catholic Charities of Central Florida, 98 So. 3d 260 (5thDCA, 2012)

•  Rights of father terminated by trial court.  Father was in prison out of state and indigent. Appellate court held the father being indigent was entitled to the preparation of sufficiently complete record to permit appellate review.  He is also entitled to counsel as indigent.  The termination was overturned and remanded for a new trial.

F. M. v. State Dept of Children and Families, 95 So. 3d 378 (3rd DCA, 2012)

•  Father appeared via phone at advisory hearing.  The hearing notice contained a statement that if the person fails to appear in person, parental rights can be terminated.  The trial court did not inquire why the father was appearing by phone or his ability to appear in person.  The appellate court found abuse of discretion due to lack of inquiry.

THINGS TO TAKE AWAY:

>>  Don’t rely on the “Gotcha”.

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Goodman v. Goodman,  38 Fla. L. Weekly D696a,  (3rd DCA, 2013)
(Remember, the man who adopted his girlfriend? ...  Yes, this is the case.)

•  Goodman was the charge with DUI and another driver was killed in the DUI accident.  Goodman was previously married and had two children of that marriage.  A trust had been established for the children’s benefit.  Subsequent to the DUI, criminal and civil actions ensued. 

•  During the discovery period, Goodman adopted his girlfriend and she became a beneficiary of the trust established for his other children.  The effect of this was for the trust residue to be spilt three ways instead of two and substantially reduced the portion available for his two children from the prior marriage.

•  The appellate period for the adult adoption expired and Goodman then provided notice to parties affected by the adoption.  The children’s Guardian and the children’s mother sought to set aside the adoption. The trial court denied the Motion to Set Aside but did find the GAL and the mother entitled to notice but the lack of notice did not equate to fraud so that reversal was required.

•  Appellate court disagreed and set aside the Final Judgment of Adult Adoption because Goodman’s failure to provide notice constituted a fraud on the court and also allowed the mother and the GAL to intervene in the case as the children’s interest was affected by the judgment of the adult adoption.

THINGS TO TAKE AWAY:

>>  Notice to interested parties is vital to the adoption process.

>>  An interest that entitles a person to notice of an adoption must be direct, financial, and immediate and the person must show that he or she will gain or lose by the direct legal operation and effect of the judgment. 

>>  When working in adult adoptions, it is important to examine the bigger picture and determine if you have an issue with parties affected by the adoption such as a trust beneficiary. 

>>  This case is an extreme example but worth filing away. Please notice this statutory section addressing interested party is in addition to the notice provisions to those who are specifically defined in Chp. 63