Tangles in the Adoption World

by Jeanne T. Tate on Aug. 10, 2020

Divorce & Family Law Adoption 

Summary: Pitfalls and tangles in adoption cases including jurisdiction, notice, father's rights, intervention, consents, living expenses, putative father registry, Indian Child Welfare Act

ADOPTION TANGLES

1.       DO YOU HAVE SUBJECT MATTER JURISDICTION?

A stepparent petition for adoption is filed in a Florida Circuit Court concerning a 12 year old boy, who has lived in Florida with his mother for 10 years.  The child was born out of wedlock in Michigan, where a child support action was brought against the birth father 11 years ago and he was determined to be the father.  The child has never seen the birth father, nor been supported by him.

ANSWER: Maybe

A.      With limited exceptions, under the UCCJEA, a court aware of a prior “custody proceeding” may not exercise jurisdiction over the child or the parties on the issue of custody of the child unless prior case is stayed or terminated.   

F.S. 61.519  Simultaneous proceedings.

(1)  Except as otherwise provided in s. 61.517, a court of this state may not exercise its jurisdiction under ss. 61.514-61.524 if, at the time of the commencement of the proceeding, a proceeding concerning the custody of the child had been commenced in a court of another state having jurisdiction substantially in conformity with this part, unless the proceeding has been terminated or is stayed by the court of the other state because a court of this state is a more convenient forum under s. 61.520. 

B. Your duty: the court of this state shall stay its proceeding and communicate with the court of the other state. If the court of the state having jurisdiction substantially in accordance with this part does not determine that the court of this state is a more appropriate forum, the court of this state shall dismiss the proceeding. F.S. 61.519(2)

See Yurgel v. Yurgel, 572 So.2d 1327, 1332 (Fla. 1990) (proceedings properly begun in Florida remain under Florida’s jurisdiction until Florida determines otherwise); Warfield v. Warfield, 661 So.2d 924, 925 (Fla. 4th DCA 1995) (UCCJA does not require a court to defer to subsequent actions; rather, the court must only defer to proceedings that are pending at the time their action was instituted).         

C.      One exception:

F.S. 61.516  Jurisdiction to modify a determination.

Except as otherwise provided in s. 61.517, a court of this state may not modify a child custody determination made by a court of another state unless a court of this state has jurisdiction to make an initial determination under s. 61.514(1)(a) or (b) and:

(1)  The court of the other state determines it no longer has exclusive, continuing jurisdiction under s. 61.515 or that a court of this state would be a more convenient forum under s. 61.520; or

(2)  A court of this state or a court of the other state determines that the child, the child's parents, and any person acting as a parent do not presently reside in the other state.

F.S. 61.515  Exclusive, continuing jurisdiction.

(1)  Except as otherwise provided in s. 61.517, a court of this state which has made a child custody determination consistent with s. 61.514 or s. 61.516 has exclusive, continuing jurisdiction over the determination until:

(a)  A court of this state determines that the child, the child's parents, and any person acting as a parent do not have a significant connection with this state and that substantial evidence is no longer available in this state concerning the child's care, protection, training, and personal relationships; or

(b)  A court of this state or a court of another state determines that the child, the child's parent, and any person acting as a parent do not presently reside in this state.

D. Type of proceedings that count F.S. 61.503(4)

 

A proceeding in which legal custody, physical custody, residential care, or visitation with respect to a child is an issue. The term includes a proceeding for divorce, separation, neglect, abuse, dependency, guardianship, paternity, termination of parental rights, and protection from domestic violence, in which the issue may appear. The term does not include a proceeding involving juvenile delinquency, contractual emancipation, or enforcement under ss. 61.524-61.540

E. Why this is important:

The absence of subject matter jurisdiction is fatal, cannot be waived, cannot be created by agreement, and can be raised for the first time on appeal. Keveloh v. Carter, 699 So. 2d 285 (Fla. 5th DCA  1997).

2.       WHO’s THE DADDY?

John conceives a child with Bertha when she is separated from her husband.  He supports Bertha during the pregnancy, but a week prior to her delivery, Bertha reconciles with her husband.  She refuses to allow John access to her or the baby at the hospital, and denies him visits after discharge.  John files a paternity action after birth under Chapter 742, Florida Statutes. Is he entitled to bring this suit?

ANSWER: It depends on if he has standing.

Fla. Stat. §742.10(1)

This chapter provides the procedure for determining paternity of children born out of wedlock.

Fla. Stat. §382.013(2)

This chapter provides that when mother is married at time of birth, her husband’s name shall be entered on birth certificate as the father of the child.

Michael H. v. Gerald D., 491 U.S. 110, 127 fn 6 (1989)

Man who fathers a child with a woman who is married to another man is unqualifiedly denied rights to the child.

Dep’t of Revenue v. Cummings, 871 So.2d 1055 (Fla. 2nd DCA 2004)

aff’d, 930 So.2d 604 (Fla. 2006)

If the mother is in agreement with her husband’s assertion of legal rights to the child, there may be no basis for adjudicating paternity in a person other than the legal father.S.B. v. D.H., 736 So.2d 766 (Fla. 2nd DCA 1999) unless the father has manifested a substantial and continuing concern for the child's welfare. Simmonds V. Perkins, 247 So.3d 397 (Fla. 2018)

3.       WHO IS ENTITLED TO THE CHILD?

DCF files a shelter proceeding involving a 5 year old girl.  After an adjudication of dependency and the scheduling of a termination of parental rights trial, the birth mother executes a private consent for adoption to Baby Love Adoption Agency who seeks custody of the child for private adoption placement. Is this proper?

ANSWER: Yes

F.S.§63.082(6) . The legal considerations following a private consent can be found in §63.082(6)(a) which provides that the parent’s consent for placement of the child with an adoption entity, “is valid, binding, and enforceable by the court”, and thus is not subject to examination, repudiation, or withdrawal in the dependency proceeding, unless the Court finds that it was obtained by fraud and duress. This is consistent with C.G. v. Guardian Ad Litem Program, 920 So.2d 854 (Fla. 4th DCA 2006).  In C.G., the State of Florida sheltered the subject child and initiated a dependency proceeding. The child’s birth mother, however, then signed her voluntary consent to adoption to a private adoption entity, so that her child could be placed for adoption.  As a result, the State of Florida announced its intent to voluntarily dismiss its petition for dependency. Subsequently, the adoption entity announced that she did not intend to go forward with the adoption because the prospective adoptive parents no longer wanted to take custody.  The C.G. appellate panel found that once the adoption entity accepted the surrender and consent, it, in turn, was locked in, without any right to reject the surrender, the Court commenting “that the surrender and consent bound the adoption entity to accept responsibility for the placement of the child.” (emphasis added).  C.G. at 856.

4.       DOES THE CONSENT COMPLY WITH FLORIDA LAW

Birth mother signs a consent for adoption directly to her neighbors, who have been caring for her child for a year.  Through an attorney, they file a Petition for Adoption. Does this consent comport with Florida law?

ANSWER: No

Florida law requires that an Adoption Entity be involved in all non-relative placements that are being handled pursuant to Florida law. This means that the consent for adoption must surrender parental rights TO the adoption entity (licensed Florida agency or attorney) and not directly to the adoptive parents.  

A. The Legislature has provided criminal sanctions against those who place or attempt to place children without an adoption entity: 

63.212  Prohibited acts; penalties for violation.--

(1)  It is unlawful for any person:

(a)  To place or attempt to place a minor for adoption with a person who primarily lives and works outside this state unless all of the requirements of the Interstate Compact for the Placement of Children, when applicable, have been met.

(b)  Except an adoption entity, to place or attempt to place within the state a minor for adoption unless the minor is placed with a relative or with a stepparent. This prohibition, however, does not apply to a person who is placing or attempting to place a minor for the purpose of adoption with the adoption entity.

 

B. J.S. v. S.A., 912 So.2d 650, 657 (Fla. 4th DCA 2005), where the court stated:

Section 63.212(1)(b), Florida Statutes (2004), provides that it is unlawful for any person "[e]xcept an adoption entity, to place or attempt to place within the state a minor for adoption unless the minor is placed with a relative or with a stepparent." If done with criminal intent, this is a third degree felony. See § 63.212(8), Fla. Stat. (2004). Since every adoption involves the placement of a child and only adoption entities are allowed to place, it logically follows that an adoption entity must be involved in every non-relative/step-parent adoption.

       Chapter 63 also specifies that an adoption entity be involved in a minor parent's placement of her child for adoption. Section 63.082(1)(b), Florida Statutes (2004), states that a minor parent, "has the power to relinquish his or her control or custody of the child to an adoption entity." This implies that a minor does not have the power to relinquish custody of the child to anyone other than an adoption entity. See Moonlit Waters Apartments, Inc. v. Cauley, 666 So.2d 898 (Fla.1996) (relying on principle of statutory construction, expressio unius est exclusio alterius, mention of one thing implies exclusion of another).

The Florida Legislature clearly contemplated that an adoption entity be involved in all non-relative/non-stepparent adoptions handled under Chapter 63. Under the statutory scheme permitting parents to voluntarily surrender rights to their children, the main purpose of the "adoption entity" rule is to prevent baby-selling and inappropriate placement of children. See Adoption Hot Line, Inc. v. State, Dep't of Health and Rehabilitative Servs., 385 So.2d 682, 684 (Fla. 3d DCA 1980) (affirming a temporary injunction against an unlicensed "adoption hotline" to prevent its advertising and placement activities). Approved adoption agencies are also designed to protect natural parents from precipitous decisions. Their task is to serve the interests of adoptive parents and the welfare of the child as well. See Sees v. Baber, 74 N.J. 201, 377 A.2d 628 (1977).

        Section 63.039, Florida Statutes, imposes affirmative duties on adoption entities for the protection of the birth parents, the adoptive parents, and the child. It provides sanctions for an adoption entity's failure to perform certain duties. Among the many statutory duties imposed on adoption entities are the requirements to prepare a Notice of At-Risk Placement for the adoptive parents, conduct pre-consent interviews of the birth parents, give notice to the court within 48 hours of the adoptive parents taking custody for the court's preliminary approval, and file monthly supervision reports with the court. All of these requirements went unmet in this case because no adoption entity was involved. 912 So.2d  at 657-58.

 C. An "adoption entity" is defined in section 63.032 as:

        [T]he department, an agency, a child-caring agency registered under s. 409.176, an intermediary, or a child-placing agency licensed in another state which is qualified by the department to place children in the State of Florida.

        The term "agency" means "any child-placing agency licensed by the department pursuant to s. 63.202 to place minors for adoption." § 63.032(5), Fla. Stat. (2004).

        The term "intermediary" means "an attorney who is licensed or authorized to practice in this state and who is placing or intends to place a child for adoption...." § 63.032(9), Fla. Stat. (2004). Attorney Lynne Baldwin testified that she did not "in any way, arrange this adoption," or "place" the child. The term "place" is broadly defined by the statute as follows:

        "To place" means the process of a parent or legal guardian surrendering a child for adoption and the prospective adoptive parents receiving and adopting the child, and includes all actions by any person or adoption entity participating in the process.

        §63.032(15), Fla. Stat. (2004). 

5.       ARE THE LIVING EXPENSES LEGAL?

The affidavit of expenses in an adoption case reveals that the Adoption Entity paid an incarcerated birth mother $1,000.00 to get back on her feet when she is released from prison in two years. The birth mother said she intends to use the money to buy a car.  The affidavit also reflects that the birthmother was given $500 to reimburse her for rent she paid before she was incarcerated. Are these living expense legal?

ANSWER: No

  1. Florida law requires that any and all living expenses paid be actual and reasonable expenditures necessary for the health and well-being of the birth mother and the unborn child. Florida Statute §63.212(1)(c).   Permissible categories (rent, utilities, basic telephone service, food, toiletries, necessary clothing, transportation, insurance).

 

§63.212(1)(c) (outlines the time frame that living expense can be paid as a reasonable one, not to exceed 6 weeks post partum) and §63.097(2)(a) (allows living expenses “up to” 6 weeks post partum), demonstrate that the $1,000 runs afoul of the baby buying prohibitions of the statute. It is not appropriate to provide lump sum funds directly to a birth mother to buy a car.

Additionally, birth mother living expenses in Florida may not be paid retroactively – §63.097(2)(a) defines reasonable living expenses of the birth mother which she is unable to pay due to unemployment, underemployment, or disability.   This means that living expenses already paid by a birth mother cannot be reimbursed to her.  This is independent of the prudent and standard practice of paying providers directly (as opposed to lump sum large payments to birth mothers) to ensure that the living expenses actually are utilized for the permissible expenditures and not some other purpose.

  1. While it is incumbent on all attorneys to candidly disclose the law to the court as well as fully disclose the facts and circumstances surrounding each placement, such as incarceration dates of the birth mother, the age of the child, the timing of the payments, the birth mothers expected release (years after the birth, etc), these are often no-adversarial proceedings and therefore the court’s antenna should be high. 

6.       DOES  A STEP-PARENT ADOPTION REQUIRE A CHECK OF THE PUTATIVE FATEHR REGISTRY?

ANSWER: Yes

§63.054(7); (7)  In each proceeding for termination of parental rights or each adoption proceeding in which parental rights are being terminated simultaneously with entry of the final judgment of adoption, as in a stepparent and relative adoption filed under this chapter, the petitioner must contact the Office of Vital Statistics by submitting an application for a search of the Florida Putative Father Registry. The petitioner must provide the same information, if known, on the search application form that the registrant furnished under subsection (3). Thereafter, the Office of Vital Statistics shall issue a certificate signed by the State Registrar certifying:

(a)  The identity and contact information, if any, for each registered unmarried biological father whose information matches the search request sufficiently so that such person may be considered a possible father of the subject child; or

(b)  That a diligent search has been made of the registrants who may be the unmarried biological father of the subject child and that no matching registration has been located in the registry.

The certificate must be filed with the court in the proceeding to terminate parental rights or the adoption proceeding. If a termination of parental rights and an adoption proceeding are being adjudicated separately, the Florida Putative Father Registry need only be searched for the termination of parental rights proceeding.

 

7. WHAT RELEVANCE DOES INDIAN HERITAGE HAVE IN TERMINATION PROCEEDINGS?

Cherokee Nation v. Nomura, 160 P.3rd 967 (Okla. 2007)

Seminole Tribe of Florida v. Dept. of Children and Families, 959 So. 2nd 761 (Fla. 4th DCA 2007)

In re TD, 890 So. 2nd 473 (Fla. 2nd DCA 20040

8. WHAT NOTICE IS REQUIRED IN TERMINATION OF PARENTAL RIGHTS CASES?

Heart of Adoptions, Inc. v. J.A., 963 So.2nd 189 (Fla. 2007)

S.C. V. Gift of Life Adoptions,Case No. 2D12-1757

KD v. Gift of Life Adoptions, Inc, , 17 So.3d 1244 (Fla. 2nd DCA 2009)


 

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