Adoption of Baby James Doe, Matter of

• Decision Date: 20 December 1990
• Docket Number: No. 90-1320,90-1320
• Citation: 16 Fla. L. Weekly 35,572 So.2d 986
• Parties: 16 Fla. L. Weekly 35 In re the Matter of ADOPTION OF BABY JAMES DOE. John O'BRYAN, Natural Father/Appellant, v. John and Jane DOE, Petitioners/Appellees.
• Court: Florida District Court of Appeals

Page 986

572 So.2d 986

16 Fla. L. Weekly 35

In re the Matter of ADOPTION OF BABY JAMES DOE.

John O'BRYAN, Natural Father/Appellant, v. John and Jane DOE, Petitioners/Appellees.

No. 90-1320.

District Court of Appeal of Florida,

First District.

Dec. 20, 1990.

Dale G. Westling, Sr. of Wallace & Westling, Jacksonville, for appellees.

JOANOS, Judge.

Appellant John O'Bryan appeals the trial court's order denying his objection to the adoption of Baby James Doe, and the order denying his motion for rehearing. The issues presented are (1) whether appellant has the right to assert an interest in the welfare of the minor child, (2) whether the trial court erred in denying appellant's objection to appellees' petition for adoption, and (3) whether appellant's procedural due process rights were violated. We reverse.

On February 6, 1990, appellees John and Jane Doe filed a petition for adoption of a baby boy born December 20, 1989. The petition recited that the child sought to be adopted had been placed in an alternate care home by an intermediary, and that placement with the Does had not yet been approved by the Department of Health and Rehabilitative Services (HRS). The petition further stated that HRS informed the intermediary that appellant had alleged that he is the natural father of the child, but the allegation had been denied by the natural mother and her husband. Consent forms signed by the natural mother and her former husband were attached to the petition for adoption.

On February 13, 1990, appellant was served with a summons, a petition for adoption, and notice of a hearing to be held two days later on February 15, 1990. The hearing took place as scheduled. Present at the hearing were the attorney for the Does and appellant, who represented himself. The issues were whether appellant had the right to request a blood test to confirm or deny his paternity, and if found to be the natural father, whether appellant's consent to the adoption was required. The Does' position was that conception occurred while the natural mother was married, and that the common law presumption of legitimacy precluded appellant from raising the question of paternity or to withhold consent to the adoption, because the natural mother and her former husband had given signed consents to the adoption.

Appellant testified that he is the natural father of the child to be adopted. He offered into evidence (1) an apartment lease signed by him and the natural mother, for the apartment in which they resided together during the natural mother's pregnancy; (2) receipts for baby furniture, bedding, clothing, and gifts which he had purchased for the baby; and (3) an identification band worn by the mother using the name O'Bryan while she was in the hospital for the birth of the child. The judge examined the evidence, but returned it to appellant without comment.

The natural mother and her former husband did not appear at the hearing, and the Does presented no evidence to support the presumption that the former husband was the child's natural father, or to refute appellant's testimony that he had supported the child. In a letter dated February 26, 1990, HRS advised the trial court that the natural mother stated she had had an extramarital affair with appellant, and that she was not certain about the paternity of the child. On March 2, 1990, the trial court entered its order ruling on appellant's objection to the adoption. The order contains the following findings:

A. Pursuant to Section 63.062, Florida Statutes, the consent of John O'Bryan is not required to consummate this adoption.

B. John O'Bryan has failed to rebut the common law presumption that the husband of the natural mother is in fact the natural father of the child to be adopted.

Based on these findings, appellant's objection to the proposed adoption was denied.

On March 12, 1990, through counsel, appellant filed a motion for rehearing. Among other things, the motion alleged that in March 1989, appellant and the natural mother of the child to be adopted had sexual intercourse on several occasions, and that as a result of that intercourse the child was born December 20, 1989. The motion further alleged that the natural mother and her husband separated on March 14, 1989, at which time the mother obtained a temporary injunction against her husband. On October 26, 1989, a final judgment of dissolution of marriage was entered between the natural mother and her husband. The final judgment did not mention that the wife was pregnant with a child of the marriage, although the wife was then seven months pregnant. The motion alleged that throughout her pregnancy, the natural mother told appellant and many other persons that appellant was the baby's father.

In addition to the foregoing, the allegations of the motion state that pursuant to section 63.062(1)(b), Florida Statutes, appellant's consent to the adoption is required, because he had provided the child with support in a repetitive customary manner and had taken affirmative action to acknowledge paternity. Appellant's repetitive support and affirmative action involved buying baby items for the child, taking the child into his custody with the assistance of the sheriff, quitting his job as a truck driver to establish a relationship with the child, and caring for the newborn infant for approximately two weeks. Further, appellant advised HRS that he was the child's natural father, and he objected timely to the adoption. The natural mother then removed the child from appellant's custody, and without his knowledge or consent, relinquished the child for adoption. The motion alleged that appellant also planned to file an acknowledgment of paternity with the Office of Vital Statistics. The motion sought rehearing of the order on appellant's objection to the adoption, or in the alternative an order directing appellant, the child, and the natural mother to submit to human leukocyte antigen (HLA) blood tests. The motion also sought an award of custody or visitation with the child.

The motion for rehearing was denied summarily on March 29, 1990. On May 10, 1990, appellant filed a Statement of the Evidence and Proceedings. Appellees failed to file any objections or amendments to the statement. The trial court's order approving the statement was filed August 9, 1990.

A child born or conceived during a lawful marriage is a legitimate child. Dennis v. Department of Health and Rehabilitative Services, 566 So.2d 1374 (Fla. 5th DCA 1990). Therefore, one seeking to challenge the paternity of such child "has a strong, albeit rebuttable, presumption of legitimacy to overcome." Knauer v. Barnett, 360 So.2d 399, 403 (Fla.1978); Gammon v. Cobb, 335 So.2d 261, 264 (Fla.1976). The rule is that the "proof must be sufficiently strong to clearly remove the presumption of legitimacy." Eldridge v. Eldridge, 153 Fla. 873, 16 So.2d 163, 164 (1944).

Because an unwed father is not similarly situated with an unwed mother or married father, he "is required to show that he has manifested a substantial concern for the welfare of his illegitimate child before he may be accorded standing to assert an interest with respect to that child." Kendrick v. Everheart, 390 So.2d 53, 60 (Fla.1980).

Due to the advent of HLA testing with its better than ninety percent accuracy in determining probability of paternity, and such developments in the law as the Gammon v. Cobb decision, requests for paternity determinations are entertained which formerly were dismissed. See Holliman v. Green, 439 So.2d 955 (Fla. 1st DCA 1983). Moreover, paternity determinations have been permitted in contexts other than Chapter 742 paternity proceedings, where such determinations were essential to the adjudication of the ultimate relief sought. See Kendrick v. Everheart, 390 So.2d at 59-60.

A father's written consent to the adoption of his minor child is required pursuant to the criteria outlined in section 63.062(1)(b), Florida Statutes, which provides:

(1) Unless consent is excused by the court, a petition to adopt a minor may be granted only if written consent has been executed after the birth of the minor by:

. . . . .

(b) The father of the minor, if:

1. The minor was conceived or born while the father was married to the mother.

2. The minor is his child by adoption.

3. The minor has been established by court proceeding to be his child.

4. He has acknowledged in writing, signed in the presence of a competent witness, that he is the father of the minor and has filed such acknowledgment with the vital statistics office of the Department of Health and Rehabilitative...