Adoption of Baby E.A.W., In re

• Decision Date: 30 November 1994
• Docket Number: No. 93-3040,93-3040
• Citation: 647 So.2d 918
• Parties: 19 Fla. L. Weekly D2494 In re the ADOPTION OF BABY E.A.W. G.W.B., Appellant, v. J.S.W. and M.F.W., husband and wife, and Stuart R. Manoff, for Attorney ad litem for Baby E.A.W., Appellees.
• Court: Florida District Court of Appeals

Page 918

647 So.2d 918

19 Fla. L. Weekly D2494

In re the ADOPTION OF BABY E.A.W.

G.W.B., Appellant, v. J.S.W. and M.F.W., husband and wife, and Stuart R. Manoff, for Attorney ad litem for Baby E.A.W., Appellees.

No. 93-3040.

District Court of Appeal of Florida,

Fourth District.

Nov. 30, 1994.

Steven Pesso, Boca Raton, for appellant.

Michele I. Nelson of Paxton, Crow, Bragg, Smith & Keyser, P.A., West Palm Beach, for appellees J.S.W. and M.F.W.

Stuart R. Manoff of Weissman and Manoff, P.A., West Palm Beach, for Atty. ad Litem for appellee Baby E.A.W.

EN BANC

HERSEY, Judge.

The Motion for Rehearing En Banc is granted. The opinion filed in this case on June 22, 1994, is withdrawn and the following opinion is substituted in lieu thereof.

This appeal presents the question whether a baby girl born out-of-wedlock was available for adoption. The legal issue is whether there was an abandonment by the birth father. The validity of the adoption of the baby girl, which we are also called upon to consider, depends upon our resolution of this issue.

After an evidentiary hearing, the trial court determined that there had been no abandonment. Upon rehearing the trial court reversed its decision, found abandonment This court, in a three-judge panel two-to-one opinion issued earlier, reversed the trial court's judgment, finding the record evidence insufficient to support a finding of abandonment. Upon motion filed by a party, we agreed to reconsider our position en banc as raising issues of exceptional importance. We now affirm the final judgment, approve the adoption, and certify a question to our supreme court.

and approved the adoption, generating this appeal.

As we have indicated, the precise question presented initially to the trial court and now, by appeal, to this court, is whether the baby girl, hereinafter Baby Emily, was available for adoption. If she was, then her subsequent adoption was valid and should be affirmed by our opinion. If she was not, then the adoption must be nullified and this case remanded.

Simplistically stated, the birth father's consent to adoption was required in this case unless the evidence shows that he "abandoned" the child. Sec. 63.072(1), Fla.Stat. (1992). The term "abandoned" is defined in section 63.032(14), Florida Statutes (1992), and provides, inter alia, that "In making this decision, [whether abandonment has occurred] the court may consider the conduct of the father towards the child's mother during her pregnancy."

The trial court made the following findings with which we have taken editorial license in some minor respects for reasons of clarity or materiality or confidentiality:

1. The natural mother, [ ], and the natural father had been living together for a period of some months when the natural mother became pregnant in November of 1991.

The Court finds that her testimony is unrefuted that she told the natural father of the pregnancy during the Christmas period of 1991. Her testimony at that time was that he had very little reaction to the fact that she was pregnant.

2. During December of 1991 and January 9, 1992, the natural mother was employed and was basically paying her own way. Her testimony was that she received neither financial or emotional support from the natural father during this period of time.

3. She was involved in an accident in January of 1992 and subsequent to that she was not able to work.

4. The natural mother testified that from that point forward she was a lonely and lost person. She received little, if any, financial support from the natural father and she survived on food which was purchased with [her] food stamps and gave her Aid to Dependent Children check to the natural father which basically covered her share of the rent on the unit they lived in. This testimony was substantiated by the testimony of Dr. Parkovich, the natural mother's physician, who testified to the fact that the natural mother looked terrible during this period of time, that their meetings were tearful and emotional and that the natural mother was an emotional wreck and was having substantial problems at home with the natural father. The doctor further testified that the natural mother was not eating properly. Dr. Parkovich testified to substantial money problems and that the natural mother could not believe that the natural father was having an affair during this trying period in her life. Dr. Parkovich also testified that the natural father never came to any of the doctor visits, never drove the natural mother to these visits and it was only because of the natural mother's friends that she was able to attend her visits with her physician.

5. On February 13, 1992, the natural father signed a paper which "required" the natural mother to pay one-half of (in other words, her own) the expenses for rent, electric, water and telephone. Further the document required her to purchase her own food.

6. From February until June of 1992, the parties remained together and the testimony of the natural mother, collaborated by the testimony of her physician, and her neighbor, was that the financial situation between the parties did not change. In other words, the natural mother was, in effect, paying her own way.

7. During this period of time, February to June, 1992, the natural mother's testimony was that there was minimal, if any, emotional support from the natural father. At one point in time, her testimony indicated that there was physical abuse, that he had grabbed her, shook her and had spit at her because she had the audacity to use his razor. The natural mother's testimony was specific that the natural father not only did not supply her with any emotional comfort during this time, but, to the contrary, engaged in name calling and other types of verbal abuse. For example, he told her that she was "worthless" and that every other week she would be threatened with being kicked out of the apartment. The natural mother testified that she was continually fearful of the natural father. Additionally, the natural mother testified that the natural father had a drinking problem which went on continuously during the time the parties spent together.

The natural mother moved out of the natural father's apartment in June of 1992. Sometime prior to this time, the natural mother testified that she had told the natural father she was considering adoption and the natural father's response was "do whatever you have to do."

The natural mother accepted this statement from the natural father as his verbal agreement with her adoption intention. As a result of that, the natural mother continued to follow through with the adoption process. The testimony was specific that at no time from February of 1992 until literally days before the birth of the child, did the natural father in any way either act directly, or by inference, to show any objection to the potential adoption of the unborn child.

Additionally, the testimony of the natural mother revealed that the natural father attended only one visit with any health care provider during the entire course of the pregnancy. While he was there, he was "an ice cube" and showed no emotion of any kind either toward the unborn child or the natural mother herself.

8. From the time the natural mother moved from the apartment through July 9, 1992, she lived with her girlfriend. The testimony of both the natural mother and the girlfriend was that the natural father provided zero financial support during this time and to the best of the girlfriend's recollection there was one telephone call from him to the natural mother during this period of approximately one and a half months.

9. During the period of June, July, and August, when the natural parents were living separate and apart, the natural mother's testimony was that she received neither financial or emotional support from the natural father. The only telephone calls he made to her were at 2:00 or 3:00 o'clock in the morning and were basically made to aggravate her.

10. The natural father's testimony was received initially in a hearing conducted by the Court on October 9, 1992.

The natural father's testimony at that time was that he was earning the approximate amount of $300.00 to $400.00 a week, net, and that he was, in effect, financing all of the food and shelter for the natural mother and her food stamps were basically being used for her son who was also living with them.

11. Contrary to the natural mother's testimony, the natural father testified that he was "overjoyed" with the fact that he was going to be a father.

12. During the entire course of the pregnancy, the natural father's testimony was that he bought the natural mother one pair of stretch pants which the natural mother denied ever receiving.

13. The natural father testified that he bought a crib for $40.00, but the money actually came from his mother and was not money out of the natural father's pocket.

14. The natural father testified that he was contacted by Attorney Charlotte Danciu [the intermediary in the adoption proceedings] in July of 1992 and at that point he was emphatic that he was not going to give up the child for adoption and that he began his quest for legal representation at that time.

15. Additionally, the natural father's testimony was that he did speak with the 16. The test that the Court needs to follow is whether the testimony presented by the various witnesses establishes by clear and convincing evidence that the natural father did, in fact, financially and/or emotionally abandon the natural mother during the course of the pregnancy. The Court finds that abandonment did occur and, therefore, the Court grants the Petition for Rehearing and by the terms of this order will set aside the previous finding of lack of abandonment.

natural mother on a number of occasions during the month of July and August which statements were denied by the natural mother. This testimony is inconclusive at best, but the more believable...