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

• Decision Date: 20 July 1995
• Docket Number: No. 84819,84819
• Parties: 20 Fla. L. Weekly S376, 20 Fla. L. Weekly S427 In re the ADOPTION OF BABY E.A.W. G.W.B., Petitioner, v. J.S.W., et ux., et al., Respondents.
• Court: Florida Supreme Court

Page 961

658 So.2d 961

20 Fla. L. Weekly S376, 20 Fla. L. Weekly S427

In re the ADOPTION OF BABY E.A.W. G.W.B., Petitioner, v. J.S.W., et ux., et al., Respondents.

No. 84819.

Supreme Court of Florida.

July 20, 1995.

Steven Pesso, Boca Raton, for petitioner.

Stuart R. Manoff of Weissman & Manoff, P.A., West Palm Beach; and Michele I. Nelson of Paxton, Crow, Bragg, Smith & Keyser, P.A., West Palm Beach, for respondents.

Suellyn Scarnecchia, Child Advocacy Law Clinic, University of Mich. Law School, Ann Arbor, MI, amicus curiae, for DeBoer Committee for Children's Rights.

Lynn G. Waxman, West Palm Beach, amicus curiae, for Charlotte Danciu.

HARDING, Justice.

We have for review In re Adoption of Baby E.A.W., 647 So.2d 918 (Fla. 4th DCA 1994), where the district court certified this question as one of great public importance:

IN MAKING A DETERMINATION OF ABANDONMENT AS DEFINED BY SECTION 63.032(14), FLORIDA STATUTES (SUPP.1992), MAY A TRIAL COURT PROPERLY CONSIDER LACK OF EMOTIONAL SUPPORT AND/OR EMOTIONAL ABUSE OF THE FATHER TOWARD THE MOTHER DURING PREGNANCY AS A FACTOR IN EVALUATING THE "CONDUCT OF THE FATHER TOWARDS THE CHILD DURING THE PREGNANCY."

We have jurisdiction based on article V, section 3(b)(4) of the Florida Constitution.

G.W.B. is the birth father of Baby E.A.W., a child born out of wedlock in 1992 and placed with adoptive parents shortly after her birth. This case concerns whether G.W.B. abandoned the child and, ultimately, whether she was available for adoption. Without abandonment, G.W.B.'s consent was required for Baby E.A.W.'s adoption. See Sec. 63.072(1), Fla.Stat. (1991).

The trial court initially found no abandonment, but reversed its decision on rehearing. On appeal, a three-judge panel of the Fourth District Court of Appeal voted two to one that G.W.B. did not abandon Baby E.A.W. On rehearing en banc, the court found abandonment by a vote of six to five. E.A.W., 647 So.2d 918.

As a preliminary matter we note that the certified question misquotes the applicable statute. Section 63.032(14), Florida Statutes (Supp.1992), allows a court to consider the father's conduct toward the child's mother--not toward the child, as the certified question says--during the pregnancy. ¹ We thus decide whether section 63.032(14) allows a trial court to consider lack of emotional support and/or emotional abuse in evaluating the conduct of the father toward the child's mother during pregnancy.

We answer the reframed certified question in the affirmative because we find that the legislature's use of the word "conduct" in section 63.032(14) encompasses a father's lack of emotional support and/or emotional abuse toward the mother during her pregnancy.

G.W.B. raises two other issues. We have jurisdiction over these issues because of our jurisdiction to review the district court's decision based on the certified question. Feller v. State, 637 So.2d 911, 914 (Fla.1994). First, we find no merit to G.W.B.'s argument that the trial court was unduly prejudiced by best-interests evidence because the final order on rehearing clearly indicates that the judge did not consider this evidence. Second, while we do not reweigh the evidence taken by the trial court, we find the evidence supports the trial court's determination that there was clear and convincing evidence that G.W.B. abandoned Baby E.A.W.

I. FACTS

The facts in this case are based on the trial court's detailed findings in its Order on Rehearing of Abandonment Issue, which is attached as an appendix to this opinion.

G.W.B. and the birth mother had lived together for some months when she became pregnant in November 1991.

The birth mother's testimony was that G.W.B. had very little reaction when she told him during Christmas 1991 that she was pregnant. She was employed and paid her own expenses during December 1991 and part of January 1992, but could not work after an accident in January 1992. From that point on, she was lonely and received little financial support from G.W.B. She bought food with food stamps and gave a government aid check to G.W.B. for her expenses.

The birth mother's doctor testified that the birth mother was emotional and having trouble at home during this time. G.W.B. did not accompany the birth mother to any of the doctor visits. The birth mother testified that G.W.B. did accompany her on one visit, but that he was an "ice cube."

The birth mother gave further testimony that she received little, if any, emotional support from G.W.B. from February through June 1992. G.W.B. once grabbed her, shook her, and spit at her because she used his razor. He called her names and verbally abused her. In addition, G.W.B. had a drinking problem.

The birth mother moved out of G.W.B.'s home in June 1992. Sometime before this, she told G.W.B. that she was considering adoption. He told her to "do whatever you have to do." Based on this response, she followed through with the adoption process.

From the time the birth mother moved out until Baby E.A.W. was born, the birth mother received neither financial nor emotional support from G.W.B. The only phone calls she received from G.W.B. came early in the morning and apparently were made to annoy her.

G.W.B.'s testimony was that he earned $300 to $400 a week during this time and that he effectively paid for food and shelter for the birth mother and her son from another relationship. He was overjoyed about becoming a father. During the pregnancy, he bought one pair of stretch pants for the birth mother and, using money from his mother, bought a crib. He spoke with the birth mother several times after she moved out.

G.W.B. testified further that Charlotte Danciu, an attorney-intermediary in the adoption proceedings, contacted him in July 1992. He told Danciu that he would not give up the child for adoption and then sought legal representation.

After reciting its findings of fact, the trial court found clear and convincing evidence that G.W.B. financially and/or emotionally abandoned the birth mother during her pregnancy. The judge found that even if he accepted G.W.B.'s testimony that he paid for more than half of the couple's expenses, "there can be no doubt that he was living off of her food stamps and demanding her Aid to Dependent Children check to supplement his earnings." The judge found that the birth mother was on her own emotionally during the pregnancy. G.W.B. even resumed a sexual relationship with a former girlfriend while the birth mother was pregnant.

In addition, the trial court found almost no testimony to establish that G.W.B. exhibited any feeling for the unborn child. It appeared, in fact, that if Danciu had not contacted him, he would have continued his passive stance. Notified that the birth mother planned to put the baby up for adoption, he sought counsel. The trial court noted, "More importantly, it is a simple fact that during the time he was seeking a lawyer, he was still completely out of contact with the natural mother and the unborn infant, both financially and emotionally."

In determining that G.W.B. did not provide emotional or financial support to the birth mother, the trial court concluded in its September 1993 order:

The marginal effort of the natural father does not evince a settled purpose to assume all parental responsibilities and the Court, therefore, declares that the child was abandoned (Florida Statute 63.032(14)). Therefore, the prospective adoptive parents are directed to apply to this Court for an appropriate ex parte hearing on the question of the finalization of the adoption.

A three-judge panel of the Fourth District Court of Appeal reversed the trial court's finding of abandonment. Baby E.A.W., 647 So.2d at 941 (appendix reprinting the district court's panel decision). The court found the evidence in conflict, but determined that G.W.B. supported the birth mother while he lived with her and objected to the adoption before the birth of Baby E.A.W. Id. at 948. The court also concluded that emotional support could not be used to determine abandonment. Id. at 949.

After rehearing en banc, the district court reversed the panel decision and found that G.W.B. abandoned Baby E.A.W. both financially and emotionally. Id. at 924. Recognizing the uncertainty over whether a trial court may consider emotional support in making its decision on abandonment, the district court certified the question to this Court. Id.

II. THE CERTIFIED QUESTION

We conclude that a trial court, in making a determination of abandonment, may consider the lack of emotional support and/or emotional abuse by the father of the mother during her pregnancy. G.W.B. conceded this point during oral argument, but our resolution of the certified question is not based on this concession. Our decision is based on caselaw and statutory language.

This Court first recognized in In re Adoption of Doe, 543 So.2d 741, 747 (Fla.), cert. denied, 493 U.S. 964, 110 S.Ct. 405, 107 L.Ed.2d 371 (1989), that evidence of a parent's prebirth conduct is relevant to whether a parent has abandoned a child. Doe concerned an unmarried father who was financially able to--but did not--support his child prenatally. The Court found that, by his behavior, he waived his right to consent to the adoption of the child. Id. at 749. Although Doe primarily concerned the father's ability to provide financial support to the mother, the Court also noted:

A finding of abandonment under chapter 63 means, for whatever reason, the parent or parents have not provided the child with emotional and financial sustenance and, consequently, the well-being of the child requires severing the parent's legal custody or relationship with the child.

Id. at 744 (emphasis added).

When this Court decided Doe, chapter 63 did not include a definition of abandonment. The Court looked to section 39.01(1), Florida Statutes (1985), which defined abandonment in juvenile proceedings. The definition in chapter 39 did not discuss a father's prebirth...