Adoption of a Minor Child, In re

• Decision Date: 12 December 1991
• Docket Number: No. 77133,77133
• Citation: 593 So.2d 185
• Parties: 16 Fla. L. Weekly S771 In re ADOPTION OF A MINOR CHILD.
• Court: Florida Supreme Court

Page 185

593 So.2d 185

16 Fla. L. Weekly S771

In re ADOPTION OF A MINOR CHILD.

No. 77133.

Supreme Court of Florida.

Dec. 12, 1991.

Rehearing Denied March 5, 1992.

Marina Garcia Wood and William L. Gardiner, III, of Patterson, Maloney & Gardiner, Fort Lauderdale, for petitioner.

Carol C. Murphy, Lakeland, for respondent.

BARKETT, Justice.

We have for review In re Adoption of a Minor Child, 570 So.2d 340, 345 (Fla. 4th DCA 1990), in which the district court certified the following questions of great public importance: ¹

(1) Is an attorney who represents the relative of a deceased parent on a petition for adoption of the deceased parent's child an intermediary within the definition of section 63.032(8)[, Florida Statutes (1987) ]?

(2) Are grandparents entitled to notification and preference in adoptions pursuant to section 63.0425, Florida Statutes, where the adoption is handled by the attorney for a petitioner-relative, but the adoption is not exempted under either Sec. 63.0425(2) or (3)[, Florida Statutes 1987) ]?

Neither question is capable of an answer in the abstract as the appropriate response depends on the facts of the particular case. In this case, we find the relative's attorney was not an intermediary within the definition of section 63.032(8) and the grandparents were not entitled to notice of the adoption under section 63.0425(1). Nevertheless, we find the grandparents were entitled to notice of the adoption under the due process clause of the Florida Constitution.

Respondents are the maternal grandparents of Baby R.R. They seek to intervene to set aside the adoption decree obtained by petitioners, Baby R.R.'s maternal aunt and uncle (hereinafter sister), because they failed to receive notice of the adoption proceedings.

Baby R.R. was born in New Jersey on July 6, 1982, to an unmarried mother. Baby R.R. and mother lived with the mother's parents in New Jersey until the mother died in a car accident on October 1, 1984. Baby R.R. continued to live with the grandparents until January 18, 1986, when a New Jersey court awarded custody to Baby R.R.'s natural father. Meanwhile, the grandparents petitioned for adoption as did the mother's sister and her husband. On January 20, 1988, the Superior Court of New Jersey gave custody of Baby R.R. to the sister, a resident of Florida, and awarded visitation to the grandparents. The New Jersey court dismissed without prejudice both the petitions for adoption but retained jurisdiction for "all issues concerning and affecting" the child.

On May 11, 1988, the sister filed a petition for adoption in the Circuit Court for Broward County with the natural father's written consent and filed the affidavit required by section 63.135, Florida Statutes (1987). ² The affidavit informed the court of the substance of the New Jersey decree but did not advise that the New Jersey court had retained jurisdiction. The grandparents were not given notice of the adoption proceeding. The final order of adoption ³ was entered two days later on May 13, 1988.

On June 8, 1988, the sister filed a motion for clarification of judgment of adoption seeking to terminate all visitation rights awarded to the grandparents. For the first time, a copy of the New Jersey decree was filed with the circuit court. The grandparents learned of the Florida adoption proceedings when they received the motion for clarification. On May 12, 1989, within one year of the final judgment, ⁴ the grandparents simultaneously filed a notice of appeal of the final judgment of adoption in the district court and an emergency motion for intervention in the trial court.

The trial court granted the motion to intervene and the sister appealed, claiming that the grandparents did not have standing to assert any rights in the adoption proceedings. The district court dismissed the grandparents' direct appeal of the final judgment of adoption because it had not been filed within the requisite 30-day period under Florida Rule of Appellate Procedure 9.110(b). However, the district court affirmed the trial judge's decision permitting the grandparents to intervene and to attempt to set aside the final judgment of adoption. ⁵

The pivotal issue presented in this case is whether the grandparents were entitled to notice of the adoption proceeding in the first instance. The sister contends that notice to grandparents is required only under certain statutorily prescribed circumstances which are not present in this case and, therefore, the grandparents have no standing to intervene after the judgment of adoption.

Section 63.0425(1), Florida Statutes (1987), provides:

When a child who has lived with a grandparent for at least 6 months is placed for adoption, the agency or intermediary handling the adoption shall notify that grandparent of the impending adoption before the petition for adoption is filed. If the grandparent petitions the court to adopt the child, the court shall give first priority for adoption to that grandparent.

(Emphasis added.) The sister argues that Baby R.R. was not "placed for adoption" and that neither she nor her attorney was an "intermediary handling the adoption" within the meaning of the statute. Thus, the sister concludes, notice to the grandparents was not required under the statute.

Section 63.032(8), Florida Statutes, (1987), defines "intermediary" as

an attorney or physician who is licensed or authorized to practice in this state or, for the purpose of adoptive placements of children from out of state with citizens of this state, a child-placing agency licensed in another state that is qualified by the department.

The grandparents argue that the plain meaning of section 63.032(8) defines intermediary as any attorney involved in an adoption proceeding. The sister contends that the term "intermediary" within the adoption statute refers to someone who acts as a broker between prospective adoptive parents and the natural parents or legal custodian of the child and that every attorney representing a party in an adoption proceeding does not automatically become an intermediary. ⁶ If one were to look only to the word "intermediary," the grandparents' argument might have merit. However, we must look at the entire phrase "intermediary handling the adoption" within the context of the phrase "placed for adoption" as the phrases are used in section 63.0425(1). The precise question is: Who is to be considered an "intermediary handling the adoption" when a child is "placed for adoption" within the meaning of section 63.0425(1)?

Under the grandparents' interpretation, the words "attorney" and "intermediary" would be interchangeable wherever they appear in the statute. We believe that this reading gives unintended breadth to section 63.0425(1). ⁷ Throughout chapter 63, attorneys and intermediaries are treated as separate entities by the various provisions of the statute. ⁸ For instance, section 63.097, Florida Statutes (1987), regarding approval of fees to intermediaries, uses the words "attorney" and "intermediary" in the disjunctive, providing in part that "[a]ny fee, including intermediary or attorney fees over $1,000 ... must be approved by the court." Moreover, the statute gives to intermediaries duties and responsibilities beyond that which would be expected of an attorney who is merely representing one party in an adoption proceeding. See, e.g., Sec. 63.085, Fla.Stat. (1987) (providing detailed rules for the disclosure of information by intermediaries handling an adoption); id. Sec. 63.212(3) (making it unlawful for an intermediary to fail to file the requisite reports); id. Sec. 63.212(4) (making it unlawful for an intermediary to charge a fee in excess of $1,000).

Because other sections of the statute envision an intermediary as someone who plays a special role in an adoption and because the legislature clearly had the ability to, and did in fact, distinguish between intermediaries and attorneys in other portions of the statute, we find the sister's understanding of the term intermediary more in harmony with the statutory scheme.

Moreover, the plain wording of section 63.0425 is clearly inapplicable to the facts of the present case. Baby R.R. was not "placed for adoption" by an "intermediary handling the adoption" within the ordinary meaning of those words. The adoption proceedings began with Baby R.R. in the custody of the sister; she was not "placed" there by a person or agency except in the context of the custody awarded by the New Jersey court. The sister's attorney was merely the legal representative hired to file the necessary pleadings to effectuate the adoption. He did not find a child for adoption or negotiate the terms of an adoption between the adoptive and natural parents. It is doubtful that the legislature intended to label every such legal representative of a party to an adoption an intermediary. Under these facts, the sister's attorney was not an "intermediary handling the adoption" within the meaning of section 63.0425.

However, the determination that notice was not statutorily required is not dispositive of the issue. Notice to legally interested parties so that they can assert their claims is the essence of the procedural due process protections provided by the Florida Constitution. Art. I, Sec. 9, Fla. Const. As the United States Supreme Court has said:

An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.

Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 657, 94 L.Ed. 865 (1950).

There is no question in this case that the grandparents were legally interested parties. Under the New Jersey court order the grandparents were given visitation rights, and, therefore, if for no other reason, acquired a legal interest...