D.S. v. J.L.

• Decision Date: 10 August 2009
• Docket Number: No. 1D09-1233.,1D09-1233.
• Parties: D.S., the Biological Father, In re the Matter of the Termination of Parental Rights for the Proposed Adoption of a Minor Child, Appellant, v. J.L., the Biological Mother and Miracles Adoption Agency, Inc., Appellees.
• Court: Florida District Court of Appeals

18 So.3d 1103

D.S., the Biological Father, In re the Matter of the Termination of Parental Rights for the Proposed Adoption of a Minor Child, Appellant, v. J.L., the Biological Mother and Miracles Adoption Agency, Inc., Appellees.

No. 1D09-1233.

District Court of Appeal of Florida, First District.

August 10, 2009.

Rehearing Denied September 18, 2009.

Robert H. McLean of Trow & Perry, Ocala, for Appellant.

Sharon H. Proctor, Lake Saint Louis, MO, Randi E. Dincher, Gainesville, Anne Raduns-Owen, Ocala, for Appellees.

LEWIS, J.

D.S. (Appellant) seeks review of a final order determining that his consent was not required for the adoption of his biological child and a companion order terminating his access to the child. Appellant argues that the trial court erred in determining that section 63.062(2)(b)2, Florida Statutes (2008), requires strict compliance to the extent that his timely filing of a notarized letter and subsequent filing of an affidavit were insufficient to meet the statutory obligation to file an affidavit within thirty days of service of a notice of intended adoption plan. He further argues that the trial court erred in construing section 63.062(3), Florida Statutes (2008), as imposing on him an obligation to file a verified response in addition to the affidavit required under section 63.062(2)(b)2. Finally, Appellant argues that section 63.062(2)(b)2 is unconstitutional as applied to him in this case. We agree with Appellant that the trial court erred in its interpretation of the requirements imposed on unmarried biological fathers under Chapter 63. Consequently, we do not reach the constitutional issue. See In re Holder, 945 So.2d 1130, 1133 (Fla.2006) (noting that the court will avoid considering a constitutional question when the case can be decided on nonconstitutional grounds); Singletary v. State, 322 So.2d 551, 552 (Fla.1975) (adhering to the "settled principle of constitutional law that courts should not pass upon the constitutionality of statutes if the case in which the question arises may be effectively disposed of on other grounds."). Because the trial court improperly ruled, on summary judgment, that Appellant did not satisfy the affidavit requirement of section 63.062(2)(b)2, we reverse and remand for further proceedings consistent with this opinion.

The material facts of this case are undisputed. During her pregnancy, the mother of Appellant's child contacted Miracles Adoption Agency, Inc. (Appellee), seeking to have the child placed for adoption. The mother identified Appellant as the father, and Appellee sent Appellant a Notice of Intended Adoption Plan, which included the following notification: "If you wish to contest this adoption plan, you must file with the circuit court ... within 30 days after service of this notice, a verified response (affidavit) including a commitment to the child that complies with F.S. 63.062(2)(b)2." Appellant responded to the notice by a notarized letter dated July 14, 2008. The letter states, in pertinent part, as follows:

I have received a copy of the Notice of Intended Adoption Plan from your Agency regarding [the birth mother].

I am contesting this adoption plan. I am willing and intend to support my child in accordance with Florida State Law, Statute 63.054(1).

I have filed the Florida Putative Father Registry Claim of Paternity with the Office of Vital Statistics. A copy is enclosed.

I am pledging to take fully [sic] responsibility and commitment for the care of my child. I intend to take full custody and provide a loving home, food and clothing for my child. I am willing to take financial responsibility for all living and medical expenses.

I am working and enrolled at [a college]¹. I have already pre-arranged a state licensed daycare, license number [omitted] for my child when I am away at work or school. I have a crib and am in the process of setting up a nursery in my home.

Please contact me regarding this legal matter. Please know that my intentions are to Fully Contest this adoption.

Above the notary's signature, the letter contains the language "Subscribed and sworn before me this 14 Day of July, 2008." In addition to sending this letter to Appellee, Appellant filed it with the circuit court on August 1, 2008. Appellee proceeded with its plan to place Appellant's child for adoption.

The child was born on September 13, 2008. From the hospital, the child was taken to the home of the prospective adoptive parents, where the child has lived ever since. On October 7, 2008, with the birth mother's consent, Appellee filed a Petition for Termination of Parental Rights, pursuant to section 63.087(4), Florida Statutes (2008). Appellee alleged that Appellant's consent to the adoption of his child was not required because he was an "unmarried biological father" within the meaning of section 63.032(19), Florida Statutes (2008), and he had not complied with the requirements of section 63.062(2). Section 63.062(2) provides as follows:

In accordance with subsection (1), the consent of an unmarried biological father shall be necessary only if the unmarried biological father has complied with the requirements of this subsection.

(b) With regard to a child who is younger than 6 months of age at the time the child is placed with the adoptive parents, an unmarried biological father must have demonstrated a full commitment to his parental responsibility by having performed all of the following acts prior to the time the mother executes her consent for adoption:

1. Filed a notarized claim of paternity form with the Florida Putative Father Registry within the Office of Vital Statistics of the Department of Health, which form shall be maintained in the confidential registry established for that purpose and shall be considered filed when the notice is entered in the registry of notices from unmarried biological fathers.

2. Upon service of a notice of an intended adoption plan or a petition for termination of parental rights pending adoption, executed and filed an affidavit in that proceeding stating that he is personally fully able and willing to take responsibility for the child, setting forth his plans for care of the child, and agreeing to a court order of child support and a contribution to the payment of living and medical expenses incurred for the mother's pregnancy and the child's birth in accordance with his ability to pay.

3. If he had knowledge of the pregnancy, paid a fair and reasonable amount of the expenses incurred in connection with the mother's pregnancy and the child's birth, in accordance with his financial ability and when not prevented from doing so by the birth mother or person or authorized agency having lawful custody of the child.

. . . .

(d) An unmarried biological father who does not comply with each of the conditions provided in this subsection is deemed to have waived and surrendered any rights in relation to the child, including the right to notice of any judicial proceeding in connection with the adoption of the child, and his consent to the adoption of the child is not required.

Regarding subparagraph (2)(b)2, Appellee made only one argument: that the content of Appellant's letter did not adequately reflect the statutorily required manner of expressing a full commitment to assume parental responsibilities for his child.

On December 19, 2008, Appellee filed a Motion to Amend the Petition for Termination of Parental Rights. The proposed amended petition contained the additional argument that Appellant's July 14, 2008, letter did not comply with section 63.062(2)(b)2 because it was not an affidavit. To support this argument, Appellee alleged that Appellant had not taken an oath when his letter was notarized. Appellee further argued that section 63.062(3) imposes on unmarried biological fathers the obligation to file a verified response to a notice of intended adoption plan and that Appellant's July 14, 2008, letter did not constitute a verified response. The trial court later granted the motion to amend. In the meantime, on the same day that Appellee filed the motion to amend, Appellant filed an "Amended Affidavit/Verified Response," which incorporated the July 14, 2008, letter by reference and included additional statements. The "Amended Affidavit/Verified Response" is notarized and contains the language "sworn to and subscribed."

After Appellant filed his answer to the amended petition, Appellee filed a motion for summary judgment, arguing that because Appellant's July 14, 2008, letter was neither an affidavit nor a verified response, his consent to the adoption was not required, as a matter of law. To support its motion, Appellee deposed the person who notarized the July 14, 2008, letter. The notary's testimony revealed that he failed to administer an oath to Appellant, and this testimony was undisputed.

The trial court concluded that Appellant was required to file an affidavit under section 63.062(2)(b)2 and a verified response under section 63.062(3). Concluding that Appellant had satisfied neither of these requirements and that Chapter 63 mandated strict compliance with these requirements, the trial court granted Appellee's motion for summary judgment and entered final orders determining that Appellant's consent was not required for the adoption and terminating Appellant's access to his child.

To determine whether the trial court erred in concluding that Appellant was statutorily prohibited from contesting the adoption of his biological child, we must address three issues: (A) what the Florida Statutes require of unmarried biological fathers who wish to contest the adoption of their biological children; (B) whether the relevant statutes demand strict compliance with those requirements or something less; and (C) whether the trial court correctly determined, as a matter of law, that Appellant did not meet the required level of compliance. These issues are matters of statutory interpretation, which are...