Green v. State, Dept. of Health and Rehabilitative Services, Social and Economic Services Program, 80-2221

• Decision Date: 13 April 1982
• Docket Number: No. 80-2221,80-2221
• Court: Florida District Court of Appeals
• Parties: Thelma GREEN, Appellant, v. STATE of Florida, DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, SOCIAL ANDECONOMIC SERVICES PROGRAM, Appellee.

Page 413

412 So.2d 413

Thelma GREEN, Appellant, v. STATE of Florida, DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, SOCIAL ANDECONOMIC SERVICES PROGRAM, Appellee.

No. 80-2221.

District Court of Appeal of Florida, Third District.

April 13, 1982.

William N. Hutchinson, Jr., Fort Lauderdale, for appellant.

Elizabeth Auguste-Gilmore, Miami, for appellee.

Before HENDRY, NESBITT and JORGENSON, JJ.

NESBITT, Judge.

This is an appeal from an order dismissing with prejudice an amended petition for adoption.

The petition was brought by the natural mother's uncle and aunt, who were looked upon as grandparents of the child they sought to adopt. The child had spent the first ten months of her life in the custody of these "grandparents," to whom written consent to adopt had been given by the natural mother. While the child was in such custody, the Department of Health and Rehabilitative Services (HRS) instituted against the natural mother a petition for permanent commitment of the child. The "grandparents" were aware of and attended those proceedings. Ultimately, the petition for commitment was granted. As a consequence, the natural mother was permanently deprived of her rights to the child. § 39.41(4), Fla.Stat. (1979); In the Interest of C. M. M., 364 So.2d 788 (Fla. 1st DCA 1978); Thompson v. Department of Health and Rehabilitative Services, 353 So.2d 197 (Fla. 3d DCA 1977). The permanent order of commitment was not appealed.

The termination order was appended to HRS' motion to dismiss the amended petition for adoption. The trial court granted the motion to dismiss, with prejudice, ostensibly on the basis of either res judicata or estoppel by judgment. ¹

HRS concedes, as it must, that a permanent commitment proceeding pursuant to Section 39.41, supra, constitutes a different cause of action than does an adoption proceeding under Chapter 63, Florida Statutes (1979). Therefore, the doctrine of res judicata is not applicable to the present case. Virginia-Carolina Chemical Co. v. Fisher, 58 Fla. 377, 386, 50 So. 504, 507 (1909); Burleigh House Condominium, Inc. v. Buchwald, 368 So.2d 1316, 1321 (Fla. 3d DCA), cert. denied, 379 So.2d 203 (Fla.1979).

In contrast, identity of the causes of action is not a necessary element of estoppel by judgment. Burleigh House Condominium, Inc. v. Buchwald, supra; Wacaster v. Wacaster, 220 So.2d 914 (Fla. 4th DCA 1969). The operation and effect of this doctrine is aptly described in Volume 32, Florida Jur 2d, Judgments and Decrees, Section 116:

Where the causes of action are different, the doctrine of estoppel by judgment comes into play, in which case the parties are precluded from relitigating matters actually litigated and determined, but only those matters, and not matters which were in fact not litigated in the former action, even though such matters might properly have been determined therein. Thus, before a litigant is barred under the doctrine of estoppel by judgment, it must appear that the points or questions involved in the subsequent action were determined in the prior action.

It is established law that the termination of the natural parents' rights by commitment proceedings does not foreclose their right to seek adoption pursuant to Chapter 63, supra. In the Interest of C. M. M., supra; Thompson v. Department of Health and Rehabilitative Services, supra. Nonetheless, HRS argues that affirmance is required under the principle of estoppel by judgment because the issues involved in termination and adoption proceedings are virtually the same, and because the "grandparents" were in privity with the natural mother due to the written consent of adoption. We disagree.

Proceedings for permanent commitment, pursuant to Section 39.41(4), supra, are concerned with termination of parental rights. Chapter 63, supra, is concerned with the conferral of parental rights. Under Section 39.41(1)(d) 1.a(I), Florida Statutes (1979), the substantive grounds for termination of parental rights are: (a) abandonment; (b) abuse; or (c) neglect. See State v. M. T. S., 408 So.2d 662 (Fla. 3d DCA 1982). The foregoing are a reflection of parental...