Heart Of Adoptions Inc v. J.A

• Citation: 963 So.2d 189
• Decision Date: 12 July 2007
• Docket Number: No. SC07-738.,SC07-738.
• Parties: HEART OF ADOPTIONS, INC., Petitioner, v. J.A., Respondent.
• Court: Florida Supreme Court

963 So.2d 189

HEART OF ADOPTIONS, INC., Petitioner,

v.J.A., Respondent.

No. SC07-738.

Supreme Court of Florida.

Date: July 12, 2007.

Jeanne T. Tate, Tampa, FL and Raymond R. Elligett, Jr. of Schropp, Buell and Elligett, P.A., Tampa, FL, for Petitioner.

Rhonda Raulerson Portwood, Inverness, FL, for Respondent.

Susan Lee Stockham, Sarasota, FL, and Allison M. Perry, Tampa FL, on behalf of the Concerned United Birthparents; Amy U. Hickman of Hausmann and Hickman, P.A., Boynton Beach, FL, and John G. Crabtree, Key Biscayne, FL on behalf of the Family Law Section of the Florida Bar; and Patricia L Strowbridge, Orlando, FL, on behalf of the Florida Adoption Council, Inc., as Amicus Curiae.

PARIENTE J.

We have for review J.A. v. Heart of Adoptions, Inc. (In re Baby H), ___ So.2d ___, 32 Fla. L. Weekly D807, 2007 WL 914676 (Fla. 2d DCA Mar. 28, 2007) in which the Second District Court of Appeal certified the following question as a matter of great public importance:

IN A PROCEEDING ON A PETITION FOR TERMINATION OF PARENTAL RIGHTS PENDING ADOPTION, MAY THE UNMARRIED BIOLOGICAL FATHER'S RIGHTS IN RELATION TO THE CHILD BE TERMINATED BASED ON THE UNMARRIED BIOLOGICAL FATHER'S FAILURE TO PROPERLY FILE A CLAIM OF PATERNITY WITH THE FLORIDA PUTATIVE FATHER REGISTRY?[¹]

We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. We answer the question based on the facts before us in this case and our interpretation of the applicable statutory provisions. We hold that the rights of an unmarried biological father in relation to the child, who is known or identified by the mother as the potential father and who is locatable by diligent search, may be terminated based on his failure to file a claim with the Florida Putative Father Registry only if the father was served with notice under section 63.062(3)(a), Florida Statutes (2005), and he fails to comply with the requirements of that subsection within the thirty-day period. By construing the statute in this manner, we avoid ruling on any potential constitutional implications of the statutory scheme either facially or as applied under these circumstances.

FACTS AND PROCEDURAL HISTORY

J.A the alleged biological father of Baby H, became aware of the birth mother's pregnancy approximately three months prior to the birth of Baby H.² On July 21, 2005, approximately two weeks prior to the birth, the adoption agency Heart of Adoptions, Inc. (HOA), sent J.A. a certified letter, which J.A. received, requesting that he contact the adoption agency with regard to a "legal matter involving [the mother] and her pregnancy." This letter also indicated that the adoption disclosure statement required under section 63.085, Florida Statutes (2005), was enclosed, and requested that J.A. sign and return an acknowledgement of receipt of the disclosure.

On August 1, 2005, four days before the birth, HOA sent J.A. a more detailed letter, which J.A. also received. This letter purported to confirm a conversation between J.A. and an adoption social worker employed by HOA during which J.A. was informed that the birth mother had contacted the agency, planned to place the baby for adoption, and had indicated that J.A. was the possible biological father of the baby. The letter informed J.A. that if he decided to cooperate with the birth mother's adoption plans, she would like to involve him in the process. The letter also contained the following statements and information:

If you choose not to consent to the adoption because it is your desire that the child not be placed for adoption, under Florida law your failure to provide support for the birth mother during her pregnancy and for the child after birth may be used to establish your abandonment of the child.

[Birth mother] is in need of financial assistance now. Therefore, if you desire to establish and/or protect your rights, you should contact an attorney immediately and send living expense monies for [birth mother]. Please direct the living expenses to the agency so the agency can verify receipt. Her monthly needs are as follows: rent $800; rental deposit $800; utilities $200 electric deposit and $50 water deposit. She also needs clothing at a cost of $250. Additionally, she may have incidental medical expenses that are not covered by Medicaid.

The letter did not inform J.A. that in order to preserve his right to notice of and consent to the adoption, he must timely file a claim of paternity with the Florida Putative Father Registry (Registry).

On August 5, 2005, Baby H was born in Citrus County, Florida. That same day, with the assistance of a non-lawyer utilizing Florida Supreme Court Approved Family Law Forms, J.A. filed a petition to determine paternity and for related relief in the Fifth Judicial Circuit Court in Citrus County. The petition requested that the court "stop the mother from allowing the child to be adopted." According to the financial affidavit filed along with the paternity petition, J.A.'s monthly net income was $1300.

The following day, the birth mother executed a consent to adoption and placed the baby with HOA. The birth mother also executed an affidavit of inquiry regarding the biological father. In this affidavit, she stated that she was engaged to a man, who was not the child's biological father, and identified J.A. as the biological father. She provided J.A.'s address and made the following statements regarding J.A.:

9.....

(2) [He] has been informed of my pregnancy and adoption plan but has not paid a fair and reasonable amount of the expense incurred in connection with the pregnancy, in accordance with his financial ability. In fact, the biological father contributed no monies to me or this child or on our behalf;

....

(4) [He] did not provide or promise to provide the child or me during the pregnancy with support in a repetitive customary manner.

10. The biological father, [J.A.], is over the age of eighteen and is employed. I believe he has sufficient resources so that he could have provided some financial support to me during the pregnancy, if he so wished.

11. The biological father is aware that I reside in and can be located in the State of Florida. At all times during the pregnancy, he has known how to communicate with me. 12. Because of my limited resources, I have had to rely on assistance from the prospective adoptive parents, my mother and the State of Florida in order to provide for myself during the pregnancy.

On August 8, 2005, which was three days after the birth and three days after the petition to determine paternity had been filed, HOA filed a petition for termination of parental rights against J.A. in the Thirteenth Judicial Circuit in Hillsborough County.³ The petition identified J.A. as the biological father, provided his address, and repeated the birth mother's statements in her affidavit that J.A. had not provided or attempted to provide the child or the mother with support during her pregnancy. The petition also stated that although J.A. was able, he refused to provide financial support after he was informed he might be the father of the child. In addition, the petition alleged physical and financial abandonment of the birth mother and child pursuant to sections 63.089, 63.064(1) and 63.032(1), Florida Statutes (2005).

The petition also alleged the following: that J.A.'s consent to the adoption was not required or should be considered waived; that J.A. was not entitled to notice of the petition; and that J.A. was not entitled to object to the termination of his parental rights because he did not qualify as a person required to consent to an adoption under any of the criteria listed in section 63.062(1), Florida Statutes (2005). Specifically, the petition alleged that his consent was not required because J.A. failed to file a claim of paternity form with the Registry and comply with the additional requirements of section 63.062(2), Florida Statutes (2005). However, the petition acknowledged that J.A. received the adoption disclosure, which an adoption entity is required to send to the "parent who did not initiate the contact with the adoption entity, " and which must state that "[a] putative father may sign a valid consent for adoption at any time after the birth of the child." § 63.085(1), Fla. Stat. (2005). "Parent" is defined in pertinent part as "a man whose consent to the adoption of the child would be required under s. 63.062(1)." § 39.01(49), Fla. Stat. (2005).⁴

Further, HOA served J.A. with a summons, notice of petition, and notice of hearing to terminate parental rights pending adoption.⁵ The summons informed J.A. that he was "required to serve written defenses to the... petition." The notice of petition and notice of hearing, which were in the form prescribed by section 63.088(3), Florida Statutes (2005), informed J.A. of the date and time of the hearing on the petition to terminate his parental rights and contained the following warning:

UNDER SECTION 63.089, FLORIDA STATUTES, FAILURE TO FILE A WRITTEN RESPONSE TO THIS NOTICE WITH THE COURT OR TO APPEAR AT THIS HEARING CONSTITUTES GROUNDS UPON WHICH THE COURT SHALL END ANY PARENTAL

RIGHTS YOU MAY HAVE REGARDING THE MINOR CHILD.

On August 17, 2005, HOA filed a notice of related action in the Thirteenth Circuit, which alerted the trial court to the paternity action filed by J.A. in Citrus County. On September 2, 2005, J.A. filed a response to the petition for termination of parental rights, in which he denied all of the allegations. On September 26, 2005, he filed a motion requesting that the court take judicial notice of his pending paternity action.

A hearing on the petition to terminate J.A.'s parental rights was held on September 27, 2005. There is no transcript of the hearing because no court reporter was present. However, the parties stipulated to a number of facts, including that J.A. did not file a claim of paternity with the Registry or execute an affidavit stating he was able and willing to take responsibility for the child,...