Henriquez v. Adoption Centre, Inc.
| Decision Date | 27 August 1993 |
| Docket Number | 93-446,Nos. 93-173,s. 93-173 |
| Citation | 641 So.2d 84 |
| Parties | 18 Fla. L. Weekly D1889 Trinity Ann HENRIQUEZ, et al., Appellant, v. The ADOPTION CENTRE, INC., Appellee. |
| Court | Florida District Court of Appeals |
Appeal from the Circuit Court for Orange County; Charles N. Prather, Judge.
Debra A. Lamm, Maitland, for appellants.
Dorothy J. McMichen of Phillips & McMichen, P.A., Orlando, for appellee.
AFFIRMED.
Trinity Henriquez (Trinity) gave birth to a son on January 2, 1992. She and her son lived with her boyfriend up until about September 2, 1992, when a blood test (apparently required by HRS) determined that her boyfriend was not the father of her child. Her boyfriend then became upset and returned Trinity and her child to her parents' home. Her parents were out of town.
Feeling alone and scared, abandoned and unable to support her child, she called the Adoption Centre. The Adoption Centre immediately sent a taxi to pick up Trinity and her child. In a short period of time (at one sitting) she signed the waiver of her parental rights and her consent for adoption. She was sent home by taxi.
Five days later, after her parents returned and assured her of their continued support (the grandparents, after all, had also created a bonding relationship with the child during the eight months it had lived with their daughter) and after her boyfriend acknowledged his commitment to the child, she notified the Adoption Centre that she wished to withdraw her waiver and consent and have her child returned. The Adoption Centre refused her request and instead filed a petition for dependency and termination of parental rights.
It is significant that the Adoption Centre's only allegations to justify the dependency and termination of parental rights action were that:
1. the mother had signed the waiver and consent; and
2. the father, whose name and whereabouts were unknown, had abandoned the child.
A notice was published to inform the "unknown father." 1
Our supreme court in Matter of Adoption of Doe, 543 So.2d 741 (Fla.), cert. denied, Roe v. Doe, 493 U.S. 964, 110 S.Ct. 405, 107 L.Ed.2d 371 (1989), decided a case involving a challenge to the constitutionality of the consent provision in the adoption statute and reached a result consistent with the per curiam affirmance in this case. Because the facts in this case are significantly different and the policy issue raised by this appeal was not considered in Doe, I respectfully suggest that the result in Doe should not be binding in this case. I respectfully request my fellow panel members to join in certifying the following issue to the supreme court.
FACTS OF THIS CASE, VIOLATED THE MOTHER'S DUE PROCESS RIGHTS.
Although in Doe, the supreme court did uphold section 39.464(1) against an equal protection challenge, it has not considered the constitutional challenge raised by this appeal.
There is no question that the mother has a fundamental liberty interest in the care, custody and management of her child. Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982). Obviously this right is subject to a knowing and intelligent surrender. But can the State, consistent with due process, bar parents from changing their minds even after a waiver and consent is properly executed when there has been no substantial change of position by anyone and the rights of others have not been substantially affected?
I submit that this issue requires the Lassiter analysis referred to in Santosky. In this due process analysis, three distinct factors must be considered: the private interest affected by the official action, the risk of erroneous deprivation of the interest through the procedures used, and the government's interest in avoiding the administrative burden that a different procedure might create. Lassiter v. Department of Social Services of Durham County, North Carolina, 452 U.S. 18, 101 S.Ct. 2153, 68 L.Ed.2d 640, reh. denied, 453 U.S. 927, 102 S.Ct. 889, 69 L.Ed.2d 1023 (1981). 2 In considering these factors in the instant case, it becomes clear that a mother's right to the companionship of her child and the likelihood that this right will be erroneously deprived under the current system far outweigh the State's interest in maintaining its streamlined but inflexible procedure in adoption and/or termination cases.
First, the private interest (right to remain a parent) affected by the procedure of making the signing of the waiver and consent irreversible (except if based upon fraud or duress) is recognized as an extremely important right. Lassiter declared it "plain beyond the need for multiple citation" that a natural parent's "desire for and right to the companionship, care, custody and management of his or her children" is an interest "far more precious than property rights." Lassiter, 452 U.S. at 27, 101 S.Ct. at 2159, (quoting Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 1212, 31 L.Ed.2d 551 (1972)).
Second, there is great risk of error created by the State's chosen procedure of mandating that the waiver and consent be irrevocable. It is possible that this policy of finality, as under the facts of the case, will directly conflict with the statutory guidelines set forth for determining the "manifest best interest of the child." Section 39.467(2), Florida Statutes (1991). After all, the child had lived with its mother and visited with its grandparents for all of its eight-month life except for the five days at the Adoption Centre. To mandate that the mere signing of the waiver and consent during a period of extreme depression (although not the result of fraud or duress) somehow satisfies the "manifest best interest of the child" is an error waiting to happen--and did happen in this case.
I submit that the mere signing of the waiver and consent does not negate the ability of the mother to provide the child with food, clothing and medical care [section 39.467(2)(a) ]; the mother's capacity to care for the child [section 39.467(2)(a) ]; the love, affection and other emotional ties existing between the mother and child [section 39.467(2)(a) ]; the length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity [section 39.467(2)(g) ]; and the depth of the relationship existing between the child and the present custodian [section 39.467(2)(h) ].
A policy that mandates dissolution of an otherwise loving and supportive family unit merely because of a temporary lapse in judgment carries a high risk of error.
Third, the countervailing governmental interest supporting use of the challenged procedure of finality is insufficient to sustain the policy. Obviously there will come a time, naturally flowing from the execution of the waiver and consent, when third party rights will vest and the best interest of the child under section 39.467(2) will be served by giving finality to the waiver and consent. At that point, withdrawal of the waiver and consent should be denied.
By making the execution of the waiver and consent final, the State has created a "bright line" rule which eliminates the need for a case-by-case determination of whether the parent should be able to withdraw consent. Admittedly, this rule ensures the quick and efficient resolution and disposal of termination cases. However, as the court in Stanley v. Illinois stated:
But the Constitution recognizes higher values than speed and efficiency. Indeed one might fairly say of the Bill of Rights in general, and the Due Process Clause in particular, that they were designed to protect the fragile values of a vulnerable citizenry from the overbearing concern for efficiency and efficacy that may characterize praiseworthy government officials no less, and perhaps more, than mediocre ones.
Procedure by presumption is always cheaper and easier than individualized determination. But when, as here, the procedure forecloses the determinative issues of competence and care, when it explicitly disdains present realities in deference to past formalities, it needlessly risks running roughshod over the important interests of both parent and child. It, therefore, cannot stand.
Stanley v. Illinois, 405 U.S. at 656-57, 92 S.Ct. at 1215.
To hold that the mother herein is foreclosed from making her case that she is a fit and deserving mother who is able and most willing to continue providing a stable and supportive home for her child merely because the State has determined that the waiver and consent are final even though no intervening rights have emerged, is both unfair and unreasonable.
This is particularly evident when we compare the plight of this mother with the rights afforded a "volunteer mother" in a prearranged adoption agreement. Certainly if a bright line rule is appropriate for the mother in our case, I submit the rule should provide a rescission period of not less than the seven days given the mother who becomes pregnant pursuant to a preplanned adoption agreement specifically for the purpose of giving up her child for adoption. See Section 63.212(i)(1)(b), Florida Statutes (1991). In that case, even though the mother executes a written consent to terminate her parental rights at the time she enters the preplanned adoption agreement, and even though the intended parents have paid all of the volunteer mother's medical bills and living expenses, the volunteer mother nevertheless has her entire gestation period plus seven days to withdraw her consent for any reason. She is not required to show that either fraud or duress affected her original decision.
Although the supreme court in Doe determined that since the consent given in...
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...964, 110 S.Ct. 405, 107 L.Ed.2d 371 (1989); In re Adoption of Cox, 327 So.2d 776, 777-78 (Fla.1976); Henriquez v. Adoption Centre, Inc., 641 So.2d 84, 90 (Fla. 5th DCA 1993) (en banc), review denied, 649 So.2d 233 (Fla.1994); Hindman v. Bischoff, 534 So.2d 743, 744 (Fla. 2d DCA 1988), revie......
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Henriquez v. Adoption Centre, Inc.
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