Home At Last Adoption Agency, Inc. v. V.M.

• Decision Date: 14 November 2013
• Docket Number: No. 5D12–3732.,5D12–3732.
• Citation: 126 So.3d 1236
• Parties: HOME AT LAST ADOPTION AGENCY, INC., Appellant, v. V.M., Father, Appellee.
• Court: Florida District Court of Appeals

126 So.3d 1236

HOME AT LAST ADOPTION AGENCY, INC., Appellant,

v.V.M., Father, Appellee.

No. 5D12–3732.

District Court of Appeal of Florida,

Fifth District.

Nov. 14, 2013.

Shannon Mclin Carlyle, of The Carlyle Appellate Law Firm, The Villages, for Appellant.

Ryan Thomas Truskoski, Special Assistant, and Lori D. Loftis and Jeffrey Deen, of Office of the Criminal and Civil Regional Counsel, Casselberry, for Appellee.

PER CURIAM.

Home at Last Adoption Agency, Inc., (“the Adoption Agency”) appeals a final judgment dismissing its second amended petition to terminate the parental rights of Appellee, V.M., to his biological daughter. Because the trial court erroneously concluded that our prior opinion in this case precluded it from finding that Appellee had abandoned the child, we reverse.

The procedural and factual history of this case is unique. Appellee married G.C. (“the mother”) in October 2009, after learning that she was pregnant with his child. Two months later, Appellee was arrested for allegedly battering his new wife. The resulting aggravated battery charge was ultimately dismissed after the mother failed to appear for Appellee's criminal court proceedings. The mother was successful, however, in obtaining an injunction for protection against Appellee.

The child was born in April 2010. Approximately one week after the child's birth, the mother executed a consent for adoption, placing the child in the custody of the Adoption Agency. The affidavit provided to the Adoption Agency by the mother falsely represented that she was single. The child was placed with a prospective adoptive family in Massachusetts and has continued to reside there throughout these proceedings.

Although Appellee and the mother were married at the time the child was born, the Adoption Agency initially sent information to Appellee as though he were a putative unmarried father. In May 2010, the Adoption Agency filed a petition to terminate Appellee's parental rights and to commit the child to the Adoption Agency for adoption. The petition was filed pursuant to chapter 63, Florida Statutes (2010), and alleged, inter alia, that Appellee had been served with a notice of intended adoption plan, but had failed to register with the Florida Putative Father Registry. Thus, the petition alleged, Appellee was deemed to have surrendered his parental rights.

After learning that Appellee was, in fact, married to the child's mother, the Adoption Agency filed an amended petition in November 2010, alleging that Appellee had abandoned the child and had rejected his parental responsibilities by physically and/or mentally abusing the mother during the pregnancy. The trial court appointed counsel to represent Appellee and an answer was filed denying “each and every allegation” of the amended petition.

Trial was held on the termination petition on June 13, 2011. At the conclusion of the trial, the court verbally advised the parties that it was going to deny the amended petition because it could not find Appellee had abandoned the child. The trial court did believe, however, that the evidence supported a finding of dependency, stating:

There is nothing that's been presented to me that would lead me to determine that this man has been [sic] abandoned the child, nor has there been some egregious activity that would cause me to terminate his parental rights. However, it is very appropriate for a dependency.

I would order at this point—again, not hearing what some witness in the hallway is going to say—or at this point, based on the evidence that's been presented so far, that the father would be entitled to a case plan that would include psychological evaluation, Batterers Intervention, a parenting class, obviously follow the recommendations of the psychological evaluation, pay child support, have regular and routine visitation.

I cannot find good grounds to terminate his parental rights. It doesn't meet the criteria. And I think the biggest problem is, the mother lied to you. But I cannot find abandonment.

Any other grounds you have listed and elicited here in testimony today, did not rise to the level of termination. They do rise to the level of dependency though.

After discussion with the parties, the trial court stated that the child would remain with the prospective adoptive parents in Massachusetts, but they would be required to bring the child to Florida for visitation with Appellee every other Saturday. The visitation would be supervised by the “Eckerd Program.” The court further expressed its desire not to place the child in foster care or involve the Department of Children and Families.

Appellee filed a motion for rehearing in which he argued that the court's adjudication of the child as dependent was improper. In support, Appellee cited section 63.089(5), Florida Statutes (2010),¹ which provides:

If the court does not find by clear and convincing evidence that parental rights of a parent should be terminated pending adoption, the court must dismiss the petition and that parent's parental rights that were the subject of such petition shall remain in full force under the law. The order must include written findings in support of the dismissal, including findings as to the criteria in subsection (4) if rejecting a claim of abandonment.... [T]he court must enter an order based on written findings providing for the placement of the minor.... Further proceedings, if any, regarding the minor must be brought in a separate custody action under chapter 61, a dependency action under chapter 39, or a paternity action under chapter 742.

At the hearing on Appellee's motion, counsel for the Adoption Agency informed the trial court that since the conclusion of the trial six months earlier, Appellee had neither provided child support nor visited the child. Appellee's counsel advised the court that no child support had been paid because there was no written order setting a support amount. Appellee's counsel further stated that Appellee could not afford to pay for supervised visitation, but admitted that Appellee was not aware of the actual cost, nor had he sought a cost waiver.

The trial court then suggested that, given Appellee's inaction during the previous six months, it would be appropriate for the Adoption Agency to file a second amended petition because “there may be additional grounds for termination at this time.” Specifically, the trial court stated:

Well, I'm going to order that Home at Last Adoption will be allowed to amend their pleadings to include a chapter 39 private petition for dependency and/or another termination of parental rights petition, whatever your choice is, however you choose to do that.

You could basically do both if you'd like or you could do the Chapter 39 petition for dependency. I have made my ruling as to the grounds for termination. My suggestion is there may be additional grounds for termination at this time.

I don't know because I don't know the details of why there's been no support and no visitation in six months. You'll have fifteen days to file your petition ....

The child will remain in the custody of Home at Last Adoption. The father will continue to have supervised visitation via the Eckerd Program because I've heard no substantial, competent, reliable evidence that he can't afford it ....

On December 21, 2011, the trial court entered its written order entitled “Order of Adjudication and Findings of Fact, Order of Disposition and Case Plan Acceptance.” The order adjudicated the child dependent and denied the Adoption Agency's request to terminate Appellee's parental rights. The child was to remain in her current placement and the prospective adoptive parents were ordered to bring her to the Eckerd Program location, at their expense, for visitation with Appellee four hours every other Saturday. The visitation was to be supervised through the Eckerd Program with Appellee paying the cost of the supervision. Appellee was ordered to pay $200.00 per month in child support; to enter into a case plan with conditions that he have a psychiatric examination and counseling as recommended; complete parenting classes; and complete domestic violence/batterer's intervention courses, at his expense. The court provided that there was no telephone contact with the child, but photographs may be requested.

The Adoption Agency filed a second amended petition for termination of parental rights the next day. In this pleading, the Adoption Agency alleged that Appellee had abandoned the child “as he had made no provision for the child's support, little or no effort to communicate with the child, which situation is sufficient to evince an intent to reject parental responsibility.” The second amended petition also contained an allegation that Appellee had “failed to comply with any and all conditions ordered on June 13, 2011.” The second amended petition was personally served on Appellee as well as being served on his counsel.

Approximately three weeks after the Adoption Agency filed its second amended petition, Appellee filed a notice appealing the trial court's December 21, 2011, order. During the pendency of that appeal, the parties proceeded to trial on the Adoption Agency's second amended petition for termination of Appellee's parental rights. At that trial, conducted on March 16, 2012, Appellee testified that he was living with his parents and working at the same job that he had at the time of the first trial, earning over $2,000 per month. He acknowledged that he had never paid child support, nor had he ever seen the child (who was nearly two years old by the time of the second trial). Indeed, despite being afforded the opportunity to visit the child pursuant to the trial court's verbal directive on June 13, 2011, Appellee had not contacted the Eckerd Program about exercising his visitation rights until a few days before the second trial. The evidence further reflected that the prospective adoptive parents had provided the ...