Rivera-Berrios v. Adoption Centre, Inc., RIVERA-BERRIO

• Decision Date: 26 March 1993
• Docket Number: No. 92-2313,RIVERA-BERRIO,A,92-2313
• Citation: 617 So.2d 1067
• Parties: 18 Fla. L. Week. D812 Nelsonppellant, v. The ADOPTION CENTRE, INC., Appellee.
• Court: Florida District Court of Appeals

Page 1067

617 So.2d 1067

18 Fla. L. Week. D812

Nelson RIVERA-BERRIOS, Appellant, v. The ADOPTION CENTRE, INC., Appellee.

No. 92-2313.

District Court of Appeal of Florida Fifth District.

March 26, 1993.

Rehearing Denied May 19, 1993.

Appeal from the Circuit Court for Orange County; Charles N. Prather, Judge.

Barry Apfelbaum, Orlando, for appellant.

Heidi M. Tauscher, Orlando, and Thomas R. Mooney of Meyers, Mooney, Schott & Meyers, Orlando, for appellee.

PER CURIAM.

AFFIRMED.

GRIFFIN and DIAMANTIS, JJ., concur.

HARRIS, J., dissents with opinion.

HARRIS, Judge, dissenting.

A petition for dependency and for termination of parental rights as to a two-day-old infant was filed on January 24, 1992 by The Adoption Centre, Inc., a child placing agency. The affidavit of the natural mother stated that the natural father's first name is Nelson, but that she did not know his last name and that his address was unknown. The affidavit also alleged that the natural father (1) is not in the military; (2) has not been established by court proceeding to be the father; (3) has not been informed of the pregnancy and birth of the child; (4) has not acknowledged his paternity in writing; (5) has not provided support; and (6) has not shown interest in supporting or caring for the child. A notice of petition for adoption was published.

On March 2, 1992 the trial court entered a form final judgment of termination of parental rights. The final judgment found that the child placing agency proved by clear and convincing evidence that the natural father had not contacted the child, requested visitation, or made effort to support the child in such manner as to evince a settled purpose to assume all parental duties and that the child was therefore neglected and abandoned. The final judgment stated that all of the elements of section 39.467(2) of the Florida Statutes (1991) were met and that the allegations of the petition were proved by clear and convincing evidence.

On July 2, 1992 Nelson Rivera-Berrios, the natural father, filed a motion to vacate the final judgment of termination of parental rights. He alleged that he was denied due process in the proceedings which resulted in the order of adjudication of March 2, 1992 and that the findings of the court were based on fraudulent misrepresentations of fact. A hearing on the motion to vacate was held on July 23, 1992.

At the hearing the natural mother admitted that the affidavit was untrue.

Q: Why did you answer those questions falsely?

A: Because they would probably try to find Nelson and tell him that I was pregnant and they ... I'm sure he would've come forth if he would've found out. They would have tried to get ahold of him, which I didn't want to happen.

She stated that she had broken off her relationship with her former boyfriend, Frank, who is the father of her four-year-old son, when she began seeing the natural father. When she told the natural father she was pregnant, she also told him that since she already had a four-year-old son, she couldn't "see having another baby." She stated that the natural father wanted to get married and raise the child, and that he told her if she didn't want to marry him he would raise the baby with help from his family. Instead, she decided to return to Frank and refused any further contact with the natural father. It was not until about June 23, 1992, that she informed the natural father that she had given birth to the child during the previous January. She testified that the natural father was surprised but happy and wanted to get the baby back. The natural father testified, without contradiction, that the mother told him she wouldn't have another baby and that he believed she intended to have an abortion. He went to her apartment every day for a month to talk to her about the baby, but she told him to leave her alone. He saw her briefly some time later when she brought her car to his place of employment for service, and he believed she had had an abortion because she was thin. He agreed that it was on June 23, 1992 that the natural mother told him that she had given birth to the baby and had placed her for adoption. He immediately took steps to gain custody of the child.

The trial court entered an order on July 30, 1992 granting the natural father's motion to vacate the final judgment of termination of parental rights. The order stated that because the natural mother knew of the natural father's whereabouts, she had not made a diligent search and inquiry to satisfy the requirements of effective service by publication.

The trial court, however, subsequently withdrew its order of July 30, finding instead that the natural father was not entitled to notice and therefore any defects in the service were of no consequence. The trial court also found there was clear and convincing evidence that the natural father abandoned the child in that his efforts to be a parent were only marginal and did not evince a settled purpose to assume all parental duties. The trial court denied the natural father's motion to vacate the final judgment of termination of parental rights. I would reverse.

I would hold that section 39.462(1)(a)2, at least as applied to this case, is unconstitutional in that it has deprived the natural father of due process of law. This provision indicates that the father of the child is entitled to personal service only if: (a) the child was conceived or born while the father was married to the mother; (b) the child is his by adoption; (c) the child has been established by a court proceeding to be his child; (d) he has acknowledged his paternity in a writing signed in the presence of a competent witness and filed with HRS; or (e) he has provided the child with support in a repetitive, customary manner.

Perhaps under some fact patterns section 39.462(1)(a)2 would satisfy constitutional requirements. However, if the statute is held to authorize termination of this father's parental rights--when the mother knew his name, address and interest in the child--without notice, then the statute is unconstitutional. How can the best possible father prove his merit if he is denied the opportunity to do so merely because the mother is willing to file a false affidavit for consideration by the court?

I recognize that in Lehr v. Robertson, 463 U.S. 248, 103 S.Ct. 2985, 77 L.Ed.2d 614 (1983), the United States Supreme Court upheld a New York statute similar to (but not quite as restrictive as) the one involved in this case. The majority holding, however, was justified on the basis that the putative father had paid no support and had minimal contact with the child for over two years. The court made this distinction:

When an unwed father demonstrates a full commitment to the responsibilities of parenthood by "com[ing] forward to participate in the rearing of his child," Caban [v. Mohammed ], 441 U.S. at 392, 99 S.Ct. [1760] at 1768 [60 L.Ed.2d 297 (1979) ], his interest in personal contact with his child acquires substantial protection under the Due Process Clause. At that point, it may be said that he "act[s] as a father toward his children." Id. at 389, n. 7, 99...