Adoption & TPR

Under Ch.63

Bench Bar 2017

Chapter 63, Florida Statutes

• Governs -

• stepparent adoption

• relative adoption

• adult adoption

• private adoption (involving adoption entity)

• adoption following TPR under Chapter 39 (however, adoption will take place in juvenile division)

• Includes provisions for both the termination of parental rights AND adoption

Accessing Chapter 63 Files

• All files are confidential.

• TPR - 63.089(8)

• Adoption – 63.162

• Court order required for anyone to gain entry into file – even the Petitioner or adoption entity

Separation of TPR and Adoption Files

• Adult, relative and stepparent adoption cases may proceed in one file. §§ 63.087(3); 63.102

• Private adoptions must proceed in two separate case files –

• TPR case file

• Adoption case file

• 15th Circuit – Administrative Order 5.105

• Created two court files for private adoptions – TPR & Adoption

• Only one filing fee charged

• Addresses other issues such as manner of filing pleadings and fees

What Goes Where? Items in TPR

1. Notice of Intended Adoption Plan, if required. §63.062(3).

2. Adoption Disclosure (birth parents). §63.085.

3. Proof of Service – if birth father cannot be located for service then

a. Sworn Statement Regarding Identity or Location of Birth Father. §63.088(4).

b. Affidavit of Diligent Search. §63.088(5).

4. Consent and Waiver by Parent/ Affidavit of Nonpaternity. §§63.06(1) & 63.082.

5. Waiver of Venue and Authorization to File TPR. §63.087(2) & (4)(b).

6. UCCJEA/ICWA affidavits. §63.087(4)(e)2.

7. Petition to Terminate Parental Rights for the Proposed Adoption of Minor Child(ren). §§63.087; 63.088; 63.089.

8. Notice of Petition to Terminate Parental Rights Pending Adoption and Notice of Hearing. §63.088(3).

Items in Adoption

1. Petition for Declaratory Statement (if prior court approval needed pursuant to §63.102(5)).

2. Notice of Intent to Place Minor for Adoption, not required in stepparent or close relative adoption. §63.092(1).

3. Adoption Disclosure (adoptive parents). §63.085.

4. Motion for Order Approving Placement only in Adoption Entity Placement. §63.052.

5. UCCJEA, if joint stepparent, adult or close relative adoption. §63.102(6).

6. Disclosure of At-Risk Placement §63.102

7. Petition for Adoption. §§63.102 & 63.112.

8. Final Order on Termination of Parental Rights. §63.112(2)(a).

9. Affidavit of Fees and Expenses with documentation/itemization as required by statute. §63.132.

Consent and Affidavit of Nonpaternity

Section 63.082(4) • Signed in presence of two witnesses plus notary (notary may not

sign as a witness!)

• Notary must legibly note on consent or affidavit date and time of execution

• Witnesses’ names must be typed or printed underneath signatures

• Witnesses’ home or business address must be included

• Person signing consent must acknowledge in writing on the consent or affidavit that notice of right to select witness was given and indicate which witness, if any, was selected by the person

• Adoption entity must include its name, address, and telephone number on the consent to adoption or affidavit of non paternity

Who Must Consent? §63.062(1)

• Mother

• Father, if:

• minor was conceived or born while father was married to mother

• minor is his child by adoption

• minor is adjudicated by the court to be his child before the TPR petition is filed

• Father filed an Affidavit of Paternity or he is listed on the child’s birth certificate before the date the petition for termination is filed with the court.

• if an unmarried biological father, he has complied with 63.088(2)

• Minor, if over 12, unless court dispenses with the minor’s consent

• Any person with lawful custody of the minor

• The court having jurisdiction to determine custody, if the person with physical custody does not have authority to consent

Service

• Personal service required

• Constructive Service

• Affidavit of Diligent Search

• Publication – Only required if person’s consent is required. Must be in person’s last known county of residence!

Notice of Intended Adoption Plan §63.062 (3) & (4)

• Required to be served on unmarried biological father if the child is 6 months old or younger when mother signs consent

• May be served before birth of child

• Must tell unmarried biological father what he must do to contest adoption plan, if he chooses

• In order to contest an adoption plan, an unmarried biological father must, within 30 days of service:

• File claim of paternity with Putative Father Registry

• File a verified response with the court that contains a pledge of commitment to the child

• Failure to timely comply with Notice of Intended Adoption Plan allows court to enter a default judgment against him.

• Heart of Adoptions, Inc. v. J.A., 963 So.2d 189 (Fla. 2007).

Appointment of Counsel

• 63.087(6) – Parent present at TPR hearing must be advised by the Court that he or she has the right to ask the hearing to be reset for a later date so that the person may consult with an attorney

• Entitled to court appointed counsel if indigent: • Mother

• Father if he has legally recognized the child or is in fact maintaining the child. K.H. v. Children’s Home Soc. of Florida, 120 So. 3d 104 (Fla. 4th DCA 2013)

TPR: Chapters 63 vs. 39 • Chapter 63 – privately initiated (by parent and stepparent,

relative, or adoption entity)

• Chapter 39 – usually state initiated (DCF) • In some circumstances, a private person may initiate Chapter 39 TPR

proceedings.

• 39.802(1) – who may file Petition:“the department, the guardian ad litem, or any other person who has knowledge of the facts alleged or is informed of them and believes that they are true.”

• 39.811(6) provides the grounds where the parental rights of one parent may be terminated while leaving the other parent’s rights in tact.

CERTIFICATE OF DILIGENT SEARCH OF PUTATIVE FATHER REGISTRY

• Must File in Every Case – No Exception

• Private Adoption (Adoption Entity Adoption)

• Stepparent

• Adult

• Adoption Subsequent to 39 Termination unless a diligent search of the Putative Father Registry was filed in the 39 Action. §63.037.

• Best Practice: File Diligent Search as part of 39 Termination

• A.A.F. v. DEPARTMENT OF CHILDREN & FAMILIES & MR. AND MRS. L.,

2017 WL 436293, -- So.3d – (Fla. 4th DCA 2017)

(A father who failed to register with Florida’s putative father registry does not have standing to set aside a chapter 39 termination judgment.)

Adoption

• Petition for Adoption may not be filed until after the entry of a TPR judgment.

• If TPR under Chapter 39, the adoption is governed by 39.812 and Chapter 63 (with a few exemptions from Ch. 63).

• However, the Petition for Adoption must be filed in the division of the court which entered the TPR judgment.

Adoption Supporting Documents

• Stepparent/relative and private:

• UCCJEA

• Indian Child Welfare Act Affidavit

• Putative Father Registry certificate

• Birth certificate of adoptee

• Notice of Related Cases Form

• Additional items required in private adoptions:

• Home Study/post placement

• At risk disclosure

• Adoption disclosure (2 required)

• Reunion registry

• Notice of Intended Placement

• Affidavit of Fees and Expenses

Second Parent Adoption - Standing

• Provides for adoption decrees entered for both parents in a same sex couple.

• Standing of “second parent” • § 63.042 – Who may be adopted; who may adopt.

(2) The following persons may adopt:

(b) An unmarried adult.

• Does not prohibit two unmarried people from adopting.

• Does not prohibit two same sex parents.

• A Petitioner may seek to establish parental rights through adoption without terminating the existing rights of a single parent under the authority of 63.042(2)(b). M.D.C. v. B.N.M.J., 117 So.3d 489 (Fla. 1st DCA 2013)

• If child arrived in the family through adoption, then must obtain two judgments an initial and subsequent second parent judgment. §63.042(2)(a).

Is it a Stepparent Adoption?

•YES, If The The Prospective Adoptive Parent Is Married To The Biological Parent.

• Obergefell v. Hodges 135 S.Ct. 2584 (2015)

“The Court now holds that same-sex couples may exercise the fundamental right to marry. No longer may this liberty be denied to them. Baker v. Nelson must be and now is overruled, and the State laws challenged by Petitioners in these cases are now held invalid to the extent they exclude same-sex couples from civil marriage on the same terms and conditions as opposite-sex couples.”