The Florida Senate

63.085  Disclosure by adoption entity.--

(1)  DISCLOSURE REQUIRED TO PARENTS AND PROSPECTIVE ADOPTIVE PARENTS.--Not later than 7 days after a person seeking to adopt a minor or a person seeking to place a minor for adoption contacts an adoption entity in person or provides the adoption entity with a mailing address, the entity must provide a written disclosure statement to that person if the entity agrees or continues to work with such person. If an adoption entity is assisting in the effort to terminate the parental rights of a parent who did not initiate the contact with the adoption entity, the written disclosure must be provided within 7 days after that parent is identified and located. For purposes of providing the written disclosure, a person is considered to be seeking to place a minor for adoption when that person has sought information or advice from the adoption entity regarding the option of adoptive placement. The written disclosure statement must be in substantially the following form:

THE STATE OF FLORIDA REQUIRES THAT THIS FORM BE PROVIDED TO ALL PERSONS CONSIDERING ADOPTING A MINOR OR SEEKING TO PLACE A MINOR FOR ADOPTION, TO ADVISE THEM OF THE FOLLOWING FACTS REGARDING ADOPTION UNDER FLORIDA LAW:

1.  Under section 63.102, Florida Statutes, the existence of a placement or adoption contract signed by the parent or prospective adoptive parent, prior approval of that contract by the court, or payment of any expenses permitted under Florida law does not obligate anyone to sign a consent or ultimately place a minor for adoption.

2.  Under sections 63.092 and 63.125, Florida Statutes, a favorable preliminary home study, before the minor may be placed in that home, and a final home investigation, before the adoption becomes final, must be completed.

3.  Under section 63.082, Florida Statutes, a consent to adoption or affidavit of nonpaternity may not be signed until after the birth of the minor.

4.  Under section 63.082, Florida Statutes, if the minor is to be placed for adoption with identified prospective adoptive parents upon release from a licensed hospital or birth center following birth, the consent to adoption may not be signed until 48 hours after birth or until the day the birth mother has been notified in writing, either on her patient chart or in release papers, that she is fit to be released from the licensed hospital or birth center, whichever is sooner. The consent to adoption or affidavit of nonpaternity is valid and binding upon execution unless the court finds it was obtained by fraud or under duress.

5.  Under section 63.082, Florida Statutes, if the minor is not placed for adoption with the prospective adoptive parent upon release from the hospital or birth center following birth, a 3-day revocation period applies during which consent may be withdrawn for any reason by notifying the adoption entity in writing. In order to withdraw consent, the written withdrawal of consent must be mailed at a United States Post Office no later than 3 business days after execution of the consent or 1 business day after the date of the birth mother's discharge from a licensed hospital or birth center, whichever occurs later. For purposes of mailing the withdrawal of consent, the term "business day" means any day on which the United States Postal Service accepts certified mail for delivery. The letter must be sent by certified United States mail, return receipt requested. Postal costs must be paid at the time of mailing and the receipt should be retained as proof that consent was withdrawn in a timely manner.

6.  Under section 63.082, Florida Statutes, and notwithstanding the revocation period, the consent may be withdrawn at any time prior to the placement of the child with the prospective adoptive parent, by notifying the adoption entity in writing by certified United States mail, return receipt requested.

7.  Under section 63.082, Florida Statutes, if an adoption entity timely receives written notice from a person of that person's desire to withdraw consent, the adoption entity must contact the prospective adoptive parent to arrange a time certain to regain physical custody of the child. Absent a court order for continued placement of the child entered under section 63.082, Florida Statutes, the adoption entity must return the minor within 3 days after notification of the withdrawal of consent to the physical custody of the person withdrawing consent. After the revocation period for withdrawal of consent ends, or after the placement of the child with the prospective adoptive parent, whichever occurs later, the consent may be withdrawn only if the court finds that the consent was obtained by fraud or under duress.

8.  Under section 63.082, Florida Statutes, an affidavit of nonpaternity, once executed, may be withdrawn only if the court finds that it was obtained by fraud or under duress.

9.  Under section 63.082, Florida Statutes, a person who signs a consent to adoption or an affidavit of nonpaternity must be given reasonable notice of his or her right to select a person who does not have an employment, professional, or personal relationship with the adoption entity or the prospective adoptive parents to be present when the consent or affidavit is executed and to sign the consent or affidavit as a witness.

10.  Under section 63.088, Florida Statutes, specific and extensive efforts are required by law to attempt to obtain the consents required under section 63.062, Florida Statutes. If these efforts are unsuccessful, the court may not enter a judgment terminating parental rights pending adoption until certain requirements have been met.

11.  Under Florida law, an intermediary may represent the legal interests of only the prospective adoptive parents. Each person whose consent to an adoption is required under section 63.062, Florida Statutes, is entitled to seek independent legal advice and representation before signing any document or surrendering parental rights.

12.  Under section 63.182, Florida Statutes, an action or proceeding of any kind to vacate, set aside, or otherwise nullify a judgment of adoption or an underlying judgment terminating parental rights pending adoption, on any ground, including duress but excluding fraud, must be filed within 1 year after entry of the judgment terminating parental rights pending adoption. Such an action or proceeding for fraud must be filed within 2 years after entry of the judgment terminating parental rights.

13.  Under section 63.089, Florida Statutes, a judgment terminating parental rights pending adoption is voidable and any later judgment of adoption of that minor is voidable if, upon the motion of a parent, the court finds that any person knowingly gave false information that prevented the parent from timely making known his or her desire to assume parental responsibilities toward the minor or to exercise his or her parental rights. The motion must be filed with the court that originally entered the judgment. The motion must be filed within a reasonable time, but not later than 2 years after the date the judgment to which the motion is directed was entered.

14.  Under section 63.165, Florida Statutes, the State of Florida maintains a registry of adoption information. Information about the registry is available from the Department of Children and Family Services.

15.  Under section 63.032, Florida Statutes, a court may find that a parent has abandoned his or her child based on conduct during the pregnancy or based on conduct after the child is born. In addition, under section 63.089, Florida Statutes, the failure of a parent to respond to notices of proceedings involving his or her child shall result in termination of parental rights of a parent. A lawyer can explain what a parent must do to protect his or her parental rights. Any parent wishing to protect his or her parental rights should act IMMEDIATELY.

16.  Each parent and prospective adoptive parent is entitled to independent legal advice and representation. Attorney information may be obtained from the yellow pages, The Florida Bar's lawyer referral service, and local legal aid offices and bar associations.

17.  Counseling services may be helpful while making a parenting decision. Consult the yellow pages of the telephone directory.

18.  Medical and social services support is available if the parent wishes to retain parental rights and responsibilities. Consult the Department of Children and Family Services.

19.  Under section 63.039, Florida Statutes, an adoption entity has certain legal responsibilities and may be liable for damages to persons whose consent to an adoption is required or to prospective adoptive parents for failing to materially meet those responsibilities. Damages may also be recovered from an adoption entity if a consent to adoption or affidavit of nonpaternity is obtained by fraud or under duress attributable to an adoption entity.

20.  Under section 63.097, Florida Statutes, reasonable living expenses of the birth mother may be paid by the prospective adoptive parents and the adoption entity only if the birth mother is unable to pay due to unemployment, underemployment, or disability. The law also allows payment of reasonable and necessary medical expenses, expenses necessary to comply with the requirements of chapter 63, Florida Statutes, court filing expenses, and costs associated with advertising. Certain documented legal, counseling, and other professional fees may be paid. Prior approval of the court is not required until the cumulative total of amounts permitted exceeds $2,500 in legal or other fees, $500 in court costs, $3,000 in expenses, or $1,500 in cumulative expenses incurred prior to the date the prospective adoptive parent retains the adoption entity. The following fees, costs, and expenses are prohibited:

a.  Any fee or expense that constitutes payment for locating a minor for adoption.

b.  Any lump-sum payment to the entity which is nonrefundable directly to the payor or which is not itemized on the affidavit.

c.  Any fee on the affidavit which does not specify the service that was provided and for which the fee is being charged, such as a fee for facilitation or acquisition.

The court may reduce amounts charged or refund amounts that have been paid if it finds that these amounts were more than what was reasonable or allowed under the law.

21.  Under section 63.132, Florida Statutes, the adoption entity and the prospective adoptive parents must sign and file with the court a written statement under oath listing all the fees, expenses, and costs made, or agreed to be made, by or on behalf of the prospective adoptive parents and any adoption entity in connection with the adoption. The affidavit must state whether any of the expenses were eligible to be paid for by any other source.

22.  Under section 63.132, Florida Statutes, the court order approving the money spent on the adoption must be separate from the judgment making the adoption final. The court may approve only certain costs and expenses allowed under section 63.097, Florida Statutes. The court may approve only fees that are allowed under law and that it finds to be "reasonable." A good idea of what is and is not allowed to be paid for in an adoption can be determined by reading sections 63.097 and 63.132, Florida Statutes.

(2)  ACKNOWLEDGMENT OF DISCLOSURE.--The adoption entity must obtain a written statement acknowledging receipt of the disclosure required under subsection (1) and signed by the persons receiving the disclosure or, if it is not possible to obtain such an acknowledgment, the adoption entity must execute an affidavit stating why an acknowledgment could not be obtained. If the disclosure was delivered by certified United States mail, return receipt requested, a return receipt signed by the person from whom acknowledgment is required is sufficient to meet the requirements of this subsection. A copy of the acknowledgment of receipt of the disclosure must be provided to the person signing it. A copy of the acknowledgment or affidavit executed by the adoption entity in lieu of the acknowledgment must be maintained in the file of the adoption entity. The original acknowledgment or affidavit must be filed with the court. In the case of a disclosure provided under subsection (1), the original acknowledgment or affidavit must be included in the preliminary home study required in s. 63.092

(3)  POSTBIRTH DISCLOSURE TO PARENTS.--Before execution of any consent to adoption by a parent, but after the birth of the minor, all requirements of subsections (1) and (2) for making certain disclosures to a parent and obtaining a written acknowledgment of receipt must be repeated.

(4)  REVOCATION OF CONSENT.--Failure to meet the requirements of subsections (1)-(3) does not constitute grounds for revocation of a consent to adoption or withdrawal of an affidavit of nonpaternity unless the extent and circumstances of such a failure result in a material failure of fundamental fairness in the administration of due process, or the failure constitutes or contributes materially to fraud or duress in obtaining a consent to adoption or affidavit of nonpaternity.

History.--s. 1, ch. 84-28; s. 2, ch. 88-109; s. 8, ch. 92-96; s. 338, ch. 95-147; s. 15, ch. 2001-3.