The Florida Senate

63.089  Proceeding to terminate parental rights pending adoption; hearing; grounds; dismissal of petition; judgment.--

(1)  HEARING.--The court may terminate parental rights pending adoption only after a hearing.

(2)  HEARING PREREQUISITES.--The court may hold the hearing only when:

(a)  For each person whose consent to adoption is required under s. 63.062:

1.  A consent under s. 63.082 has been executed and filed with the court;

2.  An affidavit of nonpaternity under s. 63.082 has been executed and filed with the court;

3.  Notice has been provided under ss. 63.087 and 63.088; or

4.  The certificate from the Office of Vital Statistics has been provided to the court stating that a diligent search has been made of the Florida Putative Father Registry created in s. 63.054 and that no filing has been found pertaining to the father of the child in question or, if a filing is found, stating the name of the putative father and the time and date of the filing.

(b)  For each notice and petition that must be served under ss. 63.087 and 63.088:

1.  At least 20 days have elapsed since the date of personal service and an affidavit of service has been filed with the court;

2.  At least 30 days have elapsed since the first date of publication of constructive service and an affidavit of service has been filed with the court; or

3.  An affidavit of nonpaternity which affirmatively waives service has been executed and filed with the court;

(c)  The minor named in the petition has been born; and

(d)  The petition contains all information required under s. 63.087 and all affidavits of inquiry, diligent search, and service required under s. 63.088 have been obtained and filed with the court.

(3)  GROUNDS FOR TERMINATING PARENTAL RIGHTS PENDING ADOPTION.--The court may enter a judgment terminating parental rights pending adoption if the court determines by clear and convincing evidence, supported by written findings of fact, that each person whose consent to adoption is required under s. 63.062:

(a)  Has executed a valid consent under s. 63.082 and the consent was obtained according to the requirements of this chapter;

(b)  Has executed an affidavit of nonpaternity and the affidavit was obtained according to the requirements of this chapter;

(c)  Has been served with a notice of the intended adoption plan in accordance with the provisions of s. 63.062(3) and has failed to respond within the designated time period;

(d)  Has been properly served notice of the proceeding in accordance with the requirements of this chapter and has failed to file a written answer or appear at the evidentiary hearing resulting in the judgment terminating parental rights pending adoption;

(e)  Has been properly served notice of the proceeding in accordance with the requirements of this chapter and has been determined under subsection (4) to have abandoned the minor as defined in s. 63.032;

(f)  Is a parent of the person to be adopted, which parent has been judicially declared incapacitated with restoration of competency found to be medically improbable;

(g)  Is a person who has legal custody of the person to be adopted, other than a parent, who has failed to respond in writing to a request for consent for a period of 60 days or, after examination of his or her written reasons for withholding consent, is found by the court to be withholding his or her consent unreasonably;

(h)  Has been properly served notice of the proceeding in accordance with the requirements of this chapter, but has been found by the court, after examining written reasons for the withholding of consent, to be unreasonably withholding his or her consent; or

(i)  Is the spouse of the person to be adopted who has failed to consent, and the failure of the spouse to consent to the adoption is excused by reason of prolonged and unexplained absence, unavailability, incapacity, or circumstances that are found by the court to constitute unreasonable withholding of consent.

(4)  FINDING OF ABANDONMENT.--A finding of abandonment resulting in a termination of parental rights must be based upon clear and convincing evidence that a parent or person having legal custody has abandoned the child in accordance with the definition contained in s. 63.032(1). A finding of abandonment may be based upon emotional abuse or a refusal to provide reasonable financial support, when able, to a birth mother during her pregnancy. If, in the opinion of the court, the efforts of a parent or person having legal custody of the child to support and communicate with the child are only marginal efforts that do not evince a settled purpose to assume all parental duties, the court may declare the child to be abandoned. In making this decision, the court may consider the conduct of a father toward the child's mother during her pregnancy.

(a)  In making a determination of abandonment at a hearing for termination of parental rights pursuant to this chapter, the court must consider, among other relevant factors not inconsistent with this section:

1.  Whether the actions alleged to constitute abandonment demonstrate a willful disregard for the safety or welfare of the child or unborn child;

2.  Whether the person alleged to have abandoned the child, while being able, failed to provide financial support;

3.  Whether the person alleged to have abandoned the child, while being able, failed to pay for medical treatment; and

4.  Whether the amount of support provided or medical expenses paid was appropriate, taking into consideration the needs of the child and relative means and resources available to the person alleged to have abandoned the child.

(b)  The child has been abandoned when the parent of a child is incarcerated on or after October 1, 2001, in a state or federal correctional institution and:

1.  The period of time for which the parent is expected to be incarcerated will constitute a substantial portion of the period of time before the child will attain the age of 18 years;

2.  The incarcerated parent has been determined by the court to be a violent career criminal as defined in s. 775.084, a habitual violent felony offender as defined in s. 775.084, convicted of child abuse as defined in s. 827.03, or a sexual predator as defined in s. 775.21; has been convicted of first degree or second degree murder in violation of s. 782.04 or a sexual battery that constitutes a capital, life, or first degree felony violation of s. 794.011; or has been convicted of an offense in another jurisdiction which is substantially similar to one of the offenses listed in this subparagraph. As used in this section, the term "substantially similar offense" means any offense that is substantially similar in elements and penalties to one of those listed in this subparagraph, and that is in violation of a law of any other jurisdiction, whether that of another state, the District of Columbia, the United States or any possession or territory thereof, or any foreign jurisdiction; or

3.  The court determines by clear and convincing evidence that continuing the parental relationship with the incarcerated parent would be harmful to the child and, for this reason, that termination of the parental rights of the incarcerated parent is in the best interest of the child.

(5)  DISMISSAL OF PETITION.--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. Parental rights may not be terminated based upon a consent that the court finds has been timely withdrawn under s. 63.082 or a consent to adoption or affidavit of nonpaternity that the court finds was obtained by fraud or duress. The court must enter an order based upon written findings providing for the placement of the minor. The court may order scientific testing to determine the paternity of the minor at any time during which the court has jurisdiction over 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.

(6)  JUDGMENT TERMINATING PARENTAL RIGHTS PENDING ADOPTION.--

(a)  The judgment terminating parental rights pending adoption must be in writing and contain findings of fact as to the grounds for terminating parental rights pending adoption.

(b)  Within 7 days after filing, the court shall mail a copy of the judgment to the department. The clerk shall execute a certificate of such mailing.

(7)  RELIEF FROM JUDGMENT TERMINATING PARENTAL RIGHTS.--

(a)  A motion for relief from a judgment terminating parental rights must be filed with the court originally entering the judgment. The motion must be filed within a reasonable time, but not later than 1 year after the entry of the judgment terminating parental rights.

(b)  No later than 30 days after the filing of a motion under this subsection, the court must conduct a preliminary hearing to determine what contact, if any, shall be permitted between a parent and the child pending resolution of the motion. Such contact shall be considered only if it is requested by a parent who has appeared at the hearing. If the court orders contact between a parent and child, the order must be issued in writing as expeditiously as possible and must state with specificity any provisions regarding contact with persons other than those with whom the child resides.

(c)  At the preliminary hearing, the court, upon the motion of any party or upon its own motion, may order scientific testing to determine the paternity of the minor if the person seeking to set aside the judgment is alleging to be the child's father and that fact has not previously been determined by legitimacy or scientific testing. The court may order visitation with a person for whom scientific testing for paternity has been ordered and who has previously established a bonded relationship with the child.

(d)  Unless otherwise agreed between the parties or for good cause shown, the court shall conduct a final hearing on the motion for relief from judgment within 45 days after the filing and enter its written order as expeditiously as possible thereafter.

(8)  RECORDS; CONFIDENTIAL INFORMATION.--All papers and records pertaining to a petition to terminate parental rights pending adoption are related to the subsequent adoption of the minor and are subject to the provisions of s. 63.162 The confidentiality provisions of this chapter do not apply to the extent information regarding persons or proceedings must be made available as specified under s. 63.088

History.--s. 18, ch. 2001-3; s. 19, ch. 2003-58; s. 13, ch. 2004-371.