2009 Florida Statutes
Execution of consent to adoption or affidavit of nonpaternity; family social and medical history; withdrawal of consent.
63.082 Execution of consent to adoption or affidavit of nonpaternity; family social and medical history; withdrawal of consent.--
(1)(a) Consent to an adoption or an affidavit of nonpaternity shall be executed as follows:
1. If by the person to be adopted, by oral or written statement in the presence of the court or by being acknowledged before a notary public and in the presence of two witnesses.
2. If by an agency, by affidavit from its authorized representative.
3. If by any other person, in the presence of the court or by affidavit acknowledged before a notary public and in the presence of two witnesses.
4. If by a court, by an appropriate order or certificate of the court.
(b) A minor parent has the power to consent to the adoption of his or her child and has the power to relinquish his or her control or custody of the child to an adoption entity. Such consent or relinquishment is valid and has the same force and effect as a consent or relinquishment executed by an adult parent. A minor parent, having executed a consent or relinquishment, may not revoke that consent upon reaching the age of majority or otherwise becoming emancipated.
(c) A consent or an affidavit of nonpaternity executed by a minor parent who is 14 years of age or younger must be witnessed by a parent, legal guardian, or court-appointed guardian ad litem.
(d) The notice and consent provisions of this chapter as they relate to the birth of a child or to legal fathers do not apply in cases in which the child is conceived as a result of a violation of the criminal laws of this or another state, including, but not limited to, sexual battery, unlawful sexual activity with certain minors under s. 794.05, lewd acts perpetrated upon a minor, or incest.
(2) A consent that does not name or otherwise identify the adopting parent is valid if the consent contains a statement by the person consenting that the consent was voluntarily executed and that identification of the adopting parent is not required for granting the consent.
(3)(a) The department must provide a family social and medical history form to an adoption entity that intends to place a child for adoption. Forms containing, at a minimum, the same information as the forms promulgated by the department must be attached to the petition to terminate parental rights pending adoption and must contain biological and sociological information or information as to the family medical history regarding the minor and the parents. This form is not required for adoptions of relatives, adult adoptions, or adoptions of stepchildren, unless parental rights are being or were terminated pursuant to chapter 39. The information must be filed with the court in the termination of parental rights proceeding.
(b) A good faith and diligent effort must be made to have each parent whose identity is known and whose consent is required interviewed by a representative of the adoption entity before the consent is executed. A summary of each interview, or a statement that the parent is unidentified, unlocated, or unwilling or unavailable to be interviewed, must be filed with the petition to terminate parental rights pending adoption. The interview may be excused by the court for good cause. This interview is not required for adoptions of relatives, adult adoptions, or adoptions of stepchildren, unless parental rights are being or were terminated pursuant to chapter 39.
(c) If any person who is required to consent is unavailable because the person cannot be located, the petition to terminate parental rights pending adoption must be accompanied by the affidavit of diligent search required under s. 63.088
(d) If any person who is required to consent is unavailable because the person is deceased, the petition to terminate parental rights pending adoption must be accompanied by a certified copy of the death certificate. In an adoption of a stepchild or a relative, the certified copy of the death certificate of the person whose consent is required must be attached to the petition for adoption.
(4)(a) An affidavit of nonpaternity may be executed before the birth of the minor; however, the consent to an adoption shall not be executed before the birth of the minor.
(b) A consent to the adoption of a minor who is to be placed for adoption may be executed by the birth mother 48 hours after the minor's birth or the day the birth mother is notified in writing, either on her patient chart or in release paperwork, that she is fit to be released from the licensed hospital or birth center, whichever is earlier. A consent by any man may be executed at any time after the birth of the child. The consent is valid upon execution and may be withdrawn only if the court finds that it was obtained by fraud or duress.
(c) If the minor to be adopted is older than 6 months of age at the time of the execution of the consent, the consent to adoption is valid upon execution; however, it is subject to a revocation period of 3 business days.
(d) The consent to adoption or the affidavit of nonpaternity must be signed in the presence of two witnesses and be acknowledged before a notary public who is not signing as one of the witnesses. The notary public must legibly note on the consent or the affidavit the date and time of execution. The witnesses' names must be typed or printed underneath their signatures. The witnesses' home or business addresses must be included. The person who signs the consent or the affidavit has the right to have at least one of the witnesses be an individual who does not have an employment, professional, or personal relationship with the adoption entity or the prospective adoptive parents. The adoption entity must give reasonable notice to the person signing the consent or affidavit of the right to select a witness of his or her own choosing. The person who signs the consent or affidavit must acknowledge in writing on the consent or affidavit that such notice was given and indicate the witness, if any, who was selected by the person signing the consent or affidavit. The adoption entity must include its name, address, and telephone number on the consent to adoption or affidavit of nonpaternity.
(e) A consent to adoption being executed by the birth parent must be in at least 12-point boldfaced type in substantially the following form:
YOU HAVE THE RIGHT TO SELECT AT LEAST ONE PERSON WHO DOES NOT HAVE AN EMPLOYMENT, PROFESSIONAL, OR PERSONAL RELATIONSHIP WITH THE ADOPTION ENTITY OR THE PROSPECTIVE ADOPTIVE PARENTS TO BE PRESENT WHEN THIS AFFIDAVIT IS EXECUTED AND TO SIGN IT AS A WITNESS. YOU MUST ACKNOWLEDGE ON THIS FORM THAT YOU WERE NOTIFIED OF THIS RIGHT AND YOU MUST INDICATE THE WITNESS OR WITNESSES YOU SELECTED, IF ANY.
YOU DO NOT HAVE TO SIGN THIS CONSENT FORM. YOU MAY DO ANY OF THE FOLLOWING INSTEAD OF SIGNING THIS CONSENT OR BEFORE SIGNING THIS CONSENT:
1. CONSULT WITH AN ATTORNEY;
2. HOLD, CARE FOR, AND FEED THE CHILD UNLESS OTHERWISE LEGALLY PROHIBITED;
3. PLACE THE CHILD IN FOSTER CARE OR WITH ANY FRIEND OR FAMILY MEMBER YOU CHOOSE WHO IS WILLING TO CARE FOR THE CHILD;
4. TAKE THE CHILD HOME UNLESS OTHERWISE LEGALLY PROHIBITED; AND
5. FIND OUT ABOUT THE COMMUNITY RESOURCES THAT ARE AVAILABLE TO YOU IF YOU DO NOT GO THROUGH WITH THE ADOPTION.
IF YOU DO SIGN THIS CONSENT, YOU ARE GIVING UP ALL RIGHTS TO YOUR CHILD. YOUR CONSENT IS VALID, BINDING, AND IRREVOCABLE EXCEPT UNDER SPECIFIC LEGAL CIRCUMSTANCES. IF YOU ARE GIVING UP YOUR RIGHTS TO A NEWBORN CHILD WHO IS TO BE IMMEDIATELY PLACED FOR ADOPTION UPON THE CHILD'S RELEASE FROM A LICENSED HOSPITAL OR BIRTH CENTER FOLLOWING BIRTH, A WAITING PERIOD WILL BE IMPOSED UPON THE BIRTH MOTHER BEFORE SHE MAY SIGN THE CONSENT FOR ADOPTION. A BIRTH MOTHER MUST WAIT 48 HOURS FROM THE TIME OF 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 A LICENSED HOSPITAL OR BIRTH CENTER, WHICHEVER IS SOONER, BEFORE THE CONSENT FOR ADOPTION MAY BE EXECUTED. ANY MAN MAY EXECUTE A CONSENT AT ANY TIME AFTER THE BIRTH OF THE CHILD. ONCE YOU HAVE SIGNED THE CONSENT, IT IS VALID, BINDING, AND IRREVOCABLE AND CANNOT BE WITHDRAWN UNLESS A COURT FINDS THAT IT WAS OBTAINED BY FRAUD OR DURESS.
IF YOU BELIEVE THAT YOUR CONSENT WAS OBTAINED BY FRAUD OR DURESS AND YOU WISH TO REVOKE THAT CONSENT, YOU MUST:
1. NOTIFY THE ADOPTION ENTITY, BY WRITING A LETTER, THAT YOU WISH TO WITHDRAW YOUR CONSENT; AND
2. PROVE IN COURT THAT THE CONSENT WAS OBTAINED BY FRAUD OR DURESS.
This statement of rights is not required for the adoption of a relative, an adult, a stepchild, or a child older than 6 months of age. A consent form for the adoption of a child older than 6 months of age at the time of the execution of consent must contain a statement outlining the revocation rights provided in paragraph (c).
(5) A copy or duplicate original of each consent signed in an action for termination of parental rights pending adoption must be provided to the person who executed the consent to adoption. The copy must be hand delivered, with a written acknowledgment of receipt signed by the person whose consent is required at the time of execution. If a copy of a consent cannot be provided as required in this subsection, the adoption entity must execute an affidavit stating why the copy of the consent was not delivered. The original consent and acknowledgment of receipt, or an affidavit stating why the copy of the consent was not delivered, must be filed with the petition for termination of parental rights pending adoption.
(6)(a) If a parent executes a consent for placement of a minor with an adoption entity or qualified prospective adoptive parents and the minor child is in the custody of the department, but parental rights have not yet been terminated, the adoption consent is valid, binding, and enforceable by the court.
(b) Upon execution of the consent of the parent, the adoption entity may intervene in the dependency case as a party in interest and must provide the court having jurisdiction over the minor, pursuant to the shelter or dependency petition filed by the department, a copy of the preliminary home study of the prospective adoptive parents and any other evidence of the suitability of the placement. The preliminary home study must be maintained with strictest confidentiality within the dependency court file and the department's file. A preliminary home study must be provided to the court in all cases in which an adoption entity has intervened pursuant to this section.
(c) Upon a determination by the court that the prospective adoptive parents are properly qualified to adopt the minor child and that the adoption appears to be in the best interest of the minor child, the court shall immediately order the transfer of custody of the minor child to the prospective adoptive parents, under the supervision of the adoption entity. The adoption entity shall thereafter provide monthly supervision reports to the department until finalization of the adoption.
(d) In determining whether the best interest of the child is served by transferring the custody of the minor child to the prospective adoptive parent selected by the parent, the court shall consider the rights of the parent to determine an appropriate placement for the child, the permanency offered, the child's bonding with any potential adoptive home that the child has been residing in, and the importance of maintaining sibling relationships, if possible.
(7) If a person is seeking to withdraw consent for a child older than 6 months of age who has been placed with prospective adoptive parents:
(a) The person seeking to withdraw consent must, in accordance with paragraph (4)(c), notify the adoption entity in writing by certified mail, return receipt requested, within 3 business days after execution of the consent. As used in this subsection, the term "business day" means any day on which the United States Postal Service accepts certified mail for delivery.
(b) Upon receiving timely written notice from a person whose consent to adoption is required of that person's desire to withdraw consent, the adoption entity must contact the prospective adoptive parent to arrange a time certain for the adoption entity to regain physical custody of the minor, unless, upon a motion for emergency hearing by the adoption entity, the court determines in written findings that placement of the minor with the person who had legal or physical custody of the child immediately before the child was placed for adoption may endanger the minor or that the person who desires to withdraw consent is not required to consent to the adoption, has been determined to have abandoned the child, or is otherwise subject to a determination that the person's consent is waived under this chapter.
(c) If the court finds that the placement may endanger the minor, the court shall enter an order continuing the placement of the minor with the prospective adoptive parents pending further proceedings if they desire continued placement. If the prospective adoptive parents do not desire continued placement, the order must include, but need not be limited to, a determination of whether temporary placement in foster care, with the person who had legal or physical custody of the child immediately before placing the child for adoption, or with a relative is in the best interest of the child and whether an investigation by the department is recommended.
(d) If the person withdrawing consent claims to be the father of the minor but has not been established to be the father by marriage, court order, or scientific testing, the court may order scientific paternity testing and reserve ruling on removal of the minor until the results of such testing have been filed with the court.
(e) The adoption entity must return the minor within 3 business days after timely and proper notification of the withdrawal of consent or after the court determines that withdrawal is valid and binding upon consideration of an emergency motion, as filed pursuant to paragraph (b), to the physical custody of the person withdrawing consent or the person directed by the court. If the person seeking to withdraw consent claims to be the father of the minor but has not been established to be the father by marriage, court order, or scientific testing, the adoption entity may return the minor to the care and custody of the mother, if she desires such placement and she is not otherwise prohibited by law from having custody of the child.
(f) Following the revocation period for withdrawal of consent described in paragraph (a), or the placement of the child with the prospective adoptive parents, whichever occurs later, consent may be withdrawn only when the court finds that the consent was obtained by fraud or duress.
(g) An affidavit of nonpaternity may be withdrawn only if the court finds that the affidavit was obtained by fraud or duress.
History.--s. 8, ch. 73-159; s. 17, ch. 77-147; s. 2, ch. 78-190; s. 2, ch. 91-99; s. 7, ch. 92-96; s. 14, ch. 2001-3; s. 15, ch. 2003-58; s. 10, ch. 2008-151.