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 full evidentiary 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; or

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

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

1.  At least 30 days have elapsed since the date of personal service and an affidavit of service has been filed with the court;

2.  At least 60 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(a)  Has executed a valid consent that has not been withdrawn under s. 63.082 and the consent was obtained according to the requirements of this chapter;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 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;

(d)  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;

(e)  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;

(f)  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;

(g)  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

(h)  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. A finding of abandonment may not be based upon a lack of emotional support to a birth mother during her pregnancy, but may be based upon emotional abuse to a birth 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 other persons prevented the person alleged to have abandoned the child from making the efforts referenced in this subsection;

3.  Whether the person alleged to have abandoned the child, while being able, refused to provide financial support after such person was informed he may be the father of the child;

4.  Whether the person alleged to have abandoned the child, while being able, refused to pay for medical treatment when such payment was requested by the person having legal custody of the child and those expenses were not covered by insurance or other available sources;

5.  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 and available to the person having legal custody of the child during the period the child allegedly was abandoned; and

6.  Whether the person having legal custody of the child made the child's whereabouts known to the person alleged to have abandoned the child, advised that person of the needs of the child or the needs of the mother of an unborn child with regard to the pregnancy, or informed that person of events such as medical appointments and tests relating to the child or, if unborn, the pregnancy.

(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.

(c)  The only conduct of a father toward a mother during pregnancy that the court may consider in determining whether the child has been abandoned is conduct that occurred after the father was informed he may be the father of the child or after diligent search and notice as provided in s. 63.088 have been made to inform the father that he is, or may be, the father of the child.

(5)  DISMISSAL OF PETITION WITH PREJUDICE.--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 with prejudice and that parent's parental rights that were the subject of such petition 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 under 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 24 hours after filing, the court shall mail a copy of the judgment to the department, the petitioner, those persons required to give consent under s. 63.062, and the respondent. The clerk shall execute a certificate of each mailing.

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

(a)  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 a 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 meeting the requirements under this chapter to exercise his or her parental rights. A motion under this subsection must be filed with the court originally entering the judgment. The motion must be filed within a reasonable time, but not later than 2 years 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 supervised visitation with a person for whom scientific testing for paternity has been ordered. Such visitation shall be conditioned upon the filing of those test results with the court and such results establishing that person's paternity of the minor.

(d)  No later than 45 days after the preliminary hearing, the court must conduct a final hearing on the motion to set aside the judgment 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.