DOUGLAS NELSON, APPELLANT,
v.
HAROLD HERNDON AND LINDA GAIL HERNDON, HIS WIFE, APPELLEES
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PER CURIAM.
Nelson appeals a judgment of adoption awarding his seven-year-old daughter to Harold Herndon and Linda Gail Herndon. The mother of the child is deceased. We reverse.
Under the evidence presented, the only legal basis upon which this adoption could be granted is by a showing of abandonment of the child by the natural father. It fails in this respect and the trial court so found. See Harden v. Thomas, 329 So. 2d 389 (Fla. 1 DCA 1977); Turner v. Adoption of Turner, 352 So. 2d 957 (Fla. 1 DCA 1977); § 63.072, Florida Statutes (1977).
REVERSED.
McCORD, C. J., and MELVIN, J., concur. MILLS, J., specially concurring.
MILLS, Judge,
specially concurring:
Reluctantly, I concur with the majority.
Since the passage of Section 63.072, Florida Statutes, which became effective on 1 October 1973, the consent of a parent to an adoption may be excused by the court in certain specified circumstances. For the best interest of the child is not included among the circumstances.
In this case, the trial court did not find that the father had abandoned his child but did find that it was in the best interest of the child that she be adopted. The evidence clearly and convincingly supports this finding.
It is unfortunate that the Herndons who have been good parents to the child for more than half of her life and who the child looks upon as her parents may not become her legal parents. Particularly is this true where the father admits that the Herndons have done an excellent job in raising the child.
Because children will be faced with such circumstances as have arisen in this case in the future, I suggest that the Legislature consider amending Section 63.072 to include for the best interest of the child as a circumstance permitting the court to excuse the filing of a consent by a natural parent.
It is also clear that although the father did not legally abandon the child, his actions were worse. Abandonment would have been better for the child.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Solomon v. Donald L. McLUCAS et ux., 382 So. 2d 339 (Fla. 2d DCA 1980)…1973, the grounds upon which adoption may be granted in the absence of the written consent of a natural parent whose consent is required are only those specified in that section. The best interests of the child is not one of them. Nelson v. Herndon, 371 So. 2d 140 (Fla. 1st DCA 1979). We are aware of the concerns expressed by Judge Mills in his specially concurring opinion in Nelson v. Herndon, supra, and recognize that, on the face of the matter, it would appear that the legislature was remiss in not consid…
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Hinkle v. Leldon Leroy Lindsey, 424 So. 2d 983 (Fla. 5th DCA 1983)…the child is important in ultimately deciding whether to grant a petition for adoption, before reaching that question, the threshold question of abandonment must first be determined. In re adoption of Cottrill; Solomon v. McLucas; Nelson v. Herndon, 371 So. 2d 140 (Fla. 1st DCA 1979); In re adoption of Noble. The trial court cannot decide the case on the child’s best interest unless the evidence first supports a finding of abandonment by the non-consenting natural parent. While the shirking of parental dutie…
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In the Interest of A.B. v. State, 444 So. 2d 981 (Fla. 1st DCA 1983)…abandonment]; In re: The Adoption of J.G.R., 432 So. 2d 735 (Fla. 4th DCA 1983) [no abandonment by father, no adoption by stepfather]; Jenkins v. In the Interest of C.A.J., 434 So. 2d 9 (Fla. 1st DCA 1983) [citing T.G.T., supra]; Nelson v. Herndon, 371 So. 2d 140 (Fla. 1st DCA 1979) [no abandonment, no adoption]; Ramos v. Sanabria, 429 So. 2d 838 (Fla. 3d DCA 1983) [no clear and convincing evidence of abandonment, no adoption]; V. v. State, Department of Health and Rehabilitative Services, 427 So. 2d 1082 (F…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
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- Harden v. Thomas, 329 So. 2d 389 (Fla. 1st DCA 1976)
- Henderson v. State, 352 So. 2d 957 (Fla. 1st DCA 1977)
- Turner v. Adoption OF Kashi Madora Huggins Turner, 352 So. 2d 957 (Fla. 1st DCA 1977)