IN THE INTEREST OF P. S., R. S. AND R. S., MINOR CHILDREN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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A mother appealed an order permanently committing her three minor children to the Department of Health and Rehabilitative Services for adoption. The appellate court initially remanded for clarification of whether the trial court found statutory abandonment (which requires the parent's ability to provide support), and upon remand, affirmed the trial court's amended findings that supported abandonment as defined by statute.
On initial appeal, the court held that the trial court's original order was ambiguous as to whether it found statutory abandonment, as the trial court appeared to include involuntary abandonment, which is excluded by the statute's qualifying phrase "while being able." On remand, the court affirmed the trial court's amended order finding statutory abandonment, as the amended order comported with the statutory definition and was supported by the record.
[1] A trial court may permanently commit a child for adoption upon finding abandonment, abuse, or neglect, and that such commitment is in the child's best interest.
[2] Abandonment, as defined by statute, requires a parent's ability to provide support and communicate with the child, coupled with a failure to do so for six months or longe…
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Join FLexlaw to unlock all legal intelligence“"Abandoned" means a situation in which a parent who, while being able, makes no provision for the child's support and makes no effort to communicate with the child for a period of 6 months or longer.”
Statutory definition of abandonment that requires parental ability to support the child, establishing that involuntary abandonment is not covered.
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Join FLexlaw to unlock all legal intelligenceThe natural mother's three children were the subject of a permanent commitment order. The trial court initially found abandonment or neglect, describi…
The full statement of facts, procedural history, and disposition for this case are member content.
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COBB, Judge.
The natural mother appeals an order permanently committing her children to the Department of Health and Rehabilitative Services for the purpose of subsequent adoption. Section 39.41(l)(d), Florida Statutes (1979), authorizes a trial court to permanently commit a child to the department for subsequent adoption if the court finds that the parent has abandoned, abused, or neglected the child; and finds that it is manifestly to the best interest of the child to do so. According to the Florida Juvenile Justice Act:
“Abandoned” means a situation in which a parent who, while being able, makes no provision for the child’s support and makes no effort to communicate with the child for a period of 6 months or longer. If a parent’s efforts to support and communicate with the child during such a 6-month period are, in the opinion of the court, only marginal efforts that do not evince a settled purpose to assume all parental duties, the court may declare the child to be abandoned.
§ 39.01(1), Fla.Stat. (1979) (emphasis added).
In its findings of fact and conclusions of law, the trial court apparently construed the statutory definition of abandonment to also take into consideration the case of a parent who is unable to provide for the child’s support or effectively communicate with the child, when the court stated:
The court then finds, based on these facts, that there has been within the meaning of the statutory definition just read an abandonment or neglect, involuntary though it might be on the part of Mrs. Dunn, (emphasis added;.
We read the qualifying phrase “while being able” to exclude a situation of involuntary abandonment. It is not clear whether the trial judge found an abandonment as defined in the statute. Accordingly, we relinquish jurisdiction to the trial court for sixty days with directions to make a specific finding of whether there was or was not abandonment, abuse, or neglect within the contemplation of the statute. Due to the ambiguity in the trial court’s finding, we do not decide at this time whether there is sufficient evidence to support a finding of abandonment as defined in the statute.
ORFINGER and SHARP, JJ., concur. AFTER REMAND
COBB, Judge.
By opinion filed April 23,1980, this Court relinquished jurisdiction to the trial court with directions to make a specific finding of whether there was abandonment, abuse, or neglect within the contemplation of section 39.01(1), Florida Statutes (1979). In response, the trial court has filed herein an amended order with findings of fact.
The amended order, unlike the original order entered in this cause, comports with the statutory definition of “abandonment,” and the trial court’s evidentiary finding in this regard is supported by the record. The trial court’s amended order is therefore
AFFIRMED.
ORFINGER and SHARP, JJ., concur.
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In the Interest of K.A.F. v. State, 442 So. 2d 365 (Fla. 5th DCA 1983)…the "abandonment" test set out in section 39.01(1). See In Interest of R.V.F., Jr., 437 So. 2d 713 (Fla. 2d DCA 1983); In Interest of C.M.H., 413 So. 2d 418 (Fla. 1st DCA 1982); In Interest of J.F., 384 So. 2d 713 (Fla. 3d DCA 1980); P.S. v. State, 384 So. 2d 656 (Fla. 5th DCA 1980).…
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In the Interest of T.D., 537 So. 2d 173 (Fla. 1st DCA 1989)…ch results from conditions beyond the parent’s control. See Harden v. Thomas, 329 So. 2d 389 (Fla. 1st DCA 1976) (incarceration does not, as a matter of law, constitute abandonment under section 39.-01(1), Florida Statutes); In the Interest of P.S., 384 So. 2d 656 (Fla. 5th DCA 1980) (Indigency resulting in an inability to provide support does not constitute abandonment); In the Interest of B.W., 498 So. 2d 946 (Fla. 5th DCA 1988), (father’s failure to communicate with or support his children during a six-mon…
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Fredrick v. State, 523 So. 2d 1164 (Fla. 5th DCA 1988)…jection of parental obligations, (emphasis supplied) Section 39.01(1), Florida Statutes, thus does not provide for the termination of parental rights when abandonment is involuntary. In the Interest of B.W., 498 So. 2d 946; In the Interest of P.S., 384 So. 2d 656 (Fla. 5th DCA 1980). The charge of abandonment in the instant case related to failure by the mother to visit and financially support the child “prior to April, 1985.” The child had been in continuous foster care under H.R.S. since January 4, 1985.…
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