IN RE THE ADOPTION OF P.R. MCD. AND J.T. MCD., MINORS
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A natural father challenged an adoption judgment after executing a consent to adoption, claiming duress. The trial court dismissed his objection and finalized the adoption, but the appellate court reversed, finding he had made a prima facie case of duress sufficient to require a full hearing on whether his consent was procured through fraud or duress.
The appellate court held that the natural father presented sufficient evidence of duress to establish a prima facie case, making an involuntary dismissal inappropriate. Consent to adoption cannot be withdrawn on a whim, but it may be withdrawn when obtained by fraud or duress, which the evidence here suggested.
[1] Consent to adoption cannot be withdrawn based on a mere change of heart.
[2] Withdrawal of consent to adoption is permissible only upon a court finding that the consent was obtained by fraud or duress.
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Join FLexlaw to unlock all legal intelligence“Consent to adoption can not be withdrawn on a mere whim or because of a change of heart.”
Establishes the legal standard that consent withdrawal requires proof of fraud or duress, not merely a change of mind.
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Join FLexlaw to unlock all legal intelligenceThe natural father of two minor children signed a consent to adoption after his aunt threatened that his children would be taken by the Department of …
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DOWNEY, Judge.
On January 19,1982, appellees, filed a petition for the adoption of two minor children. Appellant, the natural father of the children, filed an objection to the petition, but later executed a written consent to adoption, followed by a notice of intention to withdraw consent. At a final hearing on the matter, the trial court entered an involuntary dismissal against appellant and later issued a final judgment of adoption. Ap pellant timely appeals this order of adoption.
At the final hearing the natural father adduced evidence that he suffers from emotional problems and had been a patient in a Community Mental Health Center. At the time he signed the consent in question, he was a part time resident in a halfway house. The night before the consent was executed, his aunt told him that, if he did not sign a consent to the adoption of his two children, his children would be taken away by the Department of Health and Rehabilitative Services. She advised him that absent such consent the kids would end up on welfare. Appellant’s wife also visited him a short time before he signed the consent and told him she understood from his aunt that the only way to prevent HRS from taking custody of the children was to sign the consent. The next day the adoptive parents and another relative picked appellant up and took him to a flower shop where he executed the consent form. Appellant further testified that his wife told him she would “throw him out” if he refused to sign.
Finally, appellant testified that he was told by the adoptive father just prior to executing the consent that the adoptive father could get the children back once the consent was signed; appellant called a few days later to ask if the adoptive parents had gotten the children and was told they had. Appellant also testified that someone else had told him he could revoke his consent within a year. Consent to adoption can not be withdrawn on a mere whim or because of a change of heart.
Section 63.082(5), Florida Statutes (1981), provides that consent may only be withdrawn when the court finds that the consent was obtained by fraud or duress. Based upon the aforementioned evidence, we believe that appellant made a prima facie case of duress.
Thus, an involuntary dismissal was not indicated. For that reason we reverse the judgment appealed from and remand the cause for further proceedings.
REVERSED AND REMANDED, with directions.
BERANEK and WALDEN, JJ., concur.
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In re the Adoption OF John DOE v. DOE, 524 So. 2d 1037 (Fla. 5th DCA 1988)…85); In re Adoption of Cox, 327 So. 2d 776 (Fla.1976); Grabovetz v. Sachs, 262 So. 2d 703 (Fla. 3rd DCA), cert. denied, 267 So. 2d 329 (Fla.1972); compare In re Adoption of Baby Girl C, 511 So. 2d 345 (Fla. 2d DCA 1987); In re Adoption of P.R. McD., 440 So. 2d 57 (Fla. 4th DCA 1983). . See Petition of Steve B.D., 112 Idaho 22, 730 P. 2d 942 (Idaho 1986); In re Adoption of Child by P., 114 N.J.Super. 584, 277 A. 2d 566 (A.D.1971); In re G.K.D., 332 S.W. 2d 62 (Mo.App.1960). . Guerra v. Doe, 454 So. 2d 1 (Fl…
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K.C. v. Adoption Servs., Inc., 721 So. 2d 811 (Fla. 4th DCA 1998)…ss. See, e.g., In Interest of J.R.G., 624 So. 2d 273 (Fla. 2d DCA 1993); Bailey v. Department of Health and Rehabilitative Servs., 703 So. 2d 1224, 1225 (Fla. 5th DCA 1998)(parents failed to demonstrate fraud or duress); In re Adoption of P.R. McD., 440 So. 2d 57 (Fla. 4th DCA 1983)(where parents made prima facie case of duress, dismissal was error). The burden of proving duress is clear and convincing evidence. Veiock v. Veiock, 391 So. 2d 793 (Fla. 1st DCA 1980), and cases cited therein. In the present ca…
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In the Interest of I.B.J. v. Child's. Home Soc'y OF Fla., 497 So. 2d 1265 (Fla. 5th DCA 1986)…e order of the trial court is reversed and the trial court is ordered to return the child to the care and custody of its natural mother. REVERSED. ORFINGER and COBB, JJ., concur. . In re Cox, 327 So. 2d 776 (Fla.1976); In re Adoption of P.R.McD., 440 So. 2d 57 (Fla. 4th DCA 1983); Grabovetz v. Sachs, 262 So. 2d 703 (Fla. 3d DCA 1972); In re Arnold, 184 So. 2d 192 (Fla. 4th DCA 1966); Skeen v. Marx, 105 So. 2d 517 (Fla. 2d DCA 1958).…
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