M.C., APPELLANT,
v.
A.H., APPELLEE

Fla. 4th DCA | 1999-10-13
No. 99-248
STONE, and STEVENSON, JJ„ concur.
745 So. 2d 396 Florida District Court of Appeal, Fourth District (1999) Positive Treatment
Cited by 4 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

The Florida Fourth District Court of Appeal reversed a trial court's order denying relief from a final adoption judgment, holding that the adoptive parents failed to exercise due diligence in serving the biological father and that strict compliance with service by publication requirements was not met.


Holding

The court reversed, holding that service by publication was insufficient because the adopting parties failed to exercise due diligence. They had actual knowledge of the father's address through the postal return receipt and failed to follow up on it, and they deliberately refused to accept mail from the father that contained his address.


Headnotes

[1] A party seeking service by publication must scrupulously comply with statutory requirements, and failure to do so deprives the court of jurisdiction.

[2] Parties petitioning for adoption must reasonably employ available knowledge to provide actual notice of the suit to a parent whose consent is necessary.

Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.

Join FLexlaw to unlock all legal intelligence

Key Quotes

“The burden is on the proponent of constructive service by publication to demonstrate scrupulous compliance with the statutory requirements for publication, and the failure to adhere strictly to the statutory regimen deprives the court of jurisdiction over the defendant so served.”

Establishes the strict standard required for service by publication and the consequence of non-compliance

Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.

Join FLexlaw to unlock all legal intelligence

Facts & Procedural History

The adoptive parties obtained an adoption judgment against M.C., the biological father, using service by publication. However, counsel for the adoptin…

The full statement of facts, procedural history, and disposition for this case are member content.

Join FLexlaw to unlock all legal intelligence

© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.


Opinion of the Court
FARMER, J.

FARMER, J.

We reverse a final order denying relief from a final judgment of adoption.1 The trial court determined that the parties petitioning for the adoption of appellant’s child had exercised due diligence in attempting to serve him by publication. The record demonstrates, however, two facts that have no evidentiary contradiction and do not depend on a trial judge’s vantage point.

(1) Counsel for the parties petitioning for adoption sent notice of the adoption proceedings to the natural father in Washington by mail which was in turn forwarded by the U.S. Postal Service to him in Tennessee. A return receipt card showing the forwarded address was then sent to counsel. The parties’ counsel therefore had appellant’s actual residence address in hand even though she never looked at it. Demars v. Village of Sandalwood Lakes Homeowners Ass’n, 625 So. 2d 1219 (Fla. 4th DCA 1993) (failure of attorney for party seeking to effect service by publication to follow up on leads likely to disclose appellant’s residence renders service by publication insufficient); Gmaz v. King, 238 So. 2d 511, 514 (Fla. 2d DCA 1970) (“when a ‘red flag’ is waved to a complainant notifying or warning him of facts which put him on a reasonable course of inquiry as to the whereabouts or residence of a party-defendant to his law suit, he is bound to follow that course to its logical end.”).

(2) Appellant mailed two letters to his son at the residence address of the adopting parties. The letters plainly show appellant’s mail and residence addresses in Tennessee. The mother testified, however, that she simply declined to accept such mail from appellant. Had she accepted the letters she would have known his address. Thus her own conduct led to her alleged unawareness of the residence address to serve her ex-husband.

The burden is on the proponent of constructive service by publication to demonstrate scrupulous compliance with the statutory requirements for publication, and the failure to adhere strictly to the statutory regimen deprives the court of jurisdiction over the defendant so served. Gans v. Heathgate-Sunflower Homeowners Ass’ll, 593 So. 2d 549, 552 (Fla. 4th DCA 1992) (“It is a fundamental principle of law that a plaintiff must strictly comply with a service of process by publication statute. An order of publication based on a sworn statement which does not comply with the statute fails to confer jurisdiction.” [c.o.]). Parties petitioning for adoption must reasonably employ the knowledge available to them so that, if possible, a parent whose consent is necessary will have actual notice of the suit. See Robin son v. Cornelius, 377 So. 2d.776, 778 (Fla. 4th DCA 1979).

REVERSED.

STONE, and STEVENSON, JJ„ concur. . The motion for relief from judgment was filed more than one year after the adoption judgment became final. Neither party raises or discusses section 63.182, Florida Statutes, which states that:

"After one (1) year from the entry of a judgment of adoption, any irregularity or procedural defect in the proceedings is cured, and the validity of the judgment shall not be subject to direct or collateral attack because of any irregularity or procedural defect."

Without deciding whether this statute would actually bar this attempt for relief from the judgment, we do observe that it would seem palpably unfair for a party to fail to give notice of an adoption proceeding to a parent and then, after the one year period had lapsed, argue that the collateral proceeding was too late. This statute is sometimes thought to be inapplicable where fraud is suggested. See e.g. Peregood v. Cosmides, 663 So. 2d 665 (Fla. 5th DCA 1995), review denied 673 So. 2d 29 (Fla. 1996). There would appear to be equal grounds to lay the statute aside when the collateral attack is based on the failure to give the party notice of the adoption proceeding.


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Cited By

  • …8.194 of the Florida Statutes. Because Deutsche Bank declined to ask for the Shepheards’ address from the party most likely to possess the information, its conduct led directly to its alleged unawareness of the Shepheards’ address. See M.C. v. A.H., 745 So. 2d 396, [*345] 397 (Fla. 4th DCA 1999). As such, Deutsche Bank’s did not comply with the statutory requirements for constructive service because it did not conduct a diligent search. A judgment against a defendant based upon improper service by publicatio…
  • J.H. v. K.D.M. and E.N.M., 8 So. 3d 372 (Fla. 5th DCA 2009)
    …outs and failed to make a good faith, diligent effort to notify J.H. of the proceedings or obtain his consent to the adoption or the termination of his parental rights. The conclusion we reach is supported by the relevant case law. In M.C. v. A.H., 745 So. 2d 396 (Fla. 4th DCA 1999), review denied, 760 So. 2d 945 (Fla.2000), for example, the court held that “[pjarties petition [*376] ing for adoption must reasonably employ the knowledge available to them so that, if possible, a parent whose consent is necess…

Authorities Cited

Full citator, related cases, and AI research tools

Open in FLexlaw