J.K., FATHER OF D.R., A CHILD, APPELLANT,
v.
DEPARTMENT OF CHILDREN, APPELLEE
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.
A father's parental rights were terminated based on abandonment, but the Florida appellate court reversed because the Department never pled or proved abandonment as a ground for termination. The court found that the father, unaware of the child's existence until 2003, immediately took affirmative steps to establish paternity and fight termination once informed.
The termination order must be reversed because the Department failed to plead abandonment as a basis for termination, and the evidence did not establish substantial competent proof of abandonment since Appellant was unaware of his paternity until October 2003, at which point he immediately took affirmative steps to establish paternity and contest the termination.
[1] A party seeking to terminate parental rights based on abandonment must plead and prove abandonment.
[2] A finding of abandonment requires evidence of willful rejection of parental obligations.
Previewing 2 of 4 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“Under these circumstances, the order must be reversed.”
Establishes that failure to plead a ground for termination requires reversal even if the trial court found that ground to be true.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceAppellant briefly dated D.R.'s mother in Georgia before moving to Florida, unknowingly fathering a child born in October 1999. The mother did not info…
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.
Explore caselaw by topic → Browse Willful Rejection Of Parental Obligations cases and more on FLexlaw
TORPY, J.
Appellant’s parental rights were terminated as to his child, D.R., based on abandonment. We reverse.
Appellant, while living in Georgia, met and dated D.R.’s mother, T.K, for a short period of time before he moved to Florida. Unbeknownst to Appellant, he had impregnated T.K., who gave birth to D.R. in October 1999. Because T.K. believed that another man, R.M., was D.R.’s, biological father, she did not inform Appellant of her pregnancy or the child’s birth. R.M. was named as father on D.R.’s birth certificate.
In October 2001, the Department sheltered all three of T.K’s children based on T.K.’s drug addiction. At that time, the Department of Children and Families filed a petition for dependency naming T.K. and R.M., but not Appellant.
In early 2002, R.M. was informed by T.K. that he might not be D.R.’s father. As a result, the court ordered paternity testing of R.M. and M.C., another putative father named by T.K. The paternity test revealed that neither R.M. nor M.C. was D.R.’s biological father. The court adjudicated D.R. dependent as to T.K. in December 2001. T.K. was ordered to complete a case plan requiring, among other things, that she undergo periodic drug testing. When T.K. repeatedly violated her case plan, the Department proceeded to terminate her parental rights.
Sometime in October 2003, T.K. and Appellant met by happenstance. It was at that time that T.K. first revealed to Appellant that he might be the father of D.R. As a result, Appellant voluntarily appeared at the termination hearing held later that month. At that hearing, the court ordered a paternity test, allowed the Department to amend its petition to add Appellant as a party, and appointed counsel for Appellant. The paternity test revealed that Appellant was in fact the biological father of D.R. In December 2003, Appellant and T.K. leased a house together; they married the next month.
When the Department filed its amended petition to name Appellant as a party, instead of seeking that D.R. be declared dependent as to Appellant, the Department sought to terminate Appellant’s parental rights. The Department’s basis for termination was that, because Appellant married T.K. at a time that Appellant knew T.K. was not in compliance with her case plan, Appellant had engaged in conduct that threatened the well-being of the child irrespective of the provision of services. § 39.806(l)(c), Fla. Stat. (2005).
Trial was conducted over numerous days that spanned an interval of several months. At its conclusion, the lower court rejected the Department’s theory as a valid ground for termination of Appellant’s rights but granted the petition nevertheless on the basis that Appellant had abandoned the child. The court reasoned that Appellant had abandoned the child by not affirmatively pursuing the possibility that he was the father of a child with T.K.
We conclude that the trial judge erred. Although Appellant raises several points on appeal, we find it necessary to address only two such points — the failure of the Department to: (1) plead, or (2) prove abandonment by Appellant.
Clearly, the Department never pled or argued abandonment as a basis for termination of Appellant’s rights, nor was this issue tried by the consent of the parties. Under these circumstances, the order must be reversed. M.D. v. Dep’t of Children & Families, 871 So. 2d 311 (Fla. 5th DCA 2004). Furthermore, the court’s finding of abandonment was not predicated on substantial competent evidence because no evidence was adduced that established any willful rejection by Appellant of his parental obligations. Appellant was unaware that he was the father of a child with T.K. until October 2003. By that time, D.R. had been declared dependent and placed with foster parents, both without notice to Appellant. When Appellant became aware that he might be the father of D.R., he appeared, submitted to testing and fought the Department’s efforts to terminate his parental rights.
REVERSED.
GRIFFIN, J., concurs.
SAWAYA, J., concurs in result only.