DONALD JONES, NATURAL FATHER, ET AL., APPELLANTS,
v.
OTIS W. ALLEN AND HIS WIFE, EDITH D. ALLEN, APPELLEES

Fla. 2d DCA | 1973-05-18
No. 72-306
HOBSON and BOARDMAN, JJ., concur.
277 So. 2d 599 Florida District Court of Appeal, Second District (1973) Negative Treatment
Cited by 20 cases

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Synopsis

The appellate court affirmed an adoption order but reversed the provision granting visitation rights to the natural father and paternal grandparents. The court found the father's absence from the hearing was his own fault and that the evidence supported the adoption based on the child's best interests and the father's neglect of parental duties.


Holding

1. No, the father's absence did not deny him due process as he was represented by counsel, and his presence would not have added to the proceeding. His failure to appear was his own fault. 2. Yes, the evidence was sufficient because Florida law allows adoption by strangers if it is in the child's best interest and the natural parents have failed to carry out their parental duties, which the father did.


Headnotes

[1] A party's failure to appear at a scheduled hearing, despite receiving notice and being represented by counsel, does not constitute a denial of due process if the party's…

[2] In Florida, adoption by strangers over the objection of natural parents requires a showing by clear and convincing evidence that the adoption is in the best interests of…

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Key Quotes

“This proposition is not persuasive in view of the fact that two of the respondents were present and all the respondents were represented by counsel. It also appears that the father’s presence would have added nothing to the proceeding nor that he was prejudiced in any substantial way.”

Reasoning for denying the due process claim regarding the father's absence from the hearing.

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Facts & Procedural History

Maternal grandparents petitioned to adopt their grandchild shortly after the mother's death. The child's father, who was incarcerated and later parole…

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Opinion of the Court
LILES, Acting Chief Judge.

LILES, Acting Chief Judge.

The maternal grandparents petitioned on August 10, 1971 to adopt their grandchild soon after the death of the mother. The child’s parents had been divorced. The father was incarcerated at the time of the petition in the Florida State Penitentiary at Raiford. He was paroled on December 14, 1971. A condition of his parole, however, was that he was not to return to Polk County during his lifetime. Both the father and the paternal grandparents responded to the petition for adoption.

The adoption hearing was held in Polk County on March 2, 1972, after notice to the respondents. The father had apparently waited until too late to obtain permission to enter Polk County and be present at the hearing. However, his attorney, along with the paternal grandparents, appeared and opposed the petition as well as could be expected in view of the facts in the record. The circuit judge entered a final adoption order granting the petition of the maternal grandparents and also granting visitation rights in both the father and the paternal grandparents. The court’s findings were that petitioners were

“suitable, fit and proper persons to adopt said child and that it is to the best interests and welfare of said child that they be permitted to adopt her and that said child is a suitable child for adoption

The respondent father and paternal grandparents have appealed requesting another hearing wherein the father could be present and asserting that his inability to attend the hearing in March, 1972, constitutes a denial of due process. This proposition is not persuasive in view of the fact that two of the respondents were present and all the respondents were represented by counsel. It also appears that the father’s presence would have added nothing to the proceeding nor that he was prejudiced in any substantial way. Certainly there was ample time in any event for him to have gotten permission to appear. The hearing was held some seven months from the date of the petition and nearly three months from the date of his parole. His failure to appear can only be described as being his own fault.

Appellants’ second point relates to the sufficiency of the evidence upon which the adoption was granted. Although many states require a showing of a complete and total abandonment of a child by a natural parent for strangers to prevail over such parent in an adoption proceeding, Florida does not require such a stringent showing. See, 35 A.L.R.2d 662; In re Adoption by Cooper, 242 So.2d 196 (1st D.C.A.Fla.1970); In re Adoption of Vincent, 219 So.2d 454 (1st D.C.A.Fla.1969); In re Miller, 227 So.2d 73 (4th D.C.A.Fla.1969). The foregoing citations plainly indicate that if strangers to the child can demonstrate by clear and convincing evidence that it is in the best interests of the child that the adoption take place and if the procedures of the adoption statute are followed to the letter there is no legal reason why strangers cannot prevail over natural parents.

We hasten to add, however, that the mere fact that strangers might make better parents or that they might be in a better financial position than the natural parents is not in and of itself sufficient even where it is manifestly clear that the child might be better off in the proposed new environment. Were these the only tests to be employed it would be quite possible for absolute strangers to arbitrarily choose any child of any parents poorer and/or less moral than themselves and, simply by following the procedures in the adoption statute, walk away with the child.

Of course, circuit judges are not likely to let this happen absent an additional showing that the natural parents have failed to carry out their parental duties to *601the child in some substantial way and have neglected or shown disinterest in the welfare of the child. This is plainly as it should be as we perceive the law.

The record in this case indicates not only that it is in the best interest of the child to be in the household of her maternal grandparents as their daughter but also clearly shows substantial evidence of neglect, disinterest, and failure to carry out parental obligations with respect to this child by her father.

This, coupled with adherence to the adoption statute, Florida Statute Chapter 63, compels us to affirm the adoption order, except for the provision for visitation rights in the father and paternal grandparents. Florida Statute Section 63.-1S1 F.S.A., reads as follows:

“After the adoption the natural parents, if living, are relieved of all legal duties and obligations due from them to the child and are divested of all rights with respect to the child . . , . ” (Emphasis added.)

We sympathize greatly with the considerations that no doubt lead Judge Stephenson to grant visitation rights in this case. Although the new parents are perfectly free to allow anyone they wish to visit their daughter we can find no legal authority for compelling them to do so once the final adoption is entered.

The compassion shown by the judge must give way to the new family union which the law has created. The severance by adoption must be complete and the law should expect the child to honor only her new mother and father.

Affirmed in part, reversed in part.

HOBSON and BOARDMAN, JJ., concur.


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Citator

Cited By

  • …ar and convincing proof that the natural parent has conducted himself in such a way as to show a complete aban [*982] donment of the child. La Follette v. Van Weeldon [sic], 309 So. 2d 197 (Fla.D.C.A. 1st 1975). We decline to follow Jones v. Allen, 277 So. 2d 599 (Fla.D.C.A. 2nd 1973). That case held that something less than complete and total abandonment by natural parents was sufficient to permit adoption by strangers. Neglect by the natural parents or disinterest and failure to carry out parental obligati…
  • In re the Matter of Adoption OF Suzanne Michelle Noble, 349 So. 2d 1215 (Fla. 4th DCA 1977)
    …cept upon clear and convincing proof that the natural parent has conducted himself in such a way as to show a complete abandonment of the child. La Follette v. Van Weeldon, 309 So. 2d 197 (Fla. D.C.A. 1st 1975). We decline to follow Jones v. Allen, 277 So. 2d 599 (Fla. D.C.A. 2nd 1973). That case held that something less than complete and total abandonment by natural parents was sufficient to permit adoption by strangers. Neglect by the natural parents or disinterest and failure to carry out parental obligat…
  • …is former relatives for all purposes, . . . ” (emphasis supplied). . Mr. Collins did not, however, execute a formal consent. . In light of the Second District’s decision in Solomon v. McLucas, Cottrill can no longer take comfort in Jones v. Allen, 277 So. 2d 599 (Fla.2d DCA 1973), in which the court said that a showing of abandonment was not required where there is clear and convincing evidence that adoption would be in the best interests of the child. See also Matter of Adoption of Noble, 349 So. 2d 1215 (…

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