GLENN CLIFTON DURDEN, APPELLANT,
v.
IN RE THE PETITION OF GEORGE HENRY, JR. AND MILDRED DAVIS HENRY, APPELLEES
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The Florida Court of Appeal reversed an adoption judgment where the maternal grandparents sought to adopt a two-year-old child over the natural father's objection. The court held that temporary parental failures do not justify permanent deprivation of parental rights through adoption without clear and convincing evidence of abandonment or unfitness.
The court reversed the adoption judgment, holding that petitioners seeking adoption without parental consent must present clear and convincing evidence of abandonment or unfitness. Temporary failures in visitation and financial support, without more, are insufficient to justify the permanent deprivation of parental rights through adoption.
[1] A parent cannot be permanently deprived of parental rights through adoption unless the parent has abandoned the child or otherwise demonstrated unfitness.
[2] A finding of abandonment requires evidence that a parent has totally relinquished or forfeited their right to continue as a legal parent.
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Join FLexlaw to unlock all legal intelligence“The burden was upon the petitioners seeking the adoption, without the natural father's consent, to present by clear and convincing evidence facts justifying a judgment of adoption taking from the father his privileges and responsibilities as a parent.”
Establishes the high standard required for adoption without parental consent
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Join FLexlaw to unlock all legal intelligenceFollowing the divorce of the parents in March 1975, the mother was awarded custody with the father ordered to pay child support. The mother moved the …
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ERVIN, Judge.
This is an appeal by the natural father from a final judgment of adoption of a nearly two-year-old child awarded to the maternal grandparents of the child. The father and mother were divorced on March 21, 1975, custody of the child was awarded to the wife, with reasonable visitation to the father. Pursuant to a property settlement agreement, the father was directed to pay child support. The mother of the child, following dissolution of the marriage, took it to live in her parents’ home and thereafter signed a consent for the child to be adopted by her parents. Subsequently George and Mildred Henry filed their petition for adoption.
The findings in support of the judgment of adoption generally state that since the time the child was placed in the Henrys’ home, Durden had only visited it two or three times. Moreover, Durden had not made regular or substantial payments of money for support of the child during the time it was in the Henrys’ home and that Durden still owed $160.00 in medical payments on the child’s pediatrician’s bill which had been reduced from $400.00. Additionally, during the first few months of the child’s life and apparently during the existence of the marriage the father placed the child in a home without running water or other sanitary facilities and permitted the child to have a babysitter who did not keep the child from being bitten by mosquitoes and fleas. The babysitter also placed paper diapers on the child even though it was allergic to them as the father well knew.
The court noted, however, that Durden had since placed his child in the home of his parents and that he was assisted in the care and custody of the child by his parents. The court also observed that the child was well cared for when kept in the home of its father’s parents where its father permanently resided. Moreover it specifically made no finding that the father was an unfit parent.
We reverse. The burden was upon the petitioners seeking the adoption, without the natural father’s consent, to present by clear and convincing evidence facts justifying a judgment of adoption taking from the father his privileges and responsibilities as a parent. E. g., In re Adoption of Gossett, 277 So. 2d 832 (Fla. 1st DCA 1973); La Foliette v. Van Weelden, 309 So. 2d 197 (Fla. 1st DCA 1975). More must be shown other than the natural father had failed to visit his child regularly or that he had failed to make regular payments on behalf of the child. As stated by this court in In re Adoption of Gossett, supra, at 834:
“It is an established principle of law observed by most appellate courts of this state that a natural parent should not be deprived of the privileges and responsibilities of parenthood unless in some fashion he has abandoned his child or otherwise demonstrated that he is not a fit subject to continue to enjoy the privilege. It is also held that even though temporary failures and derelictions of parents may justify temporary deprivation of the custody of their children, it will seldom justify the permanent deprivation of parental rights resulting from the finality of an adoption decree.”
Finally, as this court observed in In re Adoption of Lewis, 340 So. 2d 126, 128 (Fla. 1st DCA 1976):
“Crucial to the decision by the trial court to order the adoption of the child by appellees is the finding that appellant abandoned his son. In order for there to be a finding of abandonment, a parent must be found by his actions to have totally relinquished or forfeited his right to continue as a legal parent.”
The final judgment of adoption is reversed and set aside.
MILLS, C. J., and JOPLING, WALLACE M., Associate Judge, concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Hinkle v. Leldon Leroy Lindsey, 424 So. 2d 983 (Fla. 5th DCA 1983)…ncing proof of the natural parent’s abandonment.1 See, e.g., In the Interest of D.A.H.; In re adoption of Cottrill, 388 So. 2d 302 (Fla. 3d DCA 1980); Solomon v. McLucas; In re adoption of Noble, 349 So. 2d 1215 (Fla. 4th DCA 1977); Durden v. Henry, 343 So. 2d 1361 (Fla. 1st DCA 1977). Although an inquiry into what is in the best interest of the child is important in ultimately deciding whether to grant a petition for adoption, before reaching that question, the threshold question of abandonment must first be…
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In the Interest of D. A. H. and S. L. H., 390 So. 2d 379 (Fla. 5th DCA 1980)…settled purpose to permanently forego all parental rights and the shirking of the responsibilities cast by the law of nature so as to relinquish all parental claims to the child. Solomon v. McLucas, 382 So. 2d 339 (Fla.2d DCA 1980); Durden v. Henry, 343 So. 2d 1361 (Fla.lst DCA 1977). Temporary failures or derelictions of parents may justify temporary deprivation of custody of their child, but will not support permanent loss of parental rights. In re Adoption of Gossett, 277 So. 2d 832 (Fla.1st DCA 1973). The…
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In re the Matter of Adoption of John Steven Cottrill. Nancy Collins v. Cottrill, 388 So. 2d 302 (Fla. 3d DCA 1980)…king here. Indeed, the evidence of Mrs. Collins’ continued interest in and affection for the child is undisputed. On much stronger showings of a parent’s disinterest in the child, courts have refused to find abandonment. See, e. g., Durden v. Henry, 343 So. 2d 1361 (Fla. 1st DCA 1977); In re Adoption of Gossett, 277 So. 2d 832 (Fla. 1st DCA 1973). Cottrill relies on three cases, Watson v. Watson, 330 So. 2d 848 (Fla.3d DCA 1976); In re Adoption of Layton, 196 So. 2d 784 (Fla.3d DCA 1967); and In re Adoption o…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- In re Adoption of Melissa Ann Gossett, 277 So. 2d 832 (Fla. 1st DCA 1973)
- la Follette v. van Weelden, 309 So. 2d 197 (Fla. 1st DCA 1975)
- Bembo v. State, 340 So. 2d 126 (Fla. 1st DCA 1976)