IN RE ADOPTION OF ROBERT CHARLES SCOTT, AN ADULT
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A prospective adoptive father appealed the dismissal of his petition to adopt an adult for failure to prosecute with diligence. The court affirmed the dismissal, holding that because the petition failed to comply with statutory requirements for notice to or consent from the natural father, the dismissal was proper and the trial judge did not abuse discretion.
The court affirmed the dismissal, holding that failure to comply with statutory requirements for either obtaining written consent from the natural parent or proving service of process constitutes a failure to diligently prosecute, and the trial judge did not abuse discretion in dismissing the petition without prejudice.
[1] A petition for adoption of an adult must strictly comply with statutory requirements because such statutes are in derogation of the common law.
[2] A petition to adopt an adult requires either written consent from the natural parent(s) or proof of service of process on any non-consenting natural parent(s).
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Join FLexlaw to unlock all legal intelligence“As statutes providing for adoption of adults are in derogation of the common law, such statutes must be strictly construed.”
Establishes the applicable standard of construction for adult adoption statutes
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Join FLexlaw to unlock all legal intelligenceThe prospective adoptive father filed a petition in April 1976 to adopt an adult and filed two amended petitions before the trial court's dismissal or…
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BOYER, Chief Judge.
This is an appeal by a prospective adoptive father from a final order dismissing without prejudice his petition for adoption of an adult for failure to prosecute with diligence. (See Popkin v. Crispen, 213 So. 2d 445 (Fla.4th DCA 1968), cert. den. 222 So. 2d 748 (Fla.1969).) Although filed as an appeal from a final order, it is in fact an interlocutory appeal (Fla.App. Rule 4.2a) and we will treat it as such. (Fla.App. Rules 3.2 and 4.2 ; Crepaldi v. Wagner, 128 So. 2d 759 (Fla.1st DCA 1969); Jonton, Inc. v. Fidelity Mortgage Investors, 329 So. 2d 45, 46 (Fla.1st DCA 1976).)
The record reveals that the petition was filed in early April 1976, and that two amended petitions were filed prior to the trial court’s final order of August 27. In none of those petitions, however, was the mandate of Section 63.062(3)(b), Florida Statutes (1975), complied with.1 As statutes providing for adoption of adults are in derogation of the common law, such statutes must be strictly construed. (In Re: Adoption of Miller, 221 So. 2d 73 (Fla.4th DCA 1969).) The statute clearly provides that the natural parents must either consent to the proposed adoption or that the prospective adopter file proof of service of process upon the natural parent or parents who have not so consented. In the instant case, however, although three petitions have been filed, each reciting the address of the natural father,2 there is no indication that the natural father consents to the adoption nor that the natural father was served with notice of the proceeding. Having thus failed to comply with the obvious terms of the statute, it cannot be said that the petition was being diligently prosecuted nor that the trial judge abused his discretion in dismissing it. Further, the dismissal being without prejudice, the petitioner is free to refile in compliance with law.
AFFIRMED.
RAWLS and McCORD, JJ., concur. . “(3) A petition to adopt an adult may be granted if:
(a) . . .
(b) Written consent to adoption has been executed by the natural parent or parents, if any, or proof of service of process has been filed, showing notice has been served on the parent or parents as provided herein.”
. A written consent was filed by the adult sought to be adopted, his spouse and his natural mother.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Yancey v. Dep't OF Health & Rehabilitative Servs., 413 So. 2d 438 (Fla. 3d DCA 1982)…fully and adequately set forth in the petition,1 the appropriate ruling would have been a dismissal with leave to amend, not a dismissal with prejudice. See, e.g., Enfield v. Held, 357 So. 2d 772 (Fla.2d DCA 1978). See also In re Adoption of Scott, 344 So. 2d 884 (Fla. 1st DCA 1977) (after neither the petition nor two amendments thereto, filed over the course of four months, alleged consent by or notice to the natural father, a dismissal without prejudice was not an abuse of discretion). Reversed and reman…
Authorities Cited
- Popkin v. Crispen, 213 So. 2d 445 (Fla. 4th DCA 1968)
- In re Crepaldi v. Wagner, 128 So. 2d 759 (Fla. 1st DCA 1961)
- Bassham v. State, 222 So. 2d 748 (Fla. 1969)
- Pepin & Campbell Ins. Co. v. Johns, 222 So. 2d 748 (Fla. 1969)
- Jonton, Inc. v. Fid. Mortg. Invs., 329 So. 2d 45 (Fla. 1st DCA 1976)