West's F.S.A. § 63.087

West's Florida Statutes Annotated Currentness
Title VI. Civil Practice and Procedure (Chapters 45-89)
Chapter 63. Adoption

63.087. Proceeding to terminate parental rights pending adoption; general provisions

(1) Jurisdiction.--A court of this state which is competent to decide child welfare or custody matters has jurisdiction to hear all matters arising from a proceeding to terminate parental rights pending adoption.

(2) Venue.--

(a) A petition to terminate parental rights pending adoption must be filed:

1. In the county where the child resides; or

2. In the county where the adoption entity is located.

(b) If a petition for termination of parental rights has been filed and a parent whose consent is required objects to venue, there must be a hearing in which the court shall determine whether that parent intends to assert legally recognized grounds to contest a termination of parental rights and, if so, the court may transfer venue to a proper venue under this subsection. For purposes of selecting venue, the court shall consider the ease of access to the court for the parent and the factors set forth in s. 47.122.

(c) If there is a transfer of venue, the court may determine which party shall bear the cost of venue transfer.

For purposes of the hearing under this subsection, witnesses located in another jurisdiction may testify by deposition or testify by telephone, audiovisual means, or other electronic means before a designated court or at another location. Documentary evidence transmitted from another location by technological means that do not produce an original writing may not be excluded from evidence on an objection based on the means of transmission. The court on its own motion may otherwise prescribe the manner and terms upon which the testimony is taken.

(3) Prerequisite for adoption.--A petition for adoption may not be filed until after the date the court enters the judgment terminating parental rights pending adoption. Adoptions of relatives, adult adoptions, or adoptions of stepchildren are not required to file a separate termination of parental rights proceeding pending adoption. In such cases, the petitioner may file a joint petition for termination of parental rights and adoption, attaching all required consents, affidavits, notices, and acknowledgments. Unless otherwise provided by law, this chapter applies to joint petitions.

(4) Petition.--

(a) A proceeding seeking to terminate parental rights pending adoption pursuant to this chapter must be initiated by the filing of an original petition after the birth of the minor.

(b) The petition may be filed by a parent or person having physical custody of the minor. The petition may be filed by an adoption entity only if a parent or person having physical or legal custody who has executed a consent to adoption pursuant to s. 63.082 also consents in writing to the adoption entity filing the petition. The original of such consent must be filed with the petition.

(c) The petition must be entitled: "In the Matter of the Termination of Parental Rights for the Proposed Adoption of a Minor Child."

(d) The petition to terminate parental rights pending adoption must be in writing and signed by the petitioner under oath stating the petitioner's good faith in filing the petition. A written consent to adoption, affidavit of nonpaternity, or affidavit of diligent search under s. 63.088, for each person whose consent to adoption is required under s. 63.062, must be executed and attached.

(e) The petition must include:

1. The minor's name, gender, date of birth, and place of birth. The petition must contain all names by which the minor is or has been known, excluding the minor's prospective adoptive name but including the minor's legal name at the time of the filing of the petition. In the case of an infant child whose adoptive name appears on the original birth certificate, the adoptive name shall not be included in the petition, nor shall it be included elsewhere in the termination of parental rights proceeding.

2. All information required by the Uniform Child Custody Jurisdiction and Enforcement Act and the Indian Child Welfare Act.

3. A statement of the grounds under s. 63.089 upon which the petition is based.

4. The name, address, and telephone number of any adoption entity seeking to place the minor for adoption.

5. The name, address, and telephone number of the division of the circuit court in which the petition is to be filed.

6. A certification of compliance with the requirements of s. 63.0425 regarding notice to grandparents of an impending adoption.

(5) Summons to be issued.--The petitioner shall cause a summons to be issued substantially in the form provided in Form 1.902, Florida Rules of Civil Procedure. Petition and summons shall be served upon any person whose consent has been provided but who has not waived service of the pleadings and notice of the hearing thereon and also upon any person whose consent is required but who has not provided that consent.

(6) Answer and appearance required.--An answer to the petition or any pleading requiring an answer must be filed in accordance with the Florida Family Law Rules of Procedure. Failure to file a written response to the petition constitutes grounds upon which the court may terminate parental rights. Failure to appear at the hearing constitutes grounds upon which the court may terminate parental rights. Any person present at the hearing to terminate parental rights pending adoption whose consent to adoption is required under s. 63.062 must:

(a) Be advised by the court that he or she has a right to ask that the hearing be reset for a later date so that the person may consult with an attorney; and

(b) Be given an opportunity to admit or deny the allegations in the petition.

CREDIT(S)

Added by Laws 2001, c. 2001-3, § 16, eff. Oct. 1, 2001. Amended by Laws 2003, c. 2003-58, § 17, eff. May 30, 2003; Laws 2005, c. 2005-2, § 8, eff. July 5, 2005; Laws 2008, c. 2008-151, § 12, eff. July 1, 2008.

[FN1] F.S.A. § 61.501 et seq.

[FN2] 25 U.S.C.A. § 1901 et seq.

HISTORICAL AND STATUTORY NOTES

Amendment Notes:

Laws 2003, c. 2003-58, § 17, rewrote this section, which formerly read:

"(1) Intent.--It is the intent of the Legislature that a court determine whether a minor is legally available for adoption through a separate proceeding terminating parental rights prior to the filing of a petition for adoption.

"(2) Governing rules.--The Florida Family Law Rules of Procedure govern a proceeding to terminate parental rights pending adoption unless otherwise provided by law.

"(3) Jurisdiction.--A court of this state which is competent to decide child welfare or custody matters has jurisdiction to hear all matters arising from a proceeding to terminate parental rights pending adoption. All subsequent proceedings for the adoption of the minor, if the petition for termination is granted, must be conducted by the same judge who conducted the termination proceedings, if that judge is still available within the division of the court which conducts termination or adoption cases or, if that judge is unavailable, by another judge within the division.

"(4) Venue.--

"(a) A petition to terminate parental rights pending adoption must be filed:

"1. In the county where the child resided for the previous 6 months;

"2. If the child is younger than 6 months of age or has not continuously resided in one county for the previous 6 months, in the county where the parent resided at the time of the execution of the consent to adoption or the affidavit of nonpaternity;

"3. If the child is younger than 6 months of age and a waiver of venue has been obtained pursuant to s. 63.062 in the county where the adoption entity is located or, if the adoption entity has more than one place of business, in the county which is located in closest proximity to the county in which the parent whose rights are to be terminated resided at the time of execution of the consent or affidavit of nonpaternity;

"4. If there is no consent or affidavit of nonpaternity executed by a parent, in the county where the birth mother resides; or

"5. If neither parent resides in the state, in the county where the adoption entity is located.

"(b) If a petition for termination of parental rights has been filed and a parent whose rights are to be terminated objects to venue, there must be a hearing in which the court shall determine whether that parent intends to assert legally recognized grounds to contest a termination of parental rights and, if so, the court shall immediately transfer venue to the county where that parent resides, if there is such a county, or, if not, a county where:

"1. At least one parent whose rights are to be terminated resides;

"2. At least one parent resided at the time of execution of a consent or affidavit of nonpaternity; or

"3. The adoption entity is located, if neither subparagraph 1. nor subparagraph 2. applies.

"For purposes of selecting venue, the court shall consider the ease of access to the court for the parent who intends to contest a termination of parental rights.

"(c) If there is a transfer of venue, the adoption entity or the petitioner must bear the cost of venue transfer.

"For purposes of the hearing under this subsection, witnesses located in another jurisdiction may testify by deposition or testify by telephone, audiovisual means, or other electronic means before a designated court or at another location. Documentary evidence transmitted from another location by technological means that do not produce an original writing may not be excluded from evidence on an objection based on the means of transmission. The court on its own motion may otherwise prescribe the manner in which and the terms upon which the testimony is taken.

"(5) Prerequisite for adoption.--A petition for adoption may not be filed until 30 days after the date the judge signed the judgment terminating parental rights pending adoption under this chapter, unless the adoptee is an adult or the minor has been the subject of a judgment terminating parental rights under chapter 39.

"(6) Petition.--

"(a) A proceeding seeking to terminate parental rights pending adoption pursuant to this chapter must be initiated by the filing of an original petition after the birth of the minor.

"(b) The petition may be filed by a parent or person having legal custody of the minor. The petition may be filed by an adoption entity only if a parent or person having legal custody who has executed a consent to adoption pursuant to s. 63.082 consents in writing to the entity filing the petition. The original of such consent must be filed with the petition.

"(c) The petition must be entitled: 'In the Matter of the Termination of Parental Rights for the Proposed Adoption of a Minor Child.'

"(d) A petition to terminate parental rights must be consolidated with a previously filed petition for a declaratory statement filed under s. 63.102 . Only one filing fee may be assessed for both the termination of parental rights and declaratory statement petitions.

"(e) The petition to terminate parental rights pending adoption must be in writing and signed by the petitioner under oath stating the petitioner's good faith in filing the petition. A written consent to adoption, affidavit of nonpaternity, or affidavit of diligent search under s. 63.088, for each person whose consent to adoption is required under s. 63.062, must be executed and attached.

"(f) The petition must include:

"1. The minor's name, gender, date of birth, and place of birth. The petition must contain all names by which the minor is or has been known, excluding the minor's prospective adoptive name but including the minor's legal name at the time of the filing of the petition, to allow interested parties to the action, including parents, persons having legal custody of the minor, persons with custodial or visitation rights to the minor, and persons entitled to notice pursuant to the Uniform Child Custody Jurisdiction Act or the Indian Child Welfare Act, to identify their own interest in the action.

"2. If the petition is filed before the day the minor is 6 months old and if the identity or location of the father is unknown, each city in which the mother resided or traveled, in which conception may have occurred, during the 12 months before the minor's birth, including the county and state in which that city is located.

"3. Unless a consent to adoption or affidavit of nonpaternity executed by each person whose consent is required under s. 63.062 is attached to the petition, the name and the city of residence, including the county and state in which that city is located, of:

"a. The minor's mother;

"b. Any man who the mother reasonably believes may be the minor's father; and

"c. Any person who has legal custody, as defined in s. 39.01, of the minor.

"If a required name or address is not known, the petition must so state.

"4. All information required by the Uniform Child Custody Jurisdiction Act and the Indian Child Welfare Act.

"5. A statement of the grounds under s. 63.089 upon which the petition is based.

"6. The name, address, and telephone number of any adoption entity seeking to place the minor for adoption.

"7. The name, address, and telephone number of the division of the circuit court in which the petition is to be filed.

"8. A certification of compliance with the requirements of s. 63.0425 regarding notice to grandparents of an impending adoption.

"(7) Answer not required.--An answer to the petition or any pleading need not be filed by any minor, parent, or person having legal custody of the minor, but any matter that might be set forth in an answer or other pleading may be pleaded orally before the court or filed in writing. However, failure to file a written response or to appear at the hearing on the petition constitutes grounds upon which the court may terminate parental rights. Notwithstanding the filing of any answer or any pleading, any person present at the hearing to terminate parental rights pending adoption whose consent to adoption is required under s. 63.062 must:

"(a) Be advised by the court that he or she has a right to ask that the hearing be reset for a later date so that the person may consult with an attorney;

"(b) Be given an opportunity to deny the allegations in the petition; and

"(c) Be given the opportunity to challenge the validity of any consent or affidavit of nonpaternity signed by any person."

Laws 2005, c. 2005-2, a reviser's bill, deleted obsolete and expired provisions, corrected grammatical and typographical errors, and made other similar changes.

Laws 2008, c. 2008-151, § 12, rewrote subsecs. (2), (3), and (6), which formerly read:

"(2) Venue.--

"(a) A petition to terminate parental rights pending adoption must be filed:

"1. In the county where the child resides;

"2. If the child does not reside in the State of Florida, in the county where the adoption entity is located;

"3. In the county where the adoption entity is located; or

"4. If neither parent resides in the state, in the county where the adoption entity is located. The fact of the minor's presence within the state confers jurisdiction on the court in proceedings in the minor's case under this chapter, or to a parent or guardian if due notice has been given.

"(b) If a petition for termination of parental rights has been filed and a parent whose rights are to be terminated objects to venue, there must be a hearing in which the court shall determine whether that parent intends to assert legally recognized grounds to contest a termination of parental rights and, if so, the court shall immediately transfer venue to the county where that parent resides or resided at the time of the execution of the consent. For purposes of selecting venue, the court shall consider the ease of access to the court for the parent who intends to contest a termination of parental rights.

"(c) If there is a transfer of venue, the court may determine which party shall bear the cost of venue transfer.

"For purposes of the hearing under this subsection, witnesses located in another jurisdiction may testify by deposition or testify by telephone, audiovisual means, or other electronic means before a designated court or at another location.  Documentary evidence transmitted from another location by technological means that do not produce an original writing may not be excluded from evidence on an objection based on the means of transmission.   The court on its own motion may otherwise prescribe the manner in which and the terms upon which the testimony is taken.

"(3) Prerequisite for adoption.--A petition for adoption may not be filed until after the date the court enters the judgment terminating parental rights pending adoption under this chapter or under chapter 39. Adoptions of relatives, adult adoptions, or adoptions of stepchildren shall not be required to file a separate termination of parental rights proceeding pending adoption. In such cases, all required consents, affidavits, notices, and acknowledgments shall be attached to the petition for adoption or filed separately in the adoption proceeding."

"(6) Answer required.--An answer to the petition or any pleading requiring an answer shall be filed in accordance with the Florida Rules of Civil Procedure. Failure to file a written response or to appear at the hearing on the petition constitutes grounds upon which the court may terminate parental rights. The petitioner shall provide notice of the final hearing by United States mail to any person who has been served with the summons and petition for termination of parental rights within the specified time periods. Notwithstanding the filing of any answer or any pleading, any person present at the hearing to terminate parental rights pending adoption whose consent to adoption is required under s. 63.062 must:

"(a) Be advised by the court that he or she has a right to ask that the hearing be reset for a later date so that the person may consult with an attorney; and

"(b) Be given an opportunity to deny the allegations in the petition."

West's F. S. A. § 63.087, FL ST § 63.087

Current through Chapter 274 (End) of the 2010 Second Regular Session of the    
Twenty-First Legislature                                                        

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