IRIS BERGMAN and JOHN STIGLICH v. IN RE: ADOPTION OF Z.E.S., A CHILD

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

I.B. and J.S.,

Appellants,

v.

IN RE: ADOPTION OF Z.E.S., a child,

Appellee.

No. 4D17-1730

[March 7, 2018]

Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm

Beach County; Karen M. Miller, Judge; L.T. Case No. 2016-DR-000825.

John F. Schutz of John F. Schutz, P.L., West Palm Beach, for appellant,

I.B.

Amy U. Hickman of Hausmann & Hickman, P.A., Boynton Beach, for

appellant, J.S.

No brief filed for appellee.

GROSS, J.

This is an appeal from an order denying a petition for adoption. While

all of the parties appear to have the child’s best interests at heart, we affirm

on a pure question of law–the petition was legally insufficient under the

Florida Adoption Act, sections 63.012 et seq., Florida Statutes (2016).

I.B. is the maternal grandmother of Z.E.S. (the “child”). She filed a

petition under the Adoption Act to terminate her daughter’s parental rights

and adopt the child. I.B.’s husband, the child’s maternal grandfather,

consented to the adoption, but did not seek to adopt the child. The child’s

mother also consented to the termination of her parental rights and the

adoption by I.B.

J.S. is the child’s biological and legal father; he is not married to the

child’s mother. He joined in the petition to terminate the mother’s parental

rights and for the maternal grandmother to adopt the child. He did not

consent to the termination of his own parental rights.

The petition was amended twice and ultimately came before the circuit

court as a “Petition for the Termination of Parental Rights and Petition for

Second Parent Relative Adoption.” If the circuit court granted the petition,

the father and maternal grandmother would be the child’s parents.

The circuit court held an evidentiary hearing and listened to testimony

from the father and both maternal grandparents. All of the witnesses

testified that the father had been sharing parental responsibility with the

maternal grandparents for two years due to the mother’s alcoholism and

that the child was thriving under this de facto co-parenting arrangement.

Shortly after the hearing, the court denied the petition, finding that the

entry of judgment of adoption would sever the father’s parental rights

under section 63.172(1), Florida Statutes (2016). The cited subsection

provides:

(1) A judgment of adoption . . . has the following effect:

(a) It relieves the birth parents of the adopted person,

except a birth parent who is a petitioner or who is

married to a petitioner, of all parental rights and

responsibilities.

(b) It terminates all legal relationships between the

adopted person and the adopted person’s relatives,

including the birth parents, except a birth parent who

is a petitioner or who is married to a petitioner, so that

the adopted person thereafter is a stranger to his or her

former relatives for all purposes . . . .

(c) . . . [I]t creates the relationship between the adopted

person and the petitioner and all relatives of the

petitioner that would have existed if the adopted person

were a blood descendant of the petitioner born within

wedlock. . . .

Id. Appellants argue that subparts (a) and (b) are plain and unambiguous

and that the father should retain his parental rights because as “a

petitioner,” he fits within the statutory exception. We find that, while the

father joined the petition, he was not “a petitioner” within the meaning of

the Adoption Act because he did not seek to adopt the child.

This is a case of statutory interpretation. While the subparts relied on

by the Appellants appear unambiguous when viewed in isolation, “[i]t is

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axiomatic that all parts of a statute must be read together in order to

achieve a consistent whole.” Forsythe v. Longboat Key Beach Erosion

Control Dist., 604 So. 2d 452, 455 (Fla. 1992). The statutory scheme at

issue is the Adoption Act and because adoption is “wholly statutory in

nature,” it “can be decreed only in accordance with the statute.” Korbin v.

Ginsberg, 232 So. 2d 417, 418 (Fla. 4th DCA 1970).

Adoption is defined as:

[T]he act of creating the legal relationship between parent and

child where it did not exist, thereby declaring the child to be

legally the child of the adoptive parents and their heir at law

and entitled to all the rights and privileges and subject to all

the obligations of a child born to such adoptive parents in

lawful wedlock.

§ 63.032(2), Fla. Stat. (2016) (emphasis added).

An adoption proceeding begins with the filing of a petition, meaning

“the filing of a verified, truthful application for adoption.” Rodriguez v.

Adoption of Rodriguez, 219 So. 3d 944, 946 (Fla. 3d DCA 2017). Section

63.112, Florida Statutes (2016), sets forth an explicit list of those items

which must be included in the petition. Among the requirements, the

petition “shall be signed and verified by the petitioner and … shall state …

[t]he reasons why the petitioner desires to adopt the person.” § 63.112(1)(i),

Fla. Stat. (emphasis added).

Here, the father was named as “a petitioner” to the petition for adoption

even though he did not “desire[] to adopt” the child, and a “legal

relationship” already did “exist.” This was an apparent attempt to avoid

the statutory effect of a judgment of adoption which is to terminate a birth

parent’s parental rights “except a birth parent who is a petitioner or who

is married to a petitioner.” See § 63.172(1)(a)-(b) (emphasis added).

However, calling the father “a petitioner” was a misnomer because the

Adoption Act does not allow a parent, whose parental rights are intact, to

petition to adopt his or her own child. See § 63.032(2) (defining adoption

as the act of creating the legal relationship between parent and child where

it did not exist); § 63.172(1)(c) (stating that the effect of a judgment of

adoption is to “create[] the relationship between the adopted person and

the petitioner . . . that would have existed if the adopted person were a

blood descendant of the petitioner born within wedlock”) (emphasis

added); § 63.112(1)(i) (requiring a verified and truthful petition in which

the petitioner states the reasons why he or she “desires to adopt the

person.”) (emphasis added).

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Appellants cite In re Adoption of D.P.P., 158 So. 3d 633 (Fla. 5th DCA

2014), as a case that allowed a parent to be a petitioner and to retain her

parental rights following the child’s adoption by a non-spouse. We find

that D.P.P. is factually distinguishable and therefore unpersuasive.

In D.P.P., a baby was born to a same-sex couple, and they filed a joint

petition for stepparent adoption by the birth mother’s partner. The trial

court granted the adoption petition and entered a final judgment of

adoption. Id. at 636. A year later, the birth mother sought to void the

adoption on the ground that her former partner “was not qualified to seek

a step-parent adoption.” Id. The trial court vacated the adoption, finding

“G.P. was not a step-parent or an unmarried adult seeking to adopt

following the termination of C.P.’s parental rights.” Id. “The [trial] court

concluded that a petition for adoption filed by two unmarried adults fails

to invoke the subject matter jurisdiction of the circuit court, and thus, the

final judgment of adoption was void.” Id.

D.P.P. is not directly on point because the appellate court, in reversing

the trial court, focused on the trial court’s determination that it lacked

subject matter jurisdiction. It is cited here because the Fifth DCA, in dicta,

found that the adoption by the unmarried couple “did not run afoul of the

court’s power to enter judgments of adoption” and that “the adoption

decree was consistent with the intent of the Legislature set forth in section

63.022, Florida Statutes (2012).” Id. at 638 n.2.

While D.P.P. implicitly approves of a parent petitioning with a non-

spouse to adopt her own child, that case cannot be stretched to cover the

adoption proposed in this case because the petitioners here are not in a

committed relationship so the proposed adoption is not “consistent with

the intent of the Legislature.” Id. The petitioners in D.P.P. were in a

“committed” relationship at the time of the adoption and the child was

born into a two-parent home where the parents were in a familial

relationship with each other and the child. Sanctioning the adoption in

D.P.P. was essentially sanctioning adoption by a stepparent because at the

time, same-sex marriage was illegal in Florida. The Legislature has clearly

stated its preference that an adoption result in “adoptive parents” raising

the adoptee as if the child were “born to such adoptive parents in lawful

wedlock.” § 63.032(2).

We find that the petitioners in D.P.P. (the same-sex couple) are

distinguishable from the petitioners in this case (the father and maternal

grandmother). Here, the proposed parents are not married and are not in

a “committed relationship” as that term is commonly understood. Here,

the adoption will result in the child having two parents who live completely

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separate lives in separate households with their only connection being

shared custody and financial obligation for the child. Unlike the adoption

in D.P.P., we do not believe the proposed adoption in this case is

“consistent with the intent of the Legislature.”

Appellants also cite M.D.C. v. B.N.M.J., 117 So. 3d 489 (Fla. 1st DCA

2013), as authority for the proposition that second-parent adoption by a

non-spouse is sanctioned by Florida courts. In M.D.C., the father’s

parental rights were terminated when the child was adopted by her

stepfather. Years later, when the stepfather and the mother divorced, the

birth father petitioned to adopt her. Id. at 490.

The trial court found that the end result would be that the child’s legal

parents would also be her biological parents, a circumstance supported by

public policy. Id. However, the trial court found that the adoption was

not authorized by section 63.042(2)(c), Florida Statutes (2012) (governing

when a married person can adopt without his spouse joining as a

petitioner), because the statute “did not envision the adoption

contemplated here.” Id.

The First DCA reversed, finding the “failure of M.D.C.’s spouse to join

in the adoption is not fatal.” Id. at 491. The court found the father

qualified as an adoptive parent under the statute and that the trial court

should have allowed the father to “proceed to an evidentiary hearing in

which he would be given the opportunity either to show good cause why

his present spouse did not join the adoption petition or to show that the

adoption is in B.N.M.J.’s best interest.” Id.

Because both the trial and appellate courts focused on whether the

father was a person “who may adopt” under section 63.042(2)(c), M.D.C. is

not directly on point. The case is cited by Appellants because the new

family proposed in M.D.C. is similar to the new family proposed here–a

married person who is otherwise qualified to adopt, petitioning to adopt

and co-parent with the child’s natural parent who is not the spouse of the

petitioner.

We find, however, that like D.P.P., the characteristics of the petitioners

distinguish M.D.C. from the case at bar. The father in M.D.C. was properly

named as a petitioner because his parental rights had previously been

terminated. He was therefore permitted by statute as a “birth parent” (not

a “parent”) to join the petition as a petitioner. The father here is already a

parent and cannot be a petitioner for the reasons set forth above.

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In addition, the trial court in M.D.C. found that the end result of the

proposed adoption (that the child’s biological parents would also be her

legal parents) was supported by public policy. In contrast, it is unclear

whether public policy would sanction the end result in this case, where

the child’s father and the child’s maternal grandmother would become co-

parents. See In re Adoption of M.R.D., 145 A.3d 1117 (Pa. 2016)

(prohibiting the adoption of a child by her maternal grandfather who was

joined in the petition by her mother); In re Adoption of Child by Nathan S.,

934 A.2d 64, 65 (N.J. Super. Ct. Ch. Div. 2006) (same, finding the

legislature did not intend for two persons to adopt outside of marriage or

partnership, and therefore “a married grandfather cannot become a co-

parent with his daughter by adopting his granddaughter when the

biological father is alive.”); but see Adoption of a Child Whose First Name is

Chan, 950 N.Y.S.2d 245 (N.Y. Surr. Ct. 2012) (adoption by two unmarried

people, not in a relationship, was not barred by statute and petitioners

were permitted to establish that adoption of a Cambodian child they

brought to New York and raised was in the child’s best interests).

While a myopic reading of subparagraphs 63.172(1)(a) and (b) allows a

birth parent to be “a petitioner” to an adoption proceeding and thereby

retain his parental rights, the Adoption Act as a whole precludes an

individual with parental rights at the time of the petition from joining in

an adoption proceeding as “a petitioner” because a petitioner is one

seeking to adopt the child and a parent (whose rights are intact) cannot

adopt his own child.

We recognize that “[t]he legal parameters and definitions of parents,

marriage, and family have undergone major changes in the past several

decades . . . .” D.M.T. v. T.M.H., 129 So. 3d 320, 337 (Fla. 2013). We also

recognize that the parenting arrangement proposed in this case may be in

this child’s best interests. However, the right to adopt a person in Florida

is a privilege bestowed by the Legislature. For the court to entertain the

petition, the proposed familial arrangement must be within the parameters

allowed by the Adoption Act. Under the current version of the Act, this

father, whose parental rights are intact, cannot petition to adopt his own

child.

For these reasons, we affirm the trial court’s order and remand for

dismissal of the petition.

FORST and KUNTZ, JJ., concur.

* * *

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Not final until disposition of timely filed motion for rehearing.

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