# Opposition Brief — Roe v. Doe

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1989
- **Citation:** 493 U.S. 964

## Text

R

TRE Sepreme cour us.
») F FILED
No. 89-3 ' QCT 24 1999

~» JR,

IN THE CLERK

_——

Supreme Court of the Gnited States

OCTOBER TERM, 1989

In THE MATTER OF THE ADOPTION OF: JOHN DOE,
INFANT BABY Boy:

RICHARD ROE AND Mary RoE,
Petitioners,
V.

Bop DOE AND JANE DOE, ~—
Respondents.

ON PETITION FOR WRIT OF CERTIORARI
TO THE SUPREME COURT OF THE
STATE OF FLORIDA

RESPONDENTS’ BRIEF IN OPPOSITION |

CHANDLER R. MULLER, ESQUIRE

Florida Bar No. 112381

MULLER, KIRKCONNELL, LINDSEY
AND SNURE, P.A.

1150 Louisiana Avenue, Suite 1

Post Office Box 2728

Winter Park, Florida 32790

Telephone: (407) 645-3000

ANTHONY B. MARCHESE, ESQUIRE
Florida Bar No. 275220

Suite 431 Westshore Place

4350 West Cypress

Tampa, FL 33607

Telephone: (813) 873-3685

Attorneys for Respondents

PRESS OF BYRON S. ADAMS, WASHINGTON, D.C. (202) 347-8203

i

QUESTIONS PRESENTED

I

IN THE CONTEXT OF A NEWBORN ADOPTION, IS IT
A DENIAL OF DUE PROCESS TO TERMINATE THE PA-
RENTAL RIGHTS OF AN UNWED FATHER WHO FAILED
TO GRASP HIS OPPORTUNITY TO ASSUME PARENTAL
RESPONSIBILITIES BY INTENTIONALLY WITHHOLDING
MEANINGFUL, NEEDED PREBIRTH EMOTIONAL AND
ECONOMIC SUPPORT TO THE PREGNANT MOTHER AND
UNBORN CHILD FROM THE FIRST MOMENT HE
LEARNED OF JOHN DOE’S RECENT CONCEPTION,
THROUGH THE CHILD’S BIRTH, AND UNTIL SUCH TIME
AS AFTER JOHN DOE HAD BEEN PLACED IN THE ADOP-
TIVE HOME IN RELIANCE UPON THE NATURAL MOTH-
ER’S EXECUTION OF A VALID CONSENT.

II

IS IT A DENIAL OF EQUAL PROTECTION TO TERMI-
NATE AN UNWED FATHER’S PARENIAL RIGHTS, FOR
THE REASON THAT HIS PARTICULAR PREBIRTH CON-
DUCT CONSTITUTED ABANDONMENT, WHEN FLORIDA’S
STATUTORY BASIS OF ABANDONMENT (§ 63.072) SUB-
JECTS ALL PARENTS TO POTENTIAL LOSS OF PAREN-
TAL RIGHTS WHEN THEY ABANDON THEIR CHILDREN,
AND SAID STATUTORY BASIS IS FACIALLY NEUTRAL
AS TO GENDER AND MARITAL STATUS?

Ill

IS IT A DENIAL OF DUE PROCESS AND EQUAL PRO-
TECTION GUARANTEES TO PROHIBIT A BIOLOGICAL
PARENT FROM WITHDRAWING HIS OR HER KNOWING
AND VOLUNTARY WRITTEN CONSENT ABSENT A SHOW-
ING SUCH CONSENT IS TAINTED BY LEGAL DURESS OR
FRAUD?

IV

IS IT A DENIAL OF AN UNWED FATHER’S DUE PROC-
ESS RIGHTS TO ADDRESS THE ISSUE OF STATUTORY

ii

ABANDONMENT IN A CASE-BY-CASE ANALYSIS OF
WHETHER HE AFFIRMATIVELY ACTED OR FAILED TO
ACT AS A RESPONSIBLE PARENT TOWARD THE PREG-
NANT MOTHER AND HIS UNBORN CHILD BEFORE THE
MOTHER RELINQUISHED HER PARENTAL RIGHTS IN AN
EFFORT TO PROVIDE FOR THE BEST INTERESTS OF THE
CHILD AND HERSELF’?

ili

THE PARTIES

Respondents, Bob and Jane Doe, are the adoptive,
psychological parents of a little boy named John Doe.
The Respondents join the Petitioners in requesting
that the record from the lower courts continue to be
sealed to help preserve the damental of all impacted
by this litigation.

iv

TABLE OF CONTENTS

OPINIONS BELOW ..........cccceeceesseceeenseerensseeeneeeeeeenees
STATEMENT AS TO JURISDICTION ...........000eee00+
STATEMENT OF THE CASE ..........:ssseeeeeeeeeeeeeees woes

REASONS FOR DENYING THE PETITION
I.

II.

The Unwed Father’s Federal Equal Protec-
tion and Due Process Rights Were Not Vi-
olated By the Florida Adoption Statute as
APPLIC .......sessseeseeseceseeeecereeneesnseesseensenesensees

The Biological Mother’s Federal Equal Pro-
tection and Due Process Rights Were Not
Violated When Her Consent to the Adoption
was Ruled Irrevocable Absent Proof of Fraud

CO I cvccacocecnececincdsvecsnesisiaseancasncsenstnicoes
Il.

Petitioner Richard Roe’s Parental Rights
Were Terminated in Accordance With the
Due Process Clause of the Fourteenth
i. cssnisnncctvagnnriecekbannhatidinninaeneiaaenn

CONCLUSION ........cccccccsscccccccseecsesscnessececssseceeceeeenens

eeeeseeeeeeee.

11

11

19

23
26

ae 225 Maat gD

TABLE OF AUTHORITIES

CASES Page
Caban v. Mohammed, 441 U.S. 380 (1979)..... 10-11,14,17
Doe v. Roe, 543 So.2d 741 (Fla.
PED. tnliadincdsnsaussnsiuneniddobanennntniee 1,11-19,22-23,25-26
Guaranty Trust Company v. Blodgett, 287 U.S. 509,
GPT SUNUINE sarkieh tnissmnvinkaiasbacasodtehedadaeneaiteie din 16

Guerra v. Doe, 454 So.2d 1 (Fla. 8d DCA 1984).. 7
Herb v. Pitcairn, 324 U.S. 117, 125-126 (1945) .... 14

In the Interest of I.B.J., 497 So.2d 1265 (Fla. 5th
DCA 1985), rev. den. 504 So.2d 766 (Fila.

DOT Wihincieieiiaditininhiestinsigiiaadiie a ee 21,22
Layne & Bowler Corp. v. Western Well Works, 261

iF Fk: RRS oe 19
Lehr v. Robertson, 463 U.S. 248

bE eect Nr ee AT 10-11,13-14,17-18,26
Michigan v. Long, 463 U.S. 1082 (1988) «0.00.00... 14
Prince v. Massachusetts, 321 U.S. 158 (1944) ....... 16,19
Quilloin v. Walcott, 434 U.S. 246

AREER RET pre RC ne 10-11,14,17-18,26
Roe v. Doe, 524 So.2d 1037 (Fla. 5th DCA

DY Siitnveseisiteislibcdtacaieseeitain tia . 1
Santoskey v. Kramer, 455 U.S. 745 (1982) ......... ‘12,17,18
Stanley v. Illinois, 405 U.S. 645 (1972) we. 10,14,17
STATUTES, CONSTITUTION, AND RULES
Fk, Sn HIE TIE Sinidsnsioenitencnineevhtnineantmerstinenicaninscannt 22,23
FLA. Stat. Chapter 68 ................... 1,6,8,9,14,17,22,23,25
BUA, GRRE, WE ID wccccnccaccocconcvaccsucstnsnneas 6,7,23,25
FLA. Stat. § GEGGRI) (2085) ...................<ccccssscoress 15
Pix CAR. Be TD ovnccacecsnnsscsesaseossnucncnseee 6,13,16
FLA. STAT. § 63.072(1) (1985) ..............e eee 7,12,14,23,25
FLA. STAT. § 63.082(3)(a) (1985) ............ccseceeeceee. 20,21
Wisti: Daneh BA architects icc 19,22

vi

Table of Authorities Continued

Page
FLA. STAT. § 63.092 (1985) ...........cceccecssseesseseeeeeeenes 20
FLA. STAT. § 68.122(4)(c) (1985) ...........ceeeeeeeeeeeeeeees 21
FLA. STAT. § 63.122(4)d) (1985) ...........cceeeeeeeeeeeeeees 21
ale 3 a» Beerereet Seidninaicsaibbataiannd Wicaneanasse 11
QB U.S.C. § UBB ......ccreccssccssvcccccccccccscssescessesvezcseseees 1

U.S. Constitution, Fourteenth Amendment ...... 2,10,19,23

OPINIONS BELOW

The opinion of the Supreme Court of Florida is
reported as Doe v. Roe, 543 So.2d 741 (Fla. 1989)
[App. la]; that of the intermediate appellate court as
Roe v. Doe, 524 So.2d 1037 (Fla. 5th DCA 1988) [App.
23a]. The decision of the trial court is unreported

1 [App. 40a]. All three (8) decisions are attached in the
appendix. Both the intermediate appellate court and
the Supreme Court of Florida accepted the extensive
factual findings contained in the trial court’s Order
granting the adoption of John Doe by Respondents.
[App. 40a]

STATEMENT AS TO JURISDICTION

The test for whether the jurisdiction of this Court
is properly invoked pursuant to 28 U.S.C. § 1257 is
not met merely because Florida’s adoption statute was
sustained as against the Petitioners’ claim of repug-
nancy to the United States Constitution. Accordingly,
this Court should not grant certiorari merely to re-
examine the validity of Chapter 63, Florida Statutes.
The root issue in this case was not a federal question,
but, rather, turned on the evidentiary question of
whether a biological father’s prebirth conduct was rel-
evant to the question of whether he had abandoned
the child as it relates to the need for paternal consent.
The Florida Supreme Court concluded that prebirth
conduct was relevant to the issue of abandonment
under Chapter 63 (and therefore was admissible) since
prebirth conduct does tend to prove or disprove ma-
terial facts bearing on the issue of abandonment. The
Court also based its decision on grounds relating to
statutory construction and legislative intent.

Aenean

While the parent-child relationship represents a lib-
erty interest protected under both the state and fed-
eral constitutions, it does not follow that Florida lacks
the constitutional ability to limit parental freedom and
authority once there’s been a relinquishment of pa-
rental rights, either through a valid consent, or by
abandonment. Petitioner Mary Roe relinquished her
parental rights through the execution of a valid writ-
ten consent untainted by legal duress or fraud.
Petitioner Richard Roe relinquished his parental rights
by virtue of abandoning his child, i.e., intentionally
and willfully withholding prebirth support and medical
expenses to the unborn child and the pregnant mother
when such support was within his ability to provide
and desperately needed. Because of his intimate
knowledge as to both the pregnancy and the needs
of the pregnant mother, his failure to assume parental
duties in the form of providing prebirth support and
medical expenses, constituted abandonment of the
child and resulted in a forfeiture of the privilege of
vetoing the adoption by refusing to give consent.
Given the Petitioners’ relinquishment of their parental
rights, the Fourteenth Amendment did not bar the
State of Florida from granting the adoption of John
Doe to Respondents, Bob and Jane Doe.

STATEMENT OF THE CASE

Respondents oppose further review of a judgment
which upholds their adoption of JOHN DOE, now
three (3) years of age, over the objections of biological
parents who were correctly held to have relinquished
their parental rights at or about the time of John
Doe’s birth. The Florida Supreme Court rejected the
biological father’s argument that he had no parental

responsibility prior to John Doe’s birth; and his re-
lated contention that his conduct of intentionally with-
holding prebirth support and medical expenses, was
irrelevant as it relates to the need for paternal con-
sent. Additionally, the Florida Supreme Court re-
jected the biological father’s claim that the federal
guarantees of equal protection and due process gave
him a constitutionally-sanctioned automatic veto power
over the adoption solely because of the biological con-
nection. The Florida Supreme Court also rejected the
biological mother’s claim that the federal guarantees
of equal protection and due process gave her the un-
fettered right to withdraw her written consent to the
adoption, without any showing of fraud or iegal du-
ress, merely because of a subsequent change of heart
or circumstance.

The Petitioners, Richard and Mary Roe, met in the
summer of 1985 in Tempe, Arizona, and began a dat-
ing relationship which included sexual intimacy. (R.4,
310) They lived separately. At that time Mary was
single and about 24 years of age. She held a bach-
elor’s degree from the University of South Florida,
and was working for very modest wages in a bank
to support herself and a son who was less than a
year old. (R.14, 17) Richard, also single, was approx-
imately the same age and had some college education
behind him. (R.22, 604-605) He was employed as a
salesman in the solar equipment industry and was
earning commissions averaging $1,300 a week. (R.9,
606-607)

In late December of 1985 or early January 1986,
Mary discovered she had just become pregnant as a
consequence of failing to obtain and use any birth
control pills under a renewed prescription. (R.7, 310)

htc nil

4

Richard was aware of the pregnancy by January and
he relentless pressed Mary to abort the child since
he was not ready to commit to marriage. (R.10, 631,
632) He did pay one month’s rent for Mary during
the time frame she could have legally obtained the
abortion he desired. (R.640, 642) However, when Mary
steadfastly refused to have an abortion, Richarc made
a conscious decision to withhold emotional and finan-
cial support, including medica] expenses, from the
pregnant mother even though he continued to “‘date’’
her and was aware that upon her subsequent loss of
steady employment Mary was increasingly reduced to
living off public welfare and private charity. (R.623,
624) Mary repeatedly told Richard that while she
would not abort the child, she could not emotionally
or financially raise yet another child as a single,
unwed parent. (R.17,18) Notwithstanding his first-
hand knowledge of Mary’s pregnant condition and fi-
nancial predicament, Richard made no effort to utilize
either his own financial resources (which included sub-
stantial savings), or the available resources of his fam-
ily to provide for the prenatal needs of his unborn
child or the needs of the pregnant mother. (R.607-
608, 615-616, 640-641) By late March or early April
of 1986, when the time for obtaining a legal abortion
had passed, stretching until some point in July of
1986, Richard was in favor of adoption. (R.20-21, 37-
38, 45, 637) Although aware early on that Mary was
in contact with Jewish Social Services in Phoenix to
explore adoptive placement, Richard initially voiced
no objection. (R.18, 168)

In July of 1986 Mary advised her mother in Florida
of her predicament and asked her to seek suitable
adoptive parents. At some point also in July Rich-

5

ard announced he was against Jewish adoptive place-
ment, but he was still opposed to marriage and offered
no meaningful support to Mary who was now desti-
tute. Through contacts initially developed by her

y mother—Mary and her son, Benjamin, came to Florida
to arrange for the Respondents to adopt her unborn
child in a private adoption. Although Mary left Phoe-
nix in late July without telling Richard, she initiated
regular telephonic contact with him within six (6) days
of her arrival] in Florida. (R.26, 32) In this first call
Richard learned Mary was in Florida and why she
came. (R.26, 32)

As Florida law requires, Mary was interviewed and
counseled by the Department of Health and Rehabi-
litative Services. (R.475, 493) During an August 12,
1986 interview and counseling session, Mary was
shown a blank consent form and a waiver-of-notice
form and read the same. (R.481) She was further
advised as to the irrevocable nature of the consent
in the absence of fraud or duress. (R.483, 484) She
was cautioned not to sign the consent following the
birth of the child if she had any doubts about giving
the child up. (R.482) Mary indicated that she under-
stood. (R.482, 483)

v Unbeknownst to Respondents, Richard and Mary
were in frequent and lengthy telephonic contact from
August 8, 1986 until just before the birth of John
Doe on September 12, 1986. (R.34-35, 87, 655) The
subject of these phone conversations concerned their
relationship. She refused his offer to return and live
with him outside of a marriage relationship and re-
peatedly told him that the unborn child (believed to
be of female gender) would be better off in a stable,
two-parent home. (R.26, 27) While Mary did not pro-

vide Richard with the mailing address of the apart-
ment Respondents had furnished to her and her young
son, she did provide Richard with her Florida phone
number two (2) weeks before giving birth to John
Doe. (R.85, 653)

On Friday, September 12. 1986 John Doe was born.
Two (2) days later on Sunday, September 14, 1986,
Mary signed a consent to adoption, and on the fol-
lowing day John Doe was placed by the attorney han-
dling the intermediary adoption with the Does where
he has remained to this day. [App. 3a]

Upon hearing on September 15, 1986 that Mary
had given birth to a male child Richard told his
mother, ‘Mother, can you believe I have a son? I’m
going to go get it.”” (R.774) He contacted Mary that
same day with a marriage proposal. A joint decision
was made between the two of them, at that time, to
seek “return’”’ of the child on the basis that Richard
had not given written consent to the adoption. (R.39,
628-629, 719, 774)

By September 19, 1986, Richard had come to Flor-
ida where, upon advice of counsel, he signed an ac-
knowledgment of paternity, as well as John Doe’s
birth certificate. (R.601) He has sought custody of
John Doe since that date.

Under Florida’s Adoption Act i.e., Chapter 63, Flor-
ida Statutes, an unwed father who timely files an
acknowledgment of paternity with the Bureau of Vital
Statistics brings himself within the category of unwed
fathers whose consent is required, unless excused by
the Court on a basis such as abandonment or deser-
tion. FLA. STAT. § 63.062, § 63.072 (1985) [App.] An
unwed father’s act of filing a timely acknowledgment

of paternity secures for him a procedural due process
right to be heard and to participate in an adversary
hearing to determine whether or not his claimed pa-
rental privilege of vetoing the adoption, by refusing
to give consent, was previously forfeited by his ac-
tions. Guerra v. Doe, 454 So.2d 1 (Fla. 3d DCA 1984).
: FLA. Stat. § 63.072(1) (1985) explicitly identifies
“abandonment” as a statutory basis, and warrant, for
the waiver of consent from a biological parent whose
consent would otherwise be required under FLA. STAT.
§ 63.062 (1985).

Following the contested adoption proceeding held
in May of 1987, the trial court entered judgment ap-
proving the adoption of John Doe by Respondents.
In its Order, which contained extensive factual find-
ings, the trial judge found that Mary had voluntarily
consented to the adoption, that Richard’s prebirth
conduct estopped him from now opposing the adop-
tion, and that his consent was not required because
he had legally abandoned the child. The Court noted
that since the case involved a newborn adoption, it
necessarily followed that the putative father’s conduct
throughout the pregnancy term was relevant to the
issue of abandonment. [App. 49a] Without relying on
the finding as a basis for its final judgment, the Court
also found that John Doe’s best interests would be
served by granting the adoption, and that serious psy-
chological damage to the child could occur if he were
taken out of his home. [App. 50a, 51a]

On appeal, the District Court agreed that Mary had
voluntarily consented to the adoption and explicitly
approved the trial court’s factual findings—including
the finding that John Doe could be seriously harmed,
psychologically, if removed from the adoptive home.

8

[App. 24a, 3la] However, the District Court reversed
the judgment of adoption due to its conclusion that
Richard’s prebirth conduct could not, as a matter of
law, be used as a basis for excusing his consent on
the ground of abandonment. [App. 37a, 38a] The Dis-
trict Court also concluded that John Doe’s best in-
terest was irrelevant. [App. 30a, 3la] To protect the
child from harmful changes in custody, the District
Court preserved the status quo pending the accept-
ance or denial and ultimate disposition of the case by
the Florida Supreme Court.

On discretionary review, the Florida Supreme Court
reversed the intermediate Appellate Court and rein-
stated the trial court’s judgment granting John Doe’s
adoption. [App. 16a, 17a] Again, Petitioner Mary
Roe’s consent to the adoption was held to be valid
and irrevocable. [App. 5a] In addressing the question
of whether the biological father’s consent to the adop-
tion could be waived under the circumstances of the
case, the Court defined the root issue as an eviden-
tiary matter of relevance under the Florida Evidence
Code and began its analysis by noting that Chapter
63 clearly reflects the Legislature’s intent that all
adoptive matters, including abandonment proceedings,
are to promote and protect the best interests of the
child. [App. 6a, 8a, 9a] Having determined that the
welfare of the child is an element to be considered
in an adoption proceeding, the Court soundly rejected
Richard Roe’s principal arguments that he had no
parental responsibility prior to John Doe’s birth, and
that evidence of his failure to provide prebirth support
was therefore irrelevant to the issue of abandonment.
[App. 9a, 10a] The Court’s rejection was grounded on
its recognition that prenatal care of the pregnant

mother and unborn child is critical to the future men-
tal and physical health of the child, and to the in-
terests and needs of society as well. [App. 9a, 10a]
Consequently, a biological father, wed or unwed, has
the responsibility to provide support during the pre-
birth period. [App. 10a] Since prebirth conduct by an
unwed father as it relates to the pregnant mother
who needs the support of the father directly impacts
upon the welfare of the child, the Florida Supreme
Court held that Richard Roe’s conduct of failing to
provide prebirth assistance to Mary, when he was able
and assistance was needed, was relevant to the issue
of abandonment. [App. 10a, 11a]

Secondly, the Florida Supreme Court rejected the
putative father’s claim that Chapter 63 afforded him
absolute veto power over the adoption through his
act of formally declaring his biological connection to
the child subsequent to the natural mother’s execution
of a valid consent. [App. 10a] In holding that Richard
Roe’s failure to provide prebirth assistance to the
pregnant mother, when he was able and assistance
was needed, vested her with the sole parental au-
thority to consent to John Doe’s adoption and re-
moved from Richard any privilege of vetoing the
adoption, the Court explained:

The unwed mother who is unable to obtain
needed support from the father is necessarily
forced to take upon herself the entire respon-
sibility for caring for the unborn child and
for making necessary plans for the well-being
of the child when born. The intermediary
adoption program which the mother selected
here is one of the options provided by the
state to protect the best interest of the child,

10

the parents, and the state. If the biological
father retains an absolute veto power over the
decision of the abandoned pregnant mother to
place the child for adoption, the mother’s abil-
ity to provide for the best interests of the child
and herself are nullified. Clearly this is not
legislative intent. (emphasis supplied)

[App. 10a] The Court then added a caveat to its hold-
ings by stressing that its judgment turned upon an
analysis of the facts involved. In particular, the Court
stated: ;

We caution that this analysis cuts both ways.
In circumstances other than those here, an
unwed father would be justifiably entitled to
argue that his conduct in providing prebirth
support to his unborn child was relevant to
his claimed right to refuse consent to the
adoption of his child. (emphasis added)

[App. lla] After having reached the aforementioned
holdings on state law grounds, the Court then ad-
dressed and rejected the Petitioners’ claims that the
denial of their parental rights violated the due process
and equal protection guarantees of the Fourteenth
Amendment to the United States Constitution. [App.
1la-16a] In denying these claims, the Court noted that
its evaluation of Petitioners’ equal protection and due
process claims, as meritless, was thoroughly consist-
ent with this Court’s decisions in Stanley v. Illinois,
405 U.S. 645 (1972); Quilloin v. Walcott, 434 U.S.
246 (1978); Caban v. Mohammed, 441 U.S. 380 (1979);
and Lehr v. Robertson, 463 U.S. 248 (1983).

ncn inoa ioeecenmesn ound

11

REASONS FOR DENYING THE PETITION

Review by certiorari is not a matter of right, but
of judicial discretion. It should be granted only when
there are special and important reasons for doing so.
Sup. Ct. R. 17.1. The Petition presents no basis for
such review. To the contrary, the decision below was
correct and should not be disturbed.

I THE UNWED FATHER’S FEDERAL EQUAL PROTEC-
TION AND DUE PROCESS RIGHTS WERE NOT VIO-
LATED BY THE FLORIDA ADOPTION STATUTE AS
APPLIED.

Although the parent-child relationship represents a
liberty interest entitled to constitutional protection,
principles of due process and equal protection do not
require that an unwed father be afforded veto power
over an adoption if he failed to seize as much parental
responsibility toward the child as was reasonably pos-
sible under the circumstances. Quilloin v. Walcott,
434 U.S. 246, 255-256 (1978); Caban v. Mohammed,
441 U.S. 380, 397 (1979); Lehr v. Robertson, 463 U.S.
248, 262, 266-268 (1983).

In making his various constitutional claims,
Petitioner, Richard Roe, relies upon an extremely
flawed analysis of the Florida Supreme Court’s opin-
ion in Doe v. Roe, 548 So.2d 741 (Fla. 1989), and an
equally flawed analysis of this Court’s prior decisions
discussing the relationship between the assumption of
parental responsibilities and biological fatherhood.

Contrary to Petitioners’ assertion that the Florida
Supreme Court used ‘‘an amorphous standard’’, Rich-
ard Roe’s parental rights were terminated based upon
clear and convincing evidence of abandonment stem-
ming from his failure to assume parental responsi-

12

bilities toward his unborn child. The Florida Supreme
Court explicitly stated its reliance upon the trial
court’s legal -and factual findings, and there is no
question but that the biological father’s parental in-
terest was terminated at the trial level upon a “clear
and convincing” standard of proof. [App. lla, 34a,
49a] See generally Santoskey v. Kramer, 455 U.S. 745
(1982), (due process requires the utilization of the
“clear and convincing evidence’”’ standard in parental
rights termination proceedings in contrast to the
“preponderance of the evidence’’ standard). c

Nor is the decision in Doe v. Roe, Id. constitution-
ally defective or arbitrary simply because the question
of whether a given biological father has or has not
engaged in prenatal and postnatal conduct which ev-
inces a settled purpose to assume parental duties turns
on the individual facts of each case. As the Florida
Supreme Court explained:

[T]he issue of abandonment turns on the
question of whether the parent has evinced
a settled purposed to assume parental duties.
Providing prebirth support to the unborn
child is a parental duty. Evidence of whether
the parent has or has not furnished custom-
ary support to the pregnant mother is rele-
vant to the issue of abandonment. In answer
to the certified question, we hold that an
unwed father’s prebirth conduct in providing
or failing to provide support responsibilities
and medical expenses for the natural mother
is relevant to the issue of abandonment under
63.072(1). We caution that this analysis cuts
both ways. In circumstances other than those
here, an unwed father would be justifiably

13

entitled to argue that his conduct in provid-
ing prebirth support to his unborn child was
relevant to his claimed right to refuse consent
to the adoption of his child. (emphasis added)

x* * *

Unwed mothers and fathers, indeed all par-
-ents, are subject to the loss of parental rights
when they abandon their children. The issue .
here is whether evidence of prebirth conduct
by a parent is relevant to the issue of
whether the parent has abandoned the child.
We hold that such evidence is relevant. Sec-
tion 63.072 is neutral as to sex and marital
status of the parent who has allegedly aban-
doned the child. The weight to be given pre-
birth conduct will vary from case to case
depending on the conduct itself and other
circumstances of the particular case, but, in
as far as the particular prebirth conduct tends
to prove or disprove that the parent has or
has not abandoned the child at issue, such
evidence is relevant and admissible regard-
less of the sex or marital status of the par-
ent.

543 So.2d 741, 746-747 [App. 10a-12a]. Richard Roe’s
failure to show a substantial interest in his unborn
child’s welfare, as evidenced by his steadfast with-
holding of prebirth support from the pregnant mother,
removed from him the full constitutional protection
afforded the parental rights of other classes of par-
ents. Consequently, the case-by-case approach of Doe
v. Roe Id. is entirely consistent with this Court’s rec-
ognition in Lehr v. Robertson, supra at 257 that:

14

[T]he rights of the parents are a counterpart
of the responsibilities they have assumed.

The Petitioners’ assertion, at page 8 of their
Petition, that the Florida Supreme Court “rejected
the rulings of Stanley, Quilloin, Caban, and Lehr’’ is
wholly unfounded since the Court quoted extensively
from these cases (especially Lehr) in addressing Rich-
ard Roe’s constitutional claims and the relationship
between the assumption of parental responsibility and
biological fatherhood. 543 So.2d 741, 747-749 [App.
12a-16a] The Court’s reference to those cases as not
being ‘‘directly on point’’ was clearly intended to
stress that its decision rested on the state law grounds
that: (1) evidence of whether a biological father has
or has not furnished prebirth support to the pregnant
mother is relevant to material facts bearing on the
issue of abandonment under § 63.072(1); and (2) that
it was not the legislature’s intent in Chapter 63 to
accord automatic, absolute veto power to an unwed
father who has willfully refused to act as a parent
toward his unborn child and the pregnant mother un-
til after such time as the mother has placed the child
for adoption in an effort to provide for the best in-
terests of the child and herself. [App. 9a, 10a, 15a,
16a] Since the controlling issues of Doe v. Roe in-
volved the independent state law grounds of eviden-
tiary relevance and legislative intent, rather than a
federal issue, further review by this Court would be
inappropriate. See generally, Michigan v. Long, 463
U.S. 1032 (1983); Herb v. Pitcairn, 324 U.S. 117, 125-
126 (1945).

Petitioners’ assertion, also on page 8, that the Flor-
ida Supreme Court held that Richard Roe ‘“‘ha[d] no
standing in the adoption proceeding”’ is likewise base-

15

eedswediiz <r

less. Here, Petitioners have blurred the distinction
between Richard Roe’s standing to participate in an
adversary hearing on the issue of his claimed right
to refuse consent to John Doe’s adoption; and the
question of whether his biological link to the child
automatically clothes him with substantive veto power.
Richard Roé*clearly had standing to contest the adop-
tion by virtue of filing an acknowledgment of pa-
ternity. The Florida Supreme Court explicitly
recognized his standing when it said:

The natural father here filed an acknowledg-
ment of paternity in accordance with
§ 63.062(1) on the 19th of September, 1986.
Thus, his consent was required unless he had
previously abandoned the child.

543 So.2d 741, 745 [App. 8a]. But in rejecting his
claim of absolute veto power, the Court stated:

[W]e hold that the failure of Respondent nat-
ural father to provide prebirth assistance to
the pregnant mother, when he was able anc
assistance was needed, vested Respondent
natural mother with the sole parental au-
thority to consent to the adoption of the child
and removed from the natural father the
privilege of vetoing the adoption by refusing
to give consent.

543 So.2d 741, 749 [App. 16a]. Earlier, the Court had
explained its rationale for rejecting Richard Roe’s
claim to absolute veto power when it observed:

The unwed pregnant mother who is unable
to obtain needed support from the father is
necessarily forced to take upon herself the
entire responsibility for caring for the unborn

nies

16

child and for making necessary plans for the
well-being of the child when born. The in-
termediary adoption program which the
mother selected here is one of the options
provided by the state to protect the best in-
terests of the child, the parents, and the
state. If the biological father retains an ab-
solute veto power over the decision of the
abandoned pregnant mother to place the child
for adoption, the mother’s ability to provide
for the best interests of the child and herself
are nullified. Clearly this is not legislative
intent.

543 So.2d 741, 746 [App. 10a].

Richard Roe’s “parental rights’’ were not termi-
nated on a whim of the Court or because he was a
less-than-perfect parent. Rather, his parental rights
were terminated because there was clear and con-
vincing evidence that his prebirth conduct toward the
unborn child and the pregnant mother constituted
abandonment. It was well within the Florida Supreme
Court’s power to construe § 63.072 ‘‘abandonment”’
aS encompassing prenatal conduct on the part of a
parent, as well as postnatal conduct. 543 So.2d 741,
747 [App. lla]. See, Prince v. Massachusetts, 321 U.S.
158 (1944), (a state court’s construction of a state
statute is not reviewable in the Supreme Court of the
United States). See also, Guaranty Trust Company v.
Blodgett, 287 U.S. 509, 512-513 (19383).

Relying on the particular facts involved, the Florida
Supreme Court correctly determined that Richard Roe
had lost or forfeited any veto privilege by failing to
provide prebirth assistance to the pregnant mother,
when he was able and assistance was needed; and

17

that neither the provisions of Chapter 63, legislative
intent, nor constitutional principles supported his
claim that his formal acknowledgment of a biological
link to the child gave him automatic veto power. Given
the Lehr relationship between the assumption of pa-
rental responsibilities and biological fatherhood, it was
clearly not a denial of equal protection or due process
to terminate the parental rights of an unwed father
who failed to grasp his opportunity to assume paren-
tal responsibilities by intentionally withholding needed
prebirth emotional and economic support to the_preg-
nant mother and unborn child from the first moment
he learned of John Doe’s conception, through the
child’s birth, and until such time as after John Doe
had been placed in the adoptive home in reliance upon
the biological mother’s execution of a valid consent.

While the instant case differs factually from Stanley

v. Illinois, 405 U.S. 645 (1972); Quilloin supra; Caban
supra; and Lehr supra, since it involves a newborn
adoption rather than the adoption of an older child—
its analysis concerning the inchoate nature of the pa-
rental rights enjoyed by an unwed father, who has
not shouldered parental responsibilities and whose
only link to the child is the biological connection, falls
squarely within the parameters already established by
the aforementioned decisions of this Court. Contrary
to Petitioners’ claims, Doe v. Roe’s application of con-
stitutional principles is mainstream and does not pres-
ent any particularly novel or dubious extensions of
Lehr or its predecessors. For example, on page 11
of the Petition, the Petitioners assert that Doe v. Roe
is coutrary to Santoskey and Quilloin because it re-
- sulted in the termination of parental rights without
a showing of unfitness. Petitioners’ reliance on San-

18

toskey is poorly placed since Santoskey involved a
“permanent neglect” proceeding—rather than any
adoption consent issue. Petitioners’ reliance on Quil-
loin (for the proposition that the rights of biological
parents cannot be terminated in favor of adoption for
any reason short of parental unfitness), could not be
more misplaced since Quilloin was an unwed father
whose failure to shoulder significant responsibility for
his child resulted in his parental rights being termi-
nated, and the adoption granted over his objection,
without any finding that he was an unfit parent. See
also, Lehr v. Robertson, supra (known, unwed father’s
parental rights terminated and adoption granted, over
his objection, without any showing of parental unfit-
ness because he had failed to grasp his opportunity
to shoulder parental responsibilities).

While parents may not be stripped of parental
rights lightly, it does not follow that Florida lacks
the constitutional ability to limit parental freedom and
authority once there’s been a relinquishment of pa-
rental rights by means of a voluntary consent, or by
means of failing to grasp the Lehr “opportunity in-
terest” by not timely assuming significant responsi-
bility for the child’s welfare. Any parent, wed or
unwed, fit or unfit, can relinquish his or her parental
rights. i

Quilloin and Lehr clearly refute Petitioners’ basic
premise that Richard Roe’s parental ‘‘rights” cannot
be constitutionally terminated, and John Doe’s adop-
tion granted over Richard’s objection, when he is os-
tensibly a fit parent. Since this premise fails, the
Petitioners have not demonstrated any real or “‘in-
tolerable” conflict between this Court’s decisions and
Doe v. Roe which would justify the granting of

ee

19

certiorari review. See generally, Layne & Bowler Corp.
v. Western Well Works, 261 U.S. 387, 392-393 (1923).

II THE BIOLOGICAL MOTHER’S FEDERAL EQUAL PRO-
TECTION AND DUE PROCESS RIGHTS WERE NOT VI-
OLATED WHEN HER CONSENT TO THE ADOPTION
WAS RULED IRREVOCABLE ABSENT PROOF OF
FRAUD OR DURESS.

Given the fact that Petitioner Mary Roe relin-
quished her parental rights on September 14, 1986,
when she voluntarily and intelligently signed a writ-
ten consent form which proclaimed its irrevocable na-
ture, Fourteenth Amendment considerations of equal
protection and due process do not bar the State of
Florida from thereafter limiting her ability to with-
draw her consent absent a clear and convincing show-
ing that her consent was obtained through fraud or
duress. The Petitioners’ arguments in this point suffer
from several infirmities. Chief among them is a failure
to take into account the enhanced ability of the state
to constitutionally limit parental freedom and author-
ity once there has been a relinquishment of parental
rights. See generally Prince v. Massachusetts, supra.
Therefore, it was Mary Roe’s September 14, 1986
relinquishment of her parental rights which furnished :
Florida with the the authority to limit her ability to
withdraw her consent prior to the termination of her
parental rights by a judgment of adoption.

Florida’s practice, under § 63.082(5) of making a
natural parent’s consent irrevocable absent a finding
of fraud or legal duress exists in most other juris-
dictions and stems from public policy considerations
briefly alluded to in Doe v. Roe, supra at 744 when
the Florida Supreme Court adopted the following ra-
tionale given by the District Court below:

20

The trial court found the natural mother gave
up the baby because of generalized social and
financial pressures, but that no one exerted
coercion, duress or fraud to procure her con-
sent. Absent a finding of fraud, duress, or
undue influence, a natural parent’s consent
to an adoption is valid and irrevocable upon
execution of the written consent. This same
rule exists in most other jurisdictions in an
effort to balance the welfare and rights of
the child in both sets of parents involved in
an adoption. If consents to adoption were
freely made voidable, the stability of adoptive
families and the institution of adoption itself
would be threatened.

(App. 4a, 5a) Moreover, the same public policy con-
siderations undergird Florida’s requirement that the
parent seeking to withdraw consent carries the bur-
den of showing fraud or duress by clear and con-
vincing evidence if the substantial ramifications
flowing from that parent’s earlier relinquishment of
parental rights are to be ‘‘derailed’’. Due to her prior
act of relinquishment, Florida’s restriction on Mary
Roe’s ability to withdraw her consent on the basis of
a mere change of heart or circumstance does not
violate federal due process guarantees.

Nor does the Florida Adoption Act violate federal
due process guarantees because: (1) there is no ju-
dicial involvement in the consent procedure; or (2)
because it provides inadequate notice to natural*par-
ents. As to the former concern, § 63.082(3a) and
§ 63.092 specify that the Department of Health and
Rehabilitative Services is to interview and counsel the
biological parent regarding the terms of the consent

21

form, its finality, and irrevocable nature to ensure
that consent is given on an informed and voluntary
basis. Further, the attorney acting as intermediary in
a private adoption also has an active role pursuant
to § 63.082(3Xa) in making sure the natural parent
understands the consent form and its irrevocable na-
ture. These provisions are certainly adequate to sat-
isfy due process. From a factual standpoint, there is
no question but that Petitioner Mary Roe was fully
advised by both an HRS Represeritative and the in-
termediary attorney regarding the contents of the
consent form and its irrevocable nature absent fraud
or duress. (R.482, 354-355). As to the latter due proc-
ess concern of notice, § 63.122(4\Xc) specifies that no-
tice must be given to any person whose consent to
the adoption is required unless that person has con-
sented to the adoption. However, under § 63.122(4\d),
any person who is seeking to withdraw consent is
entitled to notice of the adoption hearing. Factually,
both of the biological parents appeared and fully con-
tested the adoption of John Doe.

As is easily gleaned from pages 11 through 13 of
the Petition for Certiorari, the crux of Mary Roe’s
equal protection argument is that a parent who has
relinquished his or her child for an “‘agency adoption”’
can freely withdraw that consent, whereas a parent
in a “intermediary”’ or private adoption cannot revoke
his or her consent absent a finding of fraud or duress.
To substantiate this claim, she relies heavily on In
the Interest of I.B.J., 497 So.2d 1265 (Fla. 5th DCA’
1986), rev. den. 504 So.2d 766 (Fla. 1987). The flaw -
in her equal protection claim is that it is bottomed
on a gross mis-statement of Florida law. Specifically,
the J.B.J. ‘‘dicta’’ which is so critical to the claim

22

was expressly disapproved by the Florida Supreme
Court in Doe v. Roe, supra at 747 when it. stated:

Respondents’ [equal protection] argument is
misplaced for two reasons. First, the provi-
sion in § 63.082(5) that consents to adoptions
may not be withdrawn, absent fraud or du-
ress, is applicable in all adoption proceedings.
Second, In re J.B.J. was a dependency pro-
ceeding under Chapter 39, as the court made
clear, not an adoption proceeding under
Chapter 63. To the degree that it suggests
that a consent to adoption may be withdrawn
at will, absent fraud or duress, we disapprove
In re I.B.J. (emphasis added)

(App. 13a) In light of Doe v. Roe’s disapproval of that
portion of J.B.J. which suggested that consents to
agency adoptions were freely revocable, and thus dif-
ferent from consents to intermediary adoptions, it is
abundantly clear that Petitioners’ claim to an equal
protection violation is fabricated from wholecloth.

The manner in which Petitioners’ “borrow” from
and treat Chapter 39 Florida Statutes, titled ‘Pro-
ceedings Related to Juveniles” as if it were a com-
peting adoption statute is likewise suspect. Chapter
39 governs juvenile delinquency and dependency cases.
[App. 81la-100a] It is not an adoption statute. By its
own terms, the Juvenile Justice Act limits its defi-
nitions to Chapter 39 proceedings. Its only relevance
to adoption proceedings i is that if a child is adjudicated
“‘dependent”’ under Chapter 39 (for reasons of vol-
untary surrender, abandonment, abuse, or neglect),
and there is a subsequent termination of parental
rights—then if an adoption proceeding is later com-

23

menced under Chapter 63, the agency with legal cus-
tody of the child has the authority to provide the
‘parental’ consent required by § 63.062 (1985). Con-
trary to Petitioners’ assertions, Chapter 39 “‘surren-
ders’ and Chapter 63 “‘consents’’ are not equivalent,
interchangeable terms. Simply because Florida courts
-have, as a matter of convenience, turned to and uti-
lized the statutory definition of “‘abandonment”’ found
in Chapter 39 during the course of Chapter 63 adop-
tion proceedings involving older children, as opposed
to newborns, it does not follow that the two (2) chap-
ters are intertwined in the manner Petitioners, have
suggested in their bid for this Court’s jurisdiction.

III PETITIONER RICHARD ROE’S PARENTAL RIGHTS
WERE TERMINATED IN ACCORDANCE WITH THE
DUE PROCESS CLAUSE OF THE FOURTEENTH
AMENDMENT.

As a statement of abstract principle, the
Respondents could agree that the arbitrary termina-
tion of parental rights under an insufficient or vague
standard of proof, and without a statutory basis,
would be offensive to notions of due process. How-
ever, Petitioners’ effort to portray the Doe v. Roe
opinion as violative of that principle is without basis.
In short, Petitioners can make this argument only by
presenting to this Court an untrustworthy analysis of
Doe v. Roe and the relevant provisions of Chapter 63.

As already addressed. by Respondents at pages 12
through 17 of tnis Brief, Richard Roe’s parental rights
were terminated on the basis of clear and convincing
evidence that his prebirth conduct toward the unborn
child and the pregnant mother constituted abandon-
ment. ‘‘Abandonment”’ under § 63.072(1) was the sta-
tutory basis supporting the judicial excusal of -his

24

consent; and it was well within the power of the
Florida Supreme Court to construe abandonment as
encompassing prenatal conduct as well as postnatal
conduct. Richard Roe’s parental rights were not ter-
minated for his mere failure to pay child support
Rather, his “rights’’ were terminated because he had
abandoned his unborn child and the pregnant mother
as evidenced by his failure to give emotional and eco-
nomic support to the unwed mother when such sup-
port was within his ability to give and sorely needed.

Another reason that further review of this case is
inappropriate is because the decision below turns
solely upon an analysis of the particular facts in-
volved. The Florida Supreme Court was absolutely
correct in its recognition that a number of factors or
“other circumstances” bear on whether an unwed
father’s conduct has evinced a settled purpose to as-
sume parental] duties. In another case, on another set
of facts, a putative father’s failure to provide prenatal
support might not justify a finding of abandonment.
For example, such a failure would be of less signif-
icance if the putative father was unable to assist fi-
nancially or otherwise for some reason; if his efforts
to provide meaningful prenatal support had been re-
buffed by the pregnant mother; or if the pregnant
mother had hid the fact of pregnancy from him and
circumvented his opportunity to shoulder parental re-
sponsibility. However, no such mitigating factors were
present here inasmuch as Richard Roe’s failure to
assume parental responsibilities was accompanied by
full knowledge of the pregnancy, full knowledge of
the extent of the unwed mother’s financial and emo- —
tional stresses resulting from the unplanned preg-
nancy, and a pregnant mother who gave him

:
3
:
-
;
4
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:
;
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5
z

25

opportunity after opportunity to act as a parent
throughout the full pregnancy term. His own testi-
mony made it clear that, despite his vastly superior
economic resources, he intentionally withheld prenatal
support. (R.623, 624) He even had detailed knowledge
of the private adoption arrangement involving
Respondents yet chose not to take the first affirm-
ative step to develop any tie to the child, apart from
the biological connection, until after John Doe was
placed in the adoptive home in reliance upon Mary’s
valid consent. It is because many factors are involved
that the Florida Supreme Court stressed that its de-
cision turned on the particular facts of the case. Doe
v. Roe, supra at 746. [App. 11a].

Nor does the use of prebirth conduct, as evidence
of abandonment, violate Richard Roe’s due process
right to notice. FLA. STAT. § 63.072(1) comports with
due process by giving notice that a biological father
whose consent is required (by virtue of meeting one
of the criteria of § 63.062), is at risk of having the
need for his consent judicially excused on the basis
of abandonment. Richard’s assertion that he had no
parental responsibility during the prebirth period and
was unconstitutionally “‘broadsided”’ when the Court
construed Chapter 63 ‘‘abandonment”’ as encompass-
ing both prenatal and postnatal conduct, is uncon-
vincing unless Doe v. Roe could be realistically viewed
as creating some new normative standard for biolog-
ical fathers. Plainly, the Florida Supreme Court
viewed its opinion as but reflecting legal and societal
norms rather than forging new ones when it stated:-

Respondent naturai father’s argument that
he has no parental responsibility prior to birth
and that his failure to provide prebirth sup-

26

port is irrelevant to the issue of abandonment
is not a norm that society is willing to rec-
ognize. Such an argument is legally, morally,
and socially indefensible.

Supra at 746 [App. 10a]

CONCLUSION

The Petition should be denied since it has presented
this Court with no basis for certiorari review.

The Florida Supreme Court’s judgment in Doe v.
Roe rests upon independent state law grounds per-
taining to evidentiary questions of relevance and ad-
missibility, statutory construction, and legislative
intent. Since the judgment is not predicated on a
federal issue of a controlling nature, and since it turns
upon an analysis of the particular facts involved, fur-
ther review would be inappropriate. The Court below
fully considered and correctly decided the issues of
the case. Moreover, it is apparent from its analysis
of Petitioners’ federal constitutional claims that Doe
v. Roe is entirely consistent with and follows the prior
decisions of this Court such as Lehr and Quilloin.
Consequently, the Petitioners have fallen far short of
demonstrating any real or intolerable conflict between
this Court’s decisions and Doe v. Roe which would
justify the granting of certiorari review.

For the foregoing reasons, the Petition for
Certiorari should be denied.

27

Respectfully submitted,

CHANDLER R. MULLER, ESQUIRE
Florida Bar No. 112381
MULLER, KIRKCONNELL, LINDSEY
AND SNURE, P.A.
1150 Louisiana Avenue, Suite 1
Post Office Box 2728 |
Winter Park, Florida 32790
Telephone: (407) 645-3000

ANTHONY B. MARCHESE, ESQUIRE
Florida Bar No. 275220

Suite 431 Westshore Place

4350 West Cypress

Tampa, FL 33607

Telephone: (813) 873-3685

Attorneys for Respondents
BOB and JANE DOE

rr

APPENDIX

APPENDIX TABLE OF CONTENTS

Page

Judgment and Opinion of Supreme Court of
IN ada diibilidaiiinisiiniianderceneistensenes la
Order Denying Rehearing ...................ssssscecccceeeeeeees 22a
Opinion of District Court of Appeal of Florida ..... 23a
Final Judgment of Adoption ............sscccccccccsssssseeees 40a
Chapter 63, Florida Statutes (1985) .............. 54a

Chapter 39, Florida Statutes (1985) (Pertinent
SUED sicccninsuidichallasepanaiacaiibidisdpindsinsshineidnrinesainsseniunes 8la

la

In The Matter Of The ADOPTION OF
John DOE, Infant Baby Boy.

No. 72593.

Bob DOE and Jane Doe,
Petitioners,
v.

Richard ROE and Mary Roe,
Respondents.

Supreme Court of Florida.
April 18, 1989.

Rehearing Denied June 1, 1989.

The Circuit Court, Orange County, Cecil H. Brown, J.,
entered judgment of adoption establishing parental rights
to child in adoptive parents. Natural parents appealed. The
District Court of Appeal, 524 So. 2d 1037, reversed and
certified question to Supreme Court. The Supreme Court,
Shaw, J., held that: (1) father’s prebirth conduct in pro-
viding or failing to provide support responsibilities and
medical expenses for natural mother was relevant to issue
of whether natural father had abandoned child, making his
consent to adoption no longer necessary under statute;
(2) natural father’s conduct constituted abandonment; and
(3) constitutional rights of natural father and natural
mother were not interfered with.

Quashed and remanded.

Barkett, J., concurred specially and filed opinion in which
Kogan, J., concurred.

McDonald, J., dissented and filed opinion.

*_* *

2a

Chandler R. Muller of Muller, Kirkconnell, Lindsey and
Snure, P.A., Winter Park, and Anthony B. Marchese,
Tampa, for petitioners. ;

John L. O’Donnell, Jr. of DeWolf, Ward, O’Donnell &
Hoofman, P.A., Orlando, for respondents.

~ Cynthia L. Greene of Frumkes and Greene, P.A., Miami,
Chairman, and Elaine N. Duggar, Tallahassee, Nancy Rai-
ney Palmer, Casselberry, and Cynthia S. Swanson, Gaines-
ville, amicus curiae for The Family Law Section of The
Florida Bar.

SHAW, Justice.

We review In Re the Adoption of John Doe, 524 So.2d
1037 (Fla. 5th DCA 1988), to answer a certified question
of great public importance. Art. V, § 3(bX4), Fla. Const.

The facts of the case are fully set forth in the decision
below which quoted extensively from the factual findings
of the trial court. Richard and Mary Roe met in Tempe,
Arizona, in the summer of 1985, and Mary became preg-
nant in January 1986. Richard did not want marriage and
urged Mary to have an abortion because he was not ready
to commit to marriage, felt financial pressure, and was
troubled by the whole idea of the marriage. Mary refused
to abort and upon loss of employment was reduced to
living off public welfare and private charity. During the
critical period, Richard failed to provide Mary with mean-
ingful emotional or financial support. Nevertheless, they
continued to see each other regularly and when the subject
of adoption surfaced Richard initially voiced no objection.
In July 1986, Mary advised her mother in Florida of her
predicament and asked her to seek suitable adoptive par-
ents. This was done and in late July Mary came to Florida
to arrange for the Does to adopt her unborn child. Mary
continued to maintain contact with Richard and advised
him of the adoption arrangements in process. Richard now
did not want the child placed for adoption, but still opposed

‘
ae

3a

marriage and offered no meaningful support to the now
destitute mother. The child was born on 12 September ’
1986, Mary signed the adoption agreement two days later,
and the child was placed in the adoptive home on 15 Sep-
tember. Richard then announced his opposition to the
adoption, proposed marriage to Mary, and came to Florida
where he signed an acknowledgment of paternity and the
child’s birth certificate. The adoptive parents refused to
voluntarily relinquish the child and went forward with an
adoption petition in October. Richard and Mary married
in November 1986. After a May 1987 trial, the court en-
tered judgment approving the adoption. The trial judge
found that Mary voluntarily consented to the adoption,
that Richard’s prebirth actions estopped him from opposing
the adoption and that his consent was not required because
he had legally abandoned the child. Without relying on the
finding as the basis for judgment, the court also found
that the best interests of the child would be served by the
adoption because of bonding between the child and the
adoptive parents. On appeal, the district court approved
the factual findings of the trial court, agreed that Mary
had voluntarily consented to the adoption, but held as a
matter of law that Richard’s prebirth conduct could not
be used as a basis for abandonment and that his consent
was therefore required under chapter 63, Florida Statutes
(1985). The district court preserved the status quo, pending
acceptance or denial of jurisdiction and ultimate disposition
by this Court. The district court also concluded that there
was no clear authority in Florida on the issue of prebirth
abandonment and certified the following question of great
public importance.

CAN THE FAILURE OF A PUTATIVE UNMARRIED
FATHER TO ASSUME SUPPORT RESPONSIBILITIES
AND MEDICAL EXPENSES FOR THE NATURAL
MOTHER WHEN SHE REQUIRES SUCH ASSISTANCE
AND HE IS AWARE OF HER NEEDS, BE A BASIS
FOR A TRIAL COURT TO EXCUSE HIS CONSENT TO

4a

THE ADOPTION OF THE CHILD, ON THE GROUNDS
OF ABANDONMENT OR ESTOPPEL, PURSUANT TO
SECTION 63.072(1), FLORIDA STATUTES (1985).

524 So.2d at 1044.

We first address the issue of the natural mother’s con-
sent to the adoption. The adoption here was performed
through an intermediary. Pursuant to law, the natural
mother was interviewed and counseled by the Department
of Health and Rehabilitative Services on 12 August 1986.
During the interview, Mary said she was an unmarried
parent with one previous child and could not financially
support two children as a single parent. She identified
Richard Roe as the natural father but said, while he did

4 not deny paternity, he had furnished no meaningful fi-
nancial support and eschewed responsibility for the child.
The terms of the consent, its finality, and irrevocability
were explained to Mary and she indicated she understood.
Mary said she had thought through her decision and, while
it was difficult, she believed adoption was best for every-
one. After the birth of the child, Mary executed a consent
to the adoption on 14 September 1986 and the child was
placed with the adoptive parents on the following day.
Within days, Mary attempted to withdraw her consent,
maintaining that she had consented under the duress of
her personal circumstances and that, with Richard’s later
agreement to marriage, she now wished to keep the child.
The trial judge found that Mary was fully aware of the
consequences when she voluntarily executed the consent, ;
that the consent had not been obtained by fraud or duress,
and that she could not thereafter revoke her consent. We
agree with and adopt the rationale of the district court
below in affirming the trial court on this point.

The trial court found the natural mother gave up
the baby because of generalized social and financial
pressures, but that no one exerted coercion, duress
or fraud to procure her consent. Absent a finding of

5a -_

fraud, duress, or undue influence, a natural parent’s
consent to an adoption is valid and irrevocable upon
execution of the written consent. This same rule exists
in most other jurisdictions in an effort to balance the
welfare and rights of the child and both sets of par-
ents invc:ved in an adoption. If consents to adoption
were freely made voidable, the stability of adoptive
families and the institution of adoption itself would
be threatened.

Id. at 1041 (footnotes omitted).

Having determined that the natural mother’s consent to
adoption was valid and could not be revoked, we turn to
the more troublesome issue of whether the natural father’s
consent to the adoption could be waived under the cir-
cumstances present here. The trial court found, and the
district court agreed, that because of bonding of the child
to the adoptive parents, the child would be psychologically
damaged if it were removed from the adoptive home at
that stage of the proceedings. The court held, nevertheless,
“that the best interest of the child is not a relevant factor
unless the child was legally available to be adopted.” Jd.
at 1041 (footnote omitted). This broad statement requires
qualification. The issue here was whether the natural fath-
er’s conduct prior to acknowledging paternity on 19 Sep-
tember 1986 constituted abandonment, or, restated,
whether the natural mother had the sole right and av-
thority before that date to consent to the adoption. At
that time, the child had only been with the adoptive par-
ents for a period of days and bonding was minimal. Thus
the child’s best interest as evidenced by subsequent bond-
ing to the adoptive parents was not a significant consid-
eration in this case. This must be the rule because,
otherwise, a tentative placement or erroneous judgment
would be effectively unreviewable and we would have
adopted a rule that physical custody, because of subsequent
bonding, is determinative in contested adoptions. However,

6a

this does not mean that the best interests of the child as
evidenced by bonding to the adoptive parents is not rel-
evant under other circumstances. For instance, there may
well be circumstances where a natural father does not
acknowledge or declare a parental interest in the child
until after the child has been with the adoptive parents
for a significant period of time during which substantial
bonding has occurred. In such a case bonding would be a
material consideration on the issue of abandanment. The
child’s well-being is the raison d’etre for determining
whether a child has been abandoned by a parent or par-
ents. A finding of abandonment under chapter 63 means,
for whatever reason, the parent or parents have not pro-
vided the child with emotional and financial sustenance
and, consequently, the well-being of the child requires sev-
ering the parent’s legal custody or relationship with the
child. Abandonment under chapter 63 is not a criminal
prosecution for the purposes of punishing parents, it is a
civil proceeding intended to serve the best interests of the
child.! This recognition of the overarching importance of
the child’s well-being is consistent with federal case law
which ‘‘has emphasized the paramount interest in the wel-
fare of children and has noted that the rights of the par-
ents are a counterpart of the responsibilities they have
assumed.”’ Lehr v. Robertson, 463 U.S. 248, 257, 103 S.Ct.
2985, 2991, 77 L.Ed.2d 614 (1983). See also Quzilloin v.
Walcott, 434 U.S. 246, 98 S.Ct. 549, 54 L.Ed.2d 511 (1978)
(constitutional protection of parental rights does not bar

1 Section 63.022(1), Florida Statutes (1985), provides: ‘‘It is the intent
of the Legislature to protect and promote the well-being of persons ~
being adopted and their natural and adoptive parents and to provide
to all children who can benefit by it a permanent family life.’’ Sub-
sequent to the district court opinion, the legislature has made its intent
even more explicit by adding a new subsection 63.022(2X/), Florida
Statutes (1987), which states: ‘‘In all matters coming before the court
pursuant to this act, the court shall enter such orders as it deems
necessary and suitable to promote and protect the best interests of the
person being adopted.”

7a

state from denying legitimation and. granting adoption
pased on best interests of child).

The parties next dispute the certified question of whether
an unwed father’s failure to assume prebirth support re-
sponsibilities and medical expenses for an unwed natural
mother who requires such assistance may constitute aban-
donment of the unborn child under chapter 63. Section
63.062(1) provides:

(1) Unless consent is excused by the court, a
petition to adopt a minor may be granted only if
written consent has been executed after the birth of
the minor by:

(b) The father of the minor, if:

1. The minor was conceived or born while the father
was married to the mother.

2. The minor is his child by adoption.

3. The minor has been established by court pro-
ceeding to be his child.

4. He has acknowledged in writing, signed in the
presence of a competent witness, that he is the father
of the minor and has filed such acknowledgment with
the vital statistics office of the Department of Health
and Rehabilitative Services.

5. He has provided the child with support in a re-
petitive, customary manner.

Under section 63.072(1), the court may excuse consent of
a parent who has abandoned a child. The word “‘aban-
doned”’ is not defined in chapter 63, but chapter 39, Flor-
ida Statutes (1985), titled Proceedings related to juveniles,
defines abandoned as follows:

(1) “‘Abandoned” means a situation in which the
parent or legal custodian of a child or, in the absence

8a

of a parent or legal custodian, the person responsible
for the child’s welfare, while being able, makes no
provision for the child’s support and makes no effort
to communicate with the child, which situation is suf-
ficient to evince a willful rejection of parental obli-
gations. If the efforts of such parent or legal
custodian, or person primarily responsible for the
child’s welfare to support and communicate with the
child are, in the opinion of the court, only marginal
efforts that do not evince a settled purpose to assume
all parental duties, the court may declare the child to
be abandoned. The failure by any such person to ap-
pear in response to actual or constructive service in
a dependency proceeding shall give rise to a rebut-
table presumption of such person’s ability to provide
for and communicate with the child.

§ 39.01(1), Fla.Stat.

The natural father here filed an acknowledgment of pa-
ternity in accordance with section 63.062(1) on 19 Septem-
ber 1986. Thus, his consent was required unless he had
previously abandoned the child. Relying on the definition
of ‘‘abandoned”’ in section 39.01(1), the district court con-
cluded that the reference to communicating with the child
meant, as a matter of !aw, there could be no abandonment
of an unborn child because there could be no communi-
cation with an unborn child. While it is true that there
can be no statutory abandonment under chapter 39 until
the child is born, it does not follow that prebirth conduct
is irrelevant to adoption proceedings. We note, first, that
the definition of ‘‘abandoned”’ is limited by its terms to
chapter 39. However, even under this chapter, communi-
cating, or failing to communicate, with a child, while rel-
evant to the issue of abandonment, is not dispositive: the
failure to communicate does not conclusively establish
abandonment and, conversely, communicating with the
child does not conclusively prove a settled purpese to pro-

9a

vide for the welfare of the child and assume all parental
duties. Assuming for the moment that prebirth conduct is
relevant to material facts bearing on abandonment, we see
nothing in chapters 39 and 63 which precludes the courts
from receiving relevant evidence of prebirth conduct by
the father. The root issue then is whether prebirth conduct
is relevant to the issue of abandonment under chapter 63.
In Florida, evidence is relevant if it tends to prove or
disprove a material fact and, unless prohibited by law, all
relevant evidence is admissible. §§ 90.401, .402, Fla.Stat.
(1985). We conclude that prebirth conduct does tend to
prove or disprove material facts bearing on abandonment
and may be properly introduced and used as a basis for
finding abandonment under the statute.

The importance of prenatal care to the future mental
and physical health of the child has long been recognized.”
The health or well-being of the child is a continuum which
extends back to the pregnancy of the mother: a child’s
good health does not magically begin at birth, it is pow-
erfully affected by the nutrition and health care received
by the mother during pregnancy. In establishing the
Women, Infants and Children Program (WIC), for exam-
ple, Congress found that substantial numbers of pregnant,
postpartum, and breast-feeding women, infants, and chil-
dren were at special risk with respect to physical and
mental health by reason of inadequate nutrition or health
care. Pub.L. No. 95-627, § 3, 92 Stat. 3603 (1978) (codified
at 42 U.S.C. § 1786 (1988)); ch. 88—153, Laws of Fla. In
point of fact, the WIC Program is grounded on the sound
principle that the health of the mother and unborn child
are integral to the health of the child after delivery. So-
cietal norms, and chapters 39 and 63 of Florida Statutes,
contemplate that the natural parents will provide for the

* Public Health Then and Now: The Origin and Development of Ma-
ternal and Child Health Programs in the United States, 75 Am.J. of
Pub. Health § 6, 590-98 (June 1985).

10a

well-being of the child. When either or both fail to do so,
the best interests of the child, and of society, require that
society intercede, as in, for example, abandonment or
adoption proceedings. Because prenatal care of the preg-
nant mother and unborn child is critical to the well-being
of the child and of society, the biological father, wed or
unwed, has a responsibility to provide support during the
prebirth period. Respondent natural father’s argument that
he has no parental responsibility prior to birth and that
his failure to provide prebirth support is irrelevant to the
issue of abandonment is not a norm that society is pre-
pared to recognize. Such an argument is legally, morally,
and socially indefensible.

Prebirth conduct by an unwed father as it relates to
the pregnant mother who needs the support of the father
directly impacts upon the welfare of the child. The unwed
pregnant mother who is unable to obtain needed support
from the father is necessarily forced to take upon herself
the entire responsibility for caring for the unborn child
and for making necessary plans for the well-being of the
child when born. The intermediary adoption program which
the mother selected here is one of the options provided
by the state to protect the best interests of the child, the
parents, and the state. If the biological father retains an
absolute veto over the decision of the abandoned pregnant
mother to place the child for adoption, the mother’s ability
to provide for the best interests of the child and herself
are nullified. Clearly this is not legislative intent.

In summary, the issue of abandonment turns on the
question of whether the parent has evinced a settled pur-
pose to assume parental duties. Providing prebirth support
to the unborn child is a parental duty. Evidence of whether
the parent has or has not furnished customary support to
the pregnant mother is relevant to the issue of abandon-
ment. In answer to the certified question, we hold that
an unwed father’s prebirth conduct in providing or failing
to provide support responsibilities and medical expenses

ila

for the natural mother is relevant to the issue of aban-
donment under section 63.072(1). We caution that this
analysis cuts both ways. In circumstances other than those
here, an unwed father would be justifiably entitled to ar-
gue that his conduct in providing prebirth support to his
unborn child was relevant to his claimed right to refuse
consent to the adoption of his child.

Respondent natural father also argues that even if his
prebirth conduct is considered relevant to the abandon-
ment issue, his conduct did not show-that he abandoned
the child or the mother. In support he cites certain min-
imum assistance that he gave the mother after she became
pregnant. This evidence of support, along with the evi-
dence of nonsupport, was presented to and considered by
the trial court. With due deference to the fact finder who
heard the evidence and observed the demeanor of the wit-
nesses, we are satisfied that the record supports the trial
judge’s conclusion that the respondent natural father’s ef-
forts were marginal and did not evince a settled purpose
to assume parental duties.*

Based on his position that section 63.072 does not permit
the use of prebirth conduct in determining abandonment
of the child, respondent natural father argues that denial
of his right to refuse consent to the adoption is without
Statutory warrant. Consequently, he argues, denial of his
parental rights violates the due process clause of the four-
teenth amendment to the United States Constitution. We
disagree. Abandonment as evidenced by pre- and postnatal
conduct is the statutory basis, and warrant, for the waiver
of consent by respondent natural father.

*To replicate the evidence on which the tral court predicated its
findings would serve no purpose other than to render conclusionary
criticisms of respondent natural father’s Conduct. Suffice it to say that
we agree with the district court that the findings of fact, a large part
of which are set forth in the district court opinion, are supported by
the record.

12a

The natural father next argues that the trial court de-
nied him equal protection under the fourteenth amendment
by relying on his prebirth conduct as an unwed father
when similar conduct by an unwed mother or married
father could not form the basis for denial of parental rights.
This argument misapprehends the nature of the issue.
Unwed mothers and married fathers, indeed all parents,
are subject to the loss of parental rights when they aban-
don their children. The issue here is whether evidence of
prebirth conduct by a parent is relevant to the issue of
whether the parent has abandoned the child. We hold that
such evidence is relevant. Section 63.072 is neutral as to
sex and marital status of the parent who has allegedly
abandoned the child. The weight to be given prebirth con-
duct will vary from case to case depending on the conduct
itself and other circumstances of the particular case, but,
in as far as the particular prebirth conduct tends to prove
or disprove that the parent has or has not abandoned the
child at issue, such evidence is relevant and admissible
regardless of the sex or marital] status of the parent. More-
over, while the relationship between a parent and child is
constitutionally protected, equal protection does not bar
rational distinctions between parents. Quilloin v. Walcott,
434 U.S. 246, 254-56, 98 S.Ct. 549, 554-55, 54 L.Ed. 2d
511 (1978).

Finally, respondents argue that Florida’s intermediary
adoption procedure denies due process and equal protection
rights because it does not give adequate notice to natural
parents and does not permit them to withdraw consent,
absent a showing of fraud or duress. On the issue of notice,
section 63.122(4Xc) requires that notice be given to any
person whose consent to the adoption is required unless
that person has consented to the adoption. Respondents
argue that notice should also be given to any person re-
gardless of whether they have consented. We note, first,
that under section 63.122(4Xd) any person who is seeking
to withdraw consent is entitled to notice of the adoption

13a

hearing and, further, there is no question here that both
natural parents appeared and fully contested the adoption
procedure. On the equal protection issue, respondent nat-
ural mother argues, as a parent in an intermediary adop-
tion, that her consent is irrevocable under section 63.082(5),
absent a showing of fraud or duress, whereas parents in
an agency adoption “have the unfettered right to withdraw
their ‘consent’ or surrender.” Jn re J.B.J., 497 So.2d 1265,
1266 (Fla. 5th DCA 1986), review denied, 504 So.2d 766
(Fla. 1987). Respondents’ argument is misplaced for two
reasons. First, the provision in section 63.082(5) that con-
sents to adoptions may not be withdrawn, absent fraud or
duress, is applicable in all adoption proceedings. Second,
In re I.B.J. was a dependency proceeding under chapter
39, as the court made clear, not an adoption proceeding
under chapter 63. To the degree that it suggests that a
consent to adoption may be withdrawn at will, absent fraud
or duress, we disapprove Jn re J.B...

Underlying and intertwined in the parties’ arguments
are the constitutional effects on the case at hand of Stanley
v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551
(1972); Quilloin; Caban v. Mohammed, 441 U.S. 380, 99
S.Ct. 1760, 60 L.Ed.2d 297 (1979); and Lehr. These cases
have been extensively reviewed and analyzed elsewhere‘
and are not directly on point. The decision and analysis
in Lehr, however, does address the parental rights of an
unwed biological father who does not assume the respon-
sibilities of parenthood. Several observations of the Court
are pertinent here.

[Tjhe rights of the parents are a counterpart of the
responsibilities they have assumed.

Lehr, 463 U.S. at 257, 103 S.Ct. at 2991.

‘Buchanan, The Constitutional Rights of Unwed Fathers Before and
After Lehr v. Robertson, 45 Ohio St. L.J. 313 (1984).

l4a

When an unwed father demonstrates a full commit-
ment to the responsibilities of parenthood by “‘com[ing]
forward to participate in the rearing of his child,”
Caban, 441 US, at 392, 60 L Ed 2d 297, 99 S Ct

1760, his interest in personal contact with his child ~

acquires substantial protection under the Due Process
Clause. ... But the mere existence of a biological link
does not merit equivalent constitutional protection.

Id. at 261, 103 S.Ct. at 2993.

The significance of the biological connection is that
it offers the natural father an opportunity that no
other male possesses to develop a relationship with
his offspring. If he grasps that opportunity and ac-
cepts some measure of responsibility for the child’s
future, he may enjoy the blessings of the parent-child
relationship and make uniquely valuable contributions
to the child’s development. If he fails to do so, the
Federal Constitution will not automatically compel a
State to listen to his opinion of where the child’s best
interests lie.

Id. at 262, 103 S.Ct. at 2993-94 (footnote omitted).

The Court {in Caban] made it clear, however, that if
the father had not “come forward to participate in
the rearing of his child, nothing in the Equal Pro-
tection Clause [would] preclud{e] the State from with-
holding from him the privilege of vetoing the adoption
of that child.” Id., at 392, 60 L Ed 2d 297, 99 S Ct
1760.

Id. at 267, 103 S.Ct. at 2996.

It is clear from Lehr that the biological relationship
offers the parent the opportunity to assume parental re-
sponsibilities. Parental rights based on the biological re-
lationship are inchoate, it is the assumption of the parental
responsibilities which is of constitutional significance.

15a

Commentators have emphasized the constitutional
importance of the distinction between an inchoate and
a fully developed relationship. See Comment, 46
Brooklyn L*Rev 95, 115-116 (1979\‘‘the unwed fath-
er’s interest springs not from his biological tie with
his illegitimate child, but rather, from the relationship
he has established with and the responsibility he has
shouldered for his child’’); Note, 58 Neb L Rev 610,
617 (1979\‘‘a putative father’s failure to show a sub-
stantial interest in his child’s welfare and to employ
methods provided by state law for solidifying his pa-
rental rights ... will remove from him the full con-
stitutiona! protection afforded the parental rights of
other classes of parents’’); Note, 29 Emory LJ 833,
854 (1980\“‘an unwed father’s rights in his child do
not spring solely from the biological fact of his par-
entage, but rather from his willingness to admit his
paternity and express some tangible interest in the
child’). See also Poulin, Ilegitimacy and Family Pri-
vacy: A Note on Maternal Cooperation in Paternity
Suits, 70 Nw U L Rev 910, 916-919 (1976) (hereinafter
Poulin); Developments in the Law, 93 Harv L Rev
1156, 1275-1277 (1980); Note, 18 Duquesne L Rev 375,
383-384, n 73 (1980); Note, 19 J Family L 440, 460
(1980); Note, 57 Denver LJ 671, 680-683 (1980); Note,
1979 Wash ULQ 1029, 1035; Note, 12 UCD L Rev
412, 450 n 218 (1979).” -

Lehr at 261 n. 17, 103 S.Ct. at 2993 n. 17. The failure
to assume parental responsibility is abandonment and, un-
der Lehr, is sufficient ground to deny parental rights.

For the reasons set forth above, we concluded that it
was critical to the well-being of the child that the unwed
father provide prebirth support to the unwed pregnant
mother when such support is needed and within his means.
Having determined that the welfare of the child is an
element to be considered in, an adoption proceeding, we

16a

are ineluctably led to the conclusion that prebirth conduct
is relevant to the issue of abandonment. In the instant
case, we hold that the failure of respondent natural father
to provide prebirth assistance to the pregnant mother,
when he was able and assistance was needed, vested
respondent natural mother with the sole parental authority
to consent to the adoption of the child and removed from
the natural father the privilege of vetoing the adoption by
refusing to give consent.

In reaching the two holdings above, we rely on the
relationship recognized in Lehr between the assumption of
parental responsibilities and biological fatherhood, but our
decision is reinforced by the public policy interests of so-
ciety in encouraging unwed fathers to assume parental
responsibilities. The failure of unwed fathers to assume
parental responsibility both pre- and post-birth is a major
national problem. The recently enacted Family Support
Act, Publicbaw No. 100-485, 102 Stat. 2343 (1988), places
major emphasis on national and state programs to establish
paternity of illegitimate children and to enforce child sup-
port by unwed fathers. See Legislative History of Pub.L.
No. 100-485, reported in 1988 U.S.Code Cong. & Admin.
News 2776-3015. As the Congress found in enacting the
WIC Program, substantial numbers of pregnant women
and unborn children are placed at special risk with respect
to physical and mental health by inadequate nutritional or
health care. The failure of unwed fathers to provide sup-
port during pregnancy is certainly a major factor in this
public problem and transfers the burden to society at large,
at it did here. Lehr, as applied here, also represents sound
public policy. Finding no constitutional or statutory pro-
visions that would preclude the state from embracing such
a policy, we answer the certified question in the affirm-
ative, quash the district court decision below, and remand
for proceedings consistent with this opinion.

It is so ordered.

17a

EHRLICH, C.J., and OVERTON, GRIMES and KO-
GAN, JJ., concur.

BARKETT, J., concurs specially with an opinion, in
which KOGAN, J., concurs.

McDONALD, J., dissents with an opinion.
BARKETT, Justice, specially concurring.

I agree with the majority but write separately to em-
phasize that parents may not be stripped of parental rights
lightly. Indeed, the sanctity of the parent-child relationship
is a liberty interest protected under both the state and
federal constitutions. E.g., Santosky v. Kramer, 455 U.S.
745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982); Bellotti v.
Baird, 443 U.S. 622, 99 S.Ct. 3035, 61 L.Ed.2d 797 (1979);
In the Interest of R.W., 495 So.2d 188 (Fla.1986); In the
Interest of D.B., 385 So.2d 83 (Fla. 1980). So strong is
this interest that the only civil proceeding in which a per-
son is entitled to free public counsel in Florida is a pro-
ceeding to terminate parental rights. R.W.; D.B.

Obviously, however, a parent can relinquish parental
rights by his or her actions. Thus, I believe that we have
correctly construed and applied ‘‘abandonment”’ as it re-
lates to the need for paternal consent under section
63.062(1), Florida Statutes. However, the precedent set by
this case cannot carry over into those situations involving
the prenatal responsibilities of mothers, in which substan-
tially different factual problems and different competing
rights and interests necessarily arise and must be evalu-
ated. /

KOGAN, J., concurs.
McDONALD, Justice, dissenting.

Today the Court deprives a now married couple of their
natural child because the mother gave an economically
duressed consent for adoption and the father, prior to the
birth of the child and prior to their marriage, failed to

|

18a

fully support the mother. This is done without a finding
that the natural parents are unfit in the slightest. I think
it a sad day.

The opinion of the Fifth District Court of Appeal in this
case should be approved because its legal analysis is cor-
rect. As stated therein:

The key issues in this case ... are whether aban-
donment or desertion may be used as the sole basis
to excuse the necessity for consent to an adoption
under Chapter 63; and whether a putative natural
father can abandon his child by neglecting his re-
sponsibilities to support the natural mother during
pregnancy and assist with her pre-birth medical ex-
penses.

In re Adoption of Doe, 524 So.2d 1037, 1043 (Fla. 5th
DCA 1988). After a thorough discussion of relevant case
law, the district court concluded that pre-birth acts of
abandonment do not excuse consent. Jd. at 1044. The dis-
trict court majority is correct. I further add that, even if
pre-birth conduct can be equated to abandonment, the con-
duct of the father in this case falls far short of abandon-
ment.’

1] will call the natural father Richard and the natural mother Mary.
Even though Richard had lost his job at the end of 1985 and did not
find another until] May 1986, during which time he borrowed money
from his father, it is unchallenged that Richard nonetheless:

(1) spent $4000 on Mary for a ski vacation, including new clothes
for her;

(2) had a continuing relationship with Mary throughout the preg-
nancy, which included a ride to ‘‘dream’’ about their future the week
before she left, following an evening out for her birthday;

(3) cared deeply for Mary’s older son, buying him toys, taking him
on outings with and without Mary, paying his insurance premiums;

(4) gave Mary a maternity gown and robe for Mother’s Day in May

19a

What the father did, or failed to do, is less than he
should have. Even so, his acts fall far short of demon-
strating an intent to abandon the mother and the unborn
child. He did not repudiate or renounce them; he did not
permanently forsake them for others or self; he did not
demonstrate a continuing disinterest in their fate.

Florida has heretofore properly taken a narrow view as
to what constitutes abandonment. Abandonment must be
proven by clear and convincing evidence and must be com-
plete. I am aware of but two appellate decisions, both
bottomed on facts much more egregious over a substantial
time after birth than exist here, where abandonment was

1986, and money for a new outfit for her birthday just days before
she left;

(5) continually took’ Mary and her son out to eat, or to his apartment
where he cooked for them, or to his parents home;

(6) provided his own furniture to furnish Mary’s apartment, in ad-
dition to the furniture his parents provided at his request;

(7) paid Mary’s rent in February, the only time she told him she
needed financial help;

(8) never failed to pick up milk, baby food, diapers, and such when
Mary asked;

(9) urged Mary to come back to Phoenix to have the child, live with
him, and give him time to sort his life out;

(10) opposed the adoption and requested Mary to sign no papers.
That Richard did all of this for Mary, her older son, and the baby,

after Richard knew she was pregnant and before the baby was born,
is uncontradi¢ted in the record.

* In re Adoptien of Noble, 349 So.2d 1215 (Fla. 4th DCA 1977). Accord

In re Adoption of Lewis, 340 So.2d 126 (Fla. lst DCA 1976), cert.

denied, 346 So.2d 1248 (Fla. 1977); In re Adoption of Gossett, 277 So.2d
832 (Fla. lst DCA 1978).

20a

established.* There are a legion of Florida cases where the
courts have found that abandonment was not established.‘

No justification exists in this case for the trial judge to
excuse consent. Section 63.062, Florida Statutes (1985),
requires that written consent be executed after the birth
of a child. If abandonment is to take the place of or excuse
consent, does it not follow that such action also take place |
after birth?, It should.

This Court, by its decision, is wrongfully disturbing one |
of the most fundamental rights of human relations when
it deprives the natural parents of the rights, privileges, |
and responsibilities of rearing their child. Such rights can |
be forfeited only upon a showing of unfitness or rejection
by the parents. While I have grave doubts concerning the
issue of whether the mother’s consent was valid because
of the turmoil in her life and the economic pressures ex-
erted upon her, it is clear that adoption requires the con-
sent of both parents. Here, the father never consented
and sought to obtain the child immediately upon his birth.
The adoptive parents are interlopers, albeit benign, in this
case. The issue of the best interest of this child arises
only when the child is legally free for adoption. § 63.022(2),
Fla.Stat. (1985). Were that issue to be reached, history
has demonstrated that, unless unfit, the best interest of
the child lies with the natural parents. It is but a matter
of time before this child will learn of his adoption and
wonder why. All that can be said to him is that, even
though your mother wanted you, the adoptive parents and
the courts would not let her have you because in moments
of despair she let you go; even though your father wanted
you, the adoptive parents and the courts would not let
him join your mother in having you because he did not

8 Smith v. Moore, 481 So.2d 36 (Fla. lst DCA 1985); Turner v. Adop-
tion of Turner, 352 So.2d 957 (Fla. lst DCA 1977).

‘E.g., cases cited supra note 2; Hinkle v. Lindsey, 424 So.2d 983
(Fla. 5th DCA 1983), and cases cited therein.

2la

treat your mother as well as he might have when she was
pregnant with you. Even to a child these explanations are
inadequate.

I would approve the decision of the district court of
appeal and direct an immediate delivery of the child to
the natural parents.

a aceaen a aia eee

22a

SUPREME COURT OF FLORIDA
THURSDAY, JUNE 1, 1989

In the Matter of the Adoption of:
JOE DOE, Infant Baby Boy

CASE NO. 72,593

District Court of Appeal,
- 5th District - No. 87-1277

. BOB DOE and JANE DOE,
Petitioners,
v.
RICHARD ROE and MARY ROE,
Respondents.

Upon consideration of the Motion for Rehearing and
Clarification filed in the above cause by attorney for
respondents, and response thereto,

IT IS ORDERED that said Motion be and the same is
hereby denied.
EHRLICH, C.J., OVERTON, SHAW, BARKETT,
GRIMES and KOGAN, JJ., concur

McDONALD, J., dissents

A True Copy TC
TEST: ec: Hon. Frank Habershaw, Clerk
Hon. William D. Gorman, Clerk
RE . ;
ti ia Hon. Cecil H. Brown, Judge
; ; Chandler R. Muller, Esquire
/s/ Sid J. White John L. O’Donnell, Jr., Esquire
Sid J. White Donald J. Sasser, Esquire

Clerk, Supreme Court Cynthia L. Green, Esquire
Elaine N. Duggar, Esquire
Nancy Rainey Palmer, Esquire
Cynthia S. Swanson, Esquire
Anthony B. Marchese, Esquire
Ms. Janie Yahnke

|
:

23a

In the Matter of the ADOPTION OF 7
John DOE, Infant Baby Boy.

No. 87-1277.

Richard ROE and Mary Roe,

. Appellants,
v.
Bob DOE and Jane Doe,
Appellees.
District Court of Appeal of Florida,
Fifth District.
March 24, 1988.

Rehearing and Rehearing En Banc
Denied May 19, 1988.

The Circuit Court, Orange County, Cecil H. Brown, J.,
entered judgment of adoption establishing parental rights
to child in adoptive parents. Natural parents appealed. The
District Court of Appeal, Sharp, C.J., held that: (1) natural
mother was bound by her consent to adoption, absent clear
and convincing evidence that consent was obtained through
duress, and (2) adoption without putative father’s consent
could not be sustained by proof of putative father’s pre-
birth acts of abandonment.

Reversed; question certified.

John L. O’Donnell, Jr., of DeWolf, Ward & Morris, P.A.,
Orlando, for appellants.

Chandler R. Muller, of Muller, Kirkconnell and Lindsey,
P.A., Winter Park, for appellees.

SHARP, Chief Judge.

The Roes, natural parents of the infant, John Doe, appeal
from a judgment of adoption establishing parental nghts
in the Does te the child. The Roes argue that the natural
mother’s consent to the adoption was obtained under du-
ress and should he invalidated. We affirm the trial court’s
conclusion that the natural mother is bound by her con-
sent. However, the Roes also argue the adoption is invalid
because the natural father’s consent to the adoption was
not obtained. The trial court found his lack of consent
should be excused because of certain irresponsible actions
on his part prior to the child’s birth, which the trial court
found constituted abandonment. We reverse.

This case was tried over a period of months. It was
ably and well presented by the attorneys for both sides.
As do all contested adoption cases, it caused the trial judge
and the appellate panel that heard it much concern, and
empathy for all of the parties involved.’

The transcripts of testimony in the case are lengthy,
and contain conflicts regarding the natural mother’s con-
sent and the natural father’s abandonment of her and the
unborn child. After this adoption proceeding commenced,
the natural parents married. There are numerous discrep-
ancies between the natural mother’s testimony at trial and
the testimony concerning her prior statements to social
workers, friends and professionals during her pregnancy
with respect to the natural father abandoning her. In any
event, there is evidence in this record to support the trial
judge’s fact findings, and we are bound as appellate judges
to accept them as proven.’

1 See In re Adoption of Cox, 327 So.2d 776, 778 (Fla.1976); Wyle v.
Botos, 416 So.2d 1253 (Fla. 4th DCA 1982).

2 Wylie v. Botos, 416 So.2d 1253 (Fla. 4th DCA 1982).

peer |

Pome» weet.

25a

“Factual Findings of the Court

1. The natural father:and mother met in Tempe, Ari-
zona, in the summer of 1985.

2. During the course of their later relationship, the nat-
ural mother discovered she was pregnant and advised the
natural father of this fact before going on a ski vacation
over the Christmas break in December of 1985.

3. At the time he was advised of the natural mother’s
pregnancy, the natural father had accumulated savings and,
additionally, had earned commissions in the amount of
$10,060 during the month of December 1985 from the sale
of solar water-heating units. The natural father was also
aware he would need to obtain a new job beginning in
January of 1986 because the tax credits for solar equip-
ment were being terminated by the federal government in
December of 1985.

4. Knowing of the ending of his employment and being
advised of the natural mother’s pregnancy, the natural
father expended $4,000 on equipment and ski vacation ex-

pense.

5. In January 1986 the natural father urged the natural
mother to obtain an abortion because he was not ready
to commit to marriage, felt financial pressure, and was
troubled by the whole idea of the pregnancy.”’

“6. The natural mother responded by attempting to have
third parties counsel the natural father against abortion.

7. During the time of her early pregnancy, the natural
mother was living with a small son, born out of wedlock
in another previous relationship, in an apartment in Phoe-
mx Arizona. She told the natural father she would not
abort the child in utero, but that she could not raise two
children as a single, unwed mother.

8. The natural mother lost her job in January of 1986,
and her economic position deteriorated as 1:2 pregnancy

26a

continued. The natural father, during the time he was
urging the natural mother to abort the child, paid one
month’s rent for her in February 1986. Some family fur-
niture and a microwave oven were also made available to
the natural mother. No further repetitive or continual sup-
port in the form of contributions toward prenatal medical
expense, care, food, rent or support was forthcoming from
the natural father during the balance of the natural moth-
er’s pregnancy, which ended with the birth of a son on
September 12, 1986.

9. The natural mother discussed the option of adoption
with the natural father from the beginning of the preg-
nancy and during the entire term of the pregnancy.

10. The natural father knew from the beginning of the
pregnancy that if he would not marry the natural mother,
she wanted their child adopted into a loving, middle-class,
Jewish home because the natural mother stated repeatedly
and strongly that the child needed the stability and pre-
manency [sic] of a loving, two-parent home. She was Jew-
ish, and the natural father was not.

11. The natural father agreed to have the child placed
for adoption, deferring to the wishes of the natural
mother.‘ However, the natura! father expressed that he
did not want the child raised in a Jewish home.

12. In March 1986 the natural mother wrote a letter to
the natural father’s mother, which the natural father later
discussed with his mother.

* However, the record reveals that the natural mother lost her em-
ployment at a bank in February 1986, but obtained a babysitting job
three weeks. She maintained this minimal employment unti] the end of
July 1986.

* However, just prior to the child’s birth, the natural father said he
did not want the child adopted.

4

ec ioe

27a

13. The letter explained why the natural mother would
not abort the child and why the child was being placed
for adoption.”

“14. After the natural mother lost her job, she went
on unemployment, received prenatal vitamins and free
counseling from the Jewish Social Services in Phoenix,
Arizona, and applied for other assistance, as well as re-
ceiving groceries from a local church.

15. The natural father was aware of the natural moth-
er’s financial situation but did not offer any financial as-
sistance for prenatal care.

16. The natural mother told her physician, mother, sis-
ter, and friend who tried to previously counsel the natural
father against aborting the child, that she was going to
Florida to start her life over and place the child with a
Jewish family. _

17. ‘vhe natural mother’s mother, a resident of Tampa,
Florida, contacted a local rabbi and said her daughter was
pregnant and that her daughter wanted her child placed
with a Jewish family.

18. The prospective adoptive parents, a middle-class,
Jewish couple, residents of central Florida, husband age
36, wife age 34, have been married since 1975, and have
tried to conceive a child with no success.

19. The prospective adoptive parents have placed their
names with several sources of adoption and heard through
friends that there was a Jewish baby available, through
the source of the Tampa rabbi previously contacted by the
natural mother’s mother.

20. An attorney whom the prospective adoptive parents
had contacted as a source of adoption was then in contact
with the natural mother’s mother, who then had the
attorney cal] the natural mother in Arizona.

28a

21. In a long-distance telephone call lasting over one
and one-half hours, the attorney questioned the natural
mother at length about her motivation for placing the child
for adoption.

22. The natural mother told the attorney that the nat-
ural father had washed his hands of her and the child and
had not given needed prenatal financial and emotional sup-
port; that she did not love the natural father, and that it
was best for her child to be placed with a two-parent home
for adoption, because the natural mother was already rais-
ing one child on her own as a single parent and she could
not afford, emotionally or financially, to raise two. She
was happy to learn that the attorney was in contact with
a Jewish couple fitting her criteria for adoption.

23. The natural mother left Phoenix without telling the
natural father. He was given a letter by the natural moth-
er’s sister explaining why she left.”

“24. Within a matter of days, the natural mother called
the natural father and told him she was in Florida.’ She
then reiterated that she was placing the child for adoption
because the natural father would not marry her; she could
not support two children on her own, and the child would
be better off in a two-parent home.

25. The natural mother and natural father were in tel-
ephonic contact up until just before the birth of the child.

26. The subject of the phone conversations primarily
dealt with the relationship of the natural mother and nat-
ural father, with the natural father urging the natural
mother to come to Phoenix to have the child, live with
him and give him time to sort his life out and make the
ultimate decision of marriage.

’ The record reveals, however, that the natural mother did not advise
him of her Florida address or telephone number.

29a

27. The natural mother told the natural father she would
not live with him out of a marriage relationship and re-
peatedly told him why placing the child up for ee
was best for all.

28. The natural father had an insurance coupon book
sent to the natural mother with a letter enclosed dated
August 18, 1986. The natural mother dropped a copy of
the letter by the intermediary attorney’s office.

29. The letter discussed the relationship of the natural
parents and also asked the mother to “‘at least think about’’
letting the natural father raise the child.

30. The attorneys concluded, based upon the lack of
prenatal financial or emotional support given by the unwed
father, that the natural father’s consent fit the criteria for
excusal by the Court under Florida’s adoption statute. They
did not contact the natural father or the prospective adop-
tive parents about the letter.

31. After sending the letter, the natural father and nat-
ural mother were in contact again by telephone. In the
last telephonic contact before the birth of the child, the
natural mother, after having heard within a short one- to
two-week period the natura] father say he would marry
her and then say he had changed his mind and could not
decide upon marriage, asked the natural father to let her
make the decision. He did not say no.®

32. The natural mother, during the two weeks before
the birth of the child, was wrestling with whether to place
her child for adoption or to keep the child. She counseled
with a Roman Catholic nun employed as a social worker
with an Orlando, Florida center for unwed mothers, BETA
House. She spoke with her mother and sister.

* However, the record reveals that in their last conversation before
the child’s birth, the natural father told the natural mother not to “‘sign
any papers,” and she agreed she would not do so.

30a

33. Concluding that the natural father was staying with
his original position of wanting her to keep seeing him
but not making a commitment to marriage and not re-
ceiving any support emotionally or financially or any offers
of prenatal financial support, the natural mother contacted
her physicians and asked them to induce labor.

34. In the hospital the natural mother cried and ex-
pressed concern over placing her baby for adoption, but
on Sunday, September 14, 1986, two days after the birth
of the child on Friday, September 12, 1986, the natural
mother told the attending postpartum nurse she was sure
she wanted the child placed for adoption. She had previ-
ously consented to medication to dry up her breast milk,
and she told the nurse at 8:30a.m., forty-five minutes
before signing the consent, to take the child back to the
nursery, that she did not want to see him anymore.

35. At 9:15 a.m. the natural mother signed the required
consent, later stating she knew what she was signing,
although she did not like it.

86. The natural mother called an exgirlfriend of the
natural father’s on Monday, September 15, 1986, telling
her of the birth of the child.

37. The natural father was called by the exgirlfriend
and he then called the natural mother saying to get the
child back and that he would marry her.”

In addition, the trial court found that the adoption was
clearly in the best interest of this child, although it earlier
disclaimed this as a consideration in determining the con-
sent issues. We agree with the appellants that the best
interest of the child is not a relevant factor unless the

7 The natural father also immediately called the intermediary handling
the adoption to tell him he wanted his child and flew to Orlando with
baby clothes.

3la

child was legally available to be adopted. However, the
adoptive parents have had custody of the child since its
birth, and it is now over one year old. The record supports
the trial court’s finding that there may possibly be serious
psychological damage at this point to the child, upon being
removed from the only home it has ever known.

Validity of the Natural Mother’s Consent

The trial court found that the natural mother failed to
show by clear and convincing evidence that her consent
was not freely and voluntarily given.

The natural mother was intelligent, articulate, and
knew the consequences of signing the consent for
adoption—a form the intermediary attorney had dis-
cussed with her two months before the birth of her
child and that the HRS worker had reviewed with
her in a meeting before having her physician induce
labor. While surrender of a baby for adoption is up-
setting to a natural mother, this is universal and not
grounds for supporting duress.

[1] The trial court found the natural mother gave up
the baby because of generalized social and financial pres-
sures, but that no one exerted coercion, duress or fraud
to procure her consent. Absent a finding of fraud, duress,
or undue influence, a natural parent’s consent to an adop-
tion is valid and irrevocable upon execution of the written

*The best interests of the child cannot be considered in a contest
between natura] parents and third parties, absent a finding of aban-
donment, that the parent is disabled from exercising custody, or that
custody in the natural parent would otherwise be detrimental to the
the child. In re Adoption of Baby Girl C., 511 So.2d 345 (Fla. 2d DCA
1987); In re Guardianship of D.A. McW., 460 So.2d 368 (Fla.1984);
Hinkle v. Lindsey, 424 So.2d 983 (Fla. 5th DCA 1983); In re Adoption
of Coz, 327 So.2d 776 (Fla.1976).

32a

consent.? This same rule exists in most other jurisdictions
in an effort te balance the welfare and rights of the child
and both sets of parents involved in an adoption.’ If con-
sents to adoption were freely made voidable, the stability
of adoptive families and the institution of adoption itself
would be threatened.

Necessity for Naturai Father’s Consent to the Adoption

Pursuant to Florida’s current statute governing adop-
tions (Chapter 63), the natural father’s consent to this
adoption was required.” Section 63.062(1\b) provides that
the natural father must give his written consent following
the birth of the child, if he has filed an affidavit of pa-
ternity with the vital statistics office of the Department
of Health and Rehabilitative Services.’* The natural father
filed such an acknowledgment in Florida, shortly after the
birth of the child and before this adoption proceeding com-
menced.

However, the adoption statute also provides that such
consent to an adoption may be excused by the court.”
Section 63.072(1) specifies that consent is excusable in the
case of ‘‘a parent who has deserted a child without af-

* § 63.082(5), Fla.Stat. (1985); In re Adoption of Cox, 327 So.2d 776
(Fla.1976); Grabovetz v. Sachs, 262 So.2d 703 (Fila. 8rd DCA), cert.
denied, 267 So.2d 329 (Fla.1972); compare In re Adoption of Baby Girl
C., 511 So.2d 345 (Fla. 2d DCA 1987); In re Adoption of P.R. McD.,
440 So.2d 57 (Fla. 4th DCA 1983). ,

1 See Petition of Steve B.D., 112 Idaho 22, 730 P.2d 942 (Idaho 1986);
In re Adeption of Child by P., 114 N.J.Super. 584, 277 A.2d 566 (A.D.
1971); In re G.K.D., 382 S.W.2d 62 (Mo.App. 1960).

1 Guerra v. Doe, 454 So.2d 1 (Fla. 8rd DCA 1984), review denied,
462 So.2d 1106 (Fla.1985).

12 The natural father’s written consent is also required in other cir-
cumstances not relevant to this case.

8 § 63.062(1), Fla.Stat. (1985).

33a

fording means of identification, or who has abandoned a
child.”

The trial court in this case found that the natural fath-
er’s consent was excused because of estoppel (i.e., he had
impliedly consented to the adoption prior_to the birth of
the child) and he had abandoned the child by his actions
and failures to act with respect to the natural mother,
prior to its birth:

41. The natural father is estopped to claim his writ-
ten consent is required under Florida law because his
actions and communications to the natural mother and
third parties show that he impliedly consented to the
adoption. Wylie v. Botos, 416 So.2d 1253 (Fla. 4th
DCA 1984).

42. When the natural feather learned the natural
mother was pregnant, he initially attempted to have
the pregnancy terminated, later agreed to the child
being placed for adoption, and then did nothing show-
ing continual and repetitive prenata] support. Fla.Stat.
§ 63.062(1\bX5) (1985); Wylie v. Botos, supra; In re
Adoption of Mulleniz, 359 So.2d 65 (Fla. lst DCA
1978).

43. On notice that the natural mother could not
raise two children on her own because of her diffi-
culties raising one child out of wedlock, the natural
father paid no monies toward prenatal medical bills,
food, or medications, and only one month’s rent. As
such, there was a shirking of the responsibilities cast
by law and nature. Hinkle v. Lindsey, 424 So.2d 983
(Fla. 5th DCA 1983); Wylie v. Botos, supra; Fla.Stat.
§ 63.062(1)(bX5) (1985).

44. The Court notes that Wylie v. Botos, supra,
has remarkably similar facts wherein the unwed father

Correct year is 1982.

34a

first ignored the fact of pregnancy, then gave initial
assent to “her decision’’ to adopt the behv out. Shortly
after the birth of the child, the unwed father and
mother reconciled, decided to contest the adoption on
the basis of no written consent executed by the pu-
tative father, and subsequently married. The adoption
petition was granted notwithstanding the natural fath-
er’s objection and lack of written consent on the basis
that the father’s pre-birth actions evidenced consent
and that he was equitably estopped to claim his writ-
ten consent was required.

45. In light of the fact that this newborn child was
placed up for adoption by the natural mother because
the unwed father had been unwilling to show mean-
ingful support during the pregnancy, the Court con-
siders his pre-birth conduct to be relevant to the issue
of whether he gave consent, implied or otherwise, to
the adoption, and is now estopped to claim his written
consent is required.

x*_* * *©* &

49. The Court finds, by clear and convincing evi-
dence, that the natural father abandoned the devel-
oping child by failing to provide the unwed mother
with meaningful, repetitive, and customary support
either during the pregnancy or at any point before
the unwed mother executed the consent two days fol-
lowing the child’s birth. Wylie v. Botos, supra.

50. During this critical time frame, the natural
father’s conduct evinced a “‘settled purpose’’ to shed
himself of the responsibility presented by pregnancy.
To this end he was intent upon placing his “‘freedom’’
and desires above the needs of the child developing
in the natural mother’s womb. Additionally, he with-
eld [sic] emotional and financial support that was
within his ability to give when the mother lost her
job and was incurring prenatal and other expenses

35a

that were beyond her ability to pay. This Court lis-
tened with rapt concentration to the natura! mother
about this agonizing period; how she defended her
position against the Father’s urging that she permit
her unborn child to be destroyed by abortion; how
she squeezed by economically, accepting welfare and
the charity of others, and how in the early days of
August in her 8th or 9th month of pregnancy she
sought so desperately with the help of her family to
replace her medical, health, and economic uncertainty
and anxieties with security and direction when she
finally chose the course of adoption for her unborn
child and moved back to Florida. Historically, an eq-
uity Court has been concerned with unclean hands.

The key issues in this case, which are so far as we can
determine ones of first impression, are whether abandon-
ment or desertion may be used as the sole basis to excuse
the necessity for consent to an adoption under Chapter
63; and whether a putative natural father can abandon his
child by neglecting his responsibilities to support the nat-
ural mother during pregnancy and assist with her pre-
birth medical expenses.

Adoption is a statutory creation, not existent at common
law, and courts generally require strict compliance with
the statute.’* Under current adoption statutes, the trend
is to give unmarried natural fathers substantive and pro-
cedural rights analogous to married fathers and natural
mothers,’* although because of the psychological and bio-
logical differences between begetting and bearing a child,
no court has held that an unmarried father’s rights must
be equal to the natural mother’s or even to a married

2 Am.Jur.2d Adoption §§ 2, 3, 6; see In re Palmer’s Adoption, 129
Fla. 630, 176 So. 537 (1937).

1% See In re Guardianship of D.A. McW., 429 So.2d 699 (Fla. 4th
DCA 1983) approved, 460 So.2d 368 (Fla.1984).

36a

_~

father’s. See Lehr v. Robertson, 463 U.S. 248; 103 S.Ct.
2985, 77 L.Ed.2d 614 (1983); Quilloin v. Walcott, 434 U.S.
246, 98 S.Ct. 549, 54 L.Ed.2d 511 (1978); In re Adoption
of Mullenix, 359 So.2d 65 (Fla. lst DCA 1978); Department
of HRS v. Herzog, 317 So.2d 865 (Fla. 2d DCA 1975).

The closest case factually to this one that we have dis-
covered is Wylie v. Botos, 416 So.2d 1253 (Fla. 4th DCA
1982). In Wylie, the unmarried natural father expressly
agreed with the mother’s decision to have the unborn child
adopted. In contrast to this case, he helped support the
mother and paid medical expenses with the understanding
he would be reimbursed by the adoptive parents. Not until
after the child was born, the consent executed by the
mother, and a petition to adopt had been filed did the
natural father file his acknowledgment of paternity (some
two months after the child’s birth). The Fourth District
Court of Appeal held that the natural father was estopped
to claim his consent was necessary under section 63.062(1).
In this case, however, the natural father timely filed his
acknowledgment of paternity, which triggered the neces-
sity for his consent under the adoption statute.

[2] In other contexts the Florida courts have required
clear and convincing proof of abandonment by a parent in
order to terminate his or her parental rights.’’ Proof of
abandonment may be by any word, deed or course of ac-
tion, from which a settled purpose to abandon can be
inferred.’* But we can find to Florida case which has based
a finding of abandonment on pre-birth, laggard activity by
a putative father. Other jurisdictions which have consid-
ered this issue have reached different conclusions. See Jn
re Adoption of Nelson, 202 Kan. 663, 451 P.2d 173 (1969)

17 See Webb v. Blancett, 473 So.2d 1376 (Fla. 5th DCA 1985); Hinkle
v. Lindsey, 424 So.2d 983 (Fla. 5th DCA 1983); In re Adoption of
Braithwaite, 409 So.2d 1178 (Fla. 5th DCA 1982).

1 Webb, supra.; see Turner v. Adoption of Turner, 352 So.2d 957
(Fla. lst DCA 1977).

37a

(rejected view that a natural father can abandon an unborn
child); Doe v. Attorney W., 416 So.2d 1312 (Miss.1982)
(upheld termination of parental rights on grounds the
father abandoned his unborn child); State v. ex rel. Lewis
v. Lutheran So. Ser., 68 Wisc.2d 36, 227 N.W.2d 643 (1975)
(upheld termination of natural father’s parental rights be-
cause of pre-birth abandcnment).

[3] The only statutory definition of “abandonment” in
Florida is that found in section 39.01(1), Florida Statutes
(1985):

(1) ‘“‘Abandoned”’ means a situation in which the
parent or legal custodian of a child or, in the absence
of a parent or legal custodian, the person responsible
for the child’s welfare, while being able, makes no
provision for the child’s support and makes no effort
to communicate with the child, which situation is suf-
ficient to evince a willful rejection of parental obli-
gations. If the efforts of such parent or legal
custodian, or person primarily responsible for the
child’s welfare to support and communicate with the
child are, in the opinion of the court, only marginal
efforts that do not evince a settled purpose to assume
all parental duties, the court may declare the child to
be abandoned. The failure by any such person to ap-
pear in response to actual or constructive service in
a dependency proceeding shall give rise to a rebuttal
presumption of such person’s ability to provide for
and communicate with the child.

As we read the above definition, the reference to a child
contemplates one that has been born. How could one be
expected to communicate with an unborn child? We there-
fore conclude this adoption cannot be sustained by proof
of pre-birth acts of abandonment.

However, we recognize that there is no clear legislative
or case law authority on the issue of pre-birth abandon-
ment in Florida. We certify that this is a question of great

38a

public importance,’® due to its impact on Florida’s adoption
statute and procedures. We therefore certify the following
question to the Florida Supreme Court:

CAN THE FAILURE OF A PUTATIVE UNMARRIED
FATHER TO ASSUME SUPPORT RESPONSIBILITIES
AND MEDICAL EXPENSES FOR THE NATURAL
MOTHER WHEN SHE REQUIRES SUCH ASSISTANCE
AND HE IS AWARE OF HER NEEDS, BE A BASIS
FOR A TRIAL COURT TO EXCUSE HIS CONSENT TO
THE ADOPTION OF THE CHILD, ON THE GROUNDS
OF ABANDONMENT OR ESTOPPEL, PURSUANT TO
SECTION 63.072(1), FLORIDA STATUTES (1985).

Accordingly, we reverse the judgment of adoption in
this case and certify the above question as one needing
clarification by our State Supreme Court. To preserve the
status quo in this situation, our mandate shall be stayed
pending the acceptance or denial of jurisdiction by the
supreme court in this case, and its ultimate disposition of
this cause. Pending final resolution of the case, we direct
that the trial court shall have jurisdiction to establish vis-
itation rights for the natural parents.

REVERSED; QUESTION CERTIFIED.
COBB and COWART, JJ., concur.

ON MOTION FOR REHEARING AND REHEARING EN
BANC

PER CURIAM.
DENIED.

SHARP, W., C.J., COBB, COWART and DANIEL, JJ., con-
cur.

DAUKSCH, J., dissents with opinion.
ORFINGER, J., did not participate.

* Fla.R.App.P. 9.030(aX2XBXi).

OO ee

39a

DAUKSCH, J., dissenting.
I respectfully dissent.

In my opinion we should decide this case en banc. This
is a case of exceptional importance and warrants excep-
tional treatment.

40a

IN THE CIRCUIT COURT OF THE NINTH JUDICIAL
CIRCUIT, IN AND FOR ORANGE COUNTY, FLORIDA

CASE NO. CI86-13653

IN THE MATTER OF THE ADOPTION OF:
JOHN DOE, Infant Baby Boy.
FINAL JUDGMENT OF ADOPTION

THIS CAUSE came before the Court for a trial begin-
ning on Tuesday, May 19, 1987, through Thursday, May
21, 1987, upon a Petition for Adoption and Response
thereto, and the Court having considered testimony and
documentary evidence presented by the parties, having
heard argument of counsel, and being otherwise duly ad-
vised in the premises, finds as follows:

FACTUAL FINDINGS OF THE COURT

1. The natural father and natural mother met in Tempe,
Arizona, in the summer of 1985.

2. During the course of their later relationship, the nat-
ural mother discovered she was pregnant and advised the
natural father of this fact before going on a ski vacation
over the Christmas break in December of 1985.

3. At the time he was advised of the natural mother’s
pregnancy, the natural father had accumulated savings and,
additionally, had earned commissions in the amount of
$10,000 during the month of December 1985 from the sale
of solar water-heating units. The natural father was also
aware he would need to obtain a new job beginning in
January of 1986 because the tax credits for solar equip-
ment were being terminated by the federal government in
December of 1985.

4la

4. Knowing of the ending of his employment and being
advised of the natural mother’s pregnancy, the natural
father expended $4,000 on equipment and ski vacation ex-

pense.

5. In January 1986 the natural father urged the natural
mother to obtain an abortion because he was not ready
to commit to marriage, felt financial pressure, and was
troubled by the whole idea of the pregnancy.

6., The natural mother responded by attempting to have
third parties counsel the natural father against abortion.

7. During the time of her early pregnancy, the natural
mother was living with a small son, born out of wedlock
in another previous relationship, in an apartment in Phoe-
nix, Arizona. She told the natural father she would not
abort the child in utero, but that she could not raise two
children es a single, unwed mother. :

8. The natural mother lost her job in January of 1986,
and her economic position deteriorated as the pregnancy
continued. The natural father, during the time he was
urging the natural mother to abort the child, paid one
month’s rent for her in February 1986. Some family fur-
niture and a microwave oven were also made available to
the natural mother. No further repetitive or continual sup-
port in the form of contributions toward prenatal medical
expense, care, food, rent or support was forthcoming from
the natural father during the balance of the natural moth-
er’s pregnancy, which ended with the birth of a son on
September 12, 1986.

9. The natural mother discussed the option of adoption
with the natural father from the beginning of the preg-
nancy and during the entire term of the pregnancy.

10. The natural father knew from the beginning of ine
pregnancy that if he would not marry the natural mother,
she wanted their child adopted into a loving, middle-class,
Jewish home because the natural mother state

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_0243%3A2. Public record. Not legal advice.