IRIS BERGMAN and JOHN STIGLICH v. IN RE: ADOPTION OF Z.E.S., A CHILD , 238 So. 3d 847 ( 2018 )

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
I.B. and J.S.,
Appellants,
v.
IN RE: ADOPTION OF Z.E.S., a child,
Appellee.
No. 4D17-1730
[March 7, 2018]
Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Karen M. Miller, Judge; L.T. Case No. 2016-DR-000825.
John F. Schutz of John F. Schutz, P.L., West Palm Beach, for appellant,
I.B.
Amy U. Hickman of Hausmann & Hickman, P.A., Boynton Beach, for
appellant, J.S.
No brief filed for appellee.
GROSS, J.
This is an appeal from an order denying a petition for adoption. While
all of the parties appear to have the child’s best interests at heart, we affirm
on a pure question of law–the petition was legally insufficient under the
Florida Adoption Act, sections 63.012 et seq., Florida Statutes (2016).
I.B. is the maternal grandmother of Z.E.S. (the “child”). She filed a
petition under the Adoption Act to terminate her daughter’s parental rights
and adopt the child. I.B.’s husband, the child’s maternal grandfather,
consented to the adoption, but did not seek to adopt the child. The child’s
mother also consented to the termination of her parental rights and the
adoption by I.B.
J.S. is the child’s biological and legal father; he is not married to the
child’s mother. He joined in the petition to terminate the mother’s parental
rights and for the maternal grandmother to adopt the child. He did not
consent to the termination of his own parental rights.
The petition was amended twice and ultimately came before the circuit
court as a “Petition for the Termination of Parental Rights and Petition for
Second Parent Relative Adoption.” If the circuit court granted the petition,
the father and maternal grandmother would be the child’s parents.
The circuit court held an evidentiary hearing and listened to testimony
from the father and both maternal grandparents. All of the witnesses
testified that the father had been sharing parental responsibility with the
maternal grandparents for two years due to the mother’s alcoholism and
that the child was thriving under this de facto co-parenting arrangement.
Shortly after the hearing, the court denied the petition, finding that the
entry of judgment of adoption would sever the father’s parental rights
under section 63.172(1), Florida Statutes (2016). The cited subsection
provides:
(1) A judgment of adoption . . . has the following effect:
(a) It relieves the birth parents of the adopted person,
except a birth parent who is a petitioner or who is
married to a petitioner, of all parental rights and
responsibilities.
(b) It terminates all legal relationships between the
adopted person and the adopted person’s relatives,
including the birth parents, except a birth parent who
is a petitioner or who is married to a petitioner, so that
the adopted person thereafter is a stranger to his or her
former relatives for all purposes . . . .
(c) . . . [I]t creates the relationship between the adopted
person and the petitioner and all relatives of the
petitioner that would have existed if the adopted person
were a blood descendant of the petitioner born within
wedlock. . . .
Id. Appellants argue that subparts (a) and (b) are plain and unambiguous
and that the father should retain his parental rights because as “a
petitioner,” he fits within the statutory exception. We find that, while the
father joined the petition, he was not “a petitioner” within the meaning of
the Adoption Act because he did not seek to adopt the child.
This is a case of statutory interpretation. While the subparts relied on
by the Appellants appear unambiguous when viewed in isolation, “[i]t is
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axiomatic that all parts of a statute must be read together in order to
achieve a consistent whole.” Forsythe v. Longboat Key Beach Erosion
Control Dist., 604 So. 2d 452, 455 (Fla. 1992). The statutory scheme at
issue is the Adoption Act and because adoption is “wholly statutory in
nature,” it “can be decreed only in accordance with the statute.” Korbin v.
Ginsberg, 232 So. 2d 417, 418 (Fla. 4th DCA 1970).
Adoption is defined as:
[T]he act of creating the legal relationship between parent and
child where it did not exist, thereby declaring the child to be
legally the child of the adoptive parents and their heir at law
and entitled to all the rights and privileges and subject to all
the obligations of a child born to such adoptive parents in
lawful wedlock.
§ 63.032(2), Fla. Stat. (2016) (emphasis added).
An adoption proceeding begins with the filing of a petition, meaning
“the filing of a verified, truthful application for adoption.” Rodriguez v.
Adoption of Rodriguez, 219 So. 3d 944, 946 (Fla. 3d DCA 2017). Section
63.112, Florida Statutes (2016), sets forth an explicit list of those items
which must be included in the petition. Among the requirements, the
petition “shall be signed and verified by the petitioner and … shall state …
[t]he reasons why the petitioner desires to adopt the person.” § 63.112(1)(i),
Fla. Stat. (emphasis added).
Here, the father was named as “a petitioner” to the petition for adoption
even though he did not “desire[] to adopt” the child, and a “legal
relationship” already did “exist.” This was an apparent attempt to avoid
the statutory effect of a judgment of adoption which is to terminate a birth
parent’s parental rights “except a birth parent who is a petitioner or who
is married to a petitioner.” See § 63.172(1)(a)-(b) (emphasis added).
However, calling the father “a petitioner” was a misnomer because the
Adoption Act does not allow a parent, whose parental rights are intact, to
petition to adopt his or her own child. See § 63.032(2) (defining adoption
as the act of creating the legal relationship between parent and child where
it did not exist); § 63.172(1)(c) (stating that the effect of a judgment of
adoption is to “create[] the relationship between the adopted person and
the petitioner . . . that would have existed if the adopted person were a
blood descendant of the petitioner born within wedlock”) (emphasis
added); § 63.112(1)(i) (requiring a verified and truthful petition in which
the petitioner states the reasons why he or she “desires to adopt the
person.”) (emphasis added).
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Appellants cite In re Adoption of D.P.P., 158 So. 3d 633 (Fla. 5th DCA
2014), as a case that allowed a parent to be a petitioner and to retain her
parental rights following the child’s adoption by a non-spouse. We find
that D.P.P. is factually distinguishable and therefore unpersuasive.
In D.P.P., a baby was born to a same-sex couple, and they filed a joint
petition for stepparent adoption by the birth mother’s partner. The trial
court granted the adoption petition and entered a final judgment of
adoption. Id. at 636. A year later, the birth mother sought to void the
adoption on the ground that her former partner “was not qualified to seek
a step-parent adoption.” Id. The trial court vacated the adoption, finding
“G.P. was not a step-parent or an unmarried adult seeking to adopt
following the termination of C.P.’s parental rights.” Id. “The [trial] court
concluded that a petition for adoption filed by two unmarried adults fails
to invoke the subject matter jurisdiction of the circuit court, and thus, the
final judgment of adoption was void.” Id.D.P.P. is not directly on point because the appellate court, in reversing
the trial court, focused on the trial court’s determination that it lacked
subject matter jurisdiction. It is cited here because the Fifth DCA, in dicta,
found that the adoption by the unmarried couple “did not run afoul of the
court’s power to enter judgments of adoption” and that “the adoption
decree was consistent with the intent of the Legislature set forth in section
63.022, Florida Statutes (2012).” Id. at 638 n.2.
While D.P.P. implicitly approves of a parent petitioning with a non-
spouse to adopt her own child, that case cannot be stretched to cover the
adoption proposed in this case because the petitioners here are not in a
committed relationship so the proposed adoption is not “consistent with
the intent of the Legislature.” Id. The petitioners in D.P.P. were in a
“committed” relationship at the time of the adoption and the child was
born into a two-parent home where the parents were in a familial
relationship with each other and the child. Sanctioning the adoption in
D.P.P. was essentially sanctioning adoption by a stepparent because at the
time, same-sex marriage was illegal in Florida. The Legislature has clearly
stated its preference that an adoption result in “adoptive parents” raising
the adoptee as if the child were “born to such adoptive parents in lawful
wedlock.” § 63.032(2).
We find that the petitioners in D.P.P. (the same-sex couple) are
distinguishable from the petitioners in this case (the father and maternal
grandmother). Here, the proposed parents are not married and are not in
a “committed relationship” as that term is commonly understood. Here,
the adoption will result in the child having two parents who live completely
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separate lives in separate households with their only connection being
shared custody and financial obligation for the child. Unlike the adoption
in D.P.P., we do not believe the proposed adoption in this case is
“consistent with the intent of the Legislature.”
Appellants also cite M.D.C. v. B.N.M.J., 117 So. 3d 489 (Fla. 1st DCA
2013), as authority for the proposition that second-parent adoption by a
non-spouse is sanctioned by Florida courts. In M.D.C., the father’s
parental rights were terminated when the child was adopted by her
stepfather. Years later, when the stepfather and the mother divorced, the
birth father petitioned to adopt her. Id. at 490.
The trial court found that the end result would be that the child’s legal
parents would also be her biological parents, a circumstance supported by
public policy. Id. However, the trial court found that the adoption was
not authorized by section 63.042(2)(c), Florida Statutes (2012) (governing
when a married person can adopt without his spouse joining as a
petitioner), because the statute “did not envision the adoption
contemplated here.” Id.The First DCA reversed, finding the “failure of M.D.C.’s spouse to join
in the adoption is not fatal.” Id. at 491. The court found the father
qualified as an adoptive parent under the statute and that the trial court
should have allowed the father to “proceed to an evidentiary hearing in
which he would be given the opportunity either to show good cause why
his present spouse did not join the adoption petition or to show that the
adoption is in B.N.M.J.’s best interest.” Id.Because both the trial and appellate courts focused on whether the
father was a person “who may adopt” under section 63.042(2)(c), M.D.C. is
not directly on point. The case is cited by Appellants because the new
family proposed in M.D.C. is similar to the new family proposed here–a
married person who is otherwise qualified to adopt, petitioning to adopt
and co-parent with the child’s natural parent who is not the spouse of the
petitioner.
We find, however, that like D.P.P., the characteristics of the petitioners
distinguish M.D.C. from the case at bar. The father in M.D.C. was properly
named as a petitioner because his parental rights had previously been
terminated. He was therefore permitted by statute as a “birth parent” (not
a “parent”) to join the petition as a petitioner. The father here is already a
parent and cannot be a petitioner for the reasons set forth above.
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In addition, the trial court in M.D.C. found that the end result of the
proposed adoption (that the child’s biological parents would also be her
legal parents) was supported by public policy. In contrast, it is unclear
whether public policy would sanction the end result in this case, where
the child’s father and the child’s maternal grandmother would become co-
parents. See In re Adoption of M.R.D., 145 A.3d 1117 (Pa. 2016)
(prohibiting the adoption of a child by her maternal grandfather who was
joined in the petition by her mother); In re Adoption of Child by Nathan S.,
934 A.2d 64, 65 (N.J. Super. Ct. Ch. Div. 2006) (same, finding the
legislature did not intend for two persons to adopt outside of marriage or
partnership, and therefore “a married grandfather cannot become a co-
parent with his daughter by adopting his granddaughter when the
biological father is alive.”); but see Adoption of a Child Whose First Name is
Chan, 950 N.Y.S.2d 245 (N.Y. Surr. Ct. 2012) (adoption by two unmarried
people, not in a relationship, was not barred by statute and petitioners
were permitted to establish that adoption of a Cambodian child they
brought to New York and raised was in the child’s best interests).
While a myopic reading of subparagraphs 63.172(1)(a) and (b) allows a
birth parent to be “a petitioner” to an adoption proceeding and thereby
retain his parental rights, the Adoption Act as a whole precludes an
individual with parental rights at the time of the petition from joining in
an adoption proceeding as “a petitioner” because a petitioner is one
seeking to adopt the child and a parent (whose rights are intact) cannot
adopt his own child.
We recognize that “[t]he legal parameters and definitions of parents,
marriage, and family have undergone major changes in the past several
decades . . . .” D.M.T. v. T.M.H., 129 So. 3d 320, 337 (Fla. 2013). We also
recognize that the parenting arrangement proposed in this case may be in
this child’s best interests. However, the right to adopt a person in Florida
is a privilege bestowed by the Legislature. For the court to entertain the
petition, the proposed familial arrangement must be within the parameters
allowed by the Adoption Act. Under the current version of the Act, this
father, whose parental rights are intact, cannot petition to adopt his own
child.
For these reasons, we affirm the trial court’s order and remand for
dismissal of the petition.
FORST and KUNTZ, JJ., concur.
* * *
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Not final until disposition of timely filed motion for rehearing.
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