Florida Statutes 63.088 – Proceeding to terminate parental rights pending adoption; notice and service; diligent search
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(1) NOTICE REQUIRED.–An unmarried biological father, by virtue of the fact that he has engaged in a sexual relationship with a woman, is deemed to be on notice that a pregnancy and an adoption proceeding regarding that child may occur and that he has a duty to protect his own rights and interest. He is, therefore, entitled to notice of a birth or adoption proceeding with regard to that child only as provided in this chapter. If a mother fails to identify an unmarried biological father to the adoption entity by the date she signs her consent for adoption, the unmarried biological father’s claim that he did not receive actual notice of the adoption proceeding is not a defense to the termination of his parental rights.
(2) INITIATE LOCATION PROCEDURES.–When the location of a person whose consent to an adoption is required but is not known, the adoption entity must begin the inquiry and diligent search process required by this section within a reasonable time period after the date on which the person seeking to place a minor for adoption has evidenced in writing to the adoption entity a desire to place the minor for adoption with that entity, or not later than 30 days after the date any money is provided as permitted under this chapter by the adoption entity for the benefit of the person seeking to place a minor for adoption.
(3) LOCATION AND IDENTITY KNOWN.–Before the court may determine that a minor is available for adoption, each person whose consent is required under s. 63.062, who has not executed a consent for adoption or an affidavit of nonpaternity, and whose location and identity have been determined by compliance with the procedures in this section must be personally served, pursuant to chapter 48, at least 20 days before the hearing with a copy of the petition to terminate parental rights pending adoption and with notice in substantially the following form:
NOTICE OF PETITION AND HEARING
TO TERMINATE PARENTAL RIGHTS
PENDING ADOPTION
A petition to terminate parental rights pending adoption has been filed. A copy of the petition is being served with this notice. There will be a hearing on the petition to terminate parental rights pending adoption on   (date)   at   (time)   before   (judge)   at   (location, including complete name and street address of the courthouse)  . The court has set aside   (amount of time)   for this hearing.
UNDER SECTION 63.089, FLORIDA STATUTES, FAILURE TO TIMELY FILE A WRITTEN RESPONSE TO THIS NOTICE AND THE PETITION WITH THE COURT AND TO APPEAR AT THIS HEARING CONSTITUTES GROUNDS UPON WHICH THE COURT SHALL END ANY PARENTAL RIGHTS YOU MAY HAVE OR ASSERT REGARDING THE MINOR CHILD.
(4) REQUIRED INQUIRY.–In proceedings initiated under s. 63.087, the court shall conduct an inquiry of the person who is placing the minor for adoption and of any relative or person having legal custody of the minor who is present at the hearing and likely to have the following information regarding the identity of:
(a) Any man to whom the mother of the minor was married at any time when conception of the minor may have occurred or at the time of the birth of the minor;
Terms Used In Florida Statutes 63.088
- Adoption: means the 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. See Florida Statutes 63.032
- Adoption entity: means the department, a child-caring agency registered under…. See Florida Statutes 63.032
- Affidavit: A written statement of facts confirmed by the oath of the party making it, before a notary or officer having authority to administer oaths.
- Child: means any unmarried person under the age of 18 years who has not been emancipated by court order. See Florida Statutes 63.032
- Court: means a circuit court of this state and, if the context requires, the court of any state that is empowered to grant petitions for adoption. See Florida Statutes 63.032
- Freedom of Information Act: A federal law that mandates that all the records created and kept by federal agencies in the executive branch of government must be open for public inspection and copying. The only exceptions are those records that fall into one of nine exempted categories listed in the statute. Source: OCC
- Legal custody: has the meaning ascribed in…. See Florida Statutes 63.032
- minor: includes any person who has not attained the age of 18 years. See Florida Statutes 1.01
- Person: includes a natural person, corporation, government or governmental subdivision or agency, business trust, estate, trust, partnership, or association, and any other legal entity. See Florida Statutes 63.032
- Relative: means a person related by blood to the person being adopted within the third degree of consanguinity. See Florida Statutes 63.032
- Subpoena: A command to a witness to appear and give testimony.
- To place: means the process whereby a parent or legal guardian surrenders a child for adoption and the prospective adoptive parents receive and adopt the child, and includes all actions by any person or adoption entity participating in the process. See Florida Statutes 63.032
- Unmarried biological father: means the child's biological father who is not married to the child's mother at the time of conception or on the date of the birth of the child and who, before the filing of a petition to terminate parental rights, has not been adjudicated by a court of competent jurisdiction to be the legal father of the child or has not filed an affidavit pursuant to…. See Florida Statutes 63.032
- writing: includes handwriting, printing, typewriting, and all other methods and means of forming letters and characters upon paper, stone, wood, or other materials. See Florida Statutes 1.01
(b) Any man who has filed an affidavit of paternity pursuant to s. 382.013(2)(c) before the date that a petition for termination of parental rights is filed with the court;
(c) Any man who has adopted the minor;
(d) Any man who has been adjudicated by a court as the father of the minor child before the date a petition for termination of parental rights is filed with the court; and
(e) Any man whom the mother identified to the adoption entity as a potential biological father before the date she signed the consent for adoption.
The information sought under this subsection may be provided to the court in the form of a sworn affidavit by a person having personal knowledge of the facts, addressing each inquiry enumerated in this subsection, except that, if the inquiry identifies a father under paragraph (a), paragraph (b), paragraph (c), or paragraph (d), the inquiry may not continue further. The inquiry required under this subsection may be conducted before the birth of the minor.
(5) LOCATION UNKNOWN; IDENTITY KNOWN.–If the inquiry by the court under subsection (4) identifies any person who has not executed a consent to adoption or an affidavit of nonpaternity, and the location of the person is unknown, the adoption entity must conduct a diligent search for that person which must include inquiries concerning:
(a) The person’s current address, or any previous address, through an inquiry of the United States Postal Service through the Freedom of Information Act;
(b) The last known employment of the person, including the name and address of the person’s employer;
(c) Names and addresses of relatives to the extent they can be reasonably obtained from the petitioner or other sources, contacts with those relatives, and inquiry as to the person’s last known address. The petitioner must pursue any leads to any addresses where the person may have moved;
(d) Information as to whether or not the person may have died and, if so, the date and location;
(e) Telephone listings in the area where the person last resided;
(f) Inquiries of law enforcement agencies in the area where the person last resided;
(g) Highway patrol records in the state where the person last resided;
(h) Department of Corrections records in the state where the person last resided;
(i) Hospitals in the area where the person last resided;
(j) Records of utility companies, including water, sewer, cable television, and electric companies, in the area where the person last resided;
(k) Records of the Armed Forces of the United States as to whether there is any information as to the person;
(l) Records of the tax assessor and tax collector in the area where the person last resided; and
(m) Search of one Internet databank locator service.
A person contacted by a petitioner or adoption entity requesting records under this subsection must release the requested records to the petitioner or adoption entity without the necessity of a subpoena or a court order, except when prohibited by law. An affidavit of diligent search conducted in accordance with this section must be filed with the court. The diligent search may be conducted before the birth of the minor. A judgment terminating parental rights and approving a diligent search that fails to locate a person is valid and is not subject to direct or collateral attack because the mother failed or refused to provide the adoption entity with sufficient information to locate the person.
(6) CONSTRUCTIVE SERVICE.–This subsection only applies if, as to any person whose consent is required under s. 63.062 and who has not executed a consent to adoption or an affidavit of nonpaternity, the location of the person is unknown and the inquiry under subsection (4) fails to locate the person. The unlocated person must be served notice under subsection (3) by constructive service in the manner provided in chapter 49. The notice shall be published in the county where the person was last known to have resided. The notice, in addition to all information required under chapter 49, must include a physical description, including, but not limited to, age, race, hair and eye color, and approximate height and weight of the person, the minor’s date of birth, and the place of birth of the minor. Constructive service by publication shall not be required to provide notice to an identified birth father whose consent is not required pursuant to ss. 63.062 and 63.064.