In Re Adoption of a Minor Child

570 So. 2d 340, 1990 WL 149748
CourtDistrict Court of Appeal of Florida
DecidedDecember 12, 1990
Docket89-1258, 89-2693
StatusPublished
Cited by2 cases

This text of 570 So. 2d 340 (In Re Adoption of a Minor Child) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re Adoption of a Minor Child, 570 So. 2d 340, 1990 WL 149748 (Fla. Ct. App. 1990).

Opinion

570 So.2d 340 (1990)

In re ADOPTION OF A MINOR CHILD.

Nos. 89-1258, 89-2693.

District Court of Appeal of Florida, Fourth District.

October 10, 1990.
On Motion for Rehearing December 12, 1990.

*341 Harry Gulkin of Harry Gulkin, P.A., Fort Lauderdale, for appellants.

Gerald Mager and Kimberly Hall Doyle of Law Offices of Gerald Mager, P.A., Fort Lauderdale, for appellee.

WARNER, Judge.

These consolidated appeals arise out of hotly contested adoption proceedings in the court below. For the reasons set forth, we dismiss the appeal from the final order of adoption but affirm the order granting intervention in the proceedings to the natural grandparents of the adopted child.

The child, Baby R.R., was born on July 6, 1982. Her mother was unmarried at the birth of the child, but the natural father was identified. After her birth, Baby R.R. and her mother lived with the mother's parents (the Grandparents). When the mother was killed in an automobile accident on October 1, 1984, Baby R.R. continued to live with the Grandparents until the beginning of 1986. At that time, custody of Baby R.R. was given to her natural father, who had sued in a New Jersey court for custody after the mother's death. All the parties here were parties to the proceedings in New Jersey.

A dispute over who should have permanent custody of Baby R.R. continued in New Jersey. Not only were the Grandparents and the father seeking custody, but so were the mother's sister and her husband (hereinafter simply referred to as "the sister"). They also filed a petition for adoption of the child. On January 20, 1988, an order of the Superior Court of New Jersey resolved the dispute by giving custody of Baby R.R. to the sister and the previous petitions for adoption were dismissed without prejudice. The Grandparents were awarded visitation with Baby R.R. The court further indicated that "jurisdiction [would] be retained by the State of New Jersey for all issues concerning and affecting Baby R.R."

On May 11, 1988, the sister, having moved to Florida with Baby R.R., filed a Petition for Adoption in the Circuit Court in Broward County. The sister attached the natural father's written consent to the adoption. She also filed the affidavit required by section 63.135, Florida Statutes (1987). This affidavit informed the court that there had been custody proceedings in New Jersey but asserted that no current proceedings were "pending". The affidavit additionally noted that the Grandparents had "limited visitation rights" under the New Jersey custody order. A copy of the New Jersey order was not filed with the lower court at that time or any time before the entry of the adoption decree. The *342 Grandparents were not notified of the action. The lower court entered a Final Order of Adoption on May 13, 1988.

Shortly thereafter, on June 8, 1988, the sister filed a petition asking the lower court to clarify the adoption decree and to terminate all visitation rights awarded to the Grandparents by the New Jersey court. For the first time, a copy of the New Jersey order was filed with the lower court. The Grandparents learned of the Florida adoption proceedings when they received a copy of this clarification motion. The state of New Jersey responded to this motion challenging the Florida adoption proceeding and claiming that the New Jersey judgment was entitled to full faith and credit.[1] It does not appear from the record that the motion has ever been heard.

The Grandparents later simultaneously filed a notice of appeal of the Final Judgment of Adoption and an Emergency Motion for Intervention in the proceedings. On May 15, 1989, an alternate judge heard the emergency motion but denied it without prejudice and without addressing the merits of the motion. Since the appeal had already been filed, the alternate judge concluded it lacked jurisdiction to hear the motion. After this court temporarily relinquished jurisdiction, the lower court heard the emergency motion and granted the same. The sister appeals the order granting the Grandparent's Emergency Motion for Intervention. These appeals have been consolidated.

I. APPEAL FROM THE FINAL JUDGMENT

The first issue to be addressed is the timeliness of the appeal from the final judgment itself. The final judgment of adoption was rendered May 13, 1988. The notice of appeal was filed May 12, 1989, one year later. Appellants point to section 63.182, Florida Statutes (1987) as authority for the filing of this appeal one year after the judgment was rendered.

Appeal and validation of judgment. After 1 year from the entry of a judgment of adoption, any irregularity or procedural defect in the proceedings is cured, and the validity of the judgment shall not be subject to direct or collateral attack because of any irregularity or procedural defect. Any defect or irregularity of, or objection to, a consent that could have been cured had it been made during the proceedings shall not be questioned after the time for taking an appeal has expired.

However, we do not interpret "direct" attack as authorizing the filing of a direct appeal in excess of thirty days after rendition. According to the Florida Constitution, Article V, Section 2(a), provides that the Supreme Court shall adopt rules of procedure in all courts, "including the time for seeking appellate review." Matters of practice and procedure within the authority of the Supreme Court may not be exercised by the Legislature. Military Park Fire Control Tax Dist. No. 4 v. DeMarois, 407 So.2d 1020, 1021 (Fla.4th DCA 1981). Florida Rule of Appellate Procedure 9.110(b) requires that appeals from final orders shall be filed within thirty days of rendition of the order sought to be reviewed. Therefore, the direct appeal from the final judgment is untimely and must be dismissed.

II. APPEAL FROM ORDER OF INTERVENTION

On May 15, 1989, the Grandparents filed their motion to intervene.[2] The purpose of the motion was not only to intervene for purposes of appeal but also to enforce their visitation rights. The allegations of the motion are sufficient to raise the procedural validity of the adoption proceedings. Also, there are allegations which are tantamount to an allegation that the sister committed a fraud on the Florida court by failing to disclose the substance of the New Jersey proceedings. Such allegations, *343 if true, might also permit the setting aside of the final decree. Therefore, within a year from the final judgment of adoption, the Grandparents moved to intervene to attack directly the final judgment or, alternatively, to enforce visitation rights. The trial court granted the motion authorizing them "to intervene, to seek relief from the Final Judgment of Adoption, enforce their visitation rights, and otherwise proceed as parties to this cause." The sister appeals the order of intervention claiming that the Grandparents have no standing to assert any rights in these proceedings.

Florida Statute Section 63.0425 (1987) provides:

63.0425 Grandparent's right to adopt. — (1) When a child who has lived with a grandparent for at least 6 months is placed for adoption, the agency or intermediary handling the adoption shall notify that grandparent of the impending adoption before the petition for adoption is filed. If the grandparent petitions the court to adopt the child, the court shall give first priority for adoption to that grandparent.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Poulos v. Martin County
700 So. 2d 163 (District Court of Appeal of Florida, 1997)
In Re Adoption of a Minor Child
593 So. 2d 185 (Supreme Court of Florida, 1991)

Cite This Page — Counsel Stack

Bluebook (online)
570 So. 2d 340, 1990 WL 149748, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-adoption-of-a-minor-child-fladistctapp-1990.