In re Adoption of Scott

District Court of Appeal of Florida

In re Adoption of Scott

344 So. 2d 884, 1977 Fla. App. LEXIS 15669

District Court of Appeal of Florida·Decided March 24, 1977·No. No. DD-306·Published·Cited by 1 cases

Opinion

BOYER, Chief Judge.

This is an appeal by a prospective adoptive father from a final order dismissing without prejudice his petition for adoption of an adult for failure to prosecute with diligence. (See Popkin v. Crispen, 213 So.2d 445 (Fla.4th DCA 1968), cert. den. 222 So.2d 748 (Fla.1969).) Although filed as an appeal from a final order, it is in fact an interlocutory appeal (Fla.App. Rule 4.2a) and we will treat it as such. (Fla.App. Rules 3.2 and 4.2 ; Crepaldi v. Wagner, 128 So.2d 759 (Fla.1st DCA 1969); Jonton, Inc. v. Fidelity Mortgage Investors, 329 So.2d 45, 46 (Fla.1st DCA 1976).)

The record reveals that the petition was filed in early April 1976, and that two amended petitions were filed prior to the trial court’s final order of August 27. In none of those petitions, however, was the mandate of Section 63.062(3)(b), Florida Statutes (1975), complied with.¹ As statutes providing for adoption of adults are in derogation of the common law, such statutes must be strictly construed. (In Re: Adoption of Miller, 221 So.2d 73 (Fla.4th DCA 1969).) The statute clearly provides that the natural parents must either consent to the proposed adoption or that the prospective adopter file proof of service of process upon the natural parent or parents who have not so consented. In the instant case, however, although three petitions have been filed, each reciting the address of the natural father,² there is no indication that the natural father consents to the [885]*885adoption nor that the natural father was served with notice of the proceeding. Having thus failed to comply with the obvious terms of the statute, it cannot be said that the petition was being diligently prosecuted nor that the trial judge abused his discretion in dismissing it. Further, the dismissal being without prejudice, the petitioner is free to refile in compliance with law.

AFFIRMED.

RAWLS and McCORD, JJ., concur.

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BOYER, Chief Judge.

This is an appeal by a prospective adoptive father from a final order dismissing without prejudice his petition for adoption of an adult for failure to prosecute with diligence. (See Popkin v. Crispen, 213 So.2d 445 (Fla.4th DCA 1968), cert. den. 222 So.2d 748 (Fla.1969).) Although filed as an appeal from a final order, it is in fact an interlocutory appeal (Fla.App. Rule 4.2a) and we will treat it as such. (Fla.App. Rules 3.2 and 4.2 ; Crepaldi v. Wagner, 128 So.2d 759 (Fla.1st DCA 1969); Jonton, Inc. v. Fidelity Mortgage Investors, 329 So.2d 45, 46 (Fla.1st DCA 1976).)

The record reveals that the petition was filed in early April 1976, and that two amended petitions were filed prior to the trial court’s final order of August 27. In none of those petitions, however, was the mandate of Section 63.062(3)(b), Florida Statutes (1975), complied with.¹ As statutes providing for adoption of adults are in derogation of the common law, such statutes must be strictly construed. (In Re: Adoption of Miller, 221 So.2d 73 (Fla.4th DCA 1969).) The statute clearly provides that the natural parents must either consent to the proposed adoption or that the prospective adopter file proof of service of process upon the natural parent or parents who have not so consented. In the instant case, however, although three petitions have been filed, each reciting the address of the natural father,² there is no indication that the natural father consents to the [885]*885adoption nor that the natural father was served with notice of the proceeding. Having thus failed to comply with the obvious terms of the statute, it cannot be said that the petition was being diligently prosecuted nor that the trial judge abused his discretion in dismissing it. Further, the dismissal being without prejudice, the petitioner is free to refile in compliance with law.

AFFIRMED.

RAWLS and McCORD, JJ., concur.

In re Adoption of Scott, 344 So. 2d 884, 1977 Fla. App. LEXIS 15669 (Fla. Ct. App. 1977).

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Opinion

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