5D07-3688 J.H. v. K.D.M.

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State: Florida

Court: Florida Fifth District Court

Docket No: 5D07-3688

Case Date: 02/02/2009

Preview:IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JANUARY TERM 2009

J.H., Appellant, v. K.D.M. AND E.N.M., Appellees. ________________________________/ Opinion filed February 3, 2009 Appeal from the Circuit Court for Orange County, William Gridley, Judge. Edward P. Jordan, II, of Edward P. Jordan, II, P.A., Minneola, for Appellant. Patricia L. Strowbridge, of Patricia L. Strowbridge, P.A., Orlando, for Appellees. Case No. 5D07-3688

SAWAYA, J. The issue we address is whether a putative father, who properly registers pursuant to section 63.054, Florida Statutes (2004), but fails to subsequently update his registration after he changed residences, necessarily waives the consent requirement of section 63.062(1), Florida Statutes (2004), and his right to notice of adoption and termination of parental rights proceedings when the petitioner has actual or constructive

knowledge of the whereabouts of the putative father.1 We answer in the negative and reverse the final judgment, which terminates the parental rights of J.H., the putative father of A.N.M., and grants the petition for adoption filed by the child's maternal grandparents, K.D.M. and E.N.M. The mother, T.B., and J.H. were involved in an intimate romantic relationship beginning in July 2002 and ending sometime in January 2004. After J.H. learned that the mother was with child, he registered as a putative father on July 29, 2004, pursuant to section 63.054. In completing the putative father registry, J.H. provided all of the required information, including his full name and physical description, the mother's full name and physical description, and the believed date of conception. J.H. listed his address and wrote his cell phone number in the space provided for an alternate mailing address. address. On August 25, 2004, the mother gave birth to A.N.M. Approximately five days later, the maternal grandmother and stepgrandfather filed a petition to adopt the child that contained a request that the biological parents' rights to the child be terminated. The mother consented to the adoption and to the termination of her parental rights, and in her affidavit in support of required inquiry, diligent search, and abandonment, she averred that the biological father of the child was unknown. The grandparents filed a Other issues were raised, which include whether the statute of repose applies and whether J.H. was required to show support for the minor child or the birth mother in accordance with sections 63.062(2)(b)2. and 3., Florida Statutes (2004), as a condition precedent to notice of the adoption and termination proceedings when the maternal grandparents and the mother allegedly prevented him from providing support. We do not address these issues because they are matters to be resolved by the trial court on remand.
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He subsequently moved but did not update his registration with a new

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notice of putative father registry claim in September 2004 that reflected that J.H. had previously registered. In October 2004, an affidavit of non-service as to J.H. was filed in the adoption case, and on November 2, 2004, the grandparents filed a certificate of updated diligent search of the putative father registry. The information in J.H.'s putative father registration, which was attached to the certificate, had not been updated to reflect a new address. Although J.H. did not update his registry address, he did file a petition to determine paternity on October 28, 2004, in a separate proceeding. Nevertheless, on December 15, 2004, the trial judge entered a final judgment granting the grandparents' petition for adoption and terminating the mother and putative father's parental rights, ruling that although service of the petition for adoption on J.H. was attempted at the address provided by J.H. in his putative father registration, service was not accomplished because J.H. had relocated his address without updating the address on his registration. No mention was made in the ruling of the fact that J.H. had listed a telephone number in the space provided for an alternate address. Instead, the trial judge emphasized that "[p]ursuant to Florida Statute 63.054(6), it is the responsibility of the Registrant to update his address with the Florida Putative Registry, and failure to do so is at his own risk." A flurry of motions were filed in the adoption and paternity actions by J.H., the mother, and the grandparents. It is not necessary to list them all here. Suffice it to say that on August 31, 2006, J.H. properly filed a petition for habeas corpus in an independent action that was assigned to a different trial judge. In that petition, he

asserted that he was not given proper notice of the adoption and termination proceedings and he requested a belated appeal of the December 15, 2004, order

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granting the adoption and terminating his parental rights. An evidentiary hearing was held on the petition. After hearing all of the testimony and considering all of the

evidence presented, the trial court granted the petition in an order dated October 9, 2007, which included extensive findings of fact that clearly reveal that the grandparents and the mother had actual or constructive knowledge of the whereabouts of J.H. In that order, the trial court concluded: Although [J.H.] failed to update the Florida Putative Father Registry with his new address, the Court finds that his lack of notice of the December 15, 2004, order terminating his parental rights is a valid defense because the [maternal grandparents, K.D.M. and E.N.M.,] had constructive knowledge of his address and whereabouts from another source. Specifically, the [grandparents] had actual or constructive knowledge of [J.H.'s] address and whereabouts through [K.D.M.'s] direct communications with [J.H.] during the time of the adoption and termination of parental rights proceeding. In addition, [T.B.] told [K.D.M.] that [J.H.] could be the father of the minor child. [T.B.] knew [J.H.'s] mother was building a new house and had been to the construction site. The finding in the last sentence is of significance because the trial court in the habeas proceedings found that on October 2, 2004, J.H. moved from the address listed in his putative father registration to the new house to live with his mother. This court subsequently affirmed the October 9, 2007, order in K.D.M. v. J.H., 985 So. 2d 548 (Fla. 5th DCA 2008). Thus, this is a belated direct appeal of the trial court's December 15, 2004, order terminating the parental rights of J.H. and granting the maternal grandparents' petition for adoption. J.H. contends that the final judgment terminating his parental rights and granting the grandparents' petition for adoption must be reversed because he was not notified of the proceedings, and he did not consent to the termination or adoption.

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Section 63.054, Florida Statutes, establishes the Florida Putative Father Registry (hereinafter "Registry") and requires an unmarried biological father to timely file a claim of paternity with the Registry in order to preserve the right to notice and consent to an adoption. See

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