Posted by Nydia Streets of Streets Law in Florida Adoption
As with any other proceeding in Florida family law, due process is a required part of an adoption proceeding. Due process requires that all parties who have an interest in the outcome of the case be given notice of the case, usually. This was an issue in I.T. v. P.G.U., 2D21-558 (Fla. 2d DCA February 11, 2022) in which a grandmother contested a final judgment of adoption entered in favor of another relative.
This case involved two young children whose parents passed away. After they passed away, the paternal grandfather filed petitions to adopt the siblings. Approximately one month after the grandfather filed his petition, the maternal grandmother filed a petition for custody of the children. Despite the grandmother’s pending petition, a final judgment of adoption was entered regarding the oldest child, granting the grandfather’s request for adoption. His petition for adoption of the youngest child remained pending, and the grandmother continued to have physical custody of the youngest child. The grandmother alleged she was never served with the grandfather’s petition. She also alleged: that the grandfather had falsely testified that there were no other pending cases regarding the oldest child, and that no other person had or claimed a right to the child; that the grandfather was not legally eligible to adopt because he is not a U.S. Citizen; and that the grandfather had been arrested less than one month before the trial in the case and while the oldest child was in his care. Based on these allegations, she filed a motion to set aside the adoption judgment which was denied, and she appealed.
The appellate court noted the trial court’s error in denying the grandmother’s motion to vacate the final judgment rested on a misinterpretation of Florida Rule of Family Law Procedure 12.540. The trial court determined that because the grandmother filed her motion more than 1 year from the date of entry of the judgment, she had not done so timely. The appellate court, however, held “As provided in rule 12.540(b), a motion alleging that a judgment is void is not subject to the one-year filing timeframe. [. . .] Based on the allegations in [the grandmother’s] motion, whether the judgment of adoption is void rests on whether [the grandmother] was entitled to notice of the paternal grandfather's petition to adopt [the oldest child]. And although the court determined that [the grandmother] was not entitled to notice of the petition for adoption pursuant to sections 63.062 and 63.088, Florida Statutes (2018), it did not take into consideration the potential applicability of section 63.0425 or the Florida Supreme Court's holding in In re Adoption of a Minor Child, 593 So. 2d 185 (Fla. 1991), that ‘the determination that notice was not statutorily required is not dispositive’ of whether grandparents are entitled to notice of an adoption proceeding because ‘[n]otice to legally interested parties so that they can assert their claims is the essence of the procedural due process protections provided by the Florida Constitution.’" Id. at 189 (citing Art. I, § 9, Fla. Const.).”
The appellate court determined it was error for the trial court to deny the grandmother’s motion without a hearing: “Given the multiple pending cases involving these children, and certainly if [the grandmother’s] allegations can be established, the court had neither all of the information nor all of the appropriate parties before it when it entered the final judgment of adoption in this case. If, on remand, [the grandmother] presents evidence supporting her assertions, the motion to vacate should be granted.”
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