Citations
- 647 So. 2d 918
Full opinion text
HERSEY, Judge.
The Motion for Rehearing En Banc is granted. The opinion filed in this case on June 22,1994, is withdrawn and the following opinion is substituted in lieu thereof.
This appeal presents the question whether a baby girl bom out-of-wedlock was available for adoption. The legal issue is whether there was an abandonment by the birth father. The validity of the adoption of the baby girl, which we are also called upon to consider, depends upon our resolution of this issue.
After an evidentiary hearing, the trial court determined that there had been no abandonment. Upon rehearing the trial court reversed its decision, found abandonment, and approved the adoption, generating this appeal.
This court, in a three-judge panel two-to-one opinion issued earlier, reversed the trial court’s judgment, finding the record evidence insufficient to support a finding of abandonment. Upon motion filed by a party, we agreed to reconsider our position en banc as raising issues of exceptional importance. We now affirm the final judgment, approve the adoption, and certify a question to our supreme court.
As we have indicated, the precise question presented initially to the trial court and now, by appeal, to this court, is whether the baby girl, hereinafter Baby Emily, was available for adoption. If she was, then her subsequent adoption was valid and should be affirmed by our opinion. If she was not, then the adoption must be nullified and this case remanded.
Simplistically stated, the birth father’s consent to adoption was required in this case unless the evidence shows that he “abandoned” the child. § 63.072(1), Fla.Stat. (1992). The term “abandoned” is defined in section 63.032(14), Florida Statutes (1992), and provides, inter alia, that “In making this decision, [whether abandonment has occurred] the court may consider the conduct of the father towards the child’s mother during her pregnancy.”
The trial court made the following findings with which we have taken editorial license in some minor respects for reasons of clarity or materiality or confidentiality:
1. The natural mother, [ ], and the natural father had been living together for a period of some months when the natural mother became pregnant in November of 1991.
The Court finds that her testimony is un-refuted that she told the natural father of the pregnancy during the Christmas period of 1991. Her testimony at that time was that he had very little reaction to the fact that she was pregnant.
2. During December of 1991 and January 9, 1992, the natural mother was employed and was basically paying her own way. Her testimony was that she received neither financial or emotional support from the natural father during this period of time.
3. She was involved in an accident in January of 1992 and subsequent to that she was not able to work.
4. The natural mother testified that from that point forward she was a lonely and lost person. She received little, if any, financial support from the natural father and she survived on food which was purchased with [her] food stamps and gave her Aid to Dependent Children check to the natural father which basically covered her share of the rent on the unit they lived in. This testimony was substantiated by the testimony of Dr. Parkovich, the natural mother’s physician, who testified to the fact that the natural mother looked terrible during this period of time, that their meetings were tearful and emotional and that the natural mother was an emotional wreck and was having substantial problems at home with the natural father. The doctor further testified that the natural mother was not eating properly. Dr. Par-kovich testified to substantial money problems and that the natural mother could not believe that the natural father was having an affair during this trying period in her life. Dr. Parkovich also testified that the natural father never came to any of the doctor visits, never drove the natural mother to these visits and it was only because of the natural mother’s friends that she was able to attend her visits with her physician.
5. On February 13, 1992, the natural father signed a paper which “required” the natural mother to pay one-half of (in other words, her own) the expenses for rent, electric, water and telephone. Further the document required her to purchase her own food.
6. From February until June of 1992, the parties remained together and the testimony of the natural mother, collaborated by the testimony of her physician, and her neighbor, was that the financial situation between the parties did not change. In other words, the natural mother was, in effect, paying her own way.
7. During this period of time, February to June, 1992, the natural mother’s testimony was that there was minimal, if any, emotional support from the natural father. At one point in time, her testimony indicated that there was physical abuse, that he had grabbed her, shook her and had spit at her because she had the audacity to use his razor. The natural mother’s testimony was specific that the natural father not only did not supply her with any emotional comfort during this time, but, to the contrary, engaged in name calling and other types of verbal abuse. For example, he told her that she was “worthless” and that every other week she would be threatened with being kicked out of the apartment. The natural mother testified that she was continually fearful of the natural father. Additionally, the natural mother testified that the natural father had a drinking problem which went on continuously during the time the parties spent together. The natural mother moved out of the natural father’s apartment in June of 1992. Sometime prior to this time, the natural mother testified that she had told the natural father she was considering adoption and the natural father’s response was “do whatever you have to do.”
The natural mother accepted this statement from the natural father as his verbal agreement with her adoption intention. As a result of that, the natural mother continued to follow through with the adoption process. The testimony was specific that at no time from February of 1992 until literally days before the birth of the child, did the natural father in any way either act directly, or by inference, to show any objection to the potential adoption of the unborn child.
Additionally, the testimony of the natural mother revealed that the natural father attended only one visit with any health care provider during the entire course of the pregnancy. While he was there, he was “an ice cube” and showed no emotion of any kind either toward the unborn child or the natural mother herself.
8. From the time the natural mother moved from the apartment through July 9, 1992, she lived with her girlfriend. The testimony of both the natural mother and the girlfriend was that the natural father provided zero financial support during this time and to the best of the girlfriend’s recollection there was one telephone call from him to the natural mother during this period of approximately one and a half months.
9. During the period of June, July, and August, when the natural parents were living separate and apart, the natural mother’s testimony was that she received neither financial or emotional support from the natural father. The only telephone calls he made to her were at 2:00 or 3:00 o’clock in the morning and were basically made to aggravate her.
10. The natural father’s testimony was received initially in a hearing conducted by the Court on October 9, 1992.
The natural father’s testimony at that time was that he was earning the approximate amount of $300.00 to $400.00 a week, net, and that he was, in effect, financing all of the food and shelter for the natural mother and her food stamps were basically being used for her son who was also living with them.
11. Contrary to the natural mother’s testimony, the natural father testified that he was “overjoyed” with the fact that he was going to be a father.
12. During the entire course of the pregnancy, the natural father’s testimony was that he bought the natural mother one pair of stretch pants which the natural mother denied ever receiving.
13. The natural father testified that he bought a crib for $40.00, but the money actually came from his mother and was not money out of the natural father’s pocket.
14. The natural father testified that he was contacted by Attorney Charlotte Dan-ciu [the intermediary in the adoption proceedings] in July of 1992 and at that point he was emphatic that he was not going to give up the child for adoption and that he began his quest for legal representation at that time.
15. Additionally, the natural father’s testimony was that he did speak with the natural mother on a number of occasions during the month of July and August which statements were denied by the natural mother. This testimony is inconclusive at best, but the more believable testimony, based on the preceding months of these parties’ lives, would be that the natural father had very nominal contact with her. 16. The test that the Court needs to follow is whether the testimony presented by the various witnesses establishes by clear and convincing evidence that the natural father did, in fact, financially and/or emotionally abandon the natural mother during the course of the pregnancy. The Court finds that abandonment did occur and, therefore, the Court grants the Petition for Rehearing and by the terms of this order will set aside the previous finding of lack of abandonment.
Specifically, the Court finds that the natural parents’ relationship was at best a love-hate situation in its initial stages and deteriorated to the hate side of the scale after the pregnancy and the natural mother’s accident. Specifically, even if the Court accepts the natural father’s testimony that he was supplying in excess of one-half of the finances of the natural parents, there can be no doubt that he was living off of her food stamps and demanding her Aid to Dependent Children check to supplement the money that he was bringing in as a painter. Emotionally, the testimony is un-refuted that [she] was on her own as far as this pregnancy was concerned. The natural father went so far as to resume a sexual relationship with his former girlfriend at the time that his pregnant girlfriend was suffering from the injuries she received in the accident.
The Court specifically finds that the natural father offered minimal financial support to the natural mother and that the emotional support to the natural mother was nonexistent. More importantly, there was almost no testimony to establish that the natural father exhibited any type of feeling for the unborn child. In fact, it appears that if the prospective adoptive parents’ lawyer had not contacted him, he would have continued his passive stance of allowing the natural mother to “do what you have to do.” It was only when he was requested to put in writing his acquiescence to the adoption that he changed his position and attempted to assert a legal right. It is interesting to note that he did not rush to the mother’s side, offer her any financial assistance, or attempt to become a “prospective father.” What he did was rush to the Legal Aid Society of both Broward and Palm Beach Counties in an effort to get a free lawyer to start fighting for some supposed legal right that he had. If this was the man who was earning $300.00 to $400.00 a week net which he claimed he was making and using the money to support the natural mother, how could he possibly have qualified for the advice of the Legal Aid Society. More importantly, it is a simple fact that during the time he was seeking a lawyer, he was still completely out of contact with the natural mother and the unborn infant, both financially and emotionally. Other than attempting to assert his legal rights, that sad fact has never changed.
ORDERED AND ADJUDGED that the evidence is clear and convincing that the natural father did not exhibit sufficient financial or emotional support to the natural mother during the course of the pregnancy to sustain the position that he did not “abandon” either the natural mother or the unborn child. As a result of that abandonment, the Court finds, and, so orders, that it is not necessary for the prospective adoptive parents to secure the consent of the natural father for their continued effort to adopt the minor child.
Additionally, because the Court has found that the natural father abandoned the minor child, it is unnecessary for this Court to delve into the question of the best interest of the child and, therefore, the Court finds that the various objections which were raised to the introduction of certain exhibits and/or testimony would become moot.
The marginal effort of the natural father does not evince a settled purpose to assume all parental responsibilities and the Court, therefore, declares that the child was abandoned (Florida Statute 68.032(14)). Therefore, the prospective adoptive parents are directed to apply to this Court for an appropriate ex parte hearing on the question of the finalization of the adoption.
The trial court did not and we need not distinguish between married and unmarried parents in discussing the issue of abandonment as it applies in this case. Because we conclude with a certified question, however, we suggest that there is a substantial practical and legal difference between the legal status of a birth father married to the birth mother and one who fathers a child out of wedlock. The married father is, from the outset, legally responsible to support the child. The unmarried father has no such automatic legal responsibility. He must take some positive action to assume the responsibilities of parenthood before he becomes entitled to exercise the rights of parenthood. This is only fair. It is also a recognized legal principle. See, e.g., Lehr v. Robertson, 463 U.S. 248, 103 S.Ct. 2985, 77 L.Ed.2d 614 (1983). See also, Caban v. Mamen, 441 U.S. 380, 99 S.Ct. 1760, 60 L.Ed.2d 297 (1979). (We do not overlook the exception created by paternity suits, but that exception has no relevancy here.) It is therefore reasonable and logical to examine the question whether an unmarried father has in fact evinced a settled purpose to assume all parental duties and the corollary that if he “makes only marginal efforts that do not evince a settled purpose to assume all parental duties, the court may declare the child to be abandoned.” Matter of Adoption of Doe, 543 So.2d 741, 745 (Fla.1989). The trial court found that to be the situation here.
The final judgment specifically grounded its conclusions upon facts established by clear and convincing evidence. This is the appropriate standard to be applied in a case that terminates parental rights. Kingsley v. Kingsley, 623 So.2d 780 (Fla. 5th DCA 1993). Our standard of review in such a case has been succinctly stated by the First District Court of Appeal in the following language, with which we agree:
We hold that a trial court’s determination that evidence is clear and convincing will not be overturned unless it may be said as a matter of law that no one could reasonably find such evidence to be clear and convincing....
Citing The Florida Bar v. Hooper, 509 So.2d 289 (Fla.1987). In Interest of D.J.S., 563 So.2d 655 (Fla. 1st DCA 1990). See also Myles v. Department of Health and Rehab. Servs., 590 So.2d 1053 (Fla. 3d DCA 1991).
The dissenting opinions not only question whether there was clear and convincing evidence, but also suggest that one of our precedents for appellate testing of a result required to be based upon a finding of clear and convincing evidence may be flawed. The real problem in this case does not center upon what the father did or did not do. The factual scenario emerges clearly and distinctly. The essential facts in this case were proven clearly and convincingly under any standard. The issue is not so much what he did or did not do: it is rather the legal effect of what he did and did not do. In other words: do the facts constitute abandonment under the statutes and ease law. This requires a legal rather than a factual determination, although the entire equation is a mixed question of fact and law, as it so often is.
Additional precepts that guide our evaluation of the final judgment under review require that we “review the evidence contained in the record on appeal in a light most favorable to the appellee, and afford the same consideration to all reasonable inferences to be drawn therefrom as the final order and judgment arrives in this court with a presumption of correctness.” Weiss v. Stone, 220 So.2d 403, 406 (Fla. 3d DCA 1969). See also Fawaz v. Florida Polymers, 622 So.2d 492, 495 (Fla. 1st DCA 1993), referencing the indulgence in the “presumption that the ap-pellee, as the prevailing party, is entitled to the benefit of all reasonable inferences that can be drawn from the evidence in a light most favorable to it, ...”
In essence the trial court found that the parties shared living expenses until early June of 1992. During that same period the father verbally and emotionally abused the expectant mother. As a consequence, she moved out and, for the final three months of her pregnancy, there was no financial support, no physical assistance in obtaining medical care, including pre-natal care, or for any of her other daily living requirements (and thus, as well, those of the unborn infant) and any emotional factor contributed by the father was a negative influence. These findings are supported by evidence in this record.
We have previously referred to the case of Matter of the Adoption of Doe, the seminal supreme court case in Florida, to treat the very issues which we confront in Baby Emily. Recapitulating, in our case the parties shared expenses as lovers for a period of time. When cohabitation ended, financial, physical, and emotional involvement by the father ended as well. We modify that observation by recognizing that even before termination of cohabitation the emotional factor was a negative — not support, but abuse. Regardless, the totality of the circumstances here are stronger than Doe in support of a finding of abandonment.
Moreover, in Doe, the natural parents had resolved their doubts and differences and sought to bring their child back into the fold. There was no hint of unfitness of either parent nor of the lack of mutuality of their desire to be reunited with the infant. In contrast, Baby Emily’s mother remains convinced that the best interests of the child are better served by approving the adoption. The father has made only legal, after-the-fact gestures toward parenthood. The holding and rationale of Doe support an affirmance here.
The members of this court have struggled with the concept of emotional support as it relates to the issue of pre-birth abandonment. Several of the judges have penned tentative dissents or concurrences based upon the extent to which emotional support of the expectant mother by the birth father is factored into the trial court’s and therefore ultimately this court’s determination of the issue of abandonment. There is some feeling that emotional support or lack of it may be considered only where there is some indication that it has caused harm to the child. Another faction of judges feel that emotional support is impossible of qualitative or quantitative analysis and thus should not play any part in resolution of the ultimate issue. It is therefore necessary and appropriate that we point out that the trial court’s finding of abandonment and our affirmance of that finding is based upon the entire spectrum of “conduct” and is certainly neither limited to nor dependent upon the failure of the birth father to provide emotional support to the expectant mother. Further, the emphasis of the facts in this case is on emotional abuse rather than on a mere paucity of positive support. Were it otherwise, we would be confronted with more difficult evidentiary problems and a more complicated jurisprudential analysis.
Because of the concern of some of the judges, and recognizing that one factor in the trial court’s reasoning and thus a partial basis for our affirmance is the issue of emotional support or lack of it, we certify to the supreme court as a question of great public importance the following:
IN MAKING A DETERMINATION OF ABANDONMENT AS DEFINED BY SECTION 63.032(14), FLORIDA STATUTES (SUPP.1992), MAY A TRIAL COURT PROPERLY CONSIDER LACK OF EMOTIONAL SUPPORT AND/OR EMOTIONAL ABUSE OF THE FATHER TOWARD THE MOTHER DURING PREGNANCY AS A FACTOR IN EVALUATING THE “CONDUCT OF A FATHER TOWARDS THE CHILD DURING THE PREGNANCY.”
We affirm the final judgments appealed and remand for such further proceedings as may be appropriate.
AFFIRMED and REMANDED and QUESTION CERTIFIED.
DELL, C.J., and GLICKSTEIN, STONE, POLEN and PARIENTE, JJ., concur.
PARIENTE, J., concurs specially with an opinion, in which GLICKSTEIN and POLEN, JJ., concur.
KLEIN, J., dissents with an opinion, in which FARMER, GUNTHER, WARNER and STEVENSON, JJ., concur.
FARMER, J., dissents with an opinion, in which GUNTHER and STEVENSON, JJ., concur.
STEVENSON, J., dissents with an opinion, in which GUNTHER and FARMER, JJ., concur.
PARIENTE, Judge,
concurring specially.
INTRODUCTION
I concur in the majority but write separately to express certain concerns and considerations. This case has become emotionally-charged in part because the child who is the subject of the adoption has now resided continuously with the adoptive parents since September 9, 1992, when the trial court entered an order placing the child in the care of the adoptive parents. It is tempting indeed for us to yield to our own emotions that the best interests of this child will be served at this time by custody continuing with the adoptive parents, especially in light of the biological mother’s continued strong desires that her child be adopted into a stable two-parent home. However, we are precluded from considering the reality that bonding between the adoptive parents and child, who is now over two years old, has occurred.
As the supreme court explained in In Matter of Adoption of Doe, 543 So.2d 741, 744 (Fla.), cert. denied, 493 U.S. 964, 110 S.Ct. 405, 107 L.Ed.2d 371 (1989), the child’s best interests, as evidenced by subsequent bonding to the adoptive parents, cannot be a significant consideration where the biological father has acknowledged paternity and asserted his rights shortly after birth:
This must be the rule because, otherwise, a tentative placement or erroneous judgment would be effectively unreviewable and we would have adopted a rule that physical custody, because of subsequent bonding, is determinative in contested adoptions.
The supreme court explained, however, that if the biological father delays for a substantial period of time after the child is in the physical custody of the adoptive parents, the rule would be otherwise:
For instance, there may well be circumstances where a natural father does not acknowledge or declare a parental interest in the child until after the child has been with the adoptive parents for a significant period of time during which substantial bonding has occurred....
Id.
Thus, at the outset, we are faced with a legal dilemma. We are not to consider the best interests of the child unless the child is legally available for adoption; yet the supreme court has also told us that “[t]he child's well-being is the raison d’etre for determining whether a child has been abandoned by a parent or parents.” Id. (emphasis added). We are not to consider the bonding that has taken place between the adoptive parents and the child; yet we know from the testimony in the record in this case that the child may possibly suffer serious psychological damage upon being removed from the only home she has ever known. See also In Matter of Adoption of Doe, 524 So.2d 1037, 1041, (Fla.App. 5th Dist.1988) quashed on other grounds, Doe, 543 So.2d at 741. This possibility increases the longer the trial and appellate processes drag out, as we weigh the evidence to determine whether it is clear and convincing of pre-birth abandonment by the biological father.
There is another troubling aspect of this case not present in Doe. In Doe, the biological mother and father had married after the birth of the child and acted together in the ensuing litigation to obtain custody of their baby. Here, unlike Doe, from the outset of this litigation, the biological mother has vehemently opposed the biological father’s attempts to fight the adoption. She even made her consent to the adoption contingent on a finding of abandonment, which she hand-wrote into and initialed in the Consent for Adoption:
This consent is given subject to the court finding the birth father[’s] ... consent is not necessary. If his consent is to be required I want custody of my child and hereby revoke this consent, [mother’s initials]. It would be detrimental to said child to be in [the father’s] custody and not in the child’s best interest under any circumstances. [mother’s initials].
The biological mother made her intention to adopt known to the biological father and took all necessary steps pre-birth and post-birth to effectuate the adoption once it was clear to her that her fantasy of marriage and a “Brady [B]unch type of family” with the biological father would not become a reality. Here we have the potential of a child being returned to a biological mother who has consistently believed during pregnancy, and after the child’s birth, that it was in the child’s best interests to be adopted.
The protection, however, that our legislature has provided to certain classes of biological fathers, even where an adoption is desired by the biological mother, is to require the biological father’s consent, unless the biological father waives his right to consent by abandonment. Therefore, the biological father’s consent was a condition precedent to this adoption, unless he abandoned the child. The difficulty we are presented with is in providing a realistic and reasonable interpretation of the term “abandonment” of the child by the biological father within the context of a private adoption which takes place shortly after the birth of the child.
CHAPTER 63 ABANDONMENT DEFINITION
When the supreme court decided Doe in 1989, the word “abandoned” was utilized but not defined in chapter 63, the chapter dealing with private and agency adoptions. It was only defined in chapter 39, entitled “Proceedings related to juveniles,” dealing with termination of parental rights. The problem with the statutory definition set forth in subsection 39.01(1), and subsequently engrafted by the legislature into subsection 63.032(14), is that the primary definition clearly envisions circumstances where the parent has abandoned the child post-birth. For example, the first part of the definition states:
“Abandoned” means a situation in which the parent ... while being able, makes no provision for the child’s support and makes no effort to communicate with the child, which situation is sufficient to evince a willful rejection of parental obligations....
§ 63.032(14), Fla.Stat. (1993).
Before a child is born, this first portion of the definition has no practical meaning.
The statutory definition further calls on the court to evaluate the efforts on the part of the parent to support and communicate with the child:
If, in the opinion of the court, the efforts of such parent ... to support and communicate with the child are, only marginal efforts that do not evince a settled purpose to assume all parental duties, the court may declare the child to be abandoned....
Id.
Again, this provision contemplates efforts to assume parental duties after the child has been born.
The only portion of the statutory definition contained in the adoption chapter which mentions pre-birth conduct is the last sentence. This is also the only sentence which is not part of the Chapter 39 abandonment definition and was added by the legislature after Doe:
In making this decision [whether the parent has evinced a settled purpose to assume all parental duties], the court may consider the conduct of a father towards the child’s mother during her pregnancy.
Id.
Thus, all portions of the statutory definition of abandonment, except for the last sentence, pertain to post-birth efforts to communicate and support the child. Where the adoption takes place within days of the child’s birth, the trial court has only the conduct of the biological father towards the biological mother during her pregnancy to evaluate in determining abandonment of the child. Based on Doe, a trial court is permitted to find abandonment of the child based solely on conduct occurring before the birth of the child during the period of pregnancy.
SCOPE OF “CONDUCT”
The crux of the initial legal dispute between the majority and the minority of this court, as expressed in the panel decision, is what type of conduct the trial court has discretion to evaluate. Is “conduct,” as used in the statutory definition, an all-inclusive term covering both financial and emotional support, as well as all aspects of the pre-birth relationship between the biological father and biological mother? Must conduct be connected to proof of harm to the child?
Both the majority and the minority of this court agree that evidence of financial support of the biological mother during the pregnancy, or lack thereof, is relevant to making this critical decision. See Doe, 548 So.2d at 746. The Doe opinion rejected the biological father’s argument that he had no parental responsibility prior to birth, finding such an argument “legally, morally, and socially indefensible”:
Prebirth conduct by an unwed father as it relates to the pregnant mother who needs the support of the father directly impacts upon the welfare of the child. The unwed pregnant mother who is unable to obtain needed support from the father is necessarily forced to take upon herself the entire responsibility for caring for the unborn child and for making necessary plans for the well-being of the child when born....
Id.
Our views differ on whether the term “conduct,” as used in the statute, encompasses more than financial support. We are faced with supreme court precedent in Doe, as well as statutory directive, that pre-birth “conduct” of the biological father toward the biological mother is a factor to consider on abandonment. In this case, as in Doe, pre-birth conduct, by necessity, is the only factor we may consider because of the timing of the adoption.
Conduct certainly encompasses more than financial support and has a meaning distinct from financial support. Generally, conduct connotes behavior. The same dictionary employed by Judge Farmer in his dissent to define support defines “conduct” as, “[t]he way a person acts, especially from the standpoint of morality and ethics.” American Heritage Dictionary of the English Language 1804 (3d ed.) (emphasis added).
To allow a trial court to base a finding of abandonment purely on failure to provide financial support in a nine-month period has as great, if not greater, potential for infringing on a biological father’s rights to develop a relationship with his unborn child than a finding based on the totality of his conduct towards the biological mother — both emotionally and financially. A hypothetical biological father who provided financial support to the biological mother during her pregnancy, but nothing else, could never be found to have abandoned a child, even though he deserted the biological mother, left all of the decisions concerning the child to the biological mother, failed to render any emotional support to the biological mother, and verbally abused the biological mother throughout the pregnancy.
The supreme court specifically mentioned both financial and emotional support in Doe:
During the critical period, [the biological father] failed to provide [the biological mother] with meaningful emotional or financial support.
543 So.2d at 742-43 (emphasis added).
I do not find evidence, in either the majority’s opinion in Doe, or in the subsequent legislative amendments defining abandonment, indicating an intent to restrict the type of pre-birth conduct which may be considered only to financial support:
The weight to be given prebirth conduct will vary from case to case depending on the conduct itself and other circumstances of the particular case, but, in as far as the particular prebirth conduct tends to prove or disprove that the parent has or has not abandoned the child at issue, such evidence is relevant and admissible regardless of the sex or-marital status of the parent. Moreover, while the relationship between a parent and child is constitutionally protected, equal protection does not bar rational distinctions between parents, [citation omitted].
CONSTITUTIONAL CONSIDERATIONS
In evaluating the competing interests of the biological father’s rights, the biological mother’s rights and the child’s rights, the comments of the supreme court in Doe are instructive:
The intermediary adoption program which the mother selected here is one of the options provided by the state to protect the best interests of the child, the parents and the state. If the biological father retains an absolute veto over the decision of the abandoned pregnant mother to place the child for adoption, the mother’s ability to provide for the best interests of the child and herself are nullified. Clearly this is not legislative intent.
548 So.2d at 746.
The United States Supreme Court has interpreted the parent-child relationship as a constitutionally protected liberty interest. However, each Supreme Court case which has considered the extent of the interest, and corresponding constitutional protection of it, has made a clear distinction between the rights of those fathers who have a “mere biological connection” and those fathers who have meaningfully demonstrated a full commitment to the responsibilities of parenthood, assuming an “actual relationship of parental responsibility.” Lehr v. Robertson, 463 U.S. 248, 260, 108 S.Ct. 2985, 2992, 77 L.Ed.2d 614, 625 (1983). As stated in Lehr, the “mere existence of a biological link does not merit equivalent constitutional protection.” Id. at 261, 99 S.Ct. at 2993, 77 L.Ed.2d at 626.
An unmarried, biological father does not have the same constitutional protection in his inchoate potential parent-child relationship as a biological father whose parent-child relationship has been established and where termination of those established rights are sought.
Parental rights based on the biological relationship are inchoate, it is the assumption of the parental responsibilities which is of constitutional significance.
Doe, 543 So.2d at 748.
This is why, in my opinion, Judge Klein improperly relies on Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982), for the measure of this biological father’s constitutional rights, by assuming that the biological father in this case has the same constitutional protection as the Santosky father. In Santosky, the biological parents had an established parental relationship with their children prior to the initiation of the neglect proceedings.
By analogy, before a person is deprived of a liberty or property interest, the constitution affords the person due process of law. However, what constitutes due process will vary significantly depending on the nature of the interest. Similarly, before a parental right may be terminated, clear and convincing evidence must be presented. Therefore, while the applicable standard of review is still clear and convincing evidence, the nature of the evidence to be considered varies significantly between those fathers who have “mere biological connections” and those who have developed a parental relationship. The same conduct, which might not be sufficient to terminate a parent’s right in an existing parental relationship (no financial support and lack of interest for several months), may be sufficient, as in Doe, to allow termination of an inchoate relationship.
Although the Supreme Court in Lehr considered the rights of a biological father who had the opportunity to develop a relationship with his child but failed to do so, the Florida Supreme Court, in Doe, found those same distinctions applied to allow termination of an inchoate relationship by evaluating the pre-birth conduct of the biological father toward the biological mother, without running afoul of the constitution.
STANDARD OF APPELLATE REVIEW
Our evaluation of the evidence is dependent, not only on how we define and evaluate the significance of the conduct, but on the standard by which we evaluate the evidence. Do we focus on whether there has been a “willful rejection of parental obligations,” as does Judge Klein, even though “willful rejection” encompasses only the first part of the statutory definition of abandonment? Or do we focus on evidence of only “marginal efforts [by the biological parent] that do not evince a settled purpose to assume all parental duties,” which encompasses the second part of the statutory abandonment definition?
In Doe, the supreme court evaluated the record to determine whether it supported the trial court’s conclusions that the biological father’s efforts were marginal and did not evince a settled purpose to assume parental duties. The supreme court concluded that “the failure to assume parental responsibility is abandonment and, under Lehr, is sufficient ground to deny parental rights.” Doe, 543 So.2d at 749. Thus, I conclude in this case, because we are dealing with an inchoate relationship, the pertinent inquiry is whether the evidence clearly and convincingly established that the biological father’s efforts were marginal and did not evince a settled purpose to assume parental responsibility — not whether there is clear and convincing evidence of a willful rejection of parental duties.
The dissenters use the biological father’s conduct in Doe as the polestar by which to judge the biological father’s actions here. If I were to engage in a “better or worse” comparison, I find the evidence in this ease to be stronger than that in Doe of failure to evince a settled purpose to assume parental responsibilities. In Doe, the biological father showed an initial lack of interest in becoming a father, but by the time of birth had entered into a full blown commitment of parenthood and marriage. Here, I cannot disregard the evidence of the biological father’s total lack of interest in assuming the responsibilities of parenthood, as well as the evidence of his affirmative misconduct towards the biological mother, emotional abuse and seemingly callous disregard for the pregnant mother’s physical and emotional health. By the end of the pregnancy, there was no financial support of the biological mother and no evidence of a settled intent to assume parental responsibilities. While the biological father advised the intermediary that he did not intend to consent to the adoption, the biological father knew of the biological mother’s adoption plan and had told her early on to “do whatever [she had] to do.”
The testimony in this case also shows the biological father indulged to excess in alcoholic beverages, was abusive and belligerent and would scream filthy names at the biological mother, often ordering her out of the house. Terrified of the biological father, malnourished, distraught and unable to bear the strain, the biological mother moved out. While she tried to avoid the biological father, he sought her out — only to aggravate her, never to help. The effects of the biological father’s affirmative misconduct on the biological mother’s health during pregnancy was corroborated by her treating physician and friends. Certainly, the trial court could have found this conduct did not evince a settled purpose to assume all, nor indeed any, parental duties.
Interestingly, the dissenters assert that Doe is a more compelling case of abandonment because, according to Judge Klein, in Doe it was “the father’s total lack of any interest in becoming a father, from the moment he was told about the pregnancy, which was the clear and convincing evidence of abandonment.” Judge Klein transforms evidence of “lack of interest” into proof of “willful rejection” of parenthood.
The dissent fails to mention that in Doe, after first urging abortion because he was not ready to commit to marriage, the biological father, at some period of time prior to the child’s birth, urged the natural mother to come to Phoenix, where he was residing, to have the child, live with him and give him time to make the ultimate decision of marriage. When the biological mother advised the biological father that she would not live with him without the benefit of marriage, the biological father asked the biological mother to “at least think about” letting him raise the child. Throughout the pregnancy, the couple continued to communicate. By the time of birth, the biological father’s commitment to both biological mother and child solidified.
The dissent makes much of the fact that here, the biological father contributed to the biological mother’s support; whereas in Doe, the biological father contributed no support to the biological mother. As pointed out by Judge Hersey, the only reason that any financial support may have been provided in this case arose from the couple living together and sharing expenses as had been the case before the pregnancy. Once the biological mother moved out, due to the biological father’s repeated abusive behavior, financial support ceased. The record further reveals that the biological father knew that the biological mother was receiving financial support from the adoptive parents and told the intermediary in July 1992 that he did not intend to contribute to the biological mother’s support.
Concerning the trial court’s actions in reversing its previous decision, the record reveals that during the second hearing there was additional testimony about the emotional abuse and its effect on the pregnant mother — thereby making it a relevant and important consideration on the issue of abandonment. While sharing Judge Klein’s concerns over the trial court’s reference in its order to the fact that the biological father sought out a lawyer to assert his rights as indicative of his disregard for his future child, I would point out that the statement was made in the context of the trial court pointing to the biological father’s complete failure to make any effort, “ANY minimal effort, to contact the natural mother and attempt to work out any kind of an arrangement other than the adoption that she was proceeding with.”
I consider the fact that the biological father accompanied the biological mother to a prenatal appointment where she underwent a sonogram to determine the sex of the baby, that he apparently placed a picture of the sonogram on the refrigerator and may have bought the biological mother a pair of stretch pants during her pregnancy to be superficial manifestations of the desire to be a father, reflecting the biological father’s total lack of understanding and appreciation of the magnitude of the parental role. These actions do not constitute any evidence of affirmative assumption of parental responsibilities. If Doe is the benchmark by which we measure abandonment, I disagree with the dissent that the standard was not met. As the supreme court stated in Doe:
[W]e are satisfied that the record supports the trial judge’s conclusion that the respondent natural father’s efforts were marginal and did not evince a settled purpose to assume parental duties.
CONDUCT OF THE ATTORNEY/INTERMEDIARY
A majority of the members of this court is concerned about the conduct of the attorney/intermediary, Charlotte H. Danciu, in these adoption proceedings. Prior to the birth of the baby, Danciu filed papers with the court, including a report of intended placement, dated August 12, 1992, stating: “The birth fatherf’s] consent has been waived by the court.” On August 12,1992, a hearing was held on the adoptive parents’ motion to waive the biological father’s consent to adoption. On that date, the trial court signed an order waiving the biological father’s consent, stating: “The [flather ... was advised of the pendency of this hearing by attorney Danciu but has deliberately avoided receiving notice of this hearing by a duly appointed process server.” It also recited that: “The father abandoned ... the mother of the unborn child.... ” On September 1st, Danciu filed with the court an unclaimed certified mail letter addressed to the biological father, indicating that the last postal notice to the addressee was dated August 13th, which happened to be the day after the order waiving the biological father’s consent was signed.
There is no evidence in the record, nor have we been apprised of any evidence, to indicate that the biological father deliberately avoided service of the notice of this hearing by a duly appointed process server. On motion for rehearing, the adoptive parents bring to our attention a notice of hearing that was filed just four days before the scheduled hearing on the motion. This notice is not part of the record submitted to us, but we accept the adoptive parents’ contention that it was part of the court file. The notice does not contain a certificate of service; nor does it state whether or how it purportedly was served on the biological father. No motion to waive the biological father’s consent appears in the record and there, in fact, is no statutory procedure for a pre-birth hearing on the issue of abandonment.
Here, Danciu knew the biological father was not consenting to the adoption. Nevertheless, she went forward and obtained a pre-birth order finding that the biological father had waived his rights. Danciu did not inform the trial court of her July 1992 telephone conversation with the biological father, in which he told her that he contested the adoption and refused to consent to it. The testimony in the record also indicates that Danciu did not inform the adoptive parents of the biological father’s objection and refusal to consent until after the birth of the baby, although on motion for rehearing the adoptive parents contest the implicit conclusion that Danciu did not keep them properly informed. In short, we cannot help but think that candor from this intermediary/attorney to the court and her clients, the adoptive parents, might have prevented the series of events which occurred later.
LEGISLATIVE ALTERNATIVES
RE: PROCESS OF CONSENT AND ABANDONMENT
After this court has labored with this case for over a year, I remain concerned that the present standards for judging the biological father’s pre-birth conduct are subjective, uncertain and vague, both for the courts, the biological parents and the prospective adoptive parents. Such standards ultimately create a time-consuming, fact-finding process at the end of which the facts, as determined, still remain subject to varying interpretation and significance.
At the present time, in the case of an adoption which takes place shortly after birth, where the biological mother has consented to the adoption, the trial court is called upon to take evidence on and evaluate a biological father’s conduct towards the biological mother over a several month period during the pregnancy. The decision is one which we have urged be made promptly so that the child’s status not remain in legal limbo. Yet fact-finding without objective criteria is an inherently time-consuming process requiring the taking of testimony that most likely will be contradictory. In this case, as in Doe, the trial court’s fact-finding of the issue of abandonment took place over a period of months, and by the time the issue of abandonment will finally be settled by the appellate process, a period of years will have elapsed.
If the legislature desires a mechanism to assure that unmarried biological fathers act responsibly in the prenatal period, I suggest one possible alternative. The legislature could consider a statutory scheme which might require that the biological mother serve formal notice of her intent to place the child for adoption on the biological father, who then would have a set time to assert his intention to seek custody. The biological father seeking to assert his parental rights would then have to pay a court-ordered amount of pre-birth child support determined by guidelines similar to the child support guidelines. In addition, he might be ordered to attend a pre-birth parenting class and possibly court-ordered counseling. Mediation could be considered where there appeared a reasonable possibility that the biological mother and biological father might reunite as a couple. If the biological father did not comply with the court order, then at the time of birth, the court would have the authority to declare that the biological father had waived his right to consent and the adoption could then proceed.
I offer this suggestion as an example of an alternate method for judging abandonment at the time of birth which would be fairer to the biological mother, the biological father, the child and the adoptive parents. In any revision to the current statutory scheme, the goal should be to render the standards of expected conduct objective, simplify the fact-finding and decision-making process for the courts and expedite the process. As this case demonstrates, expeditious resolution must be a mandate to all courts in any revised scheme.
1994 UNIFORM ADOPTION ACT
Finally, I urge the legislature to look into a more streamlined method of dealing with the issue of parental consent, including consideration of studying the statutory framework set forth in the revised Uniform Adoption Act (1994) drafted by the National Conference of Commissioners on Uniform State Laws. Under the act, unwed biological fathers who know of the biological mother’s pregnancy and, upon learning of the pending adoption, attempt to assert paternity rights, but show no significant signs of responsibility toward the child, are not required to consent.
Under this framework, consent is required of an unmarried biological father who has established his paternity and who has “provided, in accordance with his financial means, reasonable and consistent payments for the support of the minor.” § 2-401(l)(iii)(A). Consent to an adoption of a minor is not required of “an individual whose parental relationship to a minor has been terminated or determined not to exist.” § 2-402(a)(2). There is an elaborate procedure for the time and execution of consents, set forth in sections 2-404 and 2-405, as well as detailed specifications for the content of the consent in section 2 — 406. Finally, under the act, consent may be set aside by notice to the adoptive parents within 192 hours after the birth of the minor. § 2 — 408.
Although abandonment is not per se used as a basis for vitiating the consent, there is a detailed section, entitled “Grounds for Terminating Relationship,” found in section 3-504 of the 1994 revision. This includes direction to the court to “proceed with the hearing expeditiously.” § S-504(c).
In cases of minors who have not attained six months of age, the factors to consider on termination vary and include directions to the court to consider the respondent’s failure to “pay reasonable prenatal, natal and postnatal expenses in accordance with the respondent’s financial means” and the respondent’s “willingness to assume legal and physical custody of the minor.” §§ 3 — 504(c)(i) and (c)(iv). There is a further subsection which allows for termination of the relationship where the “respondent has been convicted of a crime of violence ... and the facts of the crime or violation and the respondent’s behavior indicate that the respondent is unfit to maintain a relationship of parent and child with the minor.” § 3-504(3). If this statute were in place, the biological father’s prior criminal conduct, which was improperly admitted under our current law in this case, would be a potentially relevant factor on the question of termination.
CONCLUSION
I agree that the scope of the definition of abandonment, and specifically, whether conduct includes emotional support, should be re-addressed by our supreme court as this is a question of exceptional public importance for which the courts are in need of further guidance. I also urge the legislature to reconsider the present statutory scheme of chapter 63, mindful of the tremendous problems presented by situations, like those here, where the unmarried, biological father, simply by withholding his consent, thwarts what the biological mother has concluded throughout her pregnancy is in her best interests and the best interests of the child.
GLICKSTEIN and POLEN, JJ., concur.
. See generally DuRocher, Robin, Balancing Competing Interests in Post-Placement Adoption Custody Disputes, How Do the Scales of Justice Weigh the Rights of Biological Parents, Adoptive Parents, and Children?, 15 J.Legal Med. 305 (June 1994).
. The history of constitutional protection of parental rights can be traced beginning with Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972), through Quilloin v. Walcott, 434 U.S. 246, 98 S.Ct. 549, 54 L.Ed.2d 511 (1978), Smith v. Organization of Foster Families, 431 U.S. 816, 97 S.Ct. 2094, 53 L.Ed.2d 14 (1977), Caban v. Mohammed, 441 U.S. 380, 99 S.Ct. 1760, 60 L.Ed.2d 297 and Lehr v. Robertson, 463 U.S. 248, 103 S.Ct. 2985, 77 L.Ed.2d 614 (1983), to Michael H. v. Gerald D., 491 U.S. 110, 109 S.Ct. 2333, 105 L.Ed.2d 91 (1989).
KLEIN, Judge,
dissenting.
In Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982), the United States Supreme Court held that natural parental rights are such a “fundamental liberty interest” under our Constitution that due process would be violated if those rights could be terminated by anything less than clear and convincing evidence. See also In Re Interest of R.W., 495 So.2d 133 (Fla.1986).
Subsequently, in Lehr v. Robertson, 463 U.S. 248, 103 S.Ct. 2985, 77 L.Ed.2d 614 (1983) the Court said in a case involving the rights of an unwed father:
The intangible fibers that connect parent and child have infinite variety. They are woven throughout the fabric of our society, providing it with strength, beauty, and flexibility. It is self-evident that they are sufficiently vital to merit constitutional protection in appropriate cases....
While the Lehr Court said that a mere biological relationship does not warrant the same constitutional protection as an actual parental relationship, it also noted:
The significance of the biological connection is that it offers the natural father an opportunity that no other male possesses to develop a relationship with his offspring. If he grasps that opportunity and accepts some measure of responsibility for the child’s future, he may enjoy the blessings of the parent-child relationship and make uniquely valuable contributions to the child’s development.
Id. at 254-56, 262, 103 S.Ct. at 2990, 2994.
The Lehr Court was concerned with whether the state of New York had adequately protected the unwed father’s opportunity to form a parental relationship. My concern is whether the application of the Florida statute here adequately protects this father’s opportunity to form that relationship.
The statute, section 63.032(14), Florida Statutes (1993), defines abandonment as a “situation ... sufficient to evince a willful rejection of parental obligations.” Thus, the issue before this court is whether there was clear and convincing evidence of a “willful rejection” by the father of his parental obligations. If the evidence was not clear and convincing, then this father, in being denied the opportunity to develop a relationship with his child, has been denied due process. Santosky.
Our supreme court recently defined “clear and convincing evidence” in Inquiry Concerning a Judge, 645 So.2d 398 (Fla.1994), as follows:
This intermediate level of proof entails both a qualitative and quantitative standard. The evidence must be credible; the memories of the witnesses must be clear and without confusion; and the sum toto of the evidence must be of sufficient weight to convince the trier of fact without hesitancy.
[C]lear and convincing evidence requires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the testimony must be precise and explicit and the witnesses must be lacking in confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established, (quoting Slomowitz v. Walker, 429 So.2d 797, 800 (Fla. 4th DCA 1983)).
I believe the majority is giving more weight to the trial court’s findings of fact than is proper under Inquiry Concerning a Judge. The majority states that a trial court’s findings based on clear and convincing evidence should be affirmed, unless “it may be said as a matter of law that no one could reasonably find such evidence to be clear and convincing,” relying on In Interest of D.J.S., 563 So.2d 655, 662 (Fla. 1st DCA 1990). The First District made that statement in D.J.S. aftér observing that there was no ease law defining the standard of appellate review of termination proceedings under Chapter 39, Florida Statutes (Supp.1986). It then applied principles set forth in The Florida Bar v. Hooper, 509 So.2d 289 (Fla.1987). I believe the First District’s reliance on Hooper may have been misplaced.
While the Bar in Hooper was required to prove its accusations against the lawyer by clear and convincing evidence, the supreme court’s standard of review in Hooper was governed by Rule 3-7.5(k)(l) of the Rules Regulating The Florida Bar (now renumbered Rule 3 — 7.6(k)(l)(A)), which provided that the referee’s findings of fact “shall enjoy the same presumption of correctness as the judgment of the trier of fact in a civil proceeding.” The Hooper court concluded that this rule means that the referee’s findings must be sustained if they are supported by competent and substantial evidence. Id. at 291. I believe that the D.J.S. court, in reliance on Hooper, was applying the same standard of appellate review as would be applicable in a preponderance of evidence case.
In Inquiry Concerning a Judge, the supreme court, acknowledging the existence of some evidence before the Judicial Qualifications Commission, nevertheless reversed findings of fact purportedly based on clear and convincing evidence, stating:
Testimony before the Commission on this point is indecisive, confused, and contradictory — a far cry from the level of proof required to establish a fact by clear and convincing evidence ...
645 So.2d at 405. The significance of the above language is that in a case where proof must be clear and convincing, the fact that there is some evidence in the record to support the findings does not mean that the appellate court must affirm. Rather, the evidence must be sufficient to convince the trier of fact “without hesitancy.” Id., 645 So.2d at 404.
The method by which an appellate court analyzes evidence in reviewing a judgment based on clear and convincing evidence may well be what is causing this court to be almost evenly divided. I am convinced, however, that the adoptive parents did not sustain their burden of proving, by clear and convincing evidence, that this natural father abandoned his child.
The child was born on August 28, 1992, and the issue of the father’s abandonment was fully tried before the court on October 9, 1992. Following the trial, the court entered a judgment on Octobe