DOROTHY C. YANCEY, APPELLANT,
v.
DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, SOCIAL AND ECONOMIC SERVICES PROGRAM AND KALAR A. BEA, APPELLEES
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The Florida Third District Court of Appeal reversed a trial court's dismissal with prejudice of an adoption petition filed by a guardian alleging child abandonment. The court held that a petitioner need not obtain a separate judicial determination of abandonment before filing an adoption petition and that any deficiencies in pleading should result in dismissal with leave to amend, not dismissal with prejudice.
The court held that (1) a separate judicial determination of abandonment is not required before filing an adoption petition, as Section 63.112(l)(h) directs that facts excusing lack of consent be contained in the petition itself; and (2) if the petition contained deficient allegations, the appropriate remedy would be dismissal with leave to amend, not dismissal with prejudice.
[1] A petition for adoption alleging abandonment as an excuse for lack of consent must state the facts or circumstances of abandonment within the petition itself, and a prior…
[2] Dismissal of an adoption petition with prejudice is inappropriate when the petition's allegations are factually insufficient; the proper remedy in such cases is dismissal…
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Join FLexlaw to unlock all legal intelligence“although the order of dismissal does not, as required by Section 63.-142, Florida Statutes (1979), "state with specificity the reasons for dismissal," we glean from the record that the dismissal was apparently based on the trial court's acceptance of the natural mother's contention that a petitioner, as here, alleging that the children have been abandoned so as to excuse the lack of consent, see Sections 63.072 and 63.112(l)(h), Florida Statutes (1979), must obtain a judicial determination of abandonment as a predicate to the filing of the petition, a contention which, in our view, directly conflicts with the clear language of Section 63.112(l)(h)”
Establishes that the trial court's reasoning was erroneous and conflicted with statutory language
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Join FLexlaw to unlock all legal intelligenceDorothy C. Yancey, as legal guardian of two minor children, filed an amended petition for adoption. The children had been abandoned by their natural m…
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PER CURIAM.
We reverse the trial court’s order dismissing with prejudice an amended petition for adoption of two minors filed by their guardian, Dorothy C. Yancey, upon a holding that (1) although the order of dismissal does not, as required by Section 63.-142, Florida Statutes (1979), “state with specificity the reasons for dismissal,” we glean from the record that the dismissal was apparently based on the trial court’s acceptance of the natural mother’s contention that a petitioner, as here, alleging that the children have been abandoned so as to excuse the lack of consent, see Sections 63.072 and 63.112(l)(h), Florida Statutes (1979), must obtain a judicial determination of abandonment as a predicate to the filing of the petition, a contention which, in our view, directly conflicts with the clear language of Section 63.112(l)(h) (directing that the “facts or circumstances that excuse the lack of consent” be contained in the petition itself) and finds no support elsewhere in the statute or any decided case; and (2) in the unlikely event that such dismissal were based on the natural mother’s alternative contention that the facts or circumstances of abandonment or any other necessary allegations were not fully and adequately set forth in the petition,1 the appropriate ruling would have been a dismissal with leave to amend, not a dismissal with prejudice. See, e.g., Enfield v. Held, 357 So. 2d 772 (Fla.2d DCA 1978). See also In re Adoption of Scott, 344 So. 2d 884 (Fla. 1st DCA 1977) (after neither the petition nor two amendments thereto, filed over the course of four months, alleged consent by or notice to the natural father, a dismissal without prejudice was not an abuse of discretion).
Reversed and remanded with directions to reinstate the amended petition for adoption and for further proceedings.
. We think this “unlikely” because the allegations contained in the petition comply in all material respects with the requirements for a petition for adoption set forth in Section 63.-112, Florida Statutes (1979). The pertinent allegations respecting abandonment were:
“4. That the minor children were abandoned by their natural mother and fathers and were left in the streets. That in August, 1973, the natural mother gave the children to Petitioner’s daughter saying that she did not want them and she could have them if she wanted them. The children were then brought to Petitioner, and she has had their care, custody and control for the past 5 years. That on September 24, 1975 the Petitioner was appointed legal Guardian of these children, under Case No. 75-4851, Probate Division.
“5. That the natural mother has not furnished food, clothing, or any support whatever for these children in the past 5 years nor has she visited them voluntarily or made any contact with them....
“6. That the whereabouts of the natural fathers, WILLIE DURHAM and LORENZO HUDSON, are unknown. The fathers have abandoned the children and have made no effort to contact them whatsoever in the past 5 years.”
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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In re C.T.D., 623 So. 2d 834 (Fla. 4th DCA 1993)…the cause for lack of an indispensable party is not an adjudication on the merits, and therefore serves as no impediment to an amended petition for adoption. Fla.R.Civ.P. 1.420(b). See also Yancey v. Department of Health and Rehabilitative Services, 413 So. 2d 438 (Fla. 3d [*835] DCA 1982). Our order is without prejudice to the petitioner, who may either secure a final order or move again to amend, now that we have clarified that the trial court’s reason for denying the motion to amend was based on the errone…
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Rodriguez v. In re the Adoption OF Mariana Andrea Rodriguez, 219 So. 3d 944 (Fla. 3d DCA 2017)…doption. The trial court correctly found that the petition was not ■ accurate and therefore was insufficient. The remedy, however, was dismissal of the petition with leave to amend rather than denial. See Yancey v. Dep’t of Health and Rehab. Servs., 413 So. 2d 438 (Fla. 3d DCA 1982) (where the facts or circumstances of abandonment or any other necessary allegations were not fully and adequately set forth in the petition, the. appropriate ruling would have been a dismissal with leave to amend). We therefore re…
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In re Adoption OF S.A.S. v. Fla. Dep't of Health & Rehabilitative Servs., 646 So. 2d 775 (Fla. 2d DCA 1994)…rial court, in dismissing the petition for failure to fully and adequately set forth necessary allegations, should have dismissed the petition with leave to amend rather than with prejudice. See Yancey v. Dept. of Health and Rehabilitative Services, 413 So. 2d 438 (Fla. 3d DCA 1982). In addition, the trial court’s finding that the appellant has no means of providing for the children is not supported by competent substantial evidence in the record. Noonan v. Snipes, 569 So. 2d 1381 (Fla. 2d DCA 1990). [*776] W…
Authorities Cited
- Enfield v. Held, 357 So. 2d 772 (Fla. 2d DCA 1978)
- In re Adoption OF Robert Charles Scott, 344 So. 2d 884 (Fla. 1st DCA 1977)