MARCIA CARLSON, AS GUARDIAN AD LITEM OF CORNELL B. SMITH, AN INCOMPETENT, AND CORNELL B. SMITH, INDIVIDUALLY, APPELLANT,
v.
DONALD L. KEENE, APPELLEE
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The court affirmed an adoption judgment despite the absence of the child's written consent as required by Florida statute, finding that the child's oral consent at the final hearing satisfied the statute's purpose and that the appellant waived the technical objection by raising it for the first time on appeal.
The judgment of adoption is affirmed. Although the procedure of obtaining the child's consent through testimony at final hearing rather than by written consent filed with the petition violates the statute, the error is harmless because: (1) the statute's purpose is to ensure notice and the child's agreement to adoption rather to provide a technical defense; and (2) the appellant waived the objection by not raising it prior to final hearing.
[1] A statute requiring a child's written consent to adoption is satisfied when the child's consent is expressed through testimony at the final hearing, even if not filed in…
[2] The purpose of requiring a child's consent to adoption is to ensure the child's agreement to the adoption, not to provide a technical defense for a natural parent.
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Join FLexlaw to unlock all legal intelligence“If the child sought to be adopted has attained the age of twelve years, the written consent of the child, executed and acknowledged as aforesaid, shall also be required”
The statute at issue requiring written consent from children over twelve in adoption proceedings
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Join FLexlaw to unlock all legal intelligenceCornell B. Smith, a child over twelve years old, was the subject of an adoption proceeding. No written consent from the child was filed with the adopt…
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The question is whether Fla.Stat. 63.-081(3), F.S.A. (1971), which provides that “If the child sought to be adopted has attained the age of twelve years, the written consent of the child, executed and acknowledged as aforesaid, shall also be required” requires reversal of a judgment of adoption where no written consent was filed but the child’s consent is embodied in testimony taken at the final hearing. When the entire section1 is read in context, it is apparent that the purpose of the statute is to insure that notice is given to all parties interested in the adoption proceeding. The consent is an alternative to notice and the statute speaks of consent as to those parties who would normally be expected to consent to the adoption rather than appear as adversary parties. Appel-lee’s counsel advises us that normal practice is to ignore subsection 3 at the pleading stage and supply the consent by interrogation of the child at final hearing. We think this procedure ignores the statute but that the error is harmless in this case. No objection was raised prior to final hearing that the child’s consent had not been filed with the petition, and the appellant raises the question for the first time on appeal. For the reasons that the purpose of the statute is not to avail the natural parent of a technical defense but rather to insure the agreement of the child to his adoption, and because the appellant cannot for the first time raise the question on appeal, the judgment is affirmed. The other points raised are without merit.
Affirmed.
HOBSON and BOARDMAN, JJ., concur.