Dillon v. Robb

¶1concurring specially.

¶2Although I am impressed by the logic and emotion of the strongly-worded dissent I am compelled to be firm in my support of the discretionary ruling of the trial judge. Where there is a basis for reasoned disagreement, as in this case, we are bound to uphold a ruling of the judge who saw and heard the parties. Further, I agree with Judge Harris that grandparents should be given priority over non-related parties in adoption considerations. Given that, I still must go with the trial judge. In family law cases our supreme court has ruled that the trial judge cannot be second-guessed and almost never reversed. See concurring opinion in Cason v. Cason, 592 So.2d 1277 (Fla. 5th DCA 1992).

¶3dissenting.

¶4I respectfully dissent: This is an adoption contest between the maternal grandmother and the former boyfriend of the deceased mother.

¶5These are the facts. In 1983 James Robb, then 27 years old, met Briana, then 13 years old, and started cohabiting with her. They lived as husband and wife.1 In 1985 Briana gave birth to a child and Robb was listed as the father on the birth certificate. The couple continued to cohabit until 1987 when Briana and the child moved to California. That was the last time Robb saw the child during Briana’s life. Although Briana and the child subsequently returned to Florida, no effort was made to locate or contact Robb. In 1989, while she was living with a new “boy friend” Briana committed suicide and her child was left with the child’s maternal uncle.2

¶6When Robb learned of Briana’s death, he filed a paternity action seeking to legally establish himself as the father of the child and named the uncle and grandmother as defendants.3 Both defendants contested *894the paternity action until the child became ill; the uncle, unable to afford the medical expenses and ineligible (because he did not have legal custody) to qualify for HRS assistance, then withdrew from the paternity action and entered into an agreement “transferring custody of the child” to Robb. The grandmother, appellant herein, continued to contest the paternity action.

¶7HLA testing proved that Robb was not the father of the child and the paternity action was dismissed. The court permitted Robb to file a petition for adoption and the grandmother counterpetitioned for adoption. The court ruled in favor of Robb, permitting him to adopt this now six-year-old girl.

¶8The facts of this case made the custody issue difficult.4 However, I urge that the court erred in two respects:

¶91. The court relied on facts not established by the record. The court found that “since the birth of [the child] ... Robb has maintained continuous contact with the child and in all respects has acted in a manner consistent with being the child’s natural father.” Robb admits that he did not see the child for over two years (June, 1987 until after August, 1989) and provided no support for her after December, 1987.

¶102. The court interpreted section 63.0425, Florida Statutes (1989) to deny the grandmother a statutorily mandated priority for adoption.5 The statute provides:

When a child who has lived with a grandparent for at least six months is placed for adoption, the agency or intermediary handling the adoption shall notify that grandparent of the impending adoption before the petition for adoption is filed. If the grandparent petitions the court to adopt the child, the court shall give first priority for adoption to that grandparent.

¶11The trial court linked the six month residency requirement for notice contained in the first sentence to the grandparent’s priority rights contained in the second sentence. I submit that the better interpretation (and the one I believe the legislature intended) is that the grandparent, whether he or she files as a result of the notice provided in the first sentence or files independently thereof and even if the grandparent has never had custody, such grandparent should nevertheless have priority over a stranger in the adoption of the grandchild.

¶12This linkage of the two sentences was considered by the court in Davis v. Dixon, 545 So.2d 318 (Fla. 3d DCA 1989), rev. denied, 551 So.2d 460 (1989). The court held:

We find that the trial court erred in failing to accord the grandparents the priority of the statute. The appellee advances the position that the priority can only be granted in an agency proceeding for adoption, referring to the first sentence of the subsection of the statute[.] We disagree, and find that the first section provides instances wherein the grandparents shall have notice of certain agency adoption proceedings, and the second sentence gives grandparents a priority consideration in adoptions. [Footnote omitted.]

¶13Davis at 319.

¶14This interpretation also is consistent with the legislative history of Fla.H.B. 1407, Committee on Health and Rehabilitative Services Staff Analysis, Section 1(B) (Reg. Sess.1987):

The changes proposed in H.B. 1407 address many of the concerns expressed by the Adoption Advisory Council in its annual report. In addition to the council’s *895recommendations, the legislation also provides that a child voluntarily placed for adoption is a dependent child. The legislation provides further clarification on voluntary consents for termination of parental rights. Finally, the legislation requires notification of grandparents of impending petition for adoption of a grandchild if the grandchild has lived with the grandparent for at least six months. Grandparents are also to be given first priority for adoption of the child except under certain circumstances. [Emphasis added.]

¶15Those circumstances are: when a different preference is set out in the deceased parent’s will; a stepparent adoption; or if the “best interest of the child” requires otherwise. Section 63.0425(2), (3) and (4), Florida Statutes (1991).

¶16This interpretation is also logical in that it recognizes the reality that it is the grandparent that is most often called up — and is there — when health or financial problems befall the child or the child’s family. It is most often the grandparent that has maintained, through visitation and contact, a closer relationship with the child than even the deceased parent’s siblings or other relatives. It is the grandparent that is presumed by the intestacy laws to be closer to the parent than anyone other than the parent’s lineal descendants.

¶17Certainly there are situations in which the grandparent would not be appropriate — because of age, physical condition, financial condition, personality, character, etc. — as the adoptive parent. But that would not be the normal situation and priorities are established based on normal, expected conditions. The adoption scheme recognizes that grandparent priority will not prevail if it is inconsistent with the “best interest of the child.” That is sufficient protection against the abnormal situation.

¶18Since the trial court failed to recognize the statutory priority, I would reverse for further consideration. The majority instead has weighed the evidence in light.of the priority and has found it sufficient to overcome the priority. While I disagree with the majority’s conclusion on this issue, I more strongly disagree with the majority’s making this initial, critical determination in the first instance. That is the function of the trial court. The trial judge did not find that the grandmother’s priority was overcome by a “best intent of the child” analysis. I would not assume that the trial court — faced with the priority— would make the determination now mandated by the majority. The grandmother is entitled to have the court make this important decision using the correct law.

¶19I would reverse.