63.088
Proceeding to terminate parental rights pending adoption; notice and service; diligent search.
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63.088 Proceeding to terminate parental rights pending adoption; notice and service; diligent search.—
(1) NOTICE REQUIRED.—An unmarried biological father, by virtue of the fact that he has engaged in a sexual relationship with a woman, is deemed to be on notice that a pregnancy and an adoption proceeding regarding that child may occur and that he has a duty to protect his own rights and interest. He is, therefore, entitled to notice of a birth or adoption proceeding with regard to that child only as provided in this chapter. If a mother fails to identify an unmarried biological father to the adoption entity by the date she signs her consent for adoption, the unmarried biological father’s claim that he did not receive actual notice of the adoption proceeding is not a defense to the termination of his parental rights.
(2) INITIATE LOCATION PROCEDURES.—When the location of a person whose consent to an adoption is required but is not known, the adoption entity must begin the inquiry and diligent search process required by this section within a reasonable time period after the date on which the person seeking to place a minor for adoption has evidenced in writing to the adoption entity a desire to place the minor for adoption with that entity, or not later than 30 days after the date any money is provided as permitted under this chapter by the adoption entity for the benefit of the person seeking to place a minor for adoption.
(3) LOCATION AND IDENTITY KNOWN.—Before the court may determine that a minor is available for adoption, each person whose consent is required under s. 63.062, who has not executed a consent for adoption or an affidavit of nonpaternity, and whose location and identity have been determined by compliance with the procedures in this section must be personally served, pursuant to chapter 48, at least 20 days before the hearing with a copy of the petition to terminate parental rights pending adoption and with notice in substantially the following form:
NOTICE OF PETITION AND HEARING
TO TERMINATE PARENTAL RIGHTS
PENDING ADOPTION
A petition to terminate parental rights pending adoption has been filed. A copy of the petition is being served with this notice. There will be a hearing on the petition to terminate parental rights pending adoption on (date) at (time) before (judge) at (location, including complete name and street address of the courthouse) . The court has set aside (amount of time) for this hearing.
UNDER SECTION 63.089, FLORIDA STATUTES, FAILURE TO TIMELY FILE A WRITTEN RESPONSE TO THIS NOTICE AND THE PETITION WITH THE COURT AND TO APPEAR AT THIS HEARING CONSTITUTES GROUNDS UPON WHICH THE COURT SHALL END ANY PARENTAL RIGHTS YOU MAY HAVE OR ASSERT REGARDING THE MINOR CHILD.
(4) REQUIRED INQUIRY.—In proceedings initiated under s. 63.087, the court shall conduct an inquiry of the person who is placing the minor for adoption and of any relative or person having legal custody of the minor who is present at the hearing and likely to have the following information regarding the identity of:
(a) Any man to whom the mother of the minor was married at any time when conception of the minor may have occurred or at the time of the birth of the minor;
(b) Any man who has filed an affidavit of paternity pursuant to s. 382.013(2)(c) before the date that a petition for termination of parental rights is filed with the court;
(c) Any man who has adopted the minor;
(d) Any man who has been adjudicated by a court as the father of the minor child before the date a petition for termination of parental rights is filed with the court; and
(e) Any man whom the mother identified to the adoption entity as a potential biological father before the date she signed the consent for adoption.
The information sought under this subsection may be provided to the court in the form of a sworn affidavit by a person having personal knowledge of the facts, addressing each inquiry enumerated in this subsection, except that, if the inquiry identifies a father under paragraph (a), paragraph (b), paragraph (c), or paragraph (d), the inquiry may not continue further. The inquiry required under this subsection may be conducted before the birth of the minor.
(5) LOCATION UNKNOWN; IDENTITY KNOWN.—If the inquiry by the court under subsection (4) identifies any person who has not executed a consent to adoption or an affidavit of nonpaternity, and the location of the person is unknown, the adoption entity must conduct a diligent search for that person which must include inquiries concerning:
(a) The person’s current address, or any previous address, through an inquiry of the United States Postal Service through the Freedom of Information Act;
(b) The last known employment of the person, including the name and address of the person’s employer;
(c) Names and addresses of relatives to the extent they can be reasonably obtained from the petitioner or other sources, contacts with those relatives, and inquiry as to the person’s last known address. The petitioner must pursue any leads to any addresses where the person may have moved;
(d) Information as to whether or not the person may have died and, if so, the date and location;
(e) Telephone listings in the area where the person last resided;
(f) Inquiries of law enforcement agencies in the area where the person last resided;
(g) Highway patrol records in the state where the person last resided;
(h) Department of Corrections records in the state where the person last resided;
(i) Hospitals in the area where the person last resided;
(j) Records of utility companies, including water, sewer, cable television, and electric companies, in the area where the person last resided;
(k) Records of the Armed Forces of the United States as to whether there is any information as to the person;
(l) Records of the tax assessor and tax collector in the area where the person last resided; and
(m) Search of one Internet databank locator service.
A person contacted by a petitioner or adoption entity requesting records under this subsection must release the requested records to the petitioner or adoption entity without the necessity of a subpoena or a court order, except when prohibited by law. An affidavit of diligent search conducted in accordance with this section must be filed with the court. The diligent search may be conducted before the birth of the minor. A judgment terminating parental rights and approving a diligent search that fails to locate a person is valid and is not subject to direct or collateral attack because the mother failed or refused to provide the adoption entity with sufficient information to locate the person.
(6) CONSTRUCTIVE SERVICE.—This subsection only applies if, as to any person whose consent is required under s. 63.062 and who has not executed a consent to adoption or an affidavit of nonpaternity, the location of the person is unknown and the inquiry under subsection (4) fails to locate the person. The unlocated person must be served notice under subsection (3) by constructive service in the manner provided in chapter 49. The notice shall be published in the county where the person was last known to have resided. The notice, in addition to all information required under chapter 49, must include a physical description, including, but not limited to, age, race, hair and eye color, and approximate height and weight of the person, the minor’s date of birth, and the place of birth of the minor. Constructive service by publication shall not be required to provide notice to an identified birth father whose consent is not required pursuant to ss. 63.062 and 63.064.
History.—s. 17, ch. 2001-3; s. 18, ch. 2003-58; s. 13, ch. 2008-151; s. 16, ch. 2012-81.
Notes of Decisions
Cited in 20
cases, 2002–2018 · leading case: Heart of Adoptions, Inc. v. JA
Heart of Adoptions, Inc. v. JA (2007)
“Finally, section 63.088, Florida Statutes (2005), which is titled " Proceeding to terminate parental rights pending adoption; notice and service; diligent search," states *198 that an unmarried biological father is deemed to be on notice, by virtue of the fact that he has…”
In Re Adoption of Baby A. (2006)
“Proceedings to terminate parental rights pending adoption are explained in section 63.088, Florida Statutes (2004). Subsection 4 of that statute is entitled "REQUIRED INQUIRY" and tells the trial court that it "must" conduct an inquiry regarding the identity of "any man with…”
Amend. to Rules of App. Proc., Civ. Proc. (2004)
“212(5), Florida Statutes; (E) an affidavit of diligent search and inquiry is filed in lieu of personal service under section 63.088(4), Florida Statutes; or (F) the court is otherwise aware that any person having standing objects to the termination of parental rights pending…”
In RE: AMENDMENTS TO the FLORIDA FAMILY LAW RULES OF PROCEDURE—2017 REGULAR-CYCLE REPORT (2017)
“212(5), Florida Statutes; • (E) an affidavit of diligent search and inquiry is filed in lieu of personal service under section 63.088(4), Florida Statutes; or '(F) the court is otherwise aware that any person having standing objects to the termination of parental rights pending…”
The Florida Bar v. Dove (2008)
“Dove also was aware or should have been aware of the notice and search requirements relating to any "person whose consent is required" set forth in section 63.088, Florida Statutes (2002). It is significant that Dove did not cease her efforts to obtain the biological father's…”
B.B. v. P.J.M. (2006)
“The validity of this *70 distinction is buttressed by the inclusion in the Florida Adoption Act of the requirements of section 63.088(4), Florida Statutes (2004): In proceedings initiated under s.”
D. v. C.L.G. (2010)
“” § 63.088(1), Fla. Stat. (2007) (emphasis supplied).”
G.P. v. State (2003)
“Notice and service requirements are governed by section 63.088, Florida Statutes. Appellants challenge only subsection (5) of section 63.”
Amendments to Fl. Family Law Rules of Proc. (2007)
“257, Florida Statutes (2006) to require that before such service of process may be made on a legal father in such a proceeding, the diligent search and inquiry requirements of section 63.088, Florida Statutes, must be satisfied by the petitioner, and the petitioner must "execute…”
Amendments to the Florida Family Law Rules of Procedure (2003)
“212(5), Florida Statutes; (E) an affidavit of diligent search and inquiry is filed in lieu of personal service under section 63.088(4), Florida Statutes; or (F) the court is otherwise aware that any person having standing objects to the termination of parental rights pending…”
In re Amendments to the Florida Family Law Rules of Procedure (2005)
“212(5), Florida Statutes; (E) an affidavit of diligent search and inquiry is filed in lieu of personal service under section 63.088(4), Florida Statutes; or (F) the court is otherwise aware that any person having standing objects to the termination of parental rights pending…”
Bb v. Pjm (2006)
“The validity of this *70 distinction is buttressed by the inclusion in the Florida Adoption Act of the requirements of section 63.088(4), Florida Statutes (2004): In proceedings initiated under s.”
— 63.088(1) — 3 cases
Heart of Adoptions, Inc. v. JA (2007)
“Finally, section 63.088, Florida Statutes (2005), which is titled " Proceeding to terminate parental rights pending adoption; notice and service; diligent search," states *198 that an unmarried biological father is deemed to be on notice, by virtue of the fact that he has…”
D. v. C.L.G. (2010)
“” § 63.088(1), Fla. Stat. (2007) (emphasis supplied).”
Dp v. Clg (2010)
— 63.088(3) — 1 case
Heart of Adoptions, Inc. v. JA (2007)
“Finally, section 63.088, Florida Statutes (2005), which is titled " Proceeding to terminate parental rights pending adoption; notice and service; diligent search," states *198 that an unmarried biological father is deemed to be on notice, by virtue of the fact that he has…”
— 63.088(4) — 9 cases
Amend. to Rules of App. Proc., Civ. Proc. (2004)
“212(5), Florida Statutes; (E) an affidavit of diligent search and inquiry is filed in lieu of personal service under section 63.088(4), Florida Statutes; or (F) the court is otherwise aware that any person having standing objects to the termination of parental rights pending…”
In RE: AMENDMENTS TO the FLORIDA FAMILY LAW RULES OF PROCEDURE—2017 REGULAR-CYCLE REPORT (2017)
“212(5), Florida Statutes; • (E) an affidavit of diligent search and inquiry is filed in lieu of personal service under section 63.088(4), Florida Statutes; or '(F) the court is otherwise aware that any person having standing objects to the termination of parental rights pending…”
B.B. v. P.J.M. (2006)
“The validity of this *70 distinction is buttressed by the inclusion in the Florida Adoption Act of the requirements of section 63.088(4), Florida Statutes (2004): In proceedings initiated under s.”
Amendments to the Florida Family Law Rules of Procedure (2003)
“212(5), Florida Statutes; (E) an affidavit of diligent search and inquiry is filed in lieu of personal service under section 63.088(4), Florida Statutes; or (F) the court is otherwise aware that any person having standing objects to the termination of parental rights pending…”
In re Amendments to the Florida Family Law Rules of Procedure (2005)
“212(5), Florida Statutes; (E) an affidavit of diligent search and inquiry is filed in lieu of personal service under section 63.088(4), Florida Statutes; or (F) the court is otherwise aware that any person having standing objects to the termination of parental rights pending…”
— 63.088(4)(d) — 1 case
In Re Adoption of Baby A. (2006)
“Proceedings to terminate parental rights pending adoption are explained in section 63.088, Florida Statutes (2004). Subsection 4 of that statute is entitled "REQUIRED INQUIRY" and tells the trial court that it "must" conduct an inquiry regarding the identity of "any man with…”
— 63.088(5) — 2 cases
G.P. v. State (2003)
“Notice and service requirements are governed by section 63.088, Florida Statutes. Appellants challenge only subsection (5) of section 63.”
GP v. State (2003)
— 63.088(6) — 2 cases
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