Michaels, Burton M.

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University of Florida Levin College of Law

Florida Law Review Volume 5 Issue 4 Article 6 December 1952 Adoption: Requisite Statutory Consent Burton M. Michaels Follow this and additional works at: https://scholarship.law.ufl.edu/flr  Part of the Law Commons Recommended Citation Burton M. Michaels, Adoption: Requisite Statutory Consent, 5 Fla. L. Rev. 428 (1952). Available at: https://scholarship.law.ufl.edu/flr/vol5/iss4/6 This Article is brought to you for free and open access by UF Law Scholarship Repository. It has been accepted for inclusion in Florida Law Review by an authorized editor of UF Law Scholarship Repository. For more information, please contact kaleita@law.ufl.edu. DATE DOWNLOADED: Thu Sep  8 11:51:11 2022SOURCE: Content Downloaded from HeinOnlineCitations:Bluebook 21st ed.			                                                                Burton M. Michaels, Adoption: Requisite Statutory Consent, 5 U. FLA. L. REV. 428(1952).                                                                              ALWD 7th ed.                                                                         Burton M. Michaels, Adoption: Requisite Statutory Consent, 5 U. Fla. L. Rev. 428(1952).                                                                              APA 7th ed.                                                                          Michaels, B. M. (1952). Adoption: requisite statutory consent. University of FloridaLaw Review, 5(4), 428-431.                                                           Chicago 17th ed.                                                                     Burton M. Michaels, "Adoption: Requisite Statutory Consent," University of FloridaLaw Review 5, no. 4 (Winter 1952): 428-431                                           McGill Guide 9th ed.                                                                 Burton M. Michaels, "Adoption: Requisite Statutory Consent" (1952) 5:4 U Fla L Rev428.                                                                                 AGLC 4th ed.                                                                         Burton M. Michaels, 'Adoption: Requisite Statutory Consent' (1952) 5(4) University ofFlorida Law Review 428                                                               MLA 9th ed.                                                                          Michaels, Burton M. "Adoption: Requisite Statutory Consent." University of FloridaLaw Review, vol. 5, no. 4, Winter 1952, pp. 428-431. HeinOnline.                     OSCOLA 4th ed.                                                                       Burton M. Michaels, 'Adoption: Requisite Statutory Consent' (1952) 5 U Fla L Rev 428Provided by: University of Florida / Lawton Chiles Legal Information Center-- Your use of this HeinOnline PDF indicates your acceptance of HeinOnline's Terms and    Conditions of the license agreement available at https://heinonline.org/HOL/License-- The search text of this PDF is generated from  uncorrected OCR text.-- To obtain permission to use this article beyond the scope of your  license, please use:Copyright Information1Michaels: Adoption: Requisite Statutory ConsentPublished by UF Law Scholarship Repository, 1952UNIVERSITY OF FLORIDA LAW REVIEWamendment was adopted. In spite of the strong role the State De-partment of Education and the State Board of Education have underthe amendment-approving projects and issuing bonds-major con-trol still remains at the local level. That is an important factor re-quiring active public interest in school financing.LEO WO'rrZKYCASE COMMENTSADOPTION: REQUISITE STATUTORY CONSENTPugh v. Barwick, 56 So.2d 124 (Fla. 1952)Pursuant to a letter to petitioners offering her three-month-oldillegitimate son for adoption, Mrs. Pugh, then an unmarried girl ofnineteen years, delivered the child to them. A year and a half later,accompanied by her newly-married husband, she went to petitionersand requested the return of the child. Petitioners refused and, havingtaken no formal steps to legally adopt the child, filed this petitionfor his adoption. Joined by her husband, the mother filed an answerto the petition. As provided by statute1 the Welfare Board reviewedthe case and recommended that respondents be awarded the custodyof the child. In the course of the proceeding in the trial court therespondents moved that the petition be dismissed on the ground,inter alia, that the necessary consent of the natural parent, requiredby statute,2 had not been procured. Upon the trial court's granting ofthe petition, respondents appealed. HELD, the letter offering thechild and the subsequent delivery of the child were sufficient to con-stitute the consent required in our adoption statutes. Decree affirmed.Adoption, unknown at common law, exists today solely by virtueof statute.3 Florida passed its first general adoption statutes in 1885,4'FIA. STAT. §72.15 (1951).2FLA. STAT. §72.14 (1951).3 1n re Palmer's Adoption, 129 Fla. 630, 176 So. 537 (1937).4Fla Laws 1885, c. 3594. With extremely minor changes the same acts wereFLA. STAT. C. 72 (1941).2Florida Law Review, Vol. 5, Iss. 4 [1952], Art. 6https://scholarship.law.ufl.edu/flr/vol5/iss4/6CASE COMMENTSadoption prior to that time being possible only by special enactment. 5At that time a prohibition was also placed in the Florida Constitutionagainst enactment of a special adoption law.6 This provision is stillin effect. These first adoption laws merely provided that the judgesof the circuit courts were empowered to legalize the adoption of anychild by any person who applied therefor.7 Seemingly there were norestrictions, though it was held in Re Whetstone8 that in order to beconstitutional 9 adoption statutes must be construed so as to authorizean adoption only in cases in which: (1) the natural parents consent;(2) they have abandoned the child;1 (3) they have been permanentlydeprived of the custody of the child;11 or (4) it is for the child's bestinterest that it be taken from their custody by some judicial proceed-ing of which they have notice.After the passage of the early general acts and excepting the Whet-stone qualifications, little change took place in our adoption laws foralmost sixty years. It was not until 1943 that these loosely drawn actswere repealed and our present adoption laws passed.1 -2Under the present statutes the circuit court, on the chancery side,' 3acquires jurisdiction in an adoption proceeding in two ways: either(1) the petition for adoption is accompanied by the written consentof the parents executed in the presence of two witnesses and ac-knowledged before a notary public or other officer authorized by lawto take acknowledgments,' 4 or (2) the parents are given notice of theproceedings.15The adoption proceeding is a three-step process. First the courtacquires jurisdiction by giving the parents the opportunity to defend5Some examples of these may be seen in Fla. Laws 1883, cc. 3543-3555.Ofr.. CONsr. Art. I, §20.7FA. STAT. §72.01 (1941).8137 Fla. 712, 188 So. 576 (1939). The necessary conditions set out in theWhetstone case were upheld and cited as controlling in Fielding v. Highsmith,152 Fla. 837, 13 So.2d 208 (1943).oThe specific constitutional requirement is not indicated, but there is a stronginference that the due process clause is involved.lOCf. Streets v. Gammarino, 59 So.2d 520 (Fla. 1952).2"Fielding v. Highsmith, 152 Fla. 837, 840, 13 So.2d 208, 209 (1943), adds "bya competent court having jurisdiction of the parents and the child."12FLA. STAT. c. 72 (1951).'SFLA. STAT. §72.21 (1951).14FLA. STAT. §72.14 (1951).16FL. STAT. §72.13 (1951).3Michaels: Adoption: Requisite Statutory ConsentPublished by UF Law Scholarship Repository, 1952UNIVERSITY OF FLORIDA LAW REVIEWtheir rights.-6 These rights are then adjudicated; the conditions setout in the Whetstone case present the only Florida law on this point.Finally the court decides if the adoption is for the child's best interest.It is at this stage that the court tests the competency of the adoptingparents. All three steps must be met or a valid decree cannot berendered.Statutory requirements of consent in adoption proceedings gen-erally pertain to the consent to adoption, the consent constituting awaiver of the parental rights to the child. Such provisions are oftenstrictly construed because of the serious consequences of consent, andmany authorities favor close adherence to the formal requirements.'-There is a judicial tendency today, however, to relax statutory require-ments whenever the best interests of the child so demand.'8The Florida statute appears to have a two-fold application, present-ing, it would seem, something of an anomaly. Section 72.14 expresslystates that consent to adoption is sufficient to constitute a waiver ofnotice of adoption proceedings. It therefore affects the jurisdictionalaspect of adoption, a step one proceeding. Consent under the statute,however, has been held to constitute a waiver of the parental rights-9- in other words, to spell out statutorily the requisite consent in steptwo of an adoption proceeding, which was previously stated only inthe Whetstone decision.In the instant case the Court adopted a loose concept of consentby stating:20"It is true . . that formal consent of the natural mother wasnot had and obtained, as required by our applicable statutes.The ... letter, coupled with the actual delivery of the custodyof the child.., with her permission or consent to the adoption,may in this particular instance be sufficient to meet the require-ments of our adoption statutes."16FLA. STAT. §§72.13, 72.14 (1951).-In re Cozza, 163 Cal. 514, 126 Pac. 161 (1912); Foley v. Carnesi, 123 Colo.533, 232 P.2d 186 (1951); Adoption of Capparelli, 180 Ore. 41, 175 P.2d 153 (1946);Coonradt v. Sailors, 186 Tenn. 294, 204 S.W.2d 859 (1948); 4 VERNMER, AMaMCA.FAMILY LAWS 396 (1936).l8Hockaday v. Lynn, 200 Mo. 456, 98 S.W. 585 (1906); Nugent v. Powell, 4 Wyo.173, 33 Pac. 23 (1893).lDin re Adoption of Long, 56 So.2d 450 (Fla. 1952).2oAt p. 126.4Florida Law Review, Vol. 5, Iss. 4 [1952], Art. 6https://scholarship.law.ufl.edu/flr/vol5/iss4/6CASE COMMENTSWhether or not a liberal construction of adoption laws is generallydesirable when the statute affects the parental rights to a child, theliberal construction of the Florida statutes is believed to be unfortu-nate. Because our consent provision applied both to the substantiverights of parents and to their right to notice of an adoption proceed-ing, a loose interpretation of Section 72.14 may result in an informalwaiver of notice. Even if parents have informally waived their paren-tal rights, it seems desirable that they be given notice of the adoptionproceedings.21 Their rights to the child are being finally adjudicatedand a change of fortune may in some situations result in a changeof attitude toward adoption; in fact, it is not unheard of to withdrawconsent even after an interlocutory decree of adoption.22No one can say with certainty what the Florida law of consentis, for a few weeks after the decision of the instant case the Courtrecognized the necessity for construing the consent provision strictlyin the case of In re Adoption of Long,23 and it was careful to point outthat the consent instrument satisfied all the statutory requirements.What, then, is the Florida law of consent? What constitutes a validconsent sufficient to give the court jurisdiction in the absence ofnotice and also to constitute voluntary relinquishment of the naturalparents' rights? These questions apparently will remain unansweredunless the Legislature acts. Our adoption laws should be more com-prehensive; their very brevity creates confusion. Rather than forcingreliance on the general conditions set forth in Re Whetstone24 in de-termining whether a parent has relinquished his or her right to thechild, the Legislature should provide definite rules governing bothrelinquishment and notice. The judiciary in attempting to utilizewhat is available in the way of enactments will continue without anygreat fault on its part to fail to clarify the law involved. The adop-tion machinery we have is wholly inadequate. There is need for adear-cut statutory revision.BURTON M. MICHAEIS2lHumphrey, Appellant, 137 Mass. 84 (1884); In re Knott, 138 Tenn. 349, 197S.W. 1097 (1917); cf. Foley v. Carnesi, 123 Colo. 533, 232 P.2d 186 (1951).22Adoption of Capparelli, 180 Ore. 41, 175 P.2d 153 (1946).2356 So.2d 450 (Fla. 1952).24137 Fla. 712, 188 So. 576 (1939).5Michaels: Adoption: Requisite Statutory ConsentPublished by UF Law Scholarship Repository, 1952

Adoption: Requisite Statutory Consent

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Adoption: Requisite Statutory Consent

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