The following is a real-time transcript taken as closed captioning during the oral argument proceedings, and as such, may contain errors. This service is provided solely for the purpose of assisting those with disabilities and should be used for no other purpose. These are not legal documents, and may not be used as legal authority. This transcript is not an official document of the Florida Supreme Court.
Heart of Adoptions, Inc. v. J.A.
SC07-738
>> ALL RISE.
HEAR YE HEAR EYE HEAR EYE, THE
SUPREME COURT OF FLORIDA IS NOW
IN SESSION.
ALL THOSE HAVING BUSINESS
BEFORE THIS COURT, DRAW NEAR
AND GIVE ATTENTION AND YOU
SHALL BE HEARD.
GOD SAVE THE UNITED STATES,
GREAT STATE OF FLORIDA, AND
THIS HONORABLE COURT.
>> GOOD MORNING.
>> GOOD MORNING.
>> GOOD MORNING.
>> LADIES AND GENTLEMEN,
FLORIDA SUPREME COURT.
PLEASE BE SEATED.
>> GOOD MORNING, FRIENDS AND
WELCOME TO THE ORAL ARGUMENT
CALENDAR FOR THE FLORIDA
SUPREME COURT FOR MONDAY, JUNE
4, 2007.
BEFORE WE ACTUALLY BEGIN, OUR
ORAL ARGUMENT SCHEDULE, IT IS
WITH A HEAVY HEART BUT ALSO
WITH GREAT ADMIRATION THAT WE
ACKNOWLEDGE THAT THIS IS THE
FINAL WEEK OF ORAL ARGUMENT
THAT MESS DEBBIE CASSEUA WILL
BE WITH US AS DEPUTY CLERK.
SHE HAS SERVED THE COURT SO
VERY WELL FOR SUCH A LONG
PERIOD OF TIME AND ALTHOUGH WE
ARE SADDENED, WE ARE HAPPY FOR
HER, THAT SHE IS ENTITLED TO
HER RETIREMENT.
AND I WOULD ASK YOU TO ENTER
THE WELL, PLEASE, AT THIS TIME.
>> I DO UNDERSTAND THAT I HAD
VERY SPECIFIC INSTRUCTIONS THAT
I WAS NOT ALLOWED TO ORGANIZE
ANYTHING LARGER THAN THIS
MORNING.
BUT IT COULD NOT GO WITHOUT
THIS COURT EXPRESSING ITS GREAT,
GREAT APRAERBATION TO YOU FOR
EVERYTHING THAT YOU HAVE DONE
FOR THIS COURT AND FOR THIS
INSTITUTION.
BECAUSE IT IS PEOPLE LIKE YOU
THAT KEEP THIS INSTITUTION
STRONG AND KEEP US IN LINE AND
DOING WHAT WE OUGHT TO BE DOING,
WHERE HAST AS SHE BEGAN HER
HERE AT THE COURT AS A DOCKET
CLERK ON JUNE 1, 1973, AT THAT
TIME WE HAD NO CHILD LABOR LAWS,
SHE STARTED WHEN SHE WAS FIVE
OR SIX I THINK, AT A TIME WHEN
THERE WERE NO COMPUTERS AND THE
CLERK'S OFFICE WAS STAFFED BY
JUST EIGHT PEOPLE, WHERE AS BY
CONTRAST TODAY IT TAKES NEARLY
2 DOZEN PEOPLE AND MANY
COMPUTERS TO RUN THIS CLERK'S
OFFICE, PROCESSING EACH AND
EVERY DOCUMENT, THAT ARRIVES IN
THE INSTITUTION, WHEREAS SHE
STARTED WORKING AT THE COURT 34
YEARS AGO, HER GENERAL DUTIES
INCLUDED DOCKETING MAIL,
ANSWERING THE PHONE AND
ASSISTING THE COURT AS NEEDED
AND THOUGH SHE HAS RISEN IN
RANK, SHE HAS NEVER CEASED
FULFILLING ALL OF HER DUTIES
AND THOSE DUTIES WHENEVER WE
NEED SOMETHING YOU ARE ALWAYS
THERE FOR ALL OF US.
ON JANUARY 12th, 198 5:SHE
BECAME CHIEF DEPUTY CLERK AND
LATER SERVED AS ACTING CLERK
FROM APRIL 1999 THROUGH APRIL
2000.
IN HER 34 YEARS AS THE -- AT
THE FLORIDA SUPREME COURT SHE
HAS WORKED FOR TWO CLERKS AND
27 JUSTICES.
SHE WAS NO MERE WITNESS TO THE
TECHNOLOGY TRANSITION THAT TOOK
PLACE IN THE CLERK'S OFFICE,
AND WORKED CLOSELY WITH RETIRED
CLERKS AND THE JUSTICE TO
COMPILE THE INFORMATION NEEDED
TO ADVANCE FROM THE AGE OF
PAPER FILES TO AN ERA OF
COMPUTERS.
SHE WAS ALSO AT THE EPICENTER
OF PERHAPS THE MOST FAMOUS
COURT CASE IN MODERN TIMES, THE
PRESIDENTIAL ELECTION CASES
THAT MOVED THROUGH THIS COURT
IN FIVE WHIRLWIND WEEKS IN THE
FALL OF 2000 AND WE ALL KNOW
YOU SPENT VIRTUALLY 24 HOURS A
DAY HERE, TO SATISFY THE NEEDS
OF THIS DEMOCRACY.
WHEREAS NO ONE CASE OR PERIOD
CAN OVERSHADOW THE LONG PERIOD
OF DEDICATED AND LOYAL SERVICE
THAT SHE HAS RENDERED THIS
COURT AND THIS STATED AND HER
YEARS OF EXEMPLARY EMPLOYMENT
HAVE HELPED THE COURT IN ITS
MISSION TO SEE THAT WRONGS ARE
RIGHTED AND THAT JUSTICE IS
AVAILABLE TO ALL OF THE PEOPLE
OF THIS GREAT STATE, WITHOUT AN
KIND OICHL PED DIDN'T.
THEREFORE, FOR YOUR LONG AND
FAITHFUL SERVICE, SHE IS
RECOGNIZED FOR MORE THAN THREE
DECADES OF CONTINUOUS
ASSISTANCE TO THE JUSTICES OF
THIS COURT, AND THE PEEL OF
FLORIDA, AND A-- PEOPLE OF
FLORIDA AND ACCORDINGLY THIS
ENTIRE COURT EXPRESSES ITS
ADMIRATION, RESPECT AND
GRATITUDE FOR THE MANY YEARS OF
WORK THAT YOU HAVE WELL DONE.
DONE THIS 4th DAY OF JUNE,
2007.
[APPLAUSE],,,,
>> THANK YOU ALL FOR SHARING
WITH US THIS VERY SPECIAL
MORNING.
THE CASE ON OUR DOCKET FOR THIS
MORNING IS HEART OF ADOPTIONS
VERSUS JA, THE STATE, READY TO
PROCEED?
>> YES, YOUR HONOR, MAY IT
PLEASE THE COURT, I'M JEANNE
STATED AND REPRESENT HEART OF
ADOPTION AND HERE WITH ME IS AN
AMICUS FOR THE FLORIDA ADOPTION
COUNSEL I'M PROUD TO ADVOCATE
ON BEHALF OF THE PUTATIVE
FATHER REGISTRY, A LAW THE
LEGISLATURE ENACTED IN 2003 TO
PROVIDE STABILITY TO ADOPTIONS
IN OUR STATE.
>> AND WE -- AS WE START, SORT
OF GET A HANDLE ON EXACTLY
WHERE WE ARE GOING, THIS IS A
VERY BROAD QUESTION THAT HAS
BEEN POSED AND IT SPEAKS
GENERALLY OF THE REGISTRY, AND
APPEARS IN SOME OF THE CASE LAW,
THAT THE VALIDITY OF THE RENING
INDUSTRY AND HOW IT OPERATES
MAY VERY WELL RELATE TO THE
STATUS OF A BIOLOGICAL FATHER.
AND WHAT STATUS THAT FATHER MAY
BE IN AS WE LOOK TO THE U.S.
SUPREME COURT CASES AS WE LOOK
TO OTHER STATES.
AND SO, COULD YOU ADDRESS IT IN
THAT CONTEXT AS TO WHAT
RELATIONSHIP DOES THAT
INDIVIDUAL HAVE?
BECAUSE -- AND MAY BE MORE THAN
ONE QUESTION WRAPPED INTO ONE,
BUT AS WE SEE THE SECOND
DISTRICT HAS INTERPRETED THE
STATUTE THESE PEOPLE MAY NOT
EVEN BE INVOLVED AND THEN LOOK
AT THE OTHER CASES AND SOME ARE
FATHERS ATTEMPTING TO BECOME
INVOLVED TWO YEARS LATER, SOME
-- THIS ONE I UNDERSTAND WAS ON
THE DAY OF THE BIRTH.
DOES THAT MAKE A DIFFERENCE AS
WE LOOK AT THIS AREA AND COULD
YOU ADDRESS THAT, PLEASE.
>> YES, YOUR HONOR AND IT
ABSOLUTELY MAKES A DIFFERENCE
BECAUSE AS THE UNITED STATES
SUPREME COURT TEACHES US IN
LAYER --
LAIR AN UNMARRIED BIOLOGICAL
FATHER HAS AND IN CO HATE
OPPORTUNITY AND HAS NO INTEREST
IN THE CHILD UNLESS HE
EXERCISES AND CONVERTS THAT
INTEREST PARENTAL RIGHT AND ITS
UP TO THE STATES TO DEFINE THE
STATUTORY FRAMEWORK TO DEFINE
THAT INTEREST IN TO A PERFECTED
RIGHT.
>> CAN I ASK THE QUESTION, IS
AN INDIVIDUAL, WHO FILES THE
PATERNITY ACTION TO BECOME
INVOLVED ON THE DAY OF THE
CHILD'S BIRTH AND THE IDENTICAL
STATUS AS SOMEONE WHO MAY TRY
TO FILE IT FIVE YEARS AFTER THE
BIRTH?
>> I WOULD NOT SUBMIT THEIR
UNDER THE IDENTICAL STATUS, ITS
BROKEN DOWN INTO BIRTH FATHERS
PARENTS OF CHILDREN PLACED FOR
ADOPTION LESS THAN 6 MONTHS OLD
AT THE TIME OF BIRTH, 63062A
AND THOSE PLACED FOR ADOPTION
AT OR BEFORE THE SIX MONTHS
EXPIRATION TIME AND DEFINES
WHAT AC ARE REQUIRED TO
ESTABLISH THE RIGHT AND THE
FILING OF A P TERNT ACTION,
NOWHERE APPEARS IN CHAPTER 63
AS A MECHANISM TO PERFECT THAT
IN CHOT INTEREST.
>> BUT WE CAN'T -- BUT WE CAN'T
IGNORE THAT THAT ESTABLISHED
THE PATERNITY, IS THAT THE WAY
IT IS DESIGNED?
IT TALKS IN TERMS OF IT BEING
THE PRIMARY WAY TO ESTABLISH
FATHER HOOD.
>> YOU CAN LOOK AT THAT IN THE
PROPER CONTEXT BUT AS YOU NOTED
IT IS A PRIMARY METHOD TO
ESTABLISH PATERNITY.
THIS IS ONE OF THE WAYS THE
SECOND DISTRICT FAILED IN ITS
ANALYSIS, NOTHING IN 742 DATES
INDICATES IT IS THE EXCLUSIVE
METHOD TO ESTABLISH PA TERN AND
IF YOU LOOK AT 742.10 IN ITSELF
IT RECOGNIZES OTHER WAYS TO
ESTABLISH PATERNITY.
THE FIRST DISTRICT IN THE BB
CASE HAD YOU A LITANY OF WAYS
TO ESTABLISH PA TERN AND IN
CHAPTER 63, IT REQUIRES AN
UNMARRIED BIOLOGICAL FATHER
THAT IS THE SUBJECT OF AN
ADOPTION MUST ESTABLISH HIS
RIGHTS IN ACCORDANCE WITH THE
CHAPTER, I.E. 63, NOT 742.
SO IS ONE OF THE MEASURES AND
IF HE ESTABLISHES PATERNITY BY
HAVING AN ADJUDICATION OF THAT
PRIOR TO THE TIME, THE PETITION
FOR TERMINATION --
>> LET'S GO BACK AND BE CERTAIN
WE ARE STARTING FROM THE RIGHT
STARTING POINT AND I WANTED TO
BE ABSOLUTELY CLEAR WHAT YOUR
POSITION IS WITH REFERENCE TO
THE INTERPRETATION OF THE
STATUTORY TERM, IF I UNDERSTAND
YOUR INTERPRETATION, ITS ANY
MALE THAT HAS A SEXUAL
RELATIONSHIP -- HAS INTERCOURSE,
OKAY WITH A FEMALE, AND DOESN'T
GO AFTER HAVING THAT
INTERCOURSE, AND REGISTER WITH
THE STATE WAIVES ANY RIGHTS
THAT MAY SUBSEQUENTLY OCCUR IF
THAT FEMALE THAT HE HAD SEXUAL
INTERCOURSE WITH BECOMES
PREGNANT WITH HIS CHILD.
IS THAT CORRECT.
>> JUDGE, THERE ARE ACTUALLY
FIVE THINGS THAT A BIRTH FATHER
CAN DO TO HAVE HIS CONSENT
REQUIRED TO --
>> LET ME JUST -- IN OTHER
WORDS, WHAT I HAVE STAYED, IS
THAT CORRECT OR NOT CORRECT?
>> THAT IS CORRECT.
IF HE DOESN'T DO --
>> IF THAT IS CORRECT --
>> IF HE DOESN'T DO ANY OF THE
OTHER FOUR.
>> IF AFTER HAVING SEXUAL
INTERCOURSE, OKAY WITH A FEMALE,
THAT IF THAT PERSON, THAT MALE
DOES NOT REGISTER, OKAY, THAT
IN ESSENCE THAT MALE HAS WAIVED
ANY RIGHTS TO CLAIM PATERNITY,
THE SUBS -- OF THE SUBSEQUENT
CHILD SHOULD THE FEMALE HAVE A
CHILD AND ELECT TO PUT IT UP
FOR ADOPTION.
>> THE ANSWER IS YES, IF HE HAS
NOT DONE ANY OF THE OTHER FOUR
THINGS THAT WOULD ENTITLED
TITLE HIM TO CONSENT TO THE
ADOPTION AS SET FORTH IN 062.
>> AND HOW DOES THE SECOND
DISTRICT INTERPRET IT.
>> THEY INTERPRET IT WRONGLY BY
FOE -- FOCUSING ON 089 AND
LOOKING AT GROUNDS TO TERMINATE
PARENTAL RIGHTS INSTEAD OF
LOCKING AT 062 WHICH STATES
THAT YOU CAN TERMINATE THE
RIGHTS OF AN UNMARRIED
BIOLOGICAL FATHER AS LONG AS
YOU HAVE GIVEN NOTICE TO OR
OBTAINED CON ISN'T FROM THE
FIVE LISTED CATEGORIES OF BIRTH
FATHERS.
AND 062, AGAIN NOT THE FOCUS OF
THE SECOND DISTRICT'S ANALYSIS
DOES NOT SAY YOU MUST BE A
PARENT TO TERMINATE PARENTAL
RIGHTS.
062 DOES NOT SAY THAT YOU
CANNOT TERM THAT A BIRTH FATHER
WHO HAS NOT DONE WHAT THE
LEGISLATURE MANDATED HE DO HAVE
HIS RIGHTS DETERMINED AS A
MATTER OF LAW.
THIS IS ABOUT INCHOATE RIGHTS.
AND --
>> BUT THE SCHEME IF I
UNDERSTAND CORRECTLY, REALLY
WOULD SAY TO ALL MALES OUT HERE
THAT ENGAGE IN SEXUAL
INTERCOURSE WITH A FEMALE, THAT
YOU BETTER GO AND REGISTER WITH
THE STATE RIGHT NOW, OKAY?
OR YOU RISK LOSING ANY PARENTAL
RIGHTS THAT YOU MAY
SUBSEQUENTLY POTENTIALLY HAVE
GAINED IF THAT FEMALE SHOULD
HAVE A CHILD.
IS THAT -- IN OTHER WORDS, THE
SAFE THING TO DO --
>> ABSOLUTELY.
>> FOR A MALE OF WHATEVER AGE,
OUT HERE, IS TO GO AFTER HAVING
IN COURSE, INSTEAD OF SMOKING
THE CLASSIC CIGARETTE, IS GET
OUT OF WHATEVER CIRCUMSTANCES
THEY ARE IN, AND GO DOWN AND
FILL OUT A FORM WITH THE STATE
AND SAY, I WANT THE STATE TO
KNOW THAT I HAVE JUST HAD
SEXUAL INTERCOURSE WITH A
FEMALE, AND SHOULD SHE BECOME
PREGNANT WITH MY CHILD, I DON'T
WANT TO LOSE MY PARENTAL RIGHTS
AND WANT NOTICE -- THAT IS THE
EFFECT OF THIS, IS THAT
CORRECT.
>> YES, JUDGE, HE HAS NINE
MONTHS OF THE PREGNANCY TO
REGISTER AND THE EFFECT OF THE
REGISTRY IS TO PUT THE KEYS IN
HIS POCKET.
HE HAS 100% CONTROL.
>> OTHER THAN THE LAW ON THE
BOOKS, OKAY, AND WE HAVE THIS
PHRASE BANDIED ABOUT, ABOUT
IGNORANCE OF THE LAW, NOT BEING
AN EXCUSE, WHICH IS TO A GREAT
DEGREE, IS A MYTH, BECAUSE IT
DEPENDS ON THE INDIVIDUAL
CONTEXT, BUT TELL ME -- BUT
TELL ME WHAT NOTICE IS PROVIDED
TO ALL OF THESE MALES THAT THEY
ARE REQUIRED TO GO AND SIGN UP,
YOU KNOW, WITH A REGISTRY.
>> OKAY.
THE STATUTES IN ADDITION TO THE
GENERAL RULE, JUDGE, THAT IM
PUTS KNOWLEDGE THAT THE LAW IS
TO A PERSON, THIS STATUTE IM
PUTS KNOWLEDGE TO A BIRTH
FATHER THAT I THINK ALL
RESONATE WITH, IF YOU HAVE SEX
--
>> SO -- THE EXISTENCE OF THE
STATUTORY SCHEME.
>> NO, SIR, 65054 THERE IS A
PANOPLY OF THINGS DONE BY THE
DEPARTMENT OF HEALTH TO PROVIDE
NOTICE TO BIRTH FATHERS
INCLUDING PUTTING PAMPHLETS AT
THE DEPARTMENT OF HEALTH, CLERK
OF THE COURT, DEPARTMENT OF
MOTOR VEHICLES AND TEACH
SCHOOLS IN THE HEALTH SCHOOL
CURRICULUM CLASSES, REQUIRED TO
BE GIVEN TO EVERY PERSON THAT
REGISTERS, ON THE WEB SITES OF
ALL OF THE AGENCIES, CLERK OF
THE COURT AND DEPARTMENT OF
HEALTH AND CHILD OF FAMILIES
AND MADE AN EFFORT TO PUBLICIZE
THIS LAW AND LET ME ASK YOU
ABOUT NOTICE.
>> LET ME ASK YOU ABOUT NOTICE,
62.0632A, SAYS ADOPTION MAY
SERVE UPON A -- UNMARRIED
BIOLOGICAL FATHER NOTICE OF THE
IMPENDING ADOPTION PLAN AND
ONCE, IF THEY MAY DO THAT, ONCE
THEY DO THAT, THE PLAN SHALL
NOTIFY THE UNMARRIED BIOLOGICAL
FATHER THAT HE MUST FILE A
CLAIM OF PATERNITY FORM WITH
THE OFFICE OF VITAL STATISTICS.
NOW, WHAT IS THE PURPOSE OF
THAT SECTION OF 63.062?
>> IT ALLOWS THE ADOPTION
ENTITY TO SERVE ON THE BIRTH
FATHER A NOTICE OF INTENDED
ADOPTION PLAN, IT IS AN
OPTIONAL THING --
>> WHY -- MY CONCERN IS, IF I
UNDERSTAND THE FACTS IN THIS
INDICATION, UNLIKE ANDS., THE
KLEIN YOU REPRESENT, DID SERVE
OR SENT A COPY OF THE NOTICE --
CLIENT YOU REPRESENTATIVE, DID
SERVE A PETITION FOR THE
TERMINATION OF PARENTAL RIGHTS
BUT DIDN'T SERVE WITH A NOTICE
OF THE ADOPTION PLANNED AND
THEREFORE DID NOT HAVE TO
COMPLY WITH THE REQUIREMENT
THAT THEY NOTIFY HIM THAT HE
MUST FILE A CLAIM OF PA
INTERPRET WITH THE OFFICE OF
VITAL -- PATERNITY WITH THE
OFFICE OF VITAL STATISTICS AND
ESSENTIALLY THIS STATUTE ALLOWS
AN ADOPTION ENTITY TO DO AN END
RUN BY SERVING A FATHER WHEN IT
IS TOO LATE.
AND I'M TRYING UNDERSTAND, WHAT
THE LEGISLATURE WOULD HAVE
INTENDED WITH THAT ASPECT OF
THE NOTICE IF IT WASN'T TO MAKE
SURE THAT WHEN -- WHEN THE
ADOPTION AGENCY KNOWS THE
EXISTENCE OF THE FATHER, THERE
HAS TO BE A REQUIREMENT THEY
NOTIFY THE FATHER OF HIS RIGHT
TO FILE A CLAIM OF PATERNITY.
>> JUDGE, I THINK THAT YOU ARE
MISTAKEN THAT THE ADOPTION
AGENCY IN THIS CASE SERVED A
NOTICE OR FILED A NOTICE OF
INTENDED ADOPTION PLAN.
THAT STATUTE AND THE OPTIONAL
USE OF A NOTICE OF INTENDED
ADOPTION PLAN WAS NOT DONE IN
THIS CASE.
>> I THOUGHT THERE WERE TWO
LETTERS --
>> THEY WROTE A LETTER INFORM
HIM THAT THE BIRTH MOTHER WAS
PLANNING AN ADOPTION BUT IT
WASN'T A NOTICE OF INTENDED
ADOPTION --
>> WHAT I'M SAYING, THOUGH, IT
SEEMS TO ME WHAT HAPPENED HERE
IS THEY TOLD HIM OF THE
ADOPTION PLAN BUT, BECAUSE THEY
DIDN'T SERVE HIM THEY DIDN'T
HAVE TO THEN COMPLY WITH THAT
PART OF THE STATUTE.
>> JUDGE --
>> LIKE A -- WELL, WHAT
ADOPTION AGENCY IS GOING TO
FILE OR SERVE IT IF IT REQUIRES
THEM TO ALSO TELL THEM ABOUT
THE NOTICE AND YOU ARE SAYING,
NO, THEY DIDN'T HAVE TO DO IT
BECAUSE THEY DIDN'T SERVE HIM
AND WHAT I'M SAYING IS THAT IT
SEEMS THAT IT MAKES A MOCKERY
OF THAT PROVISION OF THE
STATUTE.
>> JUDGE, 63.085 CONTAINS AN
ADOPTION DISCLOSURE THAT
OBLIGATES THE ADOPTION ENTITY
TO PROVIDE TO BIRTH FATHERS.
THE ADOPTION AGENCY SENT A
LETTER TO THE BIRTH FATHER,
WITH THAT ADOPTION DISCLOSURE
AND THE LETTER WAS NOT A NOTICE
OF INTENDED ADOPTION PLAN.
IT SIMPLY ADVISED THE BIRTH
FATHER THE BIRTH MOTHER WAS
WORKING WITH THE ADOPTION
AGENCY AND --
>> IF WE ARE TRYING TO MAKE
SURE THAT FATHERS THAT ARE
INTERESTED IN ASSERTING THEIR
RIGHTS -- BECAUSE THAT IS
PERHAPS A RARE BIOLOGICAL
FATHER WHO IS HAVING AN
OCCASIONAL SEXUAL RELATIONSHIP
BUT THOSE THAT WANT TO MAKE
SURE THAT THEY KNOW OF THEIR
RIGHTS TO FILE WITH THE
REGISTRY, WHY ISN'T A BETTER
INTERPRETATION OF THE STATUTE
THAT THE ADOPTION ENTITY DOES
HAVE TO ALSO NOTIFY THE
UNMARRIED BIOLOGICAL FATHER
THAT HE HAS TO FILE A CLAIM.
>> THAT IS CLEARLY NOT WHAT THE
STATUTE SAYS.
AND I BELIEVE THE LEGISLATURE
WAS WITHIN THE PREROGATIVE OF
FOLLOWING LAIR THAT SAYS A LIT
GAPT IS CAPABLE OF PER -- LIT
BEGAN IS CAPABLE OF PERFECTING
HIS OWN RIGHT AND NEITHER THE
TRIAL COURT OR PARTIES ARE
REQUIRED TO GIVE HIM --
>> IT IS A GOTCHA.
>> IT'S NOT.
>> PLEASE, MANAGEMENT.
>> SORRY.
>> WHAT WAS THE PURPOSE OF
FILING A -- SERVING HIM WITH
THE PETITION FOR THE
TERMINATION OF PARENTAL RIGHTS,
BY THAT POINT HE HAD NOTHING
THAT HE COULD DO?
>> JUDGE, BY THAT POINT HE
COULD HAVE REGISTERED AND WE
DON'T KNOW IF HE IS REGISTERED
UNTIL WE CHECK THE DEPARTMENT
OF HEALTH SUBS DEFEND TO THE --
SUBS QNT TO THE FILING OF THE
PETITION FOR TERMINATION OF
PARENTAL RIGHTS AND THE AGENCY
CHECKED THE REGISTRY BEFORE
BIRTH AND AFTER BIRTH.
BUT IT TAKES SOME TIME TO GET
THAT BACK FROM THE DEPARTMENT
OF HEALTH.
IT WAS CHECKED AND ALL THE WAY
UP TO THE FINAL HEARING IN THIS
CASE, NO REGISTRATION HAD BEEN
PERFECTED.
>> MS. TATE I HAVE A PROBLEM
HERE, BECAUSE YOUR POSITION
SEEMS TO BE PRETTYICS STREAM.
I MEAN, THERE IS NO ROOM FOR
THE DIFFERENT SCENARIOS THAT
MAY TAKE PLACE, SUCH AS, IN AS
-- ANDS., WHERE THE DEFENDANT,
PUTATIVE FATHER, HAD NO IDEA
THE WOMAN WAS PREGNANT UNTIL HE
WAS SERVED WITH THE PAPERS AND
THEN TOOK STEPS TO TRY TO
PROTECT HIS PARENTAL RIGHTS.
NOW HE HAD -- HE COULD NOT HAVE
REGISTERED BEFORE THAT, NOT
KNOWING THE LADY WAS PREGNANT
AND THAT'S THE VIEW I WOULD
TAKE SO WHY ISN'T THERE ROOM IN
THE STATUTE TO ACCUMULATE
SOMEONE LIKE "AS" WHO HAD NO
IDEA THE LADY WAS PREGNANT
UNTIL HE SERVED WITH THE PAPER,
THAT THE COURT ENDS UP GETTING
THE INFORMATION OUT OF THE
MOTHER, OF WHO THE FATHER IS,
SO HOW DO WE DEAL WITH THAT
KIND OF SITUATION?
SURELY THIS STATUTE DID NOT
INTEND TO TERMINATE SOMEONE'S
RIGHTS WHEN THEY, AT NO POINT,
HAD A CHANCE TO PROTECT THEIR
RIGHTS.
>> JUDGE AS YOU KNOW, THAT IS
NOT THE SITUATION HERE.
--
>> WELL, I'M -- BUT THE WAY YOU
ARGUE THIS, IT COVERS EVERYONE.
BUT WE START WITH SOMEONE LIKE
"AS" WHO HAD NO IDEA ABOUT HIS
RYE AND YOU CAN CONTINUE ONTO
SOMEONE LIKE LEAR, WHO TWO
YEARS LATER AND HE KNEW HE HAD
HIS RIGHTS.
>> CERTAINLY.
>> THAT THIS WAS HIS CHILD.
I MEAN, THERE HAS GOT TO BE
SOME KIND OF ROOM IN THERE TO
ACCOMMODATE ALL OF THESE PEOPLE
WITHOUT THROWING -- LUMPING
THEM IN, AND SAYING IF YOU DID
NOT REGISTER, THAT IS THE END
OF IT.
THAT CAN'T BE WHAT THE
LEGISLATURE REALLY INTENDED
HERE, IS IT?
>> JUDGE, THE LEGISLATURE
INTENDED TO BALANCE THE
INTERESTS OF THE BIRTH FATHER,
THE CHILD, THE BIRTH MOTHER,
AND THE ADOPTIVE PARENTS AND
THIS IS A STATUTORY FRAMEWORK
IT CREATED, ALONG WITH A
NATIONAL MOVEMENT TO ESTABLISH
PUTATIVE FATHER REGISTRIES IN
2/3 OF THE STATES ACROSS THIS
COUNTRY.
WE ARE TRYING OVER-- AVOID
PROTRACTED LITIGATION IN
ADOPTION CASES --
>> WHY --
>> I HAVE NO IDEA OF -- THE MAN
HAS NO IDEA THE WOMAN WAS
PREGNANT.
AND HAD A CHILD, HOW CAN THIS
STATUTE REALLY BE PROTECTING
HIM?
>> THE STATUTE IMPUTES
KNOWLEDGE TO HIM, JUDGE AND AS
I SAID THAT IS NOT OUR FACT
PATTERN, THIS GENTLEMAN KNEW OF
THE PREGNANCY FOR THREE MONTHS,
PRIOR TO DELIVERY AND KNEW THAT
SHE WAS PLANNING AN ADOPTION
AND DIDN'T DO ANYTHING, THERE
IS NO EVIDENCE --
>> THE PATERNITY ACTION BEFORE
THE TERMINATION, CORRECT.
>> NOBODY KNEW THAT, JUDGE.
THIS ISN'T A RACE TO THE
COURTHOUSE, THIS IS ABOUT
FAIRNESS, THIS BIRTH MOTHER
SIGNED A PERMANENT AND
IRREVOCABLE CONSENT FOR
ADOPTION.
>> LET ME TALK ABOUT FAIRNESS
YOU, AGREE THE BIRTH MOTHER AND
THE BIOLOGICAL FATHER HAD SOME
RIGHTS OR INTERESTS IN THE
CHILD, CORRECT.
>> NO, I DO NOT, YOUR HONOR,
THE BIRTH FATHER HAD AND IN
CHOT OPPORTUNITY.
HIS RIGHTS DO NOT BUMPER
EFFECTED UNTIL HE FOLLOWS THE
THIS STATUTORY FRAMEWORK.
>> AS LONG AS THE BIOLOGICAL --
BIRTH MOTHER KEEPS IT A SECRET
AND HER PLANS AS SECRET AS SHE
CAN AND WAITED UNTIL THE LAST
MINUTE, GIVE BIRTH, AND THE
PETITION TO TERMINATE, FILED
THE NEXT DAY, AND IF THE GUY
HAS NOT FILED ANY PAPERS, HE
HAS NO RIGHT.
>> THAT WHAT IS THE STATUTE
SAYS, JUDGE BUT THESE AREN'T
THESE FACTS.
>> BUT YOU TALK ABOUT FAIRNESS
AND THAT IS MY CONCERN, TALKING
ABOUT FAIRNESS, BECAUSE IT USED
TO BE NEW KNEW WHO THE
BIOLOGICAL FATHER WAS YOU WOULD
DO THE SAME THING IN THE CASE,
GETS THIS WRITTEN CONSENT TO
THE ADOPTION FROM THE
BIOLOGICAL MOTHER, THE BIRTH
MOTHER AND BIOLOGICAL FATHER,
WHAT USED TO BE DONE.
BUT YOU SAY BECAUSE OF THE
STATUTE AND THE TRAP LAID YOU
DIDN'T EVEN CONSIDER IT
NECESSARY TO GET THE SAME
CONSENT YOU GOT FROM THE
BIOLOGICAL, BIRTH MOTHER FROM
BIOLOGICAL FATHER AND WHY IS
THAT?
>> JUDGE THAT IS NOT HOW THE
PREDECESSOR STATUTE OPERATED.
THE PREDECESSOR STATUTE HAD A
SIMILAR LIST OF BIRTH FATHERS
--
>> I'M GOING BACK 20 YEARS WHEN
I USED TO PRACTICE THIS LAW AND
DO ADOGSES AND MY UNDERSTANDING
WAS WHEN YOU HATED BIRTH MOTHER
COME IN, IF THEY KNEW WHO THE
BIRTH FATHER WAS YOU ATTEMPTED
TO GET THE CONCEPT FROM BOTH OF
THEM.
>> CERTAINLY YOU ALWAYS ATTEMPT
TO DO THAT AND THE ANALYSIS
BECOMES, IF YOU PROVIDE NOTICE
TO THE BIRTH FATHER, TELL HIM
ABOUT THE ADOPTION AND
PREGNANCY AND HE VOICES NO
OBJECTION, THERE IS NO EVIDENCE
IN THE REPORT CONTRARY TO THE
BRIEF THAT HE EVER VOICED AN
OBJECTION TO THE ADOPTION AND
WHAT HE FILED THE PATERNITY
ACTION HE DIDN'T NOTIFY THE
AGENCY OR THE BIRTH MOTHER, SO
AT THE TIME OF PLACEMENT NOBODY
KNEW THIS BIRTH FATHER WAS
OBJECTING TO THE ADOPTION AND
THE BIRTH MOTHER SIGNED A
PERMANENT AND IRREVOCABLE
CONTENT FOR ASOPTION --
ADOPTION RELYING ON FLORIDA LAW
SAYING IT WAS TOO LATE TO COME
IN AND DISRUPT THE PERMANENCY
AND STABILITY OF THIS CHILD'S
LIFE.
HER RIGHTS ARE GONE AND SHE HAD
A RIGHT TO RELY ON THE FLORIDA
LAW, PARTICULARLY WITH THE
BIRTH FATHER WHO DIDN'T SUPPORT
HER DURING THE PREGNANCY AND
DIDN'T MAKE AN OBJECTION TO THE
ADOPTION AND DIDN'T DO ANYTHING
DO PERFECT THAT INCHOATE
INTEREST.
>> THAT IS YOUR VIEW.
>> SOME MAY ARGUE THE FILING OF
THE PATERNITY ACTION WAS A STEP
IN THAT DIRECTION, THOUGH YOU
MAY ARGUE IT IS WRONG, SOME MAY
ARGUE IT IS A STEP IN THAT
DIRECTION.
BUT WITH OUR ASSISTANCE, YOU
WANT TO SAVE SOME TIME FOR
REBUTTAL AND ALMOST USED IT ALL
WITH OUR HELP.
WE'LL GIVE YOU A COUPLE OF
MINUTE.
>> THANK YOU, SIR.
>> MAY IT PLEASE THE COURT, I'M
RHONDA PORTWOOD AND REPRESENT
JA AND JOINING ME AT THE TABLE,
HER NAME IS SUSAN STOCKHOLM AND
REPRESENTS UNITED BIRTH PARENTS
AND FILED AN AMICUS BRIEF.
>> LET ME START WITH YOU ON THE
OTHER SIDE OF THIS.
CERTAINLY, WE WERE TALKING
ABOUT THE RIGHTS OF A
BIOLOGICAL FATHER BUT CERTAINLY,
THERE IS AN INTEREST THE STATE
HAS, AN EXTREME INTEREST IN
MAKING SURE THESE CHILDREN THAT
ARE CHILDREN, ARE PLACED -- AND
HAVE PERMANENCY AND CERTAINLY
THIS CAN'T GO ON FOREVER, THIS
INCHOATE RIGHT OR WHATEVER IS
OUT THERE.
SO THERE MUST BE SOME MECHANISM
THAT PERMITS THE STATE, THIS
CHILD, THE BIRTH MOTHER, TO BE
ABLE TO BRING FINALITY TO THESE
CIRCUMSTANCES, AND WHY IS IT
NOT THE PLAN -- DOESN'T IT DO
THAT?
>> WELL, FOR ONE THING, IT
VIOLATES DUE PROCESS.
UNDER LEAR, LEAR ACTUALLY SAYS
AND HELD A PUNITIVE FATHER'S
INCHOATE INTEREST FOR A
PUNITIVE FATHER -- HIS INCHOATE
INTEREST TO ACQUIRE
CONSTITUTIONAL PROTECTION, HE
HAD TO DEMONSTRATE TIMELY AND
FULL COMMITMENT.
NOW, THE QUESTION IS HOW DO WE
DO THAT PRIOR TO THE BIRTH AND
WHEN THE MOTHER IS CONCEALED
FOR SIX MONTHS, THE ACTUAL
PREGNANCY.
>> WELL, SOME STATES SAYS THEY
HAVE BEEN WITH THEM AND I'VE
LOOKED AT CASES ALL WEEKEND --
READING ALL THESE AND RUNS THE
GAMUT, ALL OF THEM ARE
DIFFERENT, BUT THERE ARE SOME
WHERE THEY ARE BY THEIR SIDE
DURING THE PREGNANCY AND THERE
-- AND THAT IS CONSIDERED ONE
ASPECT AND THERE ARE WAYS TO DO
IT.
>> WELL, THE PROBLEM WITH THE
FLORIDA PUTATIVE FATHER
REGISTRY IS IT DOESN'T PROVIDE
THE FATHER WITH ANY KIND OF
NOTICE.
FOR ONE THING IT VIOLATES DUE
PROCESS BECAUSE THE PUTATIVE
FATHER REGISTRY WAS NEVER, EVER
PROMOTED, NEVER FUNDED, DIDN'T
GET ON THE WEB UNTIL 2005 AND
EVEN THOUGH THE PUTATIVE FATHER
REGISTRY -- REGISTRY WAS
ENACTED IN 2003.
>> MY CONCERN, THE
CONSTITUTIONAL CHALLENGE YOU
ARE RAISING AS TO THE ADVOCACY,
ESPECIALLY OF THE PUBLICATION,
I MEAN, WE ARE NOW LOOKING AT
THE CONSTITUTIONAL ISSUE FOR
THE FIRST TIME.
MY QUESTION BEFORE YOU GET TO
THE CONSTITUTIONAL ISSUE, ARE
YOU -- YOUR BRIEF SEEMS TO
CONCEDE THAT THE SECOND
DISTRICT'S INTERPRETATION WHICH
IS THAT UNDER 0612, THE COURT
HAS NO AUTHORITY TO TERMINATE
THE RIGHTS OF THOSE THAT ARE
NOT LISTED AS REQUIRING CONSENT,
IT IS NOT A CORRECT
INTERPRETATION.
ARE YOU CONCEDING THAT THE
INTERPRETATION IS THAT JUSTICE
AM STEAD HAD -- ANSTEAD ASKED
THE FIRST PART OF THE ARGUMENT,
THAT IS THIS INTENT OF THE
LEGISLATURE REALLY IS TO SAY
THAT IF A PUTATIVE FATHER,
BIOLOGICAL FATHER DOES NOT
REGISTER PRIOR TO THE TIME THAT
THE CONSENT IS OBTAINED OR THE
PETITION IS FILED, THAT HE --
SEEMS TO HAVE WAIVED THOSE
RIGHTS AND ARE YOU CONCEDING
THAT INTERPRETATION OF THE
STATUTE.
>> NO.
ARE YOU SAYING THAT THE SECOND
DISTRICT'S INTERPRETATION IS
CORRECT, THAT UNDER 062 THE
LEGISLATURE DID NOT INTEND TO
ALLOW A COURT TO TERMINATE THE
RIGHTS OF A FATHER WHOSE
CONSENT WAS NOT REQUIRED?
YOU THINK THAT IS WHAT THE
LEGISLATURE INTENDED.
>> I BELIEVE THE LEGISLATURE
INTENDED THAT FATHERS BE
CONTACTED.
THEY GET NOTICE AND AN
OPPORTUNITY TO BE HEARD, A
MEANINGFUL OPPORTUNITY.
>> YOU SEE, THE THING IS, I
MIGHT WISH THAT IS WHAT THE
LEGISLATURE WAS TRYING TO PUT
TOGETHER, WHEN I LOOKED AT LIKE
0623A BECAUSE IT WOULD MAKE
SENSE TO ME, WHEN -- YOU KNOW,
THAT THAT BECOME THE
REQUIREMENT, BUT I THINK WE ARE
REINVENTING THE STATUTE AND
THAT IS -- MY CONCERN IS THIS
SECOND DISTRICT BY SAYING THAT
THERE WAS NO AUTHORITY TO
TERMINATE RIGHTS, IS NO
STANDING THAT THAT PUTATIVE
FATHER EVEN HAS TO OBJECT IN
THAT PROCEEDING.
WAS REALLY TRYING TO IGNORE THE
PLAIN INTENT OF THE STATUTE.
AND SO YOU ARE NOT -- TELL ME
NOT WHAT YOU THINK THE
LEGISLATURE MIGHT HAVE THOUGHT
BUT BASED ON THE STATUTORY
LANGUAGE, IS IT CORRECT THAT
THAT IS WHAT THIS LEGISLATURE
INTENDED?
NOW WHETHER THEY THOUGHT THAT
IT SHOULD HAVE BEEN ADVERTISED
MORE OR THAT ASHES DOMTION
ENTITIES WOULD PROVIDE THAT
NOTICE -- ADOPTION ENTITIES
WOULD PROVIDE THAT NOTICE BUT
THEY INTENDED THESE RIGHTS BE
CUT OFF IF THEY DID NOT FILE --
>> I DO NOT BELIEVE SO.
AND THE REASON IS, BECAUSE
THERE ARE PROTECTIONS
THROUGHOUT THE STATUTE FOR
FATHERS.
FATHERS WHO ARE DETERMINED TO
BE FATHERS.
NOW, IF YOU ARE NOT DETERMINED
TO BE A FATHER YET, IN THE YOU
ARE NOT INCLUDED IN ANY OF THE
NOTICES OR CONSENTS.
HOWEVER, THE PROBLEM WITH THAT
IS YOU THEN -- IF YOU ARE
ESTABLISHED TO BE A FATHER
LATER OR FIND OUT YOU ARE A
FATHER YOU HAVE NO RECOURSE.
BECAUSE THE NOTICE OF CONSENT
IS IMPLIED AND YOU SURRENDER
ALL OF YOUR RIGHTS.
SO IN -- ARE YOU FOLLOWING?
>> NOT -- AS FAR AS THE FATHER
IN THIS POSITION, I AGREE THAT
-- AND THIS IS WHAT IS, AGAIN,
SCREWY ABOUT THE STATUTE, THAT
IF YOU GO THROUGH WITH THE
STATE TERM -- AND THE STATE
TERMINATES RIGHTS THE FATHER
GETS A LAWYER AND THERE IS
ACTUALLY A WHOLE PROCEEDING,
WHERE THE FATHER IS
REPRESENTED.
>> RIGHT.
>> IF -- BUT IN THIS SITUATION
IT DOESN'T SEEM TO ME THAT THE
LEGISLATURE INTENDED THAT IF
THE FATHER DID NOT REGISTER,
THAT THE FATHER WOULD RECEIVE
NOTICE UNLESS ADOPTION ENTITY
DECIDE -- DECIDED TO SERVE THE
BIOLOGICAL FATHER WITH THE
NOTICE OF THE INTENDED ADOPTION
PLAN.
>> RIGHT.
AND ANOTHER PART OF MY ARGUMENT
IS THAT --
>> THE FACT THAT YOU ARE SAYING
NO, THAT IS NOT WHAT THE PLAIN
LANGUAGE OF THE STATUTE NICE I
THINK THE PLAIN LANGUAGE IS
THAT THEY INTENDED TO NOTIFY
FATHERS AND GET CONSENT FROM
FATHERS, PARENT, AND THAT IF
YOU ARE NOT ESTABLISHED TO BE A
FATHER, THEY ARE SORT OF
EXCLUDING THAT -- THE PUTATIVE
FATHER IS WHAT THEY ARE DOING.
>> BECAUSE THEY SAID IF THE
FATHER DOESN'T -- PUTATIVE
FATHER DOESN'T FILE A NOTICE OR
DOESN'T REGISTER WITH THE
REGISTRY, HE IS DEEMED TO HAVE
WAIVED HIS RIGHTS.
>> CORRECT.
>> SO THEY DON'T NEED TO GET
HIS CONSENT.
>> THAT'S RIGHT.
>> LET ME ASK YOU A QUESTION
ABOUT THE BACKGROUND BEHIND
THESE AMENDMENT AND THIS
REGISTRY.
IT SEEMS LIKE THE LEGISLATURE
WAS CONCERNED ABOUT THE DELAY
IN AOPTION PROCEEDINGS.
SOMETIMES THE BIOLOGICAL FATHER
COULD NOT -- WAS KNOWN BUT
COULD NOT BE LOCATED, SOMETIMES
HE WAS UNKNOWN, AND THEN HE
CAME FORWARD MANY MONTHS LATER,
AND THE ADOPTIONS WERE DELAYED
AND DELAYED AND IN THE MEANTIME
THE BABY WAS BORN, THE BABY
BLAST WAS GROWING, THE BABY WAS
2, 3, 4 YEARS OLD AND THE BABY
WAS IN LIMBO AND THE
LEGISLATURE, IN ITS LEGISLATIVE
INTENT IN THE STATUTE SEEMS TO
SAY, WE CARE MOST ABOUT THE
INTEREST OF THIS CHILD.
AND THAT THIS CHILD BE PLACED
PERMANENTLY, SOMEWHERE, AS SOON
AS POSSIBLE.
>> AND I DON'T DISAGREE WITH
THAT AT ALL.
THE PROBLEM IS -- HOW DO YOU
FIX IT.
>> THE STATE -- I'M SORRY.
>> THAT'S OKAY.
ASSUMING WE ALL AGREE THAT THAT
SHOULD BE A CONSIDERATION.
>> YES.
>> HOW DO YOU FIX IT IN A WAY
OTHER THAN THIS PUTATIVE FATHER
REGISTRY?
>> WELL, WITHIN THE CONTEXT OF
THE REGISTRY, THE REQUIREMENT
FOR NOTIFICATION OF THE
REGISTRY WHEN THERE IS AN
INTENDED ADOPTION PLAN SERVED
ON A PUTATIVE FATHER, COULD --
YOU KNOW, MANDATE THAT THEY --
THE PUTATIVE FATHER BE NOTIFIED
OF THE REGISTRY.
THAT WAY, -- AND IF THEY DO
THAT, IF YOU LOOK AT THE
STATUTE, THAT IS IN 02623A.
>> WHO NOTIFIED THE PUTATIVE
FATHER.
>> THE ADOPTION ENTITY.
I DON'T --
>> NOW, THEY AN --
>> WHAT IF THEY DON'T KNOW THE
FATHER.
THAT IS MY POINT.
BECAUSE, BEFORE THERE WAS A LOT
OF SITUATIONS WHERE THE FATHER
WAS UNKNOWN OR THE FATHER COULD
NOT BE LOCATED.
THAT IS REALLY WHAT WE ARE
DEALING WITH.
IF WE KNOW THE FATHER AND CAN
BE LOCATED THERE IS NO PROBLEM,
THE PROBLEM WE ARE DEALING WITH
IS UNKNOWN FATHERS OR FATHER
WHOSE CANNOT BE LOCATED.
HOW DO YOU INFORM THOSE PEOPLE
OF THE REGISTRY?
>> WELL, THAT IS ALWAYS A
PROBLEM.
>> GETS BACK TO MY QUESTION,
HOW DO YOU FIX THAT PROBLEM
WITHOUT USING A REGISTRY?
HOW DO WE DO THAT?
>> WELL, YOU HAVE THE PATERNITY
STATUTE WHICH IS THE PRIMARY
JURISDICTION AND I UNDERSTAND
THAT IF SOMEONE DOES NOT COME
FORWARD, THEN THEIR RIGHTS CAN
BE TERMINATED.
AFTER A CERTAIN PERIOD OF TIME.
BUT IT IS UNCONSTITUTIONAL TO
DO THAT TO A FATHER WHO HAS
ALREADY COME FORWARD AND WHO --
IS TRYING TO ASSERT HIS RIGHTS
AS A PARENT.
>> I'M CONFUSED.
YOU'RE SUGGESTING THAT WE
INTERPRET 0623A THAT SAYS THE
ADOPTION ENTITY MAY SERVE UPON
IT ANY UNMARRIED BIOLOGICAL
FATHER THE NOTICE OF THE
INTENDED ADOPTION PLAN, WHO --
SAY, THE ADOPTION ENTITY SHALL
SERVE.
>> YES.
>> AND MY PROBLEM WITH THAT, I
WOULD CERTAINLY LIKE TO DO THAT,
IS THAT WOULDN'T WE BE DOING
THE QUINTESSENTIAL LEGISLATING
FROM THE BENCH?
AND TELL ME HOW WE WOULD -- YOU
KNOW, YOU SAY, WELL, THE
LEGISLATURE SHOULD FIX IT.
NOW, WHAT YOU -- WHAT YOUR
ARGUMENT WOULD BE, IT IS
UNCONSTITUTIONAL, BECAUSE THE
PERSON DOESN'T HAVE NOTICE.
THE PROBLEM IS, IN THIS CASE,
THE STIPULATED FACTS ARE THAT
YOUR PARTICULAR FATHER, AT
LEAST HAD NOTICE FOR THE LAST
THREE MONTHS OF THE PREGNANCY.
SO WE DON'T HAVE ONE -- AN "AS"
IN THIS CASE, YET YOU ARE
MOUNTING A FASCIAL CHALLENGE.
>> HE DID NOT KNOW ABOUT THE
REGISTRY, HE KNEW ABOUT THE
PREG NANS THE LAST PART OF THE
PREGNANCY.
>> YOU ARE INTO YOUR TIME.
IF YOU NEED TO --
>> THANK YOU.
>> MAY THE PLEASE THE COURT,
I'M STUCHB STOCKCAM, FOR
CONCERNED UNITED BIRTH PARENTS
AND WANT TO ADDRESS THE
QUESTION, YOU CAN DO IT BY
HARMONIZING THE STATUTE, LOOK
AT 63062 AND LISTS WHOSE
CONSENT IS REQUIRED, IF A
FATHER REGISTERED IT DOESN'T
PROVIDE PROTECTION, IT ONLY
PROVIDES NOTICE AND HE MUST
FILING IN 630622.
AND ONE OF THOSE SAYS THAT UPON
BEING SERVED WITH THE NOTICE OF
THE INTENDED ADOPTION PLAN HE
HAS TAKEN THE APPROPRIATE STEPS
IN THE NOTICE --
>> AND DO YOU AGREE, THAT THOSE
ARE THAT PART OF THE STATUTE IS
CONSTITUTIONAL AND THAT IS THIS
LEGISLATURE CAN SAY WE WILL
SPECIFY WHAT WILL CONSTITUTE
AFFIRMATIVE, POSITIVE ACTIONS
BY A SENATORS IF HE RECEIVED
NOTICE OF THE ADOPTION PLAN
WHICH NOTIFIES HIM OF THE
EXISTENCE OF THE REGISTRY AND A
FORM REGARDING THE REGISTRY AND
TELLS HIM HE NEEDS TO FILE THE
AFFIDAVIT OF CLAIM OF PATERNITY
AND NEEDS TO FILE AN AFFIDAVIT
OF SUPPORT AND THEN HE COMPLIED
WITH 630622.
PROVIDING ALL OF THE STEPS THAT
HE NEEDS TO REQUIRE AND IN
ADDITION TO THAT, AS THE LOWER
COURT -- SAID IT ALSO REQUIRES
GROUNDS OF TERMINATION OF HIS
RIGHTS SHOULD HE FAIL TO DO SO
--
>> THE SECOND DISTRICT, THOUGH,
DID NOT INTERPRET THE STATUTE
AS I'M INTERPRETING.
>> I AGREE.
>> DO YOU THINK THE SECOND
DISTRICT'S INTERPRETATION
FOLLOWS THE LANGUAGE OF THE
STATUTE?
>> I THINK WHAT THE SECOND
DISTRICT WAS TRYING TO COME UP
WITH WAS THE FACT THAT WE HAD A
NAMED AND LOCATABLE FATHER WHO
WAS NOT NAMED IN THE PETITION,
SERVED OR PROVIDED NOTICE AND
IN THOSE PARTICULAR CASES, HOW
DO YOU TERMINATE SOMEONE'S
RIGHTS WHEN YOU KNOW WHO THEY
ARE AND DON'T MAKE THEM A PARTY
AND A PARTY BY PROVIDING --
>> SECOND DISTRICT, DID IT NOT
STATE THEY ARE TRYING TO FIND A
WAY TO SAVE THE CONSTITUTIONAL
VA LIDTY --
>> TRYING TO HARMONIZE THEM.
>> BUT THAT WON'T NECESSARILY
FIT IN ALL CIRCUMSTANCES.
>> IT IS A ROUGH FIT, I WOULD
AGREE AND I THINK THE BETTER
FIT IS THE ONE UNDER 630623A,
AS PROPOSED BY JUSTICE PA RAENT.
>> I'M NOT SURE I FOLLOW YOUR
ARGUMENT, GIVEN NOTICE OF THE
REGISTRY AT THE POINT WHEN
THERE IS AN ATTEMPT -- INTENT
TO ADOPT BECAUSE I THOUGHT THE
STATUTE REQUIRED YOU REGISTER
PRIOR TO THE TIME THAT THE
MOTHER GIVES THE CONSENT FOR
THE ADOPTION AND SO, ISN'T THAT
-- WOULDN'T THAT STILL BE TOO
LATE UNDER THE STATUTE TO
REALLY PERFECT YOUR INTERESTS?
>> GOOD QUESTION AND AGAIN, WE
ARE DEALING WITH STATUTES, HUGE
INCONSISTENCY!!IES IN IT AND SAYS,
UNDER 630623 WHERE YOU SERVE
WITH THE NOTICE OF THE INTENDED
ADOPTION PLAN, GOES WITH A
SUMMONS AND SAYS YOU HAVE 30
DAYS FROM THE DATE YOU RECEIVE
THE SUMMONS TO COMPLY AND OF
COURSE THEN IT TELLS ABOUT THIS
REGISTRY AND AGAIN I THINK YOU
WILL HAVE A TIME DELAY.
I CAN SERVE AT ANY TIME PRIOR
TO PLACEMENT, IF I SERVE THAT
PRIOR TO PLACEMENT I THINK IT
GETS THEM AN EXTENDED 30 DAYS
TO FILE IN ACCORDANCE WITH THE
SUMMONS AND SHOULDN'T BE
TERMINATED BECAUSE THE PETITION
HAS BEEN FILED.
>> AND HOW DOES -- A PATERNITY
ACTION PLAY INTO ALL OF THIS?
IF AT THE TIME THAT YOU RECEIVE
SOME KIND OF NOTICE OF INTENT
FOR ADOPTION, AND THEN YOU FILE
A PATERNITY ACTION, WHAT WOULD
THEN BE THE -- HOW DOES THAT
INTERPLAY WITH CHAPTER 63.
>> WELL, 63 IS THE AVENUE FOR
HIM TO BE ABLE TO PROTECT AND
PRESERVE HIS PARENTAL RIGHTS AT
LEAST THE RIGHT TO NOTICE AND
YOU HAVE TO UNDERSTAND THAT
CLEARLY.
THE REGISTRY IS NOT A METHOD OF
ABSOLUTE PROTECTION FOR
ANYTHING.
TO THE DAD, SIMPLY HIS RIGHT TO
NOTICE AND IF YOU READ
ACCORDING TO THE WAY THE
ADOPTION ENTITY IS REQUESTING
THAT YOU READ IT WHEN HE GETS
THE RIGHT TO NOTICE HE SIMPLY
WALKS INTO A COURTROOM WHERE
THE JUDGE SAYS, HI, NICE TO
MEET YOU, AND YOU HAVE A --
HAVE NOT COMPLIED WITH THE
STATUTE AND ARE OUT OF HERE
BECAUSE DIDN'T DO ALL OF
620622.
AND HE HAS NO NOTICE OF THOSE
THINGS THAT EXISTS AND THAT IS
WHY YOU NEED TO READ WITH 6303
A AS BEING MANDATORY AND IF YOU
HAVE A NAMED AND LOCATABLE DAD
YOU WANT TO KNOW BEFORE YOU
MAKE THE PLACEMENT WHAT HIS
ACTIONS WILL BE AND ALWAYS HAS
BEEN THE WAY WE'VE PRACTICED
FOR MORE THAN THE 20ORS AND
BACK TO ANSWER THE PATERNITY
ACTION IT GIVES HIM A SEPARATE
COURTROOM TO SAY NOT ONLY DO I
NOT WANT MY CHILD PLACED FOR
ADOPTION BUT I'M ASSUMING
PARENTAL RESPONSIBILITIES FOR
THE CHILD AND WILLING TO PAY
SUPPORT AND HERE TO ASSERT
CUSTODY FOR THE CHILD.
>> LET ME ASK YOU A QUESTION,
ONE ABOUT THE RECORD AND THE
NECKED ONE ABOUT THE OTHER SIDE
OF THIS ISSUE.
THE FIRST ABOUT THE RECORD.
IS THE RECORD IN THIS CASE
DEVELOPED TO THE EXTENT THAT WE
ACTUALLY KNOW HOW MANY MALES
HAVE REGISTERED IN THE STATE OF
FLORIDA?
>> THAT IS A VERY GOOD QUESTION,
IN THIS CASE I DON'T BELIEVE
ANY EVIDENCE CAME IN AT ALL,
BECAUSE HE SIMPLY WALKED INTO
THE COURT ON THE DAY OF THE TPR
HEARING AND WAS TOLD HE DIDN'T
REGISTER AND HAD NO RIGHTS.
>> ISN'T THAT CONFIDENTIAL AS
FAR AS WHO REGISTERED.
>> YOU CAN CONTACT VITAL
RECORDS AND THEY'LL TELL YOU
THE NUMBERS, THEY WON'T GIVE
YOU NAMES, THEY'LL GIVE YOU
BROAD NUMBERS OF HOW MANY ARE
REGISTERED IN THE STATE OF
FLORIDA.
>> -- IN THIS RECORD?
>> I DON'T BELIEVE WE KNOW
ANYTHING MORE IN THIS RECORD
THAN THAT HE DID NOT REGISTER.
>> I KNOW IT'S NOT A PART OF
THE RECORD BUT DO WE KNOW
WHETHER OR NOT THIS FATHER HAS
CONTINUED WITH HIS PATERNITY
ACTION, AND WHAT, IF ANYTHING
HAS HAPPENED WITH THAT.
>> HE WAS PREVENTED FROM DOING
SO BY THE FACT THE TERMINATION
OF HIS PARENTAL RIGHTS
OCCURRED.
>> THERE IS A STAY UNTIL THIS
IS RESOLVED.
>> IF I COULD GO AND ADDRESS
WITH THAIT LEAR, YOUR HONOR, IT
DOESN'T SAY THAT THAT FATHER'S
PARENTAL RIGHTS WOULD HAVE BEEN
TERMINATED BY HIS FAILURE TO
REGISTER, HAD LEAR COME INTO
THE ADOPTION PROCEEDING EARLIER,
I BELIEVE LEAR WOULD HAVE HAD A
RIGHT TO HAVE AN OPPORTUNITY TO
BE HEARD AND TO PRESENT
EVIDENCE REGARDING BEST
INTEREST, WHICH WAS --
>> WOULD LEAR ADDRESS THE
FACIAL CONSTITUTION AT OF THE
STATUTE.
>> DIDN'T UNDERSTAND.
>> WOULD THE COURT IN LEAR
ADDRESS THE FASCIAL
CONSTITUTIONALITY OF THE
STATUTE IN NEW YORK.
>> I DON'T BELIEVE THEY DID, I
BELIEVE THEY LOOKED AT UNDER
LEAR WAS WHETHER OR NOT HE WAS
-- WHETHER OR NOT HE HAD --
INTERESTS REACHED THE LEVEL TO
PROVIDE CONSTITUTIONAL
PROTECTION AND IF SO, UNDER NEW
YORK'S FULL STATUTORY SCHEME,
DID IT PROVIDE HIM AN
OPPORTUNITY TO PROTECT HIS
RIGHTS AND PARTICULARLY HIS
RIGHT TO NOTICE.
BUT DIDN'T SPECIFICALLY ADDRESS
THE CONSTITUTION AT OR -- OF
THE REGISTRY AND ALL REGION
INDUSTRIES ARE DIFFERENT, WHEN
YOU HEAR THE NUMBER WE HAVE, 37
REGISTRIES AND THAT IS THE
MAJORITY OF THE STATE, EVEN IN
HARVARD LAW REVIEW ARTICLE,
WRON IN 2002, FLORIDA IS LISTED
AS HAVING A REGISTRY, WE'VE
ALWAYS HAD ONE AND A MECHANISM
WHERE A FATHER UNDER GUERRA
VERSUS HRS COULD HAVE FILED AN
ACKNOWLEDGMENT OF PA TERN AND
WHEN YOU DO A PLACEMENT BACK IN
THE OLD DAYS, YOU SEND $9 TO
VITAL RECORDS AND SAY, COULD
YOU CHECK YOUR PATERNITY
REGISTRY AND SO IF THERE IS
ACKNOWLEDGMENT OF PATERNITY SO
--
>> UNDER THE SECOND DISTRICT'S
VIEW, AND THIS THING, THE
CITRUS CAN IT PATERNITY ACTION
FILED, WHAT CONCERNS ME IS, IF
WE TAKE THE VIEW THAT IF A
PATERNITY ACTION IS FILED
BEFORE THE PETITION FOR
TERMINATION OF PARENTAL RIGHTS
HAS BEEN CONCLUDED, PENDING
ADOPTION, THAT THAT OPERATES AS
IF THEY HAVE REGISTERED.
>> DOESN'T -- SHOULDN'T THE
PATERNITY ACTION BE AT LEAST IN
THE SAME COURT AS THE OTHER --
SHOULDN'T IT BE TRANSFERRED SO
THAT ONE JUDGE LIKE IN THE AF
-- "AS" CASE WHERE YOU HAVE THE
UNIFIED FAMILY COURT IS HEARING
BOTH ISSUES?
BECAUSE IF THE MERE FILING OF
THE PA TERN ACTION SOMEWHERE IN
THE STATE WOULD BE ENOUGH TO
HAVE PRESERVE THE RIGHT AS
MS. TATE SAID, HOW WOULD THE
MOTHER IN THAT SITUATION OR THE
ADOPTION ENTITY KNOW OF THAT --
THE EXISTENCE OF IT.
SO --
>> AND AS ADDRESSED BY THE
LEGISLATURE IN 63054 UNDER THE
REGISTRY, I BELIEVE IT IS UNDER
5 -- I CAN'T RECALL WHERE IT
SAYS THAT THE FATHER HAD THE
RIGHT TO FILE AN ACTION IN ANY
COUNTY IN THE STATE, SUBJECT TO
THE MOTHER BEING ABLE TO PULL
THAT VENUE BACK TO THE COUNTY
WHERE SHE RESIDES.
>> SECOND QUESTION.
>> I'M SORRY.
>> SECOND QUESTION IS WHETHER
OR NOT THIS STATUTORY SCHEME
AFFECTS THE OBLIGATIONS OF THE
PUTATIVE NATURAL FATHER TO THE
CHILD.
IN OTHER WORDS, REGARDLESS OF
REGISTER ORGAN WHATEVER, DO THE
OBLIGATIONS OF -- OR WHATEVER,
DO THE OBLIGATIONS OF THE
NATURAL FATHER CONTINUE ABSENT
THE EFFECT OF THE FINAL
ADOPTION?
>> IF HE IS DEEMED TO HAVE
REGISTERED, ARE YOU ASKING ME
IN THAT RECORD?
IF DEEMED TO HAVE REGISTERED
AND HE -- AND RECEIVES A NOTICE
OF THE INTENDED ADOPTION PLAN,
THE ONLY WAY HIS RIGHTS CAN
CONTINUE IS IF HE HAS PICKED UP
THOSE OBLIGATIONS UNDER 630622.
FILE THE AFFIDAVIT OF SUPPORT,
FILE THE AFFIDAVIT SAYING HIS
CHILD CUSTODY PLAN AND CONTINUE
TO PRESENT AND WALK ALONG IN
THOSE FACT.
OTHERWISE IF HE FAILED TO DO SO,
NOT ONLY THE -- DOES 630893
GIVE GROUNDS TO TERMINATE HIS
PARENTAL RIGHTS, WE HAVE THE
ABANDONMENT LANGUAGE WHICH
INDICATES HE DIDN'T FOLLOW
THROUGH WITH THE OBLIGATIONS
THAT HE SAID THAT HE WAS GOING
TO FOLLOW THROUGH WITH.
>> I KNOW YOUR TIME IS ALMOST
UP.
ARE YOU FAMILIAR WITH THE BABY
EMILY CASE FROM THE SUPREME
COURT?
>> I DON'T BELIEVE I AM.
>> I GUESS WHAT I AM ASKING IS
ABANDONMENT --
>> OH, YES.
YES, MATCH I AM.
>> DOES THE REQUIREMENT OF THE
STATUTE THAT THE FATHER DO ABRX
KRRX D --
A, B, C, D, SUPERSEDE THE IDEA,
ADAN BOMENT IS GOING TO BE SOME
SORT OF YOU KNOW, GO ALONG AND
FIGURE OUT UNDER THIS
CIRCUMSTANCE HAS THE FATHER
DOES THIS AND DOES IT
ASSUMPTION SEED THAT HOLDING
THAT IS, THAT WHAT WOULD
CONSTITUTE ABANDONMENT, WOULD
IT BE THE OPPOSITE OF NOT
FULFILLING THE STATUTORY
MANDATE?
IN OTHER WORDS, --
>> AGAIN IT SHAVES OFF SOME OF
THE EDGES ON IT AND I'M NOT
SURE IT NECESSARILY SUPERSEDES
IT, FOR AN UNREGISTERED FATHER
REGARDLESS OF WHAT OTHER STEPS
HE HAS TAKEN TO BE A
RESPONSIBLE -- AND YOU HAVE TO
REMEMBER IT GOSS INTO THE AGE
OF 6 MONTHS AND INCLUDING
SHOULD THE FATHER BE LIVING
WITH THE MOTHER, LIVING WITH
THE CHILD, SUPPORTING THE CHILD,
UP UNTIL JUST PRIOR TO THE
CHILD TURNING SIX MONTHS AND IF
HE DOESN'T REGISTER HE'S OUT,
PERIOD AND NO IFs ANDs OR BUTS
AND TALKING ABOUT ABANDONMENT
WE DON'T HAVE TO GET IT FOR ANY
FATHER WHO HAS NOT REGISTERED
FOR A CHILD UNDER THIS AGE OF
SIX MONTHS AND WE ONLY USE IT
WHEN YOU HAVE A FATHER WHOSE
CONSENT IS REQUIRED ACCORDING
TO THE STATUTE AND THEN LOOK AT
WHETHER OR NOT HE'S CONTINUED
TO FULFILL ALL OF HIS --
>> BUT YOUR -- YOU THINK THE
STATUTE WOULD WITHHOLD -- WITH
STAND SCRUTINY AS LONG AS TO
KNOWN FATHERS, THERE IS ACTUAL
NOTICE SERVED OF THE EXISTENCE
OF THE REGISTRY?
I THINK THE REGISTRY HAS HUGE
CONSTITUTIONAL PITFALLS.
I THINK THE BEST WAY TO
HARMONIZE IT TO BE
CONSTITUTIONAL IS TO REQUIRE
WHEN YOU HAVE NAMED KNOWN
LOCATABLE FATHERS YOU ARE
SERVED WITH THE NOTICE OF THE
INTENDED ADOPTION PLAN --
>> GIVES THE MOTHER AN
INCENTIVE TO SAY, NO, I DON'T
KNOW WHO THE FATHER IS.
>> AND THE STATUTE PERMENTSD
THAT, THAT IS ANOTHER THING
THAT CHANGED.
>> LET'S GET TO -- YOUR
DISCUSSION.
YOU SAY IF WE KNOW THE FATHER,
SHOULD GIVE NOTICE, WHAT IF THE
MOTHER SAYS, NO, I DON'T KNOW
WHO IT IS WHEN SHE REALLY DID
KNOW WHO THE FATHER IS.
>> IF WE CAN FIRST GET TO THE
ISSUE OF WHEN SHE TRULY DIDN'T
KNOW, WHICH IS EXACTLY WHAT THE
GP CASE DID, STRIKING DOWN THE
BROAD REQUIREMENT OF ALL OF HER
SEXUAL PARTNERS AND WHERE SHE
ENGAGE IN SEX AND EVERYTHING
ELSE AND IT DEALT WITH THIS
UNKNOWN FATHER AND THAT WHAT IS
THE REGISTRY WAS INTENDED TO DO,
DEAL WITH THE FATHER THAT WE
TRULY DON'T KNOW ABOUT AND THE
FATHER THE MOM KNOWS ABOUT AND
WILL FULLY REFUSES TO DISCLOSE,
OR IS ADVISED IN THE "AS" CASE
BY THE AGENCY NOT TO SDLOIZ,
THAT FATHER ACCORDING TO 63063
IS CLOSED OUT.
IT SAYS, ANYONE -- FRAUD,
ANYONE'S FRAUD CLOSES HIM OUT
AND HE'S IN THE BEST POSITION
TO BE ABLE TO ASSERT HIS RIGHTS,
AND REGISTER AND NOT IF HE
DOESN'T KNOW ABOUT THIS
REGISTRY AND THAT IS WHERE YOU
GET INTO THE, I'D LIKE TO TELL
YOU HARMONIZING IT MAKES IT
COMPLETELY CONSTITUTIONAL AND I
THINK WE HAVE UNDERPINNINGS,
STILL THAT ARE VERY SHAKY.
>> WITH OUR ASSISTANCE WE HAVE
EXHAUSTED YOUR TIME AND THEN
EXTRA TIME.
>> THANK YOU.
>> AS I INDICATED, GIVE YOU A
COUPLE OF MINUTES THOUGH YOU
ARE ABOUT INTO THE LAST MINUTE,
WE'LL GIVE YOU A COUPLE EXTRA
MINUTES.
>> THANK YOU.
>> COULD YOU ADDRESS THE --
ASSUMING WE ACCEPT YOUR
INTERPRETATION OF THE STATUTORY
SCHEME, ONE OF THE IMPORTANT
CASES OUT OF THE U.S. SUPREME
COURT DEALT WITH DUE PROCESS,
AND IN ESSENCE, WHAT THE
OPINION SAID WAS THAT THE
AMOUNT OF PROCESS THAT IT IS
DUE, LARGELY DEPENDS ON THE
WEIGHT OR IMPORTANCE OF THE
RIGHT THAT IS AFFECTED AND SORT
OF A SCALE, THEN.
IF YOU HAVE REALLY SORT OF AN
INCONSEQUENTIAL RIGHT AND YOU
ARE NOT GOING TO BE ALLOWED A
WHOLE LOT OF PROCESS, SORT OF
LIKE THE SCHOOL SITUATION,
WHERE A CHILD MAY GET A ONE-DAY
SUSPENSION FOR SOMETHING -- OR
SOMETHING THE COURT ESSENTIALLY
SAID, WELL, YOU'VE GOT T TALK
TO THE PRINCIPAL, YOU KNOW,
BEFORE HE SUSPENDED YOU FOR A
DAY AND THAT IS ENOUGH PROCESS,
YOU KNOW, IN THAT CONTEXT.
WOULD YOU AGREE, HERE, THAT THE
RIGHT OF THE NATURAL PARENT
SHOULD BE WAY UP ON THE SCALE
IN TERMS OF THE PROCESS THAT IS
DUE.
>> YES, URINE BUT -- YOUR
IMPORTANT BUT THE FUNDAMENTAL
ISSUE IS NOT WHO IS A PARENT
BUT WHAT IS A PARENT.
UNDER LEAR, THE GEN IS NOT A
PARENT.
HE DOESN'T HAVE -- GENTLEMAN IS
NOT A PARENT AND DOES NOT HAVE
PARENTAL RIGHTS, HE HAS AN
INCHOATE OPPORTUNITY.
>> HOW CAN YOU WAIVE THE RIGHT
TO SOMETHING BEFORE YOU EVEN
KNOW ABOUT IT.
>> JUDGE, THERE ARE LOTS OF
OPPORTUNITIES UNDER THE STATUTE
TO WAIVE RIGHTS THAT YOU DON'T
KNOW ABOUT, BECAUSE YOU ARE
CHARGED WITH KNOWLEDGE OF THE
LAW AND THIS GENTLEMAN KNEW HE
WAS THE FATHER AND KNEW HE HAD
INTERCOURSE AND KNEW SHE WAS
PREGNANT AND KNEW SHE WAS
PLANNING AN ADOPTION AND HE
KNEW THAT HE HAD PARENTAL
RIGHTS OR AT LEAST THE PARENTAL
OPPORTUNITY.
AND LEAR TEACHES US, JUDGE IT
THE STATE THAT HAS THE RIGHT TO
DETERMINE THE PROPER FRAMEWORK
AND NO CONSTITUTIONAL ISSUE IS
RAISED IN THIS CASE.
>> THE WAY YOU ARE INTERPRETING
THE STATUTE, IF I UNDERSTAND IT,
IT SAYS ALL THAT THE PUTATIVE
FATHER NEEDS TO KNOW IN ORDER
TO HAVE HIS RIGHTS WAIVED IS
THAT THAT HE HAD INTERCOURSE.
THAT HE DOESN'T -- THERE IS NO
REQUIREMENT IN THE STATUTE IF I
UNDERSTAND YOUR INTERPRETATION
THAT HE KNOW ANYTHING ABOUT THE
-- HIS PARTNER BECOMING
PREGNANT OR ABOUT THE BIRTH OF
THE CHILD, THAT NONE OF THEM IS
REQUIRED UNDER THE STATUTE,
THAT THE ONLY INFORMATION IN
ORDER FOR THERE TO BE AN
EFFECTIVE WAIVER IS THIS FACT
OF INTERCOURSE, AM I CORRECT IN
YOUR INTERPRETATION.
>> FOR AN UNMARRIED BIOLOGICAL
FATHER, YES, LEGISLATURE PUTS
THE BURDEN ON HIM.
>> THAT IS ALL OF IT.
THE ACT OF INTERCOURSE IS ALL
THE PROCESS THAT THAT PERSON
RECEIVES.
>> BUT THAT IS NOT ALL THIS
BIRTH FATHER RECEIVED AND WE
HAVE BEEN CLEAR ABOUT THAT.
>> THE CERTIFIED QUESTION WE
ARE HERE ON, THOUGH, AND THE
SECOND DISTRICT'S OPINION
DOESN'T CONTAIN ANY FACT, IT
SIMPLY SAYS IS FAILURE TO
REGISTER WITH THE REGISTRY, A
WAIVER OF THE PARENTAL RIGHTS
OR SOMETHING OF THAT EFFECT.
IT DOESN'T EVEN SAY IN THE
OPINION THAT HE FILED THE
PATERNITY ACTION.
SO YOU ARE TALKING A LOT ABOUT
FACTS.
THE SECOND DISTRICT IS ASKING A
PURE QUESTION OF LAW, WHICH IS,
UNDER ANY CIRCUMSTANCES,
WHETHER THE "AS" CASE OR THIS
CASE WHERE THE -- THEY LIVED
TOGETHER, SAY FOR THREE MONTHS,
THAT THE FAILURE TO FILE WITH
THE REGISTRY OPERATES AS A
WAIVER.
DO YOU AGREE THAT THAT IS WHAT
THE SECOND DISTRICT'S ASKING US
AND ARE YOU ASKING US NOT TO
ANSWER THAT QUESTION BUT APPLY
IT TO THE FACTS OF THIS CASE TO
SAY WHETHER UNDER THE FACTS OF
THIS CASE, IT IS CONSTITUTIONAL,
OR APPROPRIATE TO HAVE
TERMINATED HIS RIGHTS.
>> I THINK THE PARTIES TO THIS
CASE ARE CERTAINLY ENTITLED TO
THAT AND THAT IS WHY YOU HAVE A
STIPULATED VERSION OF FACTS
BECAUSE THESE FACTS ARE
DIFFERENT FROM "AS" AND THE
FINAL JUDGMENT DIDN'T LINCOLN
CONCLUDE THE BIRTH FATHER'S
RIGHTS WERE TERMINATED, IT ALSO
HAD A SEPARATE DETERMINATION
CONSENT WAS NOT-YEAR-OLD AND
SEPARATE AND INDEPENDENT
DETERMINATION HIS RIGHTS WERE
WAIVED AND SURRENDERED AND IF
YOU DETERMINE THEY CAN'T BE
TERMINATED, THOSE TWO FACTS
SHOULD STAND TALL AND IF THE
COURT WANTS TO GO AHEAD AND
ADDRESS THIS AS IT RELATES TO
OTHER CASES, CERTAINLY AND
ANSWER THE CERTIFIED QUESTION
AS POSED, IT HAS THE
OPPORTUNITY DO --
>> AS POSED IS WHAT BRINGS US
TO THE CONSTITUTIONAL ISSUE.
AS APPLIED YOU MAY HAVE A
DIFFERENT SITUATION.
THAT IS WHY CONCERN.
WE ARE SAYING, YES, CONSIDER
THE STIPULATED FACTS AND DON'T
ANSWER THE CERTIFIED QUESTION?
>> NO, JUDGE, I'M ASKING YOU TO
ANSWER IT AS IT RELATES 0 OUR
FACT AND IF YOU WANT TO --
>> THEN WE HAVE TO REPHRASE IT.
BECAUSE IT ASKS A PURE QUESTION
OF LAW.
>> I AGREE.
>> I NEED ASK A QUESTION ABOUT
THE CHILD.
THIS COURT, AS IT DOES ON A --
ALL CHILD CASES, EXPEDITED
REVIEW.
BECAUSE THE CASE CAME UP TO US
AFTER AN OPINION ABOUT TWO
MONTHS AGO.
BUT I SEE THAT THE ORDER OF
TERMINATING THE RIGHTS WAS FROM
'05.
ARE WE TALKING ABOUT A
SITUATION WHERE A CHILD NOW HAS
BEEN IN LIMBO SINCE AUGUST OF
2005?
WHICH IS THE DATE OF WHEN THE
CHILD WAS BORN.
>> YES, YOUR HONOR AND THAT
THIS IS FUNDAMENTAL PROBLEM
THAT I HAVE.
>> WAS THE CASE IN THE SECOND
DISTRICT JUST DELAYED THERE,
BECAUSE -- DO WE KNOW WHAT
CAUSED THE DELAY OF TWO YEARS
IN THE SECOND DISTRICT.
>> I CAN SPECULATE ON THAT,
JUDGE --
>> I DON'T WANT YOU TO
SPECULATE.
>> YOU HAD, FACTUALLY I CAN
SPECULATE BECAUSE AS AND JCJ
AND A TRILOGY OF CASES
ADDRESSING THE REGISTRY AND
TOOK A WHILE FOR THEM TO WORK
THROUGH THE SYSTEM.
>> NOBODY TRIED IN ALL THIS
TIME, EVEN THOUGH WE HAVE THE
LEGAL ISSUES, TO TRY TO RESOLVE
THIS CASE, TO THE BEST INTEREST
OF THE CHILD.
>> WE ABSOLUTELY HAVE, JUDGE
AND WE HAVE TRIED FROM THE DAY
ONE, TO MEDIATE THE CASE AND
RESOLVE THIS CASE AND THIS IS
THE PROBLEM I HAVE, THE
FUNDAMENTAL PROBLEM, IT IS A
GOTCHA FOR THE ADOPTIVE PARENTS
AND THAT CHILD, WHEN THE BIRTH
FATHER DOESN'T TIMELY DO WHAT
THE STATUTE REQUIRES HIM TO
DOCUMENT AND WE --
>> OUR SYSTEM SHOULD NOW
EXHAUST AN ADDITIONAL --
>> THANK YOU, WE HAVE --
>> THANKS FOR YOUR POSITIONS
AND WE UNDERSTAND THE
IMPORTANCE AND THE COURT WILL
TAKE THE CASE UNDER ADVISEMENT.
>> THANK YOU VERY MUCH.
>> THANK YOU.
>> ALL RISE.,,
>> COURT IS IN RECESS.,,,,
[INAUDIBLE CONVERSATIONS