Proceeding to terminate parental rights pending adoption; hearing; grounds; dismissal of petition; judgment.

(1) HEARING.—The court may terminate parental rights pending adoption only after a hearing.

(2) HEARING PREREQUISITES.—The court may hold the hearing only when:

(a) For each person whose consent to adoption is required under s. 63.062:

1. A consent under s. 63.082 has been executed and filed with the court;

2. An affidavit of nonpaternity under s. 63.082 has been executed and filed with the court;

3. Notice has been provided under ss. 63.087 and 63.088; or

4. The certificate from the Office of Vital Statistics has been provided to the court stating that a diligent search has been made of the Florida Putative Father Registry created in s. 63.054 and that no filing has been found pertaining to the father of the child in question or, if a filing is found, stating the name of the putative father and the time and date of the filing.

(b) For each notice and petition that must be served under ss. 63.087 and 63.088:

1. At least 20 days have elapsed since the date of personal service and an affidavit of service has been filed with the court;

2. At least 30 days have elapsed since the first date of publication of constructive service and an affidavit of service has been filed with the court; or

3. An affidavit of nonpaternity, consent for adoption, or other document that affirmatively waives service has been executed and filed with the court.

(c) The minor named in the petition has been born.

(d) The petition contains all information required under s. 63.087 and all affidavits of inquiry, diligent search, and service required under s. 63.088 have been obtained and filed with the court.

(3) GROUNDS FOR TERMINATING PARENTAL RIGHTS PENDING ADOPTION.—The court may enter a judgment terminating parental rights pending adoption if the court determines by clear and convincing evidence, supported by written findings of fact, that each person whose consent to adoption is required under s. 63.062:

(a) Has executed a valid consent under s. 63.082 and the consent was obtained according to the requirements of this chapter;

(b) Has executed an affidavit of nonpaternity and the affidavit was obtained according to the requirements of this chapter;

(c) Has been served with a notice of the intended adoption plan in accordance with the provisions of s. 63.062(3) and has failed to respond within the designated time period;

(d) Has been properly served notice of the proceeding in accordance with the requirements of this chapter and has failed to file a written answer or personally appear at the evidentiary hearing resulting in the judgment terminating parental rights pending adoption;

(e) Has been properly served notice of the proceeding in accordance with the requirements of this chapter and has been determined under subsection (4) to have abandoned the minor;

(f) Is a parent of the person to be adopted, which parent has been judicially declared incapacitated with restoration of competency found to be medically improbable;

(g) Is a person who has legal custody of the person to be adopted, other than a parent, who has failed to respond in writing to a request for consent for a period of 60 days or, after examination of his or her written reasons for withholding consent, is found by the court to be withholding his or her consent unreasonably;

(h) Has been properly served notice of the proceeding in accordance with the requirements of this chapter, but has been found by the court, after examining written reasons for the withholding of consent, to be unreasonably withholding his or her consent; or

(i) Is the spouse of the person to be adopted who has failed to consent, and the failure of the spouse to consent to the adoption is excused by reason of prolonged and unexplained absence, unavailability, incapacity, or circumstances that are found by the court to constitute unreasonable withholding of consent.

(4) FINDING OF ABANDONMENT.—A finding of abandonment resulting in a termination of parental rights must be based upon clear and convincing evidence that a parent or person having legal custody has abandoned the child in accordance with the definition contained in s. 63.032. A finding of abandonment may also be based upon emotional abuse or a refusal to provide reasonable financial support, when able, to a birth mother during her pregnancy or on whether the person alleged to have abandoned the child, while being able, failed to establish contact with the child or accept responsibility for the child’s welfare.

(a) In making a determination of abandonment at a hearing for termination of parental rights under this chapter, the court shall consider, among other relevant factors not inconsistent with this section:

1. Whether the actions alleged to constitute abandonment demonstrate a willful disregard for the safety or welfare of the child or the unborn child;

2. Whether the person alleged to have abandoned the child, while being able, failed to provide financial support;

3. Whether the person alleged to have abandoned the child, while being able, failed to pay for medical treatment; and

4. Whether the amount of support provided or medical expenses paid was appropriate, taking into consideration the needs of the child and relative means and resources available to the person alleged to have abandoned the child.

(b) The child has been abandoned when the parent of a child is incarcerated on or after October 1, 2001, in a federal, state, or county correctional institution and:

1. The period of time for which the parent has been or is expected to be incarcerated will constitute a significant portion of the child’s minority. In determining whether the period of time is significant, the court shall consider the child’s age and the child’s need for a permanent and stable home. The period of time begins on the date that the parent enters into incarceration;

2. The incarcerated parent has been determined by a court of competent jurisdiction to be a violent career criminal as defined in s. 775.084, a habitual violent felony offender as defined in s. 775.084, convicted of child abuse as defined in s. 827.03, or a sexual predator as defined in s. 775.21; has been convicted of first degree or second degree murder in violation of s. 782.04 or a sexual battery that constitutes a capital, life, or first degree felony violation of s. 794.011; or has been convicted of a substantially similar offense in another jurisdiction. As used in this section, the term “substantially similar offense” means any offense that is substantially similar in elements and penalties to one of those listed in this subparagraph, and that is in violation of a law of any other jurisdiction, whether that of another state, the District of Columbia, the United States or any possession or territory thereof, or any foreign jurisdiction; or

3. The court determines by clear and convincing evidence that continuing the parental relationship with the incarcerated parent would be harmful to the child and, for this reason, termination of the parental rights of the incarcerated parent is in the best interests of the child.

(5) DISMISSAL OF PETITION.—If the court does not find by clear and convincing evidence that parental rights of a parent should be terminated pending adoption, the court must dismiss the petition and that parent’s parental rights that were the subject of such petition shall remain in full force under the law. The order must include written findings in support of the dismissal, including findings as to the criteria in subsection (4) if rejecting a claim of abandonment.

(a) Parental rights may not be terminated based upon a consent that the court finds has been timely revoked under s. 63.082 or a consent to adoption or affidavit of nonpaternity that the court finds was obtained by fraud or duress.

(b) The court must enter an order based upon written findings providing for the placement of the minor, but the court may not proceed to determine custody between competing eligible parties. The placement of the child should revert to the parent or guardian who had physical custody of the child at the time of the placement for adoption unless the court determines upon clear and convincing evidence that this placement is not in the best interests of the child or is not an available option for the child. The court may not change the placement of a child who has established a bonded relationship with the current caregiver without providing for a reasonable transition plan consistent with the best interests of the child. The court may direct the parties to participate in a reunification or unification plan with a qualified professional to assist the child in the transition. The court may order scientific testing to determine the paternity of the minor only if the court has determined that the consent of the alleged father would be required, unless all parties agree that such testing is in the best interests of the child. The court may not order scientific testing to determine paternity of an unmarried biological father if the child has a father as described in s. 63.088(4)(a)-(d) whose rights have not been previously terminated. Further proceedings, if any, regarding the minor must be brought in a separate custody action under chapter 61, a dependency action under chapter 39, or a paternity action under chapter 742.

(6) JUDGMENT TERMINATING PARENTAL RIGHTS PENDING ADOPTION.—

(a) The judgment terminating parental rights pending adoption must be in writing and contain findings of fact as to the grounds for terminating parental rights.

(b) Within 7 days after filing, the court shall mail a copy of the judgment to the department. The clerk shall execute a certificate of the mailing.

(c) The judgment terminating parental rights pending adoption legally frees the child for subsequent adoption, adjudicates the child’s status, and may not be challenged by a person claiming parental status who did not establish parental rights before the filing of the petition for termination, except as specifically provided in this chapter.

(7) RELIEF FROM JUDGMENT TERMINATING PARENTAL RIGHTS.—

(a) A motion for relief from a judgment terminating parental rights must be filed with the court originally entering the judgment. The motion must be filed within a reasonable time, but not later than 1 year after the entry of the judgment. An unmarried biological father does not have standing to seek relief from a judgment terminating parental rights if the mother did not identify him to the adoption entity before the date she signed a consent for adoption or if he was not located because the mother failed or refused to provide sufficient information to locate him.

(b) No later than 30 days after the filing of a motion under this subsection, the court must conduct a preliminary hearing to determine what contact, if any, shall be permitted between a parent and the child pending resolution of the motion. Such contact shall be considered only if it is requested by a parent who has appeared at the hearing and may not be awarded unless the parent previously established a bonded relationship with the child and the parent has pled a legitimate legal basis and established a prima facie case for setting aside the judgment terminating parental rights. If the court orders contact between a parent and child, the order must be issued in writing as expeditiously as possible and must state with specificity any provisions regarding contact with persons other than those with whom the child resides.

(c) At the preliminary hearing, the court, upon the motion of any party or upon its own motion, may order scientific testing to determine the paternity of the minor if the person seeking to set aside the judgment is alleging to be the child’s father and that fact has not previously been determined by legitimacy or scientific testing. The court may order visitation with a person for whom scientific testing for paternity has been ordered and who has previously established a bonded relationship with the child.

(d) Unless otherwise agreed between the parties or for good cause shown, the court shall conduct a final hearing on the motion for relief from judgment within 45 days after the filing and enter its written order as expeditiously as possible thereafter.

(e) If the court grants relief from the judgment terminating parental rights and no new pleading is filed to terminate parental rights, the placement of the child should revert to the parent or guardian who had physical custody of the child at the time of the original placement for adoption unless the court determines upon clear and convincing evidence that this placement is not in the best interests of the child or is not an available option for the child. The court may not change the placement of a child who has established a bonded relationship with the current caregiver without providing for a reasonable transition plan consistent with the best interests of the child. The court may direct the parties to participate in a reunification or unification plan with a qualified professional to assist the child in the transition. The court may not direct the placement of a child with a person other than the adoptive parents without first obtaining a favorable home study of that person and any other persons residing in the proposed home and shall take whatever additional steps are necessary and appropriate for the physical and emotional protection of the child.

(8) RECORDS; CONFIDENTIAL INFORMATION.—All papers and records pertaining to a petition to terminate parental rights pending adoption are related to the subsequent adoption of the minor and are subject to s. 63.162. An unmarried biological father does not have standing to seek the court case number or access the court file if the mother did not identify him to the adoption entity before the date she signed the consent for adoption. The confidentiality provisions of this chapter do not apply to the extent information regarding persons or proceedings is made available as specified under s. 63.088.