In the Interest of I.B., 2014 WL 3375933 (Fla. 5th DCA)

The Fifth District Court of Appeal (Fifth DCA) withdrew its previous opinion dated May 9, 2014 following review of a motion for rehearing by the adoption intermediary for the prospective adoptive parents (foster parents).  The prospective adoptive parents appealed the trial court’s order striking Mother’s adoption consent.   The Fifth DCA reversed the decision, finding insufficient evidence of duress.   The matter was remanded for the trial court to consider any alternative basis for invalidating the adoption consent.

Mother originally informed the trial court that she intended to proceed with a private adoption of her child by a paternal aunt.  The child had been placed in foster care with a different individual.  At a later time, two of mother’s relatives contacted the foster care liaison regarding mother’s desire to have the foster parents adopt rather than the paternal aunt.  The foster care liaison prepared an adoption consent form, which mother signed on two occasions.  Mother and paternal aunt later sought to strike Mother’s consent to adoption by the foster parents.

Mother testified that the foster care liaison came to the jail where mother was incarcerated at 10:00 P.M.  Mother’s attorney was not present and Mother did not know that the liaison was present on behalf of the foster parents.  Mother further testified that she was told the adoption would be open but was not told what open adoption meant.  Mother testified that no one explained the consent paperwork, provided her a copy, or informed her of right to revoke her consent within three days.  This consent was later deemed to be invalid because it was not properly executed.  A second consent was provided to Mother.  Although her attorney was present for the signing of the second consent, mother was behind glass at the jail and did not speak to anyone regarding the consent.  Mother testified that she felt pressured by her family and her attorney to sign the paperwork.  Additionally, Mother testified that she would not have signed the consent without a promise of continued contact with her child.

The trial court found that mother did not understand what she was signing, felt pressured to sign the consent and, as a result, her consent was not voluntary.

Pursuant to Fla. Statute § 63.082(7)(f), if the three-day revocation period for consent has passed, consent can only be set aside when the court finds that it was obtained by fraud or duress.  The party seeking to set aside the consent, in this matter the paternal aunt, bears the burden of proving duress by clear and convincing evidence.

The Fifth DCA agreed with the foster parents that there was insufficient evidence to support a finding of duress.  The Fifth DCA remanded the matter to the trial court to determine whether evidence supported striking the consent based upon the impact of any of the procedural violations noted by the trial court.   Failure to meet a requirement of the adoption statute does not in and of itself constitutes grounds to strike a consent “unless the extent and circumstances of such a failure result in a material failure of fundamental fairness in the administration of due process, or the failure constitutes or contributes to fraud or duress in obtaining a consent to adoption.”  Fla. Statute § 63.2325.

The Fifth DCA held that evidence was insufficient to prove duress as a basis to set aside mother’s consent to adoption and reversed the trial court’s order striking the mother’s consent to adoption form.

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