Senate Bill 0550c1

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    Florida Senate - 1998                            CS for SB 550

    By the Committee on Judiciary





    308-1780A-98

  1                      A bill to be entitled

  2         An act relating to adoption; amending ss.

  3         39.461, 39.464, 39.469, F.S., relating to the

  4         petition and grounds for terminating parental

  5         rights and powers of disposition; removing

  6         provisions authorizing licensed child-placing

  7         agencies to file actions to terminate parental

  8         rights; amending s. 39.47, F.S.; providing

  9         additional requirements for a petition for

10         adoption; prohibiting filing such petition

11         until the order terminating parental rights is

12         final; amending s. 63.022, F.S.; revising

13         legislative intent with respect to adoptions in

14         this state; amending s. 63.032, F.S.; revising

15         definitions; defining the term "adoption

16         entity"; creating s. 63.037, F.S.; exempting

17         adoption proceedings that result from a

18         termination of parental rights under ch. 39,

19         F.S., from certain provisions of ch. 63, F.S.;

20         creating s. 63.038, F.S.; providing criminal

21         penalties for committing certain fraudulent

22         acts; creating s. 63.039, F.S.; providing

23         sanctions and an award of attorney's fees under

24         certain circumstances; amending s. 63.052,

25         F.S.; providing for placement of a minor

26         pending adoption; specifying the jurisdiction

27         of the court over a minor who has been placed

28         for adoption; amending s. 63.062, F.S.;

29         specifying additional persons who must consent

30         to an adoption, execute an affidavit of

31         nonpaternity, or receive notice of proceedings

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  1         to terminate parental rights; permitting an

  2         affidavit of nonpaternity under certain

  3         circumstances; amending s. 63.082, F.S.;

  4         revising requirements for executing a consent

  5         to an adoption; providing a time period for

  6         withdrawing consent; providing additional

  7         disclosure requirements; amending s. 63.085,

  8         F.S.; specifying information that must be

  9         disclosed to persons seeking to adopt a minor

10         and to the birth parents; creating s. 63.087,

11         F.S.; requiring that a separate proceeding be

12         conducted by the court to determine whether a

13         birth parent's parental rights should be

14         terminated; providing for rules, jurisdiction,

15         and venue for such proceedings; providing

16         requirements for the petition and hearing;

17         creating s. 63.088, F.S.; providing

18         requirements for identifying and locating a

19         person who is required to consent to an

20         adoption or receive notice of proceedings to

21         terminate parental rights; providing

22         requirements for the notice; providing

23         requirements for conducting a diligent search

24         for such person whose location is unknown;

25         requiring that an unlocated or unidentified

26         person be served notice by constructive

27         service; providing that failure to respond or

28         appear constitutes grounds to terminate

29         parental rights pending adoption; creating s.

30         63.089, F.S.; providing procedures for the

31         proceeding to terminate parental rights pending

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  1         adoption; specifying the matters to be

  2         determined; specifying grounds upon which

  3         parental rights may be terminated; providing

  4         for procedures following a judgment; providing

  5         for records to be made part of the subsequent

  6         adoption; amending s. 63.092, F.S.; providing

  7         requirements to be met if a prospective

  8         placement in an adoptive home is an at-risk

  9         placement; defining at-risk placement; amending

10         s. 63.097, F.S.; revising requirements for the

11         court in approving specified fees and costs;

12         amending s. 63.102, F.S.; revising requirements

13         for filing a petition for adoption; providing

14         requirements for prior approval of fees and

15         costs; amending s. 63.112, F.S.; revising

16         requirements for the information that must be

17         included in a petition for adoption; amending

18         s. 63.122, F.S.; revising the time requirements

19         for hearing a petition for adoption; amending

20         s. 63.125, F.S., relating to the final home

21         investigation; conforming provisions to changes

22         made by the act; amending s. 63.132, F.S.;

23         revising requirements for the report of

24         expenditures and receipts which is filed with

25         the court; amending s. 63.142, F.S.; specifying

26         circumstances under which a judgment

27         terminating parental rights pending adoption is

28         voidable; providing for an evidentiary hearing

29         to determine the minor's placement following a

30         motion to void such a judgment; amending s.

31         63.152, F.S.; requiring that the clerk of the

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  1         court mail a copy of a new birth record to the

  2         state registry of adoption information;

  3         amending s. 63.165, F.S.; requiring that a copy

  4         of the certified statement of final decree of

  5         adoption be included in the state registry of

  6         adoption information; requiring that the

  7         Department of Children and Family Services

  8         maintain such information for a specified

  9         period; amending s. 63.182, F.S.; requiring

10         that an action to vacate an order of adoption

11         or an order terminating parental rights pending

12         adoption be filed within a specified period

13         after entry of the order; amending s. 63.207,

14         F.S.; revising provisions that limit the

15         placement of a minor in another state for

16         adoption; amending s. 63.212, F.S., relating to

17         prohibitions and penalties with respect to

18         adoptions; conforming provisions to changes

19         made by the act; repealing s. 63.072, F.S.,

20         relating to persons who may waive required

21         consent to an adoption; requiring that a

22         petition for adoption be governed by the law in

23         effect at the time the petition is filed;

24         providing an effective date.

25

26  Be It Enacted by the Legislature of the State of Florida:

27

28         Section 1.  Section 39.461, Florida Statutes, is

29  amended to read:

30         39.461  Petition for termination of parental rights.--

31

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  1         (1)  All proceedings seeking an adjudication to

  2  terminate parental rights pursuant to this chapter must be

  3  initiated by the filing of an original petition by the

  4  department, the guardian ad litem, or a licensed child-placing

  5  agency or by any other person who has knowledge of the facts

  6  alleged or is informed of them and believes that they are

  7  true.

  8         (2)  The form of the petition is governed by the

  9  Florida Rules of Juvenile Procedure. The petition must be in

10  writing and signed by the petitioner or, if the department is

11  the petitioner, by an employee of the department, under oath

12  stating the petitioner's good faith in filing the petition.

13         (3)  When a petition for termination of parental rights

14  has been filed, the clerk of the court shall set the case

15  before the court for an advisory hearing.

16         Section 2.  Section 39.464, Florida Statutes, as

17  amended by section 12 of chapter 97-276, Laws of Florida, is

18  amended to read:

19         39.464  Grounds for termination of parental rights.--

20         (1)  The department, the guardian ad litem, a licensed

21  child-placing agency, or any person related to the child who

22  has knowledge of the facts alleged or who is informed of said

23  facts and believes that they are true, may petition for the

24  termination of parental rights under any of the following

25  circumstances:

26         (a)  When the parent or parents voluntarily executed a

27  written surrender of the child and consented to the entry of

28  an order giving custody of the child to the department or to a

29  licensed child-placing agency for subsequent adoption and the

30  department or licensed child-placing agency is willing to

31  accept custody of the child.

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  1         1.  The surrender document must be executed before two

  2  witnesses and a notary public or other person authorized to

  3  take acknowledgments.

  4         2.  The surrender and consent may be withdrawn after

  5  acceptance by the department or licensed child-placing agency

  6  only after a finding by the court that the surrender and

  7  consent were obtained by fraud or duress.

  8         (b)  When the identity or location of the parent or

  9  parents is unknown and, if the court requires a diligent

10  search pursuant to s. 39.4625, cannot be ascertained by

11  diligent search as provided in s. 39.4625 within 90 days.

12         (c)  When the parent or parents engaged in conduct

13  toward the child or toward other children that demonstrates

14  that the continuing involvement of the parent or parents in

15  the parent-child relationship threatens the life or well-being

16  of the child irrespective of the provision of services.

17  Provision of services is evidenced by proof that services were

18  provided through a previous plan or offered as a case plan

19  from a child welfare agency.

20         (d)  When the parent of a child is incarcerated in a

21  state or federal correctional institution and:

22         1.  The period of time for which the parent is expected

23  to be incarcerated will constitute a substantial portion of

24  the period of time before the child will attain the age of 18

25  years;

26         2.  The incarcerated parent has been determined by the

27  court to be a violent career criminal as defined in s.

28  775.084, a habitual violent felony offender as defined in s.

29  775.084, or a sexual predator as defined in s. 775.21; has

30  been convicted of first degree or second degree murder in

31  violation of s. 782.04 or a sexual battery that constitutes a

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  1  capital, life, or first degree felony violation of s. 794.011;

  2  or has been convicted of an offense in another jurisdiction

  3  which is substantially similar to one of the offenses listed

  4  in this paragraph.  As used in this section, the term

  5  "substantially similar offense" means any offense that is

  6  substantially similar in elements and penalties to one of

  7  those listed in this paragraph, and that is in violation of a

  8  law of any other jurisdiction, whether that of another state,

  9  the District of Columbia, the United States or any possession

10  or territory thereof, or any foreign jurisdiction; and

11         3.  The court determines by clear and convincing

12  evidence that continuing the parental relationship with the

13  incarcerated parent would be harmful to the child and, for

14  this reason, that termination of the parental rights of the

15  incarcerated parent is in the best interest of the child.

16         (e)  When the parent or parents engaged in egregious

17  conduct that endangers the life, health, or safety of the

18  child or the child's sibling or had the opportunity and

19  capability to prevent egregious conduct that threatened the

20  life, health, or safety of the child or the child's sibling

21  and knowingly failed to do so.

22         1.  As used in this subsection, the term "sibling"

23  means another child who resides with or is cared for by the

24  parent or parents regardless of whether the child is related

25  legally or by consanguinity.

26         2.  As used in this subsection, the term "egregious

27  abuse" means conduct of the parent or parents that is

28  deplorable, flagrant, or outrageous by a normal standard of

29  conduct. Egregious abuse may include an act or omission that

30  occurred only once but was of such intensity, magnitude, or

31  severity as to endanger the life of the child.

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  1         (f)  A petition for termination of parental rights may

  2  also be filed when a child has been adjudicated dependent, a

  3  case plan has been filed with the court, and the child

  4  continues to be abused, neglected, or abandoned by the

  5  parents. In this case, the failure of the parents to

  6  substantially comply for a period of 12 months after an

  7  adjudication of the child as a dependent child constitutes

  8  evidence of continuing abuse, neglect, or abandonment unless

  9  the failure to substantially comply with the case plan was due

10  either to the lack of financial resources of the parents or to

11  the failure of the department to make reasonable efforts to

12  reunify the family. Such 12-month period may begin to run only

13  after the entry of a disposition order placing the custody of

14  the child with the department or a person other than the

15  parent and the subsequent filing with the court of a case plan

16  with a goal of reunification with the parent.

17         (2)  When a petition for termination of parental rights

18  is filed under subsection (1), a separate petition for

19  dependency need not be filed and the department need not offer

20  the parents a case plan with a goal of reunification, but may

21  instead file with the court a case plan with a goal of

22  termination of parental rights.

23         Section 3.  Subsections (2) and (8) of section 39.469,

24  Florida Statutes, are amended to read:

25         39.469  Powers of disposition; order of disposition.--

26         (2)  If the child is in foster care custody of the

27  department and the court finds that the grounds for

28  termination of parental rights have been established by clear

29  and convincing evidence, the court shall, by order, place the

30  child in the custody of the department for the purpose of

31

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  1  adoption or place the child in the custody of a licensed

  2  child-placing agency for the purpose of adoption.

  3         (8)  If the court terminates parental rights, it shall,

  4  in its order of disposition, provide for a hearing, to be

  5  scheduled no later than 30 days after the date of disposition,

  6  in which the department or the licensed child-placing agency

  7  shall provide to the court a plan for permanency for the

  8  child. Thereafter, until the adoption of the child is

  9  finalized or the child reaches the age of 18 years, whichever

10  occurs first, the court shall hold hearings at 6-month

11  intervals to review the progress being made toward permanency

12  for the child.

13         Section 4.  Section 39.47, Florida Statutes, is amended

14  to read:

15         39.47  Postdisposition Post disposition relief.--

16         (1)  A licensed child-placing agency or The department

17  that which is given custody of a child for subsequent adoption

18  in accordance with this chapter may place the child in a

19  family home for prospective subsequent adoption and may

20  thereafter become a party to any proceeding for the legal

21  adoption of the child and appear in any court where the

22  adoption proceeding is pending and consent to the adoption;

23  and that consent alone shall in all cases be sufficient.

24         (2)  In any subsequent adoption proceeding, the parents

25  and legal guardian are shall not be entitled to any notice of

26  the proceeding and are not thereof, nor shall they be entitled

27  to knowledge at any time after the order terminating parental

28  rights is entered of the whereabouts of the child or of the

29  identity or location of any person having the custody of or

30  having adopted the child, except as provided by order of the

31  court pursuant to this chapter or chapter 63; and in any

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  1  habeas corpus or other proceeding involving the child brought

  2  by any parent or legal guardian of the child, an no agent of

  3  the licensed child-placing agency or department may not shall

  4  be compelled to divulge that information, but may be compelled

  5  to produce the child before a court of competent jurisdiction

  6  if the child is still subject to the guardianship of the

  7  licensed child-placing agency or department.

  8         (3)  The entry of the custody order to the department

  9  does or licensed child-placing agency shall not entitle the

10  licensed child-placing agency or department to guardianship of

11  the estate or property of the child, but the licensed

12  child-placing agency or department shall be the guardian of

13  the person of the child.

14         (4)  The court shall retain jurisdiction over any child

15  for whom custody is given to a licensed child-placing agency

16  or to the department until the child is adopted. After custody

17  of a child for subsequent adoption has been given to an agency

18  or the department, the court has jurisdiction for the purpose

19  of reviewing the status of the child and the progress being

20  made toward permanent adoptive placement. As part of this

21  continuing jurisdiction, for good cause shown by the guardian

22  ad litem for the child, the court may review the

23  appropriateness of the adoptive placement of the child. The

24  petition for adoption must be filed in the division of the

25  circuit court which issued the judgment terminating parental

26  rights. A copy of the consent required under s. 63.062(4) and

27  executed by the department must be attached to the petition

28  for adoption. The petition for adoption must be accompanied by

29  a form created by the department which details the social and

30  medical history of each birth parent and includes the social

31  security number and date of birth for each birth parent, if

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  1  such information is available or readily obtainable. The

  2  person seeking to adopt the minor may not file a petition for

  3  adoption until the order terminating parental rights becomes

  4  final. An adoption proceeding under this subsection is

  5  governed by chapter 63, as limited under s. 63.037.

  6         (5)  The Legislature finds that children are most

  7  likely to realize their potential when they have the ability

  8  provided by good permanent families rather than spending long

  9  periods of time in temporary placements or unnecessary

10  institutions. It is the intent of the Legislature that

11  decisions be consistent with the child's best interests and

12  that the department make proper adoptive placements as

13  expeditiously as possible following a final judgment

14  terminating parental rights.

15         Section 5.  Section 63.022, Florida Statutes, is

16  amended to read:

17         63.022  Legislative intent.--

18         (1)  It is the intent of the Legislature to protect and

19  promote the well-being of persons being adopted and their

20  birth and adoptive parents and to provide to all children who

21  can benefit by it a permanent family life, and, whenever

22  possible, to maintain sibling groups.

23         (2)  The basic safeguards intended to be provided by

24  this chapter act are that:

25         (a)  The minor child is legally free for adoption.

26         (b)  The required persons consent to the adoption or

27  the parent-child relationship is terminated by judgment of the

28  court.

29         (c)  The required social studies are completed and the

30  court considers the reports of these studies prior to judgment

31  on adoption petitions.

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  1         (d)  All placements of minors for adoption are reported

  2  to the Department of Children and Family Services.

  3         (e)  A sufficient period of time elapses during which

  4  the minor child has lived within the proposed adoptive home

  5  under the guidance of the department or a licensed

  6  child-placing agency.

  7         (f)  All expenditures by adoption entities

  8  intermediaries placing, and persons independently adopting, a

  9  minor are reported to the court and become a permanent record

10  in the file of the adoption proceedings.

11         (g)  Social and medical information concerning the

12  minor child and the birth parents is furnished by the birth

13  parent when available and filed with the court before a final

14  hearing on a petition to terminate parental rights pending

15  adoption consent to the adoption when a minor is placed by an

16  intermediary.

17         (h)  A new birth certificate is issued after entry of

18  the adoption judgment.

19         (i)  At the time of the hearing, the court may is

20  authorized to order temporary substitute care when it

21  determines that the minor is in an unsuitable home.

22         (j)  The records of all proceedings concerning custody

23  and adoption of minor children are confidential and exempt

24  from the provisions of s. 119.07(1), except as provided in s.

25  63.162.

26         (k)  The birth parent, the adoptive parent, and the

27  minor child receive the same or similar safeguards, guidance,

28  counseling, and supervision in an intermediary adoption as

29  they receive in an agency or department adoption.

30         (l)  In all matters coming before the court pursuant to

31  this chapter act, the court shall enter such orders as it

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  1  deems necessary and suitable to promote and protect the best

  2  interests of the person to be adopted.

  3         Section 6.  Section 63.032, Florida Statutes, is

  4  amended to read:

  5         63.032  Definitions.--As used in this chapter act,

  6  unless the context otherwise requires, the term:

  7         (1)  "Department" means the Department of Children and

  8  Family Services.

  9         (2)  "Child" means a son or daughter, whether by birth

10  or adoption.

11         (3)  "Court" means any circuit court of this state and,

12  when the context requires, the court of any state that is

13  empowered to grant petitions for adoption.

14         (4)  "Minor" means a person under the age of 18 years.

15         (5)  "Adult" means a person who is not a minor.

16         (6)  "Person" includes a natural person, corporation,

17  government or governmental subdivision or agency, business

18  trust, estate, trust, partnership, or association, and any

19  other legal entity.

20         (7)  "Agency" means any child-placing agency licensed

21  by the department pursuant to s. 63.202 to place minors for

22  adoption.

23         (8)  "Intermediary" means an attorney or physician who

24  is licensed or authorized to practice in this state and who

25  has reported the intended placement of a minor for adoption

26  under s. 63.092 or, for the purpose of adoptive placements of

27  children from out of state with citizens of this state, a

28  child-placing agency licensed in another state that is

29  qualified by the department.

30         (9)  "To place" or "placement" means the process of a

31  person giving a child up for adoption and the prospective

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  1  parents receiving and adopting the child, and includes all

  2  actions by any person or agency participating in the process.

  3         (10)  "Adoption" means the act of creating the legal

  4  relationship between parent and child where it did not exist,

  5  thereby declaring the child to be legally the child of the

  6  adoptive parents and their heir at law and entitled to all the

  7  rights and privileges and subject to all the obligations of a

  8  child born to such adoptive parents in lawful wedlock.

  9         (11)  "Suitability of the intended placement" includes

10  the fitness of the intended placement, with primary

11  consideration being given to the welfare of the child; the

12  fitness and capabilities of the adoptive parent or parents to

13  function as parent or parents for a particular child; any

14  familial relationship between the child and the prospective

15  placement; and the compatibility of the child with the home in

16  which the child is intended to be placed.

17         (12)  "Primary residence and place of employment in

18  Florida" means a person lives and works in this state at least

19  6 months of the year and intends to do so for the foreseeable

20  future or military personnel who designate Florida as their

21  place of residence in accordance with the Soldiers' and

22  Sailors' Civil Relief Act of 1940 or employees of the United

23  States Department of State living in a foreign country who

24  designate Florida as their place of residence.

25         (13)  "Primarily lives and works outside Florida" means

26  anyone who does not meet the definition of "primary residence

27  and place of employment in Florida."

28         (14)  "Abandoned" means a situation in which the parent

29  or legal custodian of a child, while being able, makes no

30  provision for the child's support and makes no effort to

31  communicate with the child, which situation is sufficient to

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  1  evince a willful rejection of parental obligations. If, in the

  2  opinion of the court, the efforts of such parent or legal

  3  custodian to support and communicate with the child are only

  4  marginal efforts that do not evince a settled purpose to

  5  assume all parental duties, the court may declare the child to

  6  be abandoned.  In making this decision, the court may consider

  7  the conduct of a father towards the child's mother during her

  8  pregnancy.

  9         (15)  "Adoption entity" means the department under

10  chapter 39; an agency under chapter 63 or, at the request of

11  the department, under chapter 39; or an intermediary under

12  chapter 63, placing a person for adoption.

13         Section 7.  Section 63.037, Florida Statutes, is

14  created to read:

15         63.037  Proceedings applicable to cases resulting from

16  a termination of parental rights under chapter 39.--A case in

17  which a minor becomes available for adoption after the

18  parental rights of each parent have been terminated by a court

19  order issued pursuant to chapter 39 will be governed by s.

20  39.47 and this chapter. Adoption proceedings filed under

21  chapter 39 are exempt from the following provisions of this

22  chapter: disclosure requirements for the adoption entity

23  provided in s. 63.085; general provisions governing

24  termination of parental rights pending adoption provided in s.

25  63.087; notice and service provisions governing termination of

26  parental rights pending adoption provided in s. 63.088; and

27  procedures for terminating parental rights pending adoption

28  provided in s. 63.089.

29         Section 8.  Section 63.038, Florida Statutes, is

30  created to read:

31

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  1         63.038  Prohibited acts.--A person who knowingly and

  2  willfully provides false information under this chapter or

  3  who, with the intent to defraud, accepts benefits related to

  4  the same pregnancy from more than one agency or intermediary

  5  without disclosing that fact to each entity commits a

  6  misdemeanor of the second degree, punishable as provided in s.

  7  775.082 or s. 775.083. In addition to any other penalty or

  8  liability allowed by law, a person who knowingly and willfully

  9  provides false information under this chapter or who, with

10  intent to defraud, accepts benefits related to the same

11  pregnancy from more than one agency or intermediary without

12  disclosing that fact to each entity and to any prospective

13  adoptive parent providing sums for the payment of the benefits

14  is liable for sums paid by anyone who paid sums permitted

15  under this chapter in anticipation of or in connection with an

16  adoption. A person seeking to collect moneys under this

17  section may do so by filing a civil action or may be awarded

18  restitution in a criminal prosecution.

19         Section 9.  Section 63.039, Florida Statutes, is

20  created to read:

21         63.039  Duty of adoption entity to prospective adoptive

22  parents; sanctions.--

23         (1)  An adoption entity placing a minor for adoption

24  has an affirmative duty to follow the requirements of this

25  chapter, specifically the following provisions, which protect

26  and promote the well-being of persons being adopted and their

27  birth and adoptive parents by promoting certainty, finality,

28  and permanency for such persons:

29         (a)  Provide written initial disclosure to the adoptive

30  parent at the time and in the manner required under s.

31  63.085(1);

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  1         (b)  Obtain a written statement by the adoptive parent

  2  acknowledging receipt of the written initial disclosure and

  3  distribute copies of that acknowledgment at the time and in

  4  the manner required under s. 63.085(3);

  5         (c)  Provide written initial and postbirth disclosure

  6  to the birth parent at the time and in the manner required

  7  under s. 63.085(4);

  8         (d)  Obtain a written statement by the birth parent

  9  acknowledging receipt of the written initial and postbirth

10  disclosure and distribute copies of that acknowledgment at the

11  time and in the manner required under s. 63.085(3);

12         (e)  When a written consent for adoption is obtained,

13  obtain the consent at the time and in the manner required

14  under s. 63.082;

15         (f)  When a written consent or affidavit of

16  nonpaternity for adoption is obtained, obtain a consent or

17  affidavit of nonpaternity that contains the language required

18  under s. 63.082;

19         (g)  Include in the petition to terminate parental

20  rights pending adoption all information required under s.

21  63.087(6)(e);

22         (h)  Obtain and file the affidavit of inquiry required

23  under s. 63.088(3);

24         (i)  When the identity of a person whose consent to

25  adoption is necessary under this chapter is known but the

26  location of such a person is unknown, conduct the

27  due-diligence search and file the affidavit required under s.

28  63.088(4);

29         (j)  Serve the petition and notice of hearing to

30  terminate parental rights pending adoption at the time and in

31  the manner required by s. 63.088; and

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  1         (k)  Hold the hearings required under this chapter no

  2  sooner than permitted by this chapter.

  3         (2)  An adoption entity that materially fails to meet a

  4  duty specified in subsection (1), may be liable to the

  5  prospective adoptive parents for all sums paid by the

  6  prospective adoptive parents or on their behalf in

  7  anticipation of or in connection with an adoption.

  8         (3)  If a court finds that a consent taken under this

  9  chapter was obtained by fraud or duress attributable to the

10  adoption entity, the court must award all sums paid by the

11  prospective adoptive parents or on their behalf in

12  anticipation of or in connection with the adoption. The court

13  may also award reasonable attorney's fees and costs incurred

14  by the prospective adoptive parents in connection with the

15  adoption and any litigation related to placement or adoption

16  of a minor. An award under this subsection must be paid

17  directly to the prospective adoptive parents by the adoption

18  entity.

19         (4)  If a person whose consent to an adoption is

20  necessary under s. 63.062 prevails in an action to set aside a

21  consent to adoption, a judgment terminating parental rights

22  pending adoption, or a judgment of adoption, the court must

23  award a reasonable attorney's fee to the prevailing party. An

24  award under this subsection is to be paid by the adoption

25  entity if the court finds that the acts or omissions of the

26  entity were the basis for the court's order granting relief to

27  the prevailing party.

28         (5)  The court must provide to The Florida Bar any

29  order that imposes sanctions under this section against an

30  attorney, whether acting as an adoption agency or as an

31  intermediary. The court must provide to the Department of

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  1  Children and Family Services any order that imposes sanctions

  2  under this section against an agency. The order must be

  3  provided within 30 days after the date that the order was

  4  issued.

  5         Section 10.  Section 63.052, Florida Statutes, is

  6  amended to read:

  7         63.052  Guardians designated; proof of commitment.--

  8         (1)  For minors who have been placed for adoption with

  9  and permanently committed to an agency, the agency shall be

10  the guardian of the person of the minor child; for those who

11  have been placed for adoption with and permanently committed

12  to the department, the department shall be the guardian of the

13  person of the minor child.

14         (2)  For minors who have been voluntarily surrendered

15  to an intermediary through an execution of consent to

16  adoption, the intermediary shall be responsible for the child

17  until the time a court orders preliminary approval of

18  placement of the child in the prospective adoptive home, at

19  which time the prospective adoptive parents become guardians

20  pending finalization of adoption. Until a court has terminated

21  parental rights pending adoption and has ordered preliminary

22  approval of placement of the minor in the adoptive home, the

23  minor must be placed in the care of a birth relative, placed

24  in foster care, or placed in the care of a prospective

25  adoptive home that has received a favorable home study by a

26  licensed child placing agency, a licensed professional, or an

27  agency described in s. 61.20(2) within 1 year before such

28  placement of the minor with the prospective adoptive parents.

29  The fact that a minor is temporarily placed with the

30  prospective adoptive parents does not give rise to a

31

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  1  presumption that the parental rights of the birth parents will

  2  subsequently be terminated.

  3         (2)  For minors who have been placed for adoption with

  4  or voluntarily surrendered to an agency, but have not been

  5  permanently committed to the agency, the agency shall have the

  6  responsibility and authority to provide for the needs and

  7  welfare for such minors.  For those minors placed for adoption

  8  with or voluntarily surrendered to the department, but not

  9  permanently committed to the department, the department shall

10  have the responsibility and authority to provide for the needs

11  and welfare for such minors.  The adoption entity may

12  department, an intermediary, or a licensed child-placing

13  agency has the authority to authorize all appropriate medical

14  care for a minor the children who has have been placed for

15  adoption with or voluntarily surrendered to them.  The

16  provisions of s. 627.6578 shall remain in effect

17  notwithstanding the guardianship provisions in this section.

18         (3)  If a minor is surrendered to an intermediary for

19  subsequent adoption and a suitable prospective adoptive home

20  is not available under s. 63.092 at the time the minor is

21  surrendered to the intermediary or, if the minor is a newborn

22  admitted to a licensed hospital or birth center, at the time

23  the minor is discharged from the hospital or birth center the

24  minor must be placed in licensed foster care, the intermediary

25  shall be responsible for the child until a suitable

26  prospective adoptive home is available under s. 63.092.

27         (4)  If a minor child is voluntarily surrendered to an

28  intermediary for subsequent adoption and the adoption does not

29  become final within 180 days, the intermediary must report to

30  the court on the status of the minor child and the court may

31

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  1  at that time proceed under s. 39.453 or take action reasonably

  2  necessary to protect the best interest of the minor child.

  3         (5)  The recital in the written consent given by the

  4  department that the minor child sought to be adopted has been

  5  permanently committed to the department shall be prima facie

  6  proof of such commitment.  The recital in the written consent

  7  given by a licensed child-placing agency or the declaration in

  8  an answer or recommendation filed by a licensed child-placing

  9  agency that the minor child has been permanently committed and

10  the child-placing agency is duly licensed by the department

11  shall be prima facie proof of such commitment and of such

12  license.

13         (6)  Unless otherwise authorized by law, the department

14  is not responsible for expenses incurred by licensed

15  child-placing agencies or intermediaries participating in

16  placement of a minor child for the purposes of adoption.

17         (7)  The court retains jurisdiction over a minor who

18  has been placed for adoption until the adoption is final.

19  After a minor is placed with an adoption entity or prospective

20  adoptive parent, the court has jurisdiction for the purpose of

21  reviewing the status of the minor and the progress being made

22  toward permanent adoptive placement. As part of this

23  continuing jurisdiction, for good cause shown by a person

24  whose consent to an adoption is required under s. 63.062, by a

25  party to any proceeding involving the minor, or upon the

26  court's own motion, the court may review the appropriateness

27  of the adoptive placement of the minor.

28         Section 11.  Section 63.062, Florida Statutes, is

29  amended to read:

30         63.062  Persons required to consent to adoption.--

31

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  1         (1)  Unless supported by one or more of the grounds

  2  enumerated under s. 63.089(3) consent is excused by the court,

  3  a petition to terminate parental rights pending adoption adopt

  4  a minor may be granted only if written consent has been

  5  executed as provided in s. 63.082 after the birth of the minor

  6  or notice has been served under s. 63.088 to by:

  7         (a)  The mother of the minor.

  8         (b)  The father of the minor, if:

  9         1.  The minor was conceived or born while the father

10  was married to the mother;.

11         2.  The minor is his child by adoption;.

12         3.  The minor has been established by court proceeding

13  to be his child.

14         (c)  If there is no father as set forth in subsection

15  (b), any man for whom the minor has been established to be his

16  child by scientific tests that are generally acceptable within

17  the scientific community to show a probability of paternity.

18         (d)  If there is no father as set forth in subsection

19  (b) or subsection (c), any man who:

20         1.4.  He Has acknowledged in writing, signed in the

21  presence of a competent witness, that he is the father of the

22  minor and has filed such acknowledgment with the Office of

23  Vital Statistics of the Department of Health;.

24         2.5.  He Has provided the child or the mother during

25  her pregnancy with support in a repetitive, customary manner;.

26         3.  Has been identified by the birth mother as a person

27  she has reason to believe may be the father of the minor in an

28  action to declare the minor available for adoption pursuant to

29  this chapter; or

30

31

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  1         4.  Is a party in any pending proceeding in which

  2  paternity, custody, or termination of parental rights

  3  regarding the minor is at issue.

  4         (e)(c)  The minor, if more than 12 years of age, unless

  5  the court in the best interest of the minor dispenses with the

  6  minor's consent.

  7         (2)  Any person whose consent is required under

  8  paragraph (1)(b), paragraph (1)(c), or paragraph (1)(d) may

  9  execute an affidavit of nonpaternity in lieu of a consent

10  under this section and by doing so waives notice to all court

11  proceedings after the date of execution. An affidavit of

12  nonpaternity must be executed under s. 63.082 and the person

13  executing the affidavit must receive disclosure under s.

14  63.085 prior to signing the affidavit. An affidavit of

15  nonpaternity must be in substantially the following form:

16

17                    AFFIDAVIT OF NONPATERNITY

18

19         1.  I have personal knowledge of the facts

20         stated herein.

21         2.  I have been told that ... has a child or

22         that she is pregnant and anticipates delivery

23         on or around ... . I shall not establish or

24         claim paternity for this child.

25         3.  The child or unborn child noted herein was

26         not conceived or born while the birth mother

27         was married to me. I AM NOT MARRIED TO THE

28         BIRTH MOTHER, nor do I intend to marry the

29         birth mother.

30         4.  I have not provided the birth mother with

31         child support or prebirth support; I have not

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  1         provided her with prenatal care nor assisted

  2         her with medical expenses; I have not provided

  3         the birth mother or her child or unborn child

  4         with support of any kind, nor do I intend to do

  5         so.

  6         5.  I have no interest in assuming the

  7         responsibilities of parenthood for this child.

  8         I will not acknowledge in writing to be the

  9         father of this child nor institute court

10         proceedings to establish the child to be mine.

11         6.  I do not object to any decision or

12         arrangements ... makes regarding this child,

13         including adoption.

14

15         I WAIVE NOTICE OF ANY AND ALL PROCEEDINGS TO

16         TERMINATE PARENTAL RIGHTS OR FINALIZE AN

17         ADOPTION UNDER THIS CHAPTER.

18

19         (3)(2)  The court may require that consent be executed

20  by:

21         (a)  Any person lawfully entitled to custody of the

22  minor; or

23         (b)  The court having jurisdiction to determine custody

24  of the minor, if the person having physical custody of the

25  minor has no authority to consent to the adoption.

26         (4)(3)  The petitioner must make good faith and

27  diligent efforts as provided under s. 63.088 to notify, and

28  obtain written consent from, the persons required to consent

29  to adoption under s. 63.062 within 60 days after filing the

30  petition. These efforts may include conducting interviews and

31  record searches to locate those persons, including verifying

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  1  information related to location of residence, employment,

  2  service in the Armed Forces, vehicle registration in this

  3  state, and corrections records.

  4         (5)(4)  If parental rights to the minor have previously

  5  been terminated, a licensed child-placing agency or the

  6  department with which the minor child has been placed for

  7  subsequent adoption may provide consent to the adoption.  In

  8  such case, no other consent is required.

  9         (6)(5)  A petition to adopt an adult may be granted if:

10         (a)  Written consent to adoption has been executed by

11  the adult and the adult's spouse, if any.

12         (b)  Written consent to adoption has been executed by

13  the birth parents, if any, or proof of service of process has

14  been filed, showing notice has been served on the parents as

15  provided in this chapter section.

16         Section 12.  Section 63.082, Florida Statutes, is

17  amended to read:

18         63.082  Execution of consent or affidavit of

19  nonpaternity; family medical history; withdrawal of consent.--

20         (1)  Consent or an affidavit of nonpaternity shall be

21  executed as follows:

22         (a)  If by the person to be adopted, by oral or written

23  statement in the presence of the court or by being

24  acknowledged before a notary public.

25         (b)  If by an agency, by affidavit from its authorized

26  representative.

27         (c)  If by any other person, in the presence of the

28  court or by affidavit.

29         (d)  If by a court, by an appropriate order or

30  certificate of the court.

31

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  1         (2)  A consent that does not name or otherwise identify

  2  the adopting parent is valid if the consent contains a

  3  statement by the person consenting that the consent was

  4  voluntarily executed and that identification of the adopting

  5  parent is not required for granting the consent.

  6         (3)(a)  The department must provide a consent form and

  7  a family social and medical history form to an adoption entity

  8  that intermediary who intends to place a child for adoption.

  9  The forms completed by the birth parents must be attached to

10  the petition to terminate parental rights pending adoption and

11  must contain such biological and sociological information, or

12  such information as to the family medical history, regarding

13  the minor child and the birth parents as is required by the

14  department. The information must be incorporated into the

15  final home investigation report specified in s. 63.125. The

16  court may also require that the birth mother and birth father

17  must be interviewed by a representative of the department, a

18  licensed child-placing agency, or a professional pursuant to

19  s. 63.092 before the consent is executed, unless the birth

20  parent is found to be an unlocated parent or an unidentified

21  parent. A summary of each interview, or a statement that the

22  parent is unlocated or unidentified, must be filed with the

23  petition to terminate parental rights pending adoption and

24  included in the final home study filed under s. 63.125.

25         (b)  Consent executed by the department, by a licensed

26  child-placing agency, or by an appropriate order or

27  certificate of the court under s. 63.062(2)(b) must be

28  attached to the petition to terminate parental rights pending

29  adoption and must be accompanied by a family medical history

30  that includes such information concerning the medical history

31

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  1  of the child and the birth parents as is available or readily

  2  obtainable.

  3         (c)  If any executed consent or social and medical

  4  history is unavailable because the person whose consent is

  5  required is unlocated or unidentified, the petition must be

  6  accompanied by the affidavit of due diligence required under

  7  s. 63.088.

  8         (4)  The consent to an adoption for voluntary surrender

  9  must be executed only after the birth of the minor. The

10  consent or affidavit of nonpaternity is valid and binding upon

11  execution, unless withdrawn under subsection (7). The consent

12  or affidavit of nonpaternity must be signed child, in the

13  presence of two witnesses, and be acknowledged before a notary

14  public who is not signing as one of the witnesses. The notary

15  public must legibly note on the consent or affidavit of

16  nonpaternity the date and time the consent or affidavit of

17  nonpaternity was executed. The witnesses' names must be typed

18  or printed underneath their signatures. The witnesses', and

19  their home or business addresses and social security numbers,

20  driver's license numbers, or state identification card numbers

21  must be included. The absence of a social security number,

22  driver's license number, or state identification card number

23  shall not be deemed to invalidate the consent. The person who

24  signs the consent or affidavit has the right to have at least

25  one of the witnesses be an individual who does not have a

26  partnership, employment, agency, or other professional or

27  personal relationship with the adoption entity or the

28  prospective adoptive parents. The person who signs the consent

29  or affidavit of nonpaternity must be given reasonable notice

30  of the right to select a witness of his or her own choosing.

31  The person who signs the consent or affidavit of nonpaternity

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  1  must acknowledge in writing on the consent or affidavit that

  2  such notice was given and indicate the witness, if any, who

  3  was selected by the person signing the consent or affidavit. A

  4  consent to adoption must contain, in at least 16-point

  5  boldfaced type, an acknowledgement of the birth parent's

  6  rights in substantially the following form:

  7

  8         YOU DO NOT HAVE TO SIGN THIS CONSENT FORM. YOU

  9         HAVE THE RIGHT TO DO ANY OF THE FOLLOWING

10         INSTEAD OF SIGNING THIS CONSENT OR BEFORE

11         SIGNING THIS CONSENT:

12

13         (A)  CONSULT WITH AN ATTORNEY;

14         (B)  HOLD, CARE FOR, AND FEED THE CHILD;

15         (C)  PLACE THE CHILD IN FOSTER CARE OR WITH ANY

16         FRIEND OR FAMILY MEMBER YOU CHOOSE WHO IS

17         WILLING TO CARE FOR YOUR CHILD;

18         (D)  TAKE THE CHILD HOME; AND

19         (E)  FIND OUT ABOUT THE COMMUNITY RESOURCES

20         THAT ARE AVAILABLE TO YOU IF YOU DO NOT GO

21         THROUGH WITH THE ADOPTION.

22

23         IF YOU DO SIGN THIS CONSENT, YOU ARE

24         RELINQUISHING ALL RIGHTS TO YOUR CHILD. YOUR

25         CONSENT IS VALID AND BINDING UNLESS WITHDRAWN

26         AS PERMITTED BY LAW. YOU MAY WITHDRAW YOUR

27         CONSENT FOR ANY REASON IF YOU DO SO WITHIN 3

28         BUSINESS DAYS AFTER THE DATE YOU SIGNED THE

29         CONSENT OR 1 BUSINESS DAY AFTER THE DATE OF THE

30         BIRTH MOTHER'S DISCHARGE FROM A LICENSED

31         HOSPITAL OR BIRTH CENTER, WHICHEVER IS LATER.

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  1

  2         YOU MAY DO THIS BY NOTIFYING THE ADOPTION

  3         ENTITY IN WRITING THAT YOU ARE WITHDRAWING YOUR

  4         CONSENT. YOU MAY DO THIS BY PRESENTING A LETTER

  5         AT A UNITED STATES POST OFFICE AND ASKING THAT

  6         THE LETTER BE SENT BY CERTIFIED UNITED STATES

  7         MAIL WITH RETURN RECEIPT REQUESTED WITHIN 3

  8         BUSINESS DAYS AFTER THE DATE YOU SIGNED THE

  9         CONSENT OR 1 BUSINESS DAY AFTER THE DATE OF THE

10         BIRTH MOTHER'S DISCHARGE FROM A LICENSED

11         HOSPITAL OR BIRTH CENTER, WHICHEVER IS LATER.

12         AS USED IN THIS SECTION, THE TERM "BUSINESS

13         DAY" MEANS A DAY ON WHICH THE UNITED STATES

14         POST OFFICE ACCEPTS CERTIFIED MAIL FOR

15         DELIVERY. THE COST OF THIS MUST BE PAID AT THE

16         TIME OF MAILING AND THE RECEIPT SHOULD BE

17         RETAINED AS PROOF THAT CONSENT WAS WITHDRAWN IN

18         A TIMELY MANNER.

19

20         THE ADOPTION ENTITY YOU SHOULD NOTIFY IS:

21         ...(Name of Adoption Entity)..., ...(Address of

22         Adoption Entity)..., ...(Phone Number of

23         Adoption Entity).... FOLLOWING 3 BUSINESS DAYS

24         AFTER THE DATE YOU SIGNED THE CONSENT OR 1

25         BUSINESS DAY AFTER THE DATE OF THE BIRTH

26         MOTHER'S DISCHARGE FROM A LICENSED HOSPITAL OR

27         BIRTH CENTER, WHICHEVER IS LATER, YOU MAY

28         WITHDRAW YOUR CONSENT ONLY IF YOU CAN PROVE IN

29         COURT THAT CONSENT WAS OBTAINED BY FRAUD OR

30         DURESS.

31

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  1         (5)  Before any consent to adoption or affidavit of

  2  nonpaternity is executed by a birth parent, but after the

  3  birth of the child, all requirements of disclosure under s.

  4  63.085 must be met.

  5         (6)  A copy of each consent signed in an action for

  6  termination of parental rights pending adoption must be

  7  provided to each person whose consent is required under s.

  8  63.062. A copy of each consent must be hand delivered, with a

  9  written acknowledgement of receipt signed by the person whose

10  consent is required, or mailed by first class United States

11  mail to the address of record in the court file. If a copy of

12  a consent cannot be provided as required in this section, the

13  adoption entity must execute an acknowledgement that states

14  the reason the copy of the consent is undeliverable. The

15  original consent and acknowledgment of receipt, or the

16  acknowledgment of mailing by the adoption entity, must be

17  filed with the petition for termination of parental rights

18  pending adoption.

19         (7)(5)  Consent may be withdrawn for any reason by

20  notifying the adoption entity in writing by certified United

21  States mail, return receipt requested, not later than 3

22  business days after execution of the consent or 1 business day

23  after the date of the birth mother's discharge from a licensed

24  hospital or birth center, whichever occurs later. As used in

25  this subsection, the term "business day" means a day on which

26  the United States Post Office accepts certified mail for

27  delivery. Upon receiving written notice from a person of that

28  person's desire to withdraw consent, the adoption entity must

29  contact the prospective adoptive parent to arrange a time

30  certain for the adoption entity to regain physical custody of

31  the child. The adoption entity must return the minor within 3

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  1  days to the physical custody of the person withdrawing

  2  consent. Thereafter, consent may be withdrawn only when the

  3  court finds that the consent was obtained by fraud or duress.

  4  An affidavit of nonpaternity may be withdrawn only if the

  5  court finds that the affidavit of nonpaternity was obtained by

  6  fraud. The adoption entity must include its name, address, and

  7  telephone number on the consent form.

  8         Section 13.  Section 63.085, Florida Statutes, is

  9  amended to read:

10         (Substantial rewording of section. See

11         s. 63.085, F.S., for present text.)

12         63.085  Disclosure by adoption entity.--

13         (1)  DISCLOSURE REQUIRED TO BIRTH PARENTS AND

14  PROSPECTIVE ADOPTIVE PARENTS.--Not later than 7 days after a

15  person seeking to adopt a minor or a person seeking to place a

16  minor for adoption contacts an adoption entity in person or

17  provides the adoption entity with a mailing address, the

18  entity must provide a written disclosure statement to that

19  person. If a birth parent did not initially contact the

20  adoption entity, the written disclosure must be provided

21  within 7 days after that birth parent is identified and

22  located. The written disclosure statement must be in

23  substantially the following form:

24

25                       ADOPTION DISCLOSURE

26

27         THE STATE OF FLORIDA REQUIRES THAT THIS FORM BE

28         PROVIDED TO ALL PERSONS CONSIDERING ADOPTION TO

29         ADVISE THEM OF THE FOLLOWING FACTS REGARDING

30         ADOPTION UNDER FLORIDA LAW:

31

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  1              1.  Under section 63.212, Florida

  2         Statutes, the existence of a placement or

  3         adoption contract signed by the birth parent or

  4         adoptive parent, prior approval of that

  5         contract by the court, or payment of any

  6         expenses permitted under Florida law does not

  7         obligate anyone to sign a consent or ultimately

  8         place a minor for adoption.

  9              2.  Under section 63.092, Florida

10         Statutes, a favorable preliminary home study

11         and a home investigation of the prospective

12         adoptive home must be completed as required by

13         chapter 63, Florida Statutes, before the minor

14         may be placed in that home.

15              3.  Under section 63.082, Florida

16         Statutes, a consent for adoption or affidavit

17         of nonpaternity may not be signed until after

18         the birth of the minor. The consent or

19         affidavit of nonpaternity is valid and binding

20         upon execution unless withdrawn as permitted

21         under section 63.082, Florida Statutes. Consent

22         may be withdrawn for any reason by notifying

23         the adoption entity in writing. In order to

24         withdraw consent, the written withdrawal of

25         consent must be mailed no later than 3 business

26         days after execution of the consent or 1

27         business day after the date of the birth

28         mother's discharge from a licensed hospital or

29         birth center, whichever occurs later. The

30         letter must be mailed certified mail, return

31         receipt requested. This is done by presenting

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  1         it at any United States Post Office, and asking

  2         that the letter be sent by certified United

  3         States mail with return receipt requested. The

  4         cost of this must be paid at the time of

  5         mailing and the receipt should be retained as

  6         proof that consent was withdrawn in a timely

  7         manner. For purposes of this chapter, the term

  8         "business day" means a day on which the United

  9         States Post Office accepts certified mail for

10         delivery. Upon receiving written notice from a

11         person of that person's desire to withdraw

12         consent, the adoption entity must contact the

13         prospective adoptive parent to arrange a time

14         certain to regain physical custody of the

15         child. The adoption entity must return the

16         minor within 3 days to the physical custody of

17         the person withdrawing consent. Thereafter,

18         consent may be withdrawn only if the court

19         finds that consent was obtained by fraud. An

20         affidavit of nonpaternity, once executed, may

21         be withdrawn only if the court finds that

22         consent was obtained by fraud.

23              4.  Under section 63.082, Florida

24         Statutes, a person who signs a consent or

25         affidavit of nonpaternity for adoption must be

26         given reasonable notice of his or her right to

27         select a person who does not have a

28         partnership, employment, agency, or other

29         professional or personal relationship with the

30         adoption entity or the prospective adoptive

31         parents to be present when the consent or

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  1         affidavit of nonpaternity is executed and to

  2         sign the consent or affidavit as a witness.

  3              5.  Under section 63.088, Florida

  4         Statutes, specific and extensive efforts are

  5         required by law to attempt to obtain the

  6         consents required under section 63.062, Florida

  7         Statutes. If these efforts are unsuccessful, an

  8         order terminating parental rights pending

  9         adoption may not be issued by the court until

10         those requirements have been met and an

11         affidavit of service has been filed with the

12         court.

13              6.  Under Florida law, an intermediary may

14         represent the legal interests of only the

15         adoptive parents, not of any birth parent. Each

16         person whose consent to an adoption is required

17         under section 63.062, Florida Statutes,

18         including each birth parent, is entitled to

19         seek independent legal advice and

20         representation before signing any document or

21         surrendering parental rights.

22              7.  Under section 63.089, Florida

23         Statutes, the termination of parental rights

24         will occur simultaneously with the entry of a

25         judgment terminating parental rights pending

26         adoption.

27              8.  Under section 63.182, Florida

28         Statutes, an action or proceeding of any kind

29         to vacate, set aside, or otherwise nullify an

30         order of adoption or an underlying order

31         terminating parental rights pending adoption on

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  1         any ground, including fraud or duress, must be

  2         filed within 1 year after entry of the order

  3         terminating parental rights pending adoption.

  4              9.  Under section 63.182, Florida

  5         Statutes, for 1 year after the entry of a

  6         judgment of adoption, any irregularity or

  7         procedural defect in the adoption proceeding

  8         may be the subject of an appeal contesting the

  9         validity of the judgment.

10              10.  Under section 63.089, Florida

11         Statutes, a judgment terminating parental

12         rights pending adoption is voidable and any

13         later judgment of adoption of that minor is

14         voidable if, upon the motion of a birth parent,

15         the court finds that any person knowingly gave

16         false information that prevented the birth

17         parent from timely making known his or her

18         desire to assume parental responsibilities

19         toward the minor or meeting the requirements

20         under chapter 63, Florida Statutes, to exercise

21         his or her parental rights. A motion under

22         section 63.089, Florida Statutes, must be filed

23         with the court originally entering the

24         judgment. The motion must be filed within a

25         reasonable time, but not later than 1 year

26         after the date the judgment to which the motion

27         is directed was entered.

28              11.  Under section 63.165, Florida

29         Statutes, the State of Florida maintains a

30         registry of adoption information. Information

31

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  1         about the registry is available from the

  2         Department of Children and Family Services.

  3              12.  Under section 63.032, Florida

  4         Statutes, a court may find that a birth parent

  5         has abandoned his or her child based on conduct

  6         during the pregnancy or based on conduct after

  7         the child is born. In addition, under section

  8         63.089, Florida Statutes, the failure of a

  9         birth parent to respond to notices of

10         proceedings involving his or her child shall

11         result in termination of parental rights of a

12         birth parent. A lawyer can explain what a birth

13         parent must do to protect his or her parental

14         rights. Any birth parent wishing to protect his

15         or her parental rights should act IMMEDIATELY.

16              13.  Each birth parent and adoptive parent

17         is entitled to independent legal advice and

18         representation. Attorney information may be

19         obtained from the yellow pages, The Florida

20         Bar's lawyer referral service, and local legal

21         aid offices and bar associations.

22              14.  There are counseling services

23         available in the community to assist in making

24         a parenting decision. Consult the yellow pages

25         of the telephone directory.

26              15.  Medical and social services support

27         is available if the birth parent wishes to

28         retain parental rights and responsibilities.

29         Consult the Department of Children and Family

30         Services.

31

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  1         (2)  ACKNOWLEDGMENT OF DISCLOSURE.--The adoption entity

  2  must obtain a written statement acknowledging receipt of the

  3  disclosure required under subsection (1) and signed by the

  4  persons receiving the disclosure or, if it is not possible to

  5  obtain such an acknowledgement, the adoption entity must

  6  execute an affidavit stating why an acknowledgement could not

  7  be obtained. A copy of the acknowledgement of receipt of the

  8  disclosure must be provided to the person signing it. A copy

  9  of the acknowledgement or affidavit executed by the adoption

10  entity in lieu of the acknowledgement must be maintained in

11  the file of the adoption entity. The original acknowledgement

12  or affidavit must be filed with the court. In the case of a

13  disclosure provided under subsection (1), the original

14  acknowledgement or affidavit must be included in the

15  preliminary home study required in s. 63.092(2).

16         (3)  POST-BIRTH DISCLOSURE TO BIRTH PARENTS.--Before

17  execution of any consent to adoption by a birth parent, but

18  after the birth of the minor, all requirements of subsections

19  (1) and (2) for making certain disclosures to a birth parent

20  and obtaining a written acknowledgment of receipt must be

21  repeated.

22         Section 14.  Section 63.087, Florida Statutes, is

23  created to read:

24         63.087  Proceeding to terminate parental rights pending

25  adoption; general provisions.--

26         (1)  INTENT.--It is the intent of the Legislature to

27  provide a proceeding in which the court determines whether a

28  minor is legally available for adoption through a separate

29  proceeding to address termination of parental rights prior to

30  the filing of a petition for adoption.

31

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  1         (2)  GOVERNING RULES.--The Florida Family Law Rules of

  2  Procedure govern a proceeding to terminate parental rights

  3  pending adoption unless otherwise provided by law.

  4         (3)  JURISDICTION.--A court of this state which is

  5  competent to decide child welfare or custody matters has

  6  jurisdiction to hear all matters arising from a proceeding to

  7  terminate parental rights pending adoption. All subsequent

  8  proceedings for the adoption of the minor, if the petition for

  9  termination is granted, must be conducted by the same judge as

10  these proceedings whenever possible.

11         (4)  VENUE.--A petition to terminate parental rights

12  pending adoption must be filed in the county where the child

13  resided for the prior 6 months or, if the child is younger

14  than 6 months of age, in the county where the birth mother or

15  birth father resided at the time of the execution of the

16  consent to adoption or the affidavit of nonpaternity, or, if

17  there is no consent or affidavit of nonpaternity executed by a

18  birth parent, in the county where the birth mother resides.

19         (5)  PREREQUISITE FOR ADOPTION.--A petition for

20  adoption may not be filed until 30 days after the date the

21  judge signed the judgment terminating parental rights pending

22  adoption under this chapter, unless the adoptee is an adult or

23  the minor has been the subject of a judgment terminating

24  parental rights under chapter 39.

25         (6)  PETITION.--

26         (a)  A proceeding seeking to terminate parental rights

27  pending adoption pursuant to this chapter must be commenced by

28  the filing of an original petition after the birth of the

29  minor.

30         (b)  The petition may be filed by a birth parent or

31  legal guardian of the minor.

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  1         (c)  The petition must be entitled: "In the Matter of

  2  the Proposed Adoption of a Minor Child."

  3         (d)  If a petition for a declaratory statement under s.

  4  63.102 has previously been filed, a subsequent petition to

  5  terminate parental rights pending adoption may, at the request

  6  of any party or on the court's own motion, be consolidated

  7  with that previous action. If the petition to terminate

  8  parental rights pending adoption is consolidated with a prior

  9  petition filed under this chapter for which a filing fee has

10  been paid, the petitioner may not be charged a subsequent or

11  additional filing fee.

12         (e)  The petition to terminate parental rights pending

13  adoption must be in writing and signed by the petitioner under

14  oath stating the petitioner's good faith in filing the

15  petition. A written consent, affidavit of nonpaternity, or

16  affidavit of due diligence under s. 63.088, for each person

17  whose consent is required under s. 63.062, must be attached.

18         (f)  The petition must include:

19         1.  The minor's name, gender, date of birth, and place

20  of birth. The petition must contain all names by which the

21  minor is or has been known, including the minor's legal name

22  at the time of the filing of the petition, to allow interested

23  parties to the action, including birth parents, legal

24  guardians, persons with custodial or visitation rights to the

25  minor, and persons entitled to notice pursuant to the Uniform

26  Child Custody Jurisdiction Act or the Indian Welfare Act, to

27  identify their own interest in the action.

28         2.  If the petition is filed before the day the minor

29  is 6 months old and if the identity or location of the birth

30  father is unknown, each city in which the birth mother resided

31

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  1  or traveled during the 12 months prior to the minor's birth,

  2  including the county and state in which that city is located.

  3         3.  Unless the consent of each person whose consent is

  4  required under s. 63.062 or an affidavit of nonpaternity is

  5  attached to the petition, the name and address or, if a

  6  specific address is unknown, the city, including the county

  7  and state in which that city is located, of:

  8         a.  The minor's mother;

  9         b.  Any man whom the mother reasonably believes may be

10  the minor's father; and

11         c.  Any legal custodian of the minor.

12

13  If a required name or address is not known, the petition must

14  so state.

15         4.  All information required by the Uniform Child

16  Custody Jurisdiction Act and the Indian Welfare Act.

17         5.  A statement of the grounds under s. 63.089 upon

18  which the petition is based.

19         6.  The name, address, and telephone number of any

20  adoption entity seeking to place the minor for adoption.

21         7.  The name, address, and phone number of the division

22  of the circuit in which the petition is to be filed.

23         (7)  ANSWER NOT REQUIRED.--An answer to the petition or

24  any pleading need not be filed by any minor, parent, or legal

25  custodian, but any matter that might be set forth in an answer

26  or other pleading may be pleaded orally before the court or

27  filed in writing as any such person may choose.

28  Notwithstanding the filing of any answer or any pleading, any

29  person present at the hearing to terminate parental rights

30  pending adoption whose consent to adoption is required under

31  s. 63.062 must:

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  1         (a)  Be advised by the court that he or she has a right

  2  to ask that the hearing be reset for a later date so that the

  3  person may consult with an attorney;

  4         (b)  Be given an opportunity to deny the allegations in

  5  the petition; and

  6         (c)  Be given the opportunity to challenge the validity

  7  of any consents or affidavits of nonpaternity signed by any

  8  person.

  9         Section 15.  Section 63.088, Florida Statutes, is

10  created to read:

11         63.088  Proceeding to terminate parental rights pending

12  adoption; notice and service.--

13         (1)  INITIATE LOCATION AND IDENTIFICATION

14  PROCEDURES.--When the location or identity of a person whose

15  consent to an adoption is required but is not known, the

16  adoption entity must begin the inquiry and diligent search

17  process required by this section not later than 7 days after

18  the date on which the person seeking to place a minor for

19  adoption has evidenced in writing to the entity a desire to

20  place the minor for adoption with that entity or not later

21  than 7 days after the date any money is provided as permitted

22  under this chapter by the adoption entity for the benefit of

23  the person seeking to place a minor for adoption.

24         (2)  LOCATION AND IDENTITY KNOWN.--Before the court may

25  determine that a minor is available for adoption, and in

26  addition to the other requirements set forth in this chapter,

27  each person whose consent is required under s. 63.062, who has

28  not executed an affidavit of nonpaternity, and whose location

29  and identity has been determined by compliance with the

30  procedures in this section must be personally served, pursuant

31  to chapter 48, at least 30 days before the hearing with a copy

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  1  of the petition to declare a minor available for adoption and

  2  with notice in substantially the following form:

  3

  4                  NOTICE OF PETITION AND HEARING

  5          TO TERMINATE PARENTAL RIGHTS PENDING ADOPTION

  6

  7         A petition to terminate parental rights pending

  8         adoption has been filed. A copy of the petition

  9         is being served with this notice. There will be

10         a hearing on the petition to terminate parental

11         rights pending adoption on ... (date) ... at

12         ... (time) ... before ... (judge) ... at ...

13         (location, including complete name and street

14         address of the courthouse) .... The court has

15         set aside ... (amount of time) ... for this

16         hearing.

17

18         UNDER SECTION 63.089, FLORIDA STATUTES, FAILURE

19         TO FILE A WRITTEN RESPONSE TO THIS NOTICE WITH

20         THE COURT OR TO APPEAR AT THIS HEARING

21         CONSTITUTES GROUNDS UPON WHICH THE COURT SHALL

22         END ANY PARENTAL RIGHTS YOU MAY HAVE REGARDING

23         THE MINOR CHILD.

24

25         (3)  REQUIRED INQUIRY.--In all cases filed under this

26  section, the court must conduct the following inquiry of the

27  person who is placing the minor for adoption and of any

28  relative or custodian of the minor who is present at the

29  hearing and likely to have the following information:

30

31

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  1         (a)  Whether the mother of the minor was married at any

  2  time when conception of the minor may have occurred or at the

  3  time of the birth of the minor;

  4         (b)  Whether the mother was cohabiting with a male at

  5  any time when conception of the minor may have occurred;

  6         (c)  Whether the mother has received payments or

  7  promises of support with respect to the minor or, because of

  8  her pregnancy, from any person she has reason to believe may

  9  be the father;

10         (d)  Whether the mother has named any person as the

11  father on the birth certificate of the minor or in connection

12  with applying for or receiving public assistance;

13         (e)  Whether any person has acknowledged or claimed

14  paternity of the minor; and

15         (f)  Whether the mother knows the identity of any

16  person whom she has reason to believe may be the father.

17

18  The information required under this subsection may be provided

19  to the court in the form of a sworn affidavit by a person

20  having personal knowledge of the facts, addressing each

21  inquiry enumerated in this subsection. The inquiry required

22  under this subsection may be conducted before the birth of the

23  minor.

24         (4)  LOCATION UNKNOWN; IDENTITY DETERMINED.--If the

25  inquiry by the court under subsection (3) identifies any

26  person whose consent is required under s. 63.062 and who has

27  not executed an affidavit of nonpaternity, and the location of

28  the person from whom consent is required is unknown, the

29  adoption entity must conduct a diligent search for that person

30  which must include the following inquiries:

31

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  1         (a)  The person's current address, or any previous

  2  address, through an inquiry of the United States Post Office

  3  through the Freedom of Information Act;

  4         (b)  The last known employment of the person, including

  5  the name and address of the person's employer. Inquiry should

  6  be made of the last known employer as to any address to which

  7  wage and earnings statements (W-2 forms) of the person have

  8  been mailed. Inquiry should be made of the last known employer

  9  as to whether the person is eligible for a pension or

10  profit-sharing plan and any address to which pension or other

11  funds have been mailed;

12         (c)  Union memberships the person may have held or

13  unions that governed the person's particular trade or craft in

14  the area where the person last resided;

15         (d)  Regulatory agencies, including those regulating

16  licensing in the area where the person last resided;

17         (e)  Names and addresses of relatives to the extent

18  such can be reasonably obtained from the petitioner or other

19  sources, contacts with those relatives, and inquiry as to the

20  person's last known address. The petitioner shall pursue any

21  leads of any addresses where the person may have moved.

22  Relatives include, but are not limited to, parents, brothers,

23  sisters, aunts, uncles, cousins, nieces, nephews,

24  grandparents, great grandparents, former in-laws, stepparents,

25  and stepchildren;

26         (f)  Information as to whether or not the person may

27  have died, and if so, the date and location;

28         (g)  Telephone listings in the area where the person

29  last resided;

30         (h)  Inquiries of law enforcement agencies in the area

31  where the person last resided;

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  1         (i)  Highway patrol records in the state where the

  2  person last resided;

  3         (j)  Department of Corrections records in the state

  4  where the person last resided;

  5         (k)  Hospitals in the area where the person last

  6  resided;

  7         (l)  Records of utility companies, including water,

  8  sewer, cable TV, and electric companies in the area where the

  9  person last resided;

10         (m)  Records of the Armed Forces of the United States

11  as to whether there is any information as to the person;

12         (n)  Records of the tax assessor and tax collector in

13  the area where the person last resided; and

14         (o)  Search of one Internet data bank locator service.

15

16  Any person contacted by a petitioner who is requesting

17  information pursuant to this subsection must release the

18  requested information to the petitioner, except when

19  prohibited by law, without the necessity of a subpoena or

20  court order. An affidavit of diligent search executed by the

21  petitioner and the adoption entity must be filed with the

22  court confirming completion of each aspect of the diligent

23  search enumerated in this subsection and specifying the

24  results. The diligent search required under this subsection

25  may be conducted before the birth of the minor.

26         (5)  LOCATION NOT DETERMINED OR IDENTITY UNKNOWN.--This

27  subsection only applies if, as to any person whose consent is

28  required under s. 63.062 and who has not executed an affidavit

29  of nonpaternity, the location or identity of the person is

30  unknown and the inquiry under subsection (3) fails to identify

31  the person or the due diligence search under subsection (4)

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  1  fails to locate the person. The unlocated or unidentified

  2  person must be served notice of the petition under s.

  3  63.087(6)(e) and hearing to terminate parental rights pending

  4  adoption by constructive service in the manner provided in

  5  chapter 49 in each county identified in the petition, as

  6  provided in s. 63.087(6). The notice, in addition to all

  7  information required in the petition under s. 63.087(6) and

  8  chapter 49, must contain a physical description, including,

  9  but not limited to, age, race, hair and eye color, and

10  approximate height and weight of the minor's mother and of any

11  person the mother reasonably believes may be the father; the

12  minor's date of birth; and any date and city, including the

13  county and state in which the city is located, in which

14  conception may have occurred. If any of the facts that must be

15  included in the petition under this subsection are unknown and

16  cannot be reasonably ascertained, the petition must so state.

17         Section 16.  Section 63.089, Florida Statutes, is

18  created to read:

19         63.089  Proceeding to terminate parental rights pending

20  adoption.--

21         (1)  HEARING.--The court may terminate parental rights

22  pending adoption only after a full evidentiary hearing.

23         (2)  HEARING PREREQUISITES.--The court may hold the

24  hearing only when:

25         (a)  For each person whose consent is required under s.

26  63.062:

27         1.  A consent under s. 63.082 has been executed and

28  filed within the court;

29         2.  An affidavit of nonpaternity under s. 63.082 has

30  been executed and filed with the court; or

31

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  1         3.  Notice has been provided under ss. 63.087 and

  2  63.088;

  3         (b)  For each notice and petition that must be served

  4  under ss. 63.087 and 63.088:

  5         1.  At least 30 days have elapsed since the date of

  6  personal service and an affidavit of service has been filed

  7  with the court;

  8         2.  At least 60 days have elapsed since the first date

  9  of publication of constructive service and an affidavit of

10  service has been filed with the court; or

11         3.  An affidavit of nonpaternity which affirmatively

12  waives service has been executed and filed with the court;

13         (c)  The minor named in the petition has been born; and

14         (d)  The petition contains all information required

15  under s. 63.087 and all affidavits of inquiry, due diligence,

16  and service required under s. 63.088 have been obtained and

17  filed with the court.

18         (3)  GROUNDS FOR TERMINATING PARENTAL RIGHTS PENDING

19  ADOPTION.--The court may issue a judgment terminating parental

20  rights pending adoption if the court determines by clear and

21  convincing evidence that each person whose consent to an

22  adoption is required under s. 63.062:

23         (a)  Has executed a valid consent that has not been

24  withdrawn under s. 63.082 and the consent was obtained

25  according to the requirements of this chapter;

26         (b)  Has executed an affidavit of nonpaternity and the

27  affidavit was obtained according to the requirements of this

28  chapter;

29         (c)  Has been properly served notice of the proceeding

30  in accordance with the requirements of this chapter and has

31  failed to file a written answer or appear at the evidentiary

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  1  hearing resulting in the order terminating parental rights

  2  pending adoption;

  3         (d)  Has abandoned the minor as abandonment is defined

  4  in s. 63.032(14);

  5         (e)  Is a parent of the person to be adopted, which

  6  parent has been judicially declared incapacitated with

  7  restoration of competency found to be medically improbable;

  8         (f)  Is a legal guardian or lawful custodian of the

  9  person to be adopted, other than a parent, who has failed to

10  respond in writing to a request for consent for a period of 60

11  days or, after examination of his or her written reasons for

12  withholding consent, is found by the court to be withholding

13  his or her consent unreasonably; or

14         (g)  Is the spouse of the person to be adopted who has

15  failed to consent, and the failure of the spouse to consent to

16  the adoption is excused by reason of prolonged and unexplained

17  absence, unavailability, incapacity, or circumstances that are

18  found by the court to constitute unreasonable withholding of

19  consent.

20         (4)  FINDING OF ABANDONMENT.--A finding of abandonment

21  resulting in a termination of parental rights must be based

22  upon clear and convincing evidence. A finding of abandonment

23  may not be based upon a lack of emotional support to a birth

24  mother during her pregnancy.

25         (a)  In making a determination of abandonment the court

26  must consider:

27         1.  Whether the actions alleged to constitute

28  abandonment demonstrate a willful disregard for the safety of

29  the child or unborn child;

30

31

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  1         2.  Whether other persons prevented the person alleged

  2  to have abandoned the child from making the efforts referenced

  3  in this subsection;

  4         3.  Whether the person alleged to have abandoned the

  5  child, while being able, refused to provide financial support

  6  when such support was requested by the child's legal guardian

  7  or custodian;

  8         4.  Whether the person alleged to have abandoned the

  9  child, while being able, refused to pay for medical treatment

10  when such payment was requested by the child's legal guardian

11  or custodian and those expenses were not covered by insurance

12  or other available sources;

13         5.  Whether the amount of support provided or medical

14  expenses paid was appropriate, taking into consideration the

15  needs of the child and relative means and resources available

16  to the person alleged to have abandoned the child and

17  available to the child's legal guardian or custodian during

18  the period the child allegedly was abandoned; and

19         6.  Whether the child's legal guardian or custodian

20  made the child's whereabouts known to the person alleged to

21  have abandoned the child; advised that person of the needs of

22  the child or the needs of the mother of an unborn child with

23  regard to the pregnancy; or informed that person of events

24  such as medical appointments and tests relating to the child

25  or, if unborn, the pregnancy.

26         (b)  The child has been abandoned when the parent of a

27  child is incarcerated on or after October 1, 1998, in a state

28  or federal correctional institution and sentenced to a term of

29  incarceration of 8 years or longer, regardless of how long the

30  person is actually incarcerated under that sentence or how

31

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  1  long the person will be incarcerated after October 1, 1998,

  2  and:

  3         1.  The period of time for which the parent is expected

  4  to be incarcerated will constitute a substantial portion of

  5  the period of time before the child will attain the age of 18

  6  years;

  7         2.  The incarcerated parent has been determined by the

  8  court to be a violent career criminal as defined in s.

  9  775.084, a habitual violent felony offender as defined in s.

10  775.084, or a sexual predator as defined in s. 775.21; has

11  been convicted of first degree or second degree murder in

12  violation of s. 782.04 or a sexual battery that constitutes a

13  capital, life, or first degree felony violation of s. 794.011;

14  or has been convicted of an offense in another jurisdiction

15  which is substantially similar to one of the offenses listed

16  in this paragraph. As used in this section, the term

17  "substantially similar offense" means any offense that is

18  substantially similar in elements and penalties to one of

19  those listed in this paragraph, and that is in violation of a

20  law of any other jurisdiction, whether that of another state,

21  the District of Columbia, the United States or any possession

22  or territory thereof, or any foreign jurisdiction; and

23         3.  The court determines by clear and convincing

24  evidence that continuing the parental relationship with the

25  incarcerated parent would be harmful to the child and, for

26  this reason, that termination of the parental rights of the

27  incarcerated parent is in the best interest of the child.

28         (c)  The only conduct of a father toward a mother

29  during pregnancy that the court may consider in determining

30  whether the child has been abandoned is conduct that occurred

31

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  1  after reasonable and diligent efforts have been made to inform

  2  the father that he is, or may be, the father of the child.

  3         (5)  DISMISSAL OF CASE WITH PREJUDICE.--If the court

  4  does not find by clear and convincing evidence that parental

  5  rights of a birth parent should be terminated pending

  6  adoption, the court must dismiss the case with prejudice and

  7  that birth parent's parental rights remain in full force under

  8  the law. Parental rights may not be terminated based upon a

  9  consent that the court finds has been timely withdrawn under

10  s. 63.082 or a consent or affidavit of nonpaternity that the

11  court finds was obtained by fraud. The court must enter an

12  order based upon written findings providing for the placement

13  of the minor. The court may order scientific testing to

14  determine the paternity of the minor at any time during which

15  the court has jurisdiction over the minor. Further

16  proceedings, if any, regarding the minor must be brought in a

17  separate custody action under chapter 61, a dependency action

18  under chapter 39, or a paternity action under chapter 742.

19         (6)  A JUDGMENT TERMINATING PARENTAL RIGHTS PENDING

20  ADOPTION.--

21         (a)  The judgment terminating parental rights pending

22  adoption must be in writing and contain findings of fact as to

23  the grounds for terminating parental rights pending adoption.

24         (b)  The clerk of the court shall mail a copy of the

25  judgment within 24 hours after filing to the department, the

26  petitioner, and the respondent. The clerk shall execute a

27  certificate of each mailing.

28         (c)  A judgment terminating parental rights pending

29  adoption is voidable and any later judgment of adoption of

30  that minor is voidable if, upon the motion of a birth parent,

31  the court finds that a person knowingly gave false information

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  1  that prevented the birth parent from timely making known his

  2  or her desire to assume parental responsibilities toward the

  3  minor or meeting the requirements under this chapter to

  4  exercise his or her parental rights. A motion under this

  5  paragraph must be filed with the court originally entering the

  6  judgment. The motion must be filed within a reasonable time,

  7  but not later than 1 year after the date the judgment to which

  8  the motion is directed was entered.

  9         (d)  Not later than 7 days after the filing of a motion

10  under this subsection, the court must conduct an evidentiary

11  hearing to determine the minor's placement. The legal

12  presumption that a minor be placed in the care and custody of

13  his or her parent may be rebutted only upon a showing that

14  such placement would endanger the minor. The order must

15  include a provision for visitation by a parent with whom the

16  minor is not placed if that parent has appeared at the

17  hearing. The order determining placement of the minor must be

18  issued in writing not later than 7 days after the hearing and

19  must state with specificity the basis for the placement and

20  any provisions regarding contact with persons other than those

21  with whom the child has been placed.

22         (7)  RECORDS; CONFIDENTIAL INFORMATION.--All records

23  pertaining to a petition to terminate parental rights pending

24  adoption are records related to the subsequent adoption of the

25  minor and are subject to the provisions of s. 63.162, as such

26  provisions apply to records of an adoption proceeding. The

27  confidentiality provisions of this chapter do not apply to the

28  extent information regarding persons or proceedings must be

29  made available as specified under s. 63.088.

30         Section 17.  Section 63.092, Florida Statutes, is

31  amended to read:

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  1         63.092  Report to the court of intended placement by an

  2  intermediary; preliminary study.--

  3         (1)  REPORT TO THE COURT.--The adoption entity

  4  intermediary must report any intended placement of a minor for

  5  adoption with any person not related within the third degree

  6  or a stepparent if the adoption entity intermediary has

  7  knowledge of, or participates in, such intended placement. The

  8  report must be made to the court before the minor is placed in

  9  the home.

10         (2)  AT-RISK PLACEMENT.--If the minor is placed in the

11  prospective adoptive home before the parental rights of the

12  minor's birth parents are terminated under s. 63.089, the

13  placement is an at-risk placement. If the placement is an

14  at-risk placement, the prospective adoptive parents must

15  acknowledge in writing before the minor may be placed in the

16  prospective adoptive home that the placement is at risk and

17  that the minor is subject to removal from the prospective

18  adoptive home by the adoption entity or by court order.

19         (3)(2)  PRELIMINARY HOME STUDY.--Before placing the

20  minor in the intended adoptive home, a preliminary home study

21  must be performed by a licensed child-placing agency, a

22  licensed professional, or agency described in s. 61.20(2),

23  unless the petitioner is a stepparent, a spouse of the birth

24  parent, or a relative.  The preliminary study shall be

25  completed within 30 days after the receipt by the court of the

26  adoption entity's intermediary's report, but in no event may

27  the minor child be placed in the prospective adoptive home

28  prior to the completion of the preliminary study unless

29  ordered by the court.  If the petitioner is a stepparent, a

30  spouse of the birth parent, or a relative, the preliminary

31  home study may be required by the court for good cause shown.

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  1  The department is required to perform the preliminary home

  2  study only if there is no licensed child-placing agency,

  3  licensed professional, or agency described in s. 61.20(2), in

  4  the county where the prospective adoptive parents reside.  The

  5  preliminary home study must be made to determine the

  6  suitability of the intended adoptive parents and may be

  7  completed prior to identification of a prospective adoptive

  8  minor child.  A favorable preliminary home study is valid for

  9  1 year after the date of its completion.  A minor may child

10  must not be placed in an intended adoptive home before a

11  favorable preliminary home study is completed unless the

12  adoptive home is also a licensed foster home under s. 409.175.

13  The preliminary home study must include, at a minimum:

14         (a)  An interview with the intended adoptive parents;

15         (b)  Records checks of the department's central abuse

16  registry under chapter 415 and statewide criminal records

17  correspondence checks through the Department of Law

18  Enforcement on the intended adoptive parents;

19         (c)  An assessment of the physical environment of the

20  home;

21         (d)  A determination of the financial security of the

22  intended adoptive parents;

23         (e)  Documentation of counseling and education of the

24  intended adoptive parents on adoptive parenting;

25         (f)  Documentation that information on adoption and the

26  adoption process has been provided to the intended adoptive

27  parents;

28         (g)  Documentation that information on support services

29  available in the community has been provided to the intended

30  adoptive parents; and

31

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  1         (h)  A copy of each the signed acknowledgement

  2  statement required by s. 63.085; and

  3         (i)  A copy of the written acknowledgment required by

  4  s. 63.085(1).

  5

  6  If the preliminary home study is favorable, a minor may be

  7  placed in the home pending entry of the judgment of adoption.

  8  A minor may not be placed in the home if the preliminary home

  9  study is unfavorable.  If the preliminary home study is

10  unfavorable, the intermediary or petitioner may, within 20

11  days after receipt of a copy of the written recommendation,

12  petition the court to determine the suitability of the

13  intended adoptive home.  A determination as to suitability

14  under this subsection does not act as a presumption of

15  suitability at the final hearing.  In determining the

16  suitability of the intended adoptive home, the court must

17  consider the totality of the circumstances in the home.

18         Section 18.  Section 63.097, Florida Statutes, is

19  amended to read:

20         63.097  Fees.--

21         (1)  The following fees, costs, and expenses may be

22  assessed by the adoption entity or paid by the adoption entity

23  on behalf of the prospective adoptive parents:

24         (a)  Reasonable living expenses of the birth mother

25  which the birth mother is unable to pay due to involuntary

26  unemployment, medical disability due to the pregnancy which is

27  certified by a medical professional who has examined the birth

28  mother, or any other disability defined in s. 110.215.

29  Reasonable living expenses are rent, utilities, basic

30  telephone service, food, necessary clothing, transportation,

31  and items included in the affidavit filed under s. 63.132 and

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  1  found by the court to be necessary for the health of the

  2  unborn child.

  3         (b)  Reasonable and necessary medical expenses.

  4         (c)  Expenses necessary to comply with the requirements

  5  of this chapter including, but not limited to, service of

  6  process under s. 63.088, a due diligence search under s.

  7  63.088, a preliminary home study under s. 63.092, and a final

  8  home study under s. 63.125.

  9         (d)  Court filing expenses, court costs, and other

10  litigation expenses.

11         (e)  Costs associated with advertising under s.

12  63.212(1)(h).

13         (f)  The following professional fees:

14         1.  A reasonable hourly fee necessary to provide legal

15  representation to the adoptive parents in a proceeding filed

16  under this chapter.

17         2.  A reasonable hourly fee for contact with the birth

18  parent related to the adoption. In determining a reasonable

19  hourly fee under this subparagraph, the court must consider if

20  the tasks done were clerical or of such a nature that the

21  matter could have been handled by support staff at a lesser

22  rate than the rate for legal representation charged under

23  subparagraph 1. This includes, but need not be limited to,

24  tasks such as transportation, transmitting funds, arranging

25  appointments, and securing accommodations. This does not

26  include obtaining a birth parent's signature on any document.

27         3.  A reasonable hourly fee for counseling services

28  provided to a birth parent or adoptive parent by a

29  psychologist licensed under chapter 490 or a clinical social

30  worker, marriage and family therapist, or mental health

31  counselor licensed under chapter 491.

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  1         (2)  Prior approval of the court is not required until

  2  the cumulative total of amounts permitted under subsection (1)

  3  exceeds:

  4         (a)  $2,500 in legal or other fees;

  5         (b)  $500 in court costs; or

  6         (c)  $3,000 in expenditures.

  7         (3)  Any fees, costs, or expenditures not included in

  8  subsection (1) or prohibited under subsection (4) require

  9  court approval prior to payment and must be based on a finding

10  of extraordinary circumstances.

11         (4)  The following fees, costs, and expenses are

12  prohibited:

13         1.  Any fee or expense that constitutes payment for

14  locating a minor for adoption.

15         2.  Cumulative expenses in excess of a total of $500

16  related to the minor, the pregnancy, a birth parent, or

17  adoption proceeding which are incurred prior to the date the

18  prospective adoptive parent retains the adoption entity.

19         3.  Any lump-sum payment to the entity which is

20  nonrefundable directly to the payor or which is not itemized

21  on the affidavit filed under s. 63.132.

22         4.  Any fee on the affidavit which does not specify the

23  service that was provided and for which the fee is being

24  charged, such as a fee for facilitation, acquisition, or other

25  similar service, or which does not identify the date the

26  service was provided, the time required to provide the

27  service, the person or entity providing the service, and the

28  hourly fee charged.

29         (1)  APPROVAL OF FEES TO INTERMEDIARIES.--Any fee over

30  $1,000 and those costs as set out in s. 63.212(1)(d) over

31  $2,500, paid to an intermediary other than actual, documented

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  1  medical costs, court costs, and hospital costs must be

  2  approved by the court prior to assessment of the fee by the

  3  intermediary and upon a showing of justification for the

  4  larger fee.

  5         (5)(2)  FEES FOR AGENCIES OR THE DEPARTMENT.--When an

  6  intermediary uses the services of a licensed child-placing

  7  agency, a professional, any other person or agency pursuant to

  8  s. 63.092, or, if necessary, the department, the person

  9  seeking to adopt the child must pay the licensed child-placing

10  agency, professional, other person or agency, or the

11  department an amount equal to the cost of all services

12  performed, including, but not limited to, the cost of

13  conducting the preliminary home study, counseling, and the

14  final home investigation.  The court, upon a finding that the

15  person seeking to adopt the child is financially unable to pay

16  that amount, may order that such person pay a lesser amount.

17         Section 19.  Section 63.102, Florida Statutes, is

18  amended to read:

19         63.102  Filing of petition; venue; proceeding for

20  approval of fees and costs.--

21         (1)  After a court order terminating parental rights

22  has been issued, a proceeding for adoption may shall be

23  commenced by filing a petition entitled, "In the Matter of the

24  Adoption of ...." in the circuit court.  The person to be

25  adopted shall be designated in the caption in the name by

26  which he or she is to be known if the petition is granted.  If

27  the child is placed for adoption by an agency, Any name by

28  which the minor child was previously known may shall not be

29  disclosed in the petition, the notice of hearing, or the

30  judgment of adoption.

31

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  1         (2)  A petition for adoption or for a declaratory

  2  statement as to the adoption contract shall be filed in the

  3  county where the petitioner or petitioners or the minor child

  4  resides or where the agency or intermediary with in which the

  5  minor child has been placed is located.

  6         (3)  Except for adoptions involving placement of a

  7  minor child with a relative within the third degree of

  8  consanguinity, a petition for adoption in an adoption handled

  9  by an intermediary shall be filed within 30 working days after

10  placement of a minor child with a parent seeking to adopt the

11  minor child.  If no petition is filed within 30 days, any

12  interested party, including the state, may file an action

13  challenging the prospective adoptive parent's physical custody

14  of the minor child.

15         (4)  If the filing of the petition for adoption or for

16  a declaratory statement as to the adoption contract in the

17  county where the petitioner or minor child resides would tend

18  to endanger the privacy of the petitioner or minor child, the

19  petition for adoption may be filed in a different county,

20  provided the substantive rights of any person will not thereby

21  be affected.

22         (5)  A proceeding for prior approval of fees and costs

23  may be commenced any time after an agreement is reached

24  between the birth mother and the adoptive parents by filing a

25  petition for declaratory statement on the agreement entitled

26  "In the Matter of the Proposed Adoption of a Minor Child" in

27  the circuit court.

28         (a)  The petition must be filed jointly by the adoption

29  entity and each person who enters into the agreement.

30         (b)  A contract for the payment of fees, costs, and

31  expenditures permitted under this chapter must be in writing,

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  1  and any person who enters into the contract has 3 business

  2  days in which to cancel the contract. To cancel the contract,

  3  the person must notify the adoption entity in writing by

  4  certified United States mail, return receipt requested, no

  5  later than 3 business days after signing the contract. For the

  6  purposes of this subsection, the term "business day" means a

  7  day on which the United States Post Office accepts certified

  8  mail for delivery. If the contract is canceled within the

  9  first 3 business days, the person who cancels the contract

10  does not owe any legal, intermediary, or other fees, but may

11  be responsible for the adoption entity's actual costs during

12  that time.

13         (c)  The court may grant prior approval only of fees

14  and expenditures permitted under s. 63.097. A prior approval

15  of prospective fees and costs does not create a presumption

16  that these items will subsequently be approved by the court

17  under s. 63.132 unless such a finding is supported by the

18  evidence submitted at that time. The court retains

19  jurisdiction to order an adoption entity to refund to the

20  person who enters into the contract any sum or portion of a

21  sum preapproved under this subsection if, upon submission of a

22  complete accounting of fees, costs, and expenses in an

23  affidavit required under s. 63.132, the court finds the fees,

24  costs, and expenses actually incurred to be less than the sums

25  approved prospectively under this subsection.

26         (d)  The contract may not require, and the court may

27  not approve, any lump-sum payment to the entity which is

28  nonrefundable to the payor or any amount that constitutes

29  payment for locating a minor for adoption.

30         (e)  If a petition for adoption is filed under this

31  section subsequent to the filing of a petition for a

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  1  declaratory statement or a petition to terminate parental

  2  rights pending adoption, the previous petition may, at the

  3  request of any party or on the court's own motion, be

  4  consolidated with the petition for adoption. If the petition

  5  for adoption is consolidated with a prior petition filed under

  6  this chapter for which a filing fee has been paid, the

  7  petitioner may not be charged any subsequent or additional

  8  filing fee.

  9         (f)  Prior approval of fees and costs by the court does

10  not obligate the birth parent to ultimately relinquish the

11  minor for adoption. If a petition for adoption is subsequently

12  filed, the petition for declaratory statement and the petition

13  for adoption must be consolidated into one case.

14         Section 20.  Section 63.112, Florida Statutes, is

15  amended to read:

16         63.112  Petition for adoption; description; report or

17  recommendation, exceptions; mailing.--

18         (1)  A sufficient number of copies of the petition for

19  adoption shall be signed and verified by the petitioner and

20  filed with the clerk of the court so that service may be made

21  under subsection (4) and shall state:

22         (a)  The date and place of birth of the person to be

23  adopted, if known;

24         (b)  The name to be given to the person to be adopted;

25         (c)  The date petitioner acquired custody of the minor

26  and the name of the person placing the minor;

27         (d)  The full name, age, and place and duration of

28  residence of the petitioner;

29         (e)  The marital status of the petitioner, including

30  the date and place of marriage, if married, and divorces, if

31  any;

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  1         (f)  The facilities and resources of the petitioner,

  2  including those under a subsidy agreement, available to

  3  provide for the care of the minor to be adopted;

  4         (g)  A description and estimate of the value of any

  5  property of the person to be adopted;

  6         (h)  The case style and date of entry of the order

  7  terminating parental rights or the judgment declaring a minor

  8  available for adoption name and address, if known, of any

  9  person whose consent to the adoption is required, but who has

10  not consented, and facts or circumstances that excuse the lack

11  of consent; and

12         (i)  The reasons why the petitioner desires to adopt

13  the person.

14         (2)  The following documents are required to be filed

15  with the clerk of the court at the time the petition is filed:

16         (a)  A certified copy of the court order terminating

17  parental rights under chapter 39 or the judgment declaring a

18  minor available for adoption under this chapter The required

19  consents, unless consent is excused by the court.

20         (b)  The favorable preliminary home study of the

21  department, licensed child-placing agency, or professional

22  pursuant to s. 63.092, as to the suitability of the home in

23  which the minor has been placed.

24         (c)  The surrender document must include documentation

25  that an interview was interviews were held with:

26         1.  The birth mother, if parental rights have not been

27  terminated;

28         2.  The birth father, if his consent to the adoption is

29  required and parental rights have not been terminated; and

30         3.  the minor child, if older than 12 years of age,

31  unless the court, in the best interest of the minor child,

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  1  dispenses with the minor's child's consent under s.

  2  63.062(1)(c).

  3

  4  The court may waive the requirement for an interview with the

  5  birth mother or birth father in the investigation for good

  6  cause shown.

  7         (3)  Unless ordered by the court, no report or

  8  recommendation is required when the placement is a stepparent

  9  adoption or when the minor child is related to one of the

10  adoptive parents within the third degree.

11         (4)  The clerk of the court shall mail a copy of the

12  petition within 24 hours after filing, and execute a

13  certificate of mailing, to the department and the agency

14  placing the minor, if any.

15         Section 21.  Section 63.122, Florida Statutes, is

16  amended to read:

17         63.122  Notice of hearing on petition.--

18         (1)  After the petition to adopt a minor is filed, the

19  court must establish a time and place for hearing the

20  petition. The hearing may must not be held sooner than 30 days

21  after the date the judgment terminating parental rights was

22  entered or sooner than 90 days after the date the minor was

23  placed the placing of the minor in the physical custody of the

24  petitioner.  The minor must remain under the supervision of

25  the department, an intermediary, or a licensed child-placing

26  agency until the adoption becomes final.  When the petitioner

27  is a spouse of the birth parent, the hearing may be held

28  immediately after the filing of the petition.

29         (2)  Notice of hearing must be given as prescribed by

30  the rules of civil procedure, and service of process must be

31  made as specified by law for civil actions.

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  1         (3)  Upon a showing by the petitioner that the privacy

  2  of the petitioner or minor child may be endangered, the court

  3  may order the names of the petitioner or minor child, or both,

  4  to be deleted from the notice of hearing and from the copy of

  5  the petition attached thereto, provided the substantive rights

  6  of any person will not thereby be affected.

  7         (4)  Notice of the hearing must be given by the

  8  petitioner to the adoption entity that places the minor.:

  9         (a)  The department or any licensed child-placing

10  agency placing the minor.

11         (b)  The intermediary.

12         (c)  Any person whose consent to the adoption is

13  required by this act who has not consented, unless such

14  person's consent is excused by the court.

15         (d)  Any person who is seeking to withdraw consent.

16         (5)  After filing the petition to adopt an adult, a

17  notice of the time and place of the hearing must be given to

18  any person whose consent to the adoption is required but who

19  has not consented.  The court may order an appropriate

20  investigation to assist in determining whether the adoption is

21  in the best interest of the persons involved.

22         Section 22.  Section 63.125, Florida Statutes, is

23  amended to read:

24         63.125  Final home investigation.--

25         (1)  The final home investigation must be conducted

26  before the adoption becomes final.  The investigation may be

27  conducted by a licensed child-placing agency or a professional

28  in the same manner as provided in s. 63.092 to ascertain

29  whether the adoptive home is a suitable home for the minor and

30  whether the proposed adoption is in the best interest of the

31  minor.  Unless directed by the court, an investigation and

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  1  recommendation are not required if the petitioner is a

  2  stepparent or if the minor child is related to one of the

  3  adoptive parents within the third degree of consanguinity.

  4  The department is required to perform the home investigation

  5  only if there is no licensed child-placing agency or

  6  professional pursuant to s. 63.092 in the county in which the

  7  prospective adoptive parent resides.

  8         (2)  The department, the licensed child-placing agency,

  9  or the professional that performs the investigation must file

10  a written report of the investigation with the court and the

11  petitioner within 90 days after the date the petition is

12  filed.

13         (3)  The report of the investigation must contain an

14  evaluation of the placement with a recommendation on the

15  granting of the petition for adoption and any other

16  information the court requires regarding the petitioner or the

17  minor.

18         (4)  The department, the licensed child-placing agency,

19  or the professional making the required investigation may

20  request other state agencies or child-placing agencies within

21  or outside this state to make investigations of designated

22  parts of the inquiry and to make a written report to the

23  department, the professional, or other person or agency.

24         (5)  The final home investigation must include:

25         (a)  The information from the preliminary home study.

26         (b)  After the minor child is placed in the intended

27  adoptive home, two scheduled visits with the minor child and

28  the minor's child's adoptive parent or parents, one of which

29  visits must be in the home, to determine the suitability of

30  the placement.

31

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  1         (c)  The family social and medical history as provided

  2  in s. 63.082.

  3         (d)  Any other information relevant to the suitability

  4  of the intended adoptive home.

  5         (e)  Any other relevant information, as provided in

  6  rules that the department may adopt.

  7         Section 23.  Section 63.132, Florida Statutes, is

  8  amended to read:

  9         63.132  Affidavit Report of expenditures and

10  receipts.--

11         (1)  At least 10 days before the hearing on the

12  petition for adoption, the petitioner and any adoption entity

13  intermediary must file two copies of an affidavit under this

14  section.

15         (a)  The affidavit must be signed by the adoption

16  entity and the prospective adoptive parents. A copy of the

17  affidavit must be provided to the adoptive parents at the time

18  the affidavit is executed.

19         (b)  The affidavit must itemize containing a full

20  accounting of all disbursements and receipts of anything of

21  value, including professional and legal fees, made or agreed

22  to be made by or on behalf of the petitioner and any adoption

23  entity intermediary in connection with the adoption or in

24  connection with any prior proceeding to terminate parental

25  rights which involved the minor who is the subject of the

26  petition for adoption. The affidavit must also include, for

27  each fee itemized, the service provided for which the fee is

28  being charged, the date the service was provided, the time

29  required to provide the service, the person or entity that

30  provided the service, and the hourly fee charged.

31

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  1         (c)  The clerk of the court shall forward a copy of the

  2  affidavit to the department. The department must retain these

  3  records for 5 years. Copies of affidavits received by the

  4  department under this subsection must be provided upon the

  5  request of any person. The department must redact all

  6  identifying references to the minor, the birth parent, or the

  7  adoptive parent from any affidavit released by the department.

  8  The name of the adoption entity may not be redacted. The

  9  intent of this paragraph is to create a resource for adoptive

10  parents and others wishing to obtain information about the

11  cost of adoption in this state.

12         (d)  The affidavit report must show any expenses or

13  receipts incurred in connection with:

14         1.(a)  The birth of the minor.

15         2.(b)  The placement of the minor with the petitioner.

16         3.(c)  The medical or hospital care received by the

17  mother or by the minor during the mother's prenatal care and

18  confinement.

19         4.(d)  The living expenses of the birth mother.  The

20  living expenses must be documented in detail to apprise the

21  court of the exact expenses incurred.

22         5.(e)  The services relating to the adoption or to the

23  placement of the minor for adoption that were received by or

24  on behalf of the petitioner, the adoption entity intermediary,

25  either birth natural parent, the minor, or any other person.

26

27  The affidavit must state whether any of these expenses were or

28  are eligible to be paid for by collateral sources, including,

29  but not limited to, health insurance, Medicaid, Medicare, or

30  public assistance.

31

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  1         (2)  The court may require such additional information

  2  as is deemed necessary.

  3         (3)  The court must issue a separate order approving or

  4  disapproving the fees, costs, and expenditures itemized in the

  5  affidavit. The court may approve only fees, costs, and

  6  expenditures allowed under s. 63.097. The court may reject in

  7  whole or in part any fee, cost, or expenditure listed if the

  8  court finds that the expense is:

  9         (a)  Contrary to this chapter;

10         (b)  Not supported by a receipt in the record, if the

11  expense is not a fee of the adoption entity; or

12         (c)  Not deemed by the court to be a reasonable fee or

13  expense, taking into consideration the requirements of this

14  chapter and the totality of the circumstances.

15         (4)(3)  This section does not apply to an adoption by a

16  stepparent whose spouse is a birth natural or adoptive parent

17  of the minor child.

18         Section 24.  Section 63.142, Florida Statutes, is

19  amended to read:

20         63.142  Hearing; judgment of adoption.--

21         (1)  APPEARANCE.--The petitioner and the person to be

22  adopted shall appear at the hearing on the petition for

23  adoption, unless:

24         (a)  The person is a minor under 12 years of age;, or

25         (b)  The presence of either is excused by the court for

26  good cause.

27         (2)  CONTINUANCE.--The court may continue the hearing

28  from time to time to permit further observation,

29  investigation, or consideration of any facts or circumstances

30  affecting the granting of the petition.

31         (3)  DISMISSAL.--

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  1         (a)  If the petition is dismissed, the court shall

  2  determine the person that is to have custody of the minor.

  3         (b)  If the petition is dismissed, the court shall

  4  state with specificity the reasons for the dismissal.

  5         (4)  JUDGMENT.--At the conclusion of the hearing, after

  6  when the court determines that the date for a birth parent to

  7  file an appeal of a valid judgment terminating that birth

  8  parent's parental rights has passed and no appeal is pending

  9  all necessary consents have been obtained and that the

10  adoption is in the best interest of the person to be adopted,

11  a judgment of adoption shall be entered.

12         (a)  A judgment terminating parental rights pending

13  adoption is voidable and any later judgment of adoption of

14  that minor is voidable if, upon the motion of the birth

15  parent, the court finds that any person knowingly gave false

16  information that prevented the birth parent from timely making

17  known his or her desire to assume parental responsibilities

18  toward the minor or meeting the requirements under this

19  chapter to exercise his or her parental rights. A motion under

20  this paragraph must be filed with the court that entered the

21  original judgment. The motion must be filed within a

22  reasonable time, but not later than 1 year after the date the

23  judgment to which the motion is directed was entered.

24         (b)  Not later than 7 days after the filing of a motion

25  under this subsection, the court must conduct an evidentiary

26  hearing to determine the minor's placement. The legal

27  presumption that a minor be placed in the care and custody of

28  his or her parent may be rebutted only upon a showing that

29  such placement would endanger the minor. The order must

30  include a provision for visitation by a parent with whom the

31  minor is not placed if that parent has appeared at the hearing

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  1  under this paragraph. The order determining placement of the

  2  minor must be issued in writing not later than 7 days after

  3  the hearing and must state with specificity both the basis for

  4  the placement and any provisions regarding contact with

  5  persons other than those with whom the child has been placed.

  6         Section 25.  Section 63.152, Florida Statutes, is

  7  amended to read:

  8         63.152  Application for new birth record.--Within 30

  9  days after entry of a judgment of adoption, the clerk of the

10  court, and in agency adoptions, any child-placing agency

11  licensed by the department, shall prepare a certified

12  statement of the entry for the state registrar of vital

13  statistics on a form provided by the registrar.  The clerk of

14  the court must mail a copy of the form completed under this

15  section to the state registry of adoption information under s.

16  63.165. A new birth record containing the necessary

17  information supplied by the certificate shall be issued by the

18  registrar on application of the adopting parents or the

19  adopted person.

20         Section 26.  Section 63.165, Florida Statutes, is

21  amended to read:

22         63.165  State registry of adoption information; duty to

23  inform and explain.--Notwithstanding any other law to the

24  contrary, the department shall maintain a registry with the

25  last known names and addresses of an adoptee and his or her

26  birth natural parents and adoptive parents; the certified

27  statement of the final decree of adoption provided by the

28  clerk of the court under s. 63.152; and any other identifying

29  information that which the adoptee, birth natural parents, or

30  adoptive parents desire to include in the registry. The

31  department shall maintain the registry records for the time

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  1  required by rules adopted by the department in accordance with

  2  this chapter or for 99 years, whichever period is greater. The

  3  registry shall be open with respect to all adoptions in the

  4  state, regardless of when they took place. The registry shall

  5  be available for those persons choosing to enter information

  6  therein, but no one shall be required to do so.

  7         (1)  Anyone seeking to enter, change, or use

  8  information in the registry, or any agent of such person,

  9  shall present verification of his or her identity and, if

10  applicable, his or her authority.  A person who enters

11  information in the registry shall be required to indicate

12  clearly the persons to whom he or she is consenting to release

13  this information, which persons shall be limited to the

14  adoptee and the birth natural mother, birth natural father,

15  adoptive mother, adoptive father, birth natural siblings, and

16  maternal and paternal birth natural grandparents of the

17  adoptee.  Except as provided in this section, information in

18  the registry is confidential and exempt from the provisions of

19  s. 119.07(1). Consent to the release of this information may

20  be made in the case of a minor adoptee by his or her adoptive

21  parents or by the court after a showing of good cause.  At any

22  time, any person may withdraw, limit, or otherwise restrict

23  consent to release information by notifying the department in

24  writing.

25         (2)  The department may charge a reasonable fee to any

26  person seeking to enter, change, or use information in the

27  registry.  The department shall deposit such fees in a trust

28  fund to be used by the department only for the efficient

29  administration of this section. The department and agencies

30  shall make counseling available for a fee to all persons

31

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  1  seeking to use the registry, and the department shall inform

  2  all affected persons of the availability of such counseling.

  3         (3)  The department, intermediary, or licensed

  4  child-placing agency must inform the birth parents before

  5  parental rights are terminated, and the adoptive parents

  6  before placement, in writing, of the existence and purpose of

  7  the registry established under this section, but failure to do

  8  so does not affect the validity of any proceeding under this

  9  chapter.

10         Section 27.  Section 63.182, Florida Statutes, is

11  amended to read:

12         (Substantial rewording of section. See

13         s. 63.182, F.S., for present text.)

14         63.182  Statute of repose.--An action or proceeding of

15  any kind to vacate, set aside, or otherwise nullify an order

16  of adoption or an underlying order terminating parental rights

17  on any ground, including fraud or duress, must be filed within

18  1 year after entry of the order terminating parental rights.

19         Section 28.  Section 63.207, Florida Statutes, is

20  amended to read:

21         63.207  Out-of-state placement.--

22         (1)  Unless the minor child is to be placed with a

23  relative within the third degree or with a stepparent, or is a

24  special needs child as defined in s. 409.166, an adoption

25  entity may not no person except an intermediary, an agency, or

26  the department shall:

27         (a)  Take or send a minor child out of the state for

28  the purpose of placement for adoption; or

29         (b)  Place or attempt to place a minor child for the

30  purpose of adoption with a family who primarily lives and

31  works outside Florida in another state.  An intermediary may

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  1  place or attempt to place a child for adoption in another

  2  state only if the child is a special needs child as that term

  3  is defined in s. 409.166.  If an adoption entity intermediary

  4  is acting under this subsection, the adoption entity must

  5  intermediary shall file a petition for declaratory statement

  6  pursuant to s. 63.102 for prior approval of fees and costs.

  7  The court shall review the costs pursuant to s. 63.097.  The

  8  petition for declaratory statement must be converted to a

  9  petition for an adoption upon placement of the minor child in

10  the home.  The circuit court in this state must retain

11  jurisdiction over the matter until the adoption becomes final.

12  The adoptive parents must come to this state to have the

13  adoption finalized.  Violation of the order subjects the

14  adoption entity intermediary to contempt of court and to the

15  penalties provided in s. 63.212.

16         (2)  An adoption entity intermediary may not counsel a

17  birth mother to leave the state for the purpose of giving

18  birth to a child outside the state in order to secure a fee in

19  excess of that permitted under s. 63.097 when it is the

20  intention that the child is to be placed for adoption outside

21  the state.

22         (3)  When applicable, the Interstate Compact on the

23  Placement of Children authorized in s. 409.401 shall be used

24  in placing children outside the state for adoption.

25         Section 29.  Section 63.212, Florida Statutes, is

26  amended to read:

27         63.212  Prohibited acts; penalties for violation.--

28         (1)  It is unlawful for any person:

29         (a)  Except an adoption entity the department, an

30  intermediary, or an agency, to place or attempt to place a

31  minor child for adoption with a person who primarily lives and

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  1  works outside this state unless the minor child is placed with

  2  a relative within the third degree or with a stepparent or is

  3  a special needs child as defined in s. 409.166.  An adoption

  4  entity intermediary may place or attempt to place a special

  5  needs child for adoption with a person who primarily lives and

  6  works outside this state only if the adoption entity

  7  intermediary has a declaratory statement from the court

  8  establishing the fees to be paid under s. 63.207.  This

  9  requirement does not apply if the minor child is placed with a

10  relative within the third degree or with a stepparent.

11         (b)  Except an adoption entity the department, an

12  intermediary, or an agency, to place or attempt to place a

13  minor child for adoption with a family whose primary residence

14  and place of employment is in another state unless the minor

15  child is placed with a relative within the third degree or

16  with a stepparent.  An adoption entity intermediary may place

17  or attempt to place a special needs child for adoption with a

18  family whose primary residence and place of employment is in

19  another state only if the adoption entity intermediary has a

20  declaratory statement from the court establishing the fees to

21  be paid.  This requirement does not apply if the special needs

22  child is placed with a relative within the third degree or

23  with a stepparent.

24         (c)  Except an adoption entity the Department of

25  Children and Family Services, an agency, or an intermediary,

26  to place or attempt to place within the state a minor child

27  for adoption unless the minor child is placed with a relative

28  within the third degree or with a stepparent.  This

29  prohibition, however, does not apply to a person who is

30  placing or attempting to place a minor child for the purpose

31

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  1  of adoption with the adoption entity Department of Children

  2  and Family Services or an agency or through an intermediary.

  3         (d)  To sell or surrender, or to arrange for the sale

  4  or surrender of, a minor child to another person for money or

  5  anything of value or to receive such minor child for such

  6  payment or thing of value.  If a minor child is being adopted

  7  by a relative within the third degree or by a stepparent, or

  8  is being adopted through an adoption entity, this paragraph

  9  does not prohibit the Department of Children and Family

10  Services, an agency, or an intermediary, nothing herein shall

11  be construed as prohibiting the person who is contemplating

12  adopting the child from paying, under s. 63.097 and s. 63.132,

13  the actual prenatal care and living expenses of the mother of

14  the child to be adopted, nor from paying, under s. 63.097 and

15  s. 63.132, the actual living and medical expenses of such

16  mother for a reasonable time, not to exceed 6 weeks, if

17  medical needs require such support, after the birth of the

18  minor child.

19         (e)  Having the rights and duties of a parent with

20  respect to the care and custody of a minor to assign or

21  transfer such parental rights for the purpose of, incidental

22  to, or otherwise connected with, selling or offering to sell

23  such rights and duties.

24         (f)  To assist in the commission of any act prohibited

25  in paragraph (a), paragraph (b), paragraph (c), paragraph (d),

26  or paragraph (e).

27         (g)  Except an adoption entity the Department of

28  Children and Family Services or an agency, to charge or accept

29  any fee or compensation of any nature from anyone for making a

30  referral in connection with an adoption.

31

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  1         (h)  Except an adoption entity the Department of

  2  Children and Family Services, an agency, or an intermediary,

  3  to advertise or offer to the public, in any way, by any medium

  4  whatever that a minor child is available for adoption or that

  5  a minor child is sought for adoption; and further, it is

  6  unlawful for any person to publish or broadcast any such

  7  advertisement without including a Florida license number of

  8  the agency or, attorney, or physician placing the

  9  advertisement.

10         (i)  To contract for the purchase, sale, or transfer of

11  custody or parental rights in connection with any child, or in

12  connection with any fetus yet unborn, or in connection with

13  any fetus identified in any way but not yet conceived, in

14  return for any valuable consideration.  Any such contract is

15  void and unenforceable as against the public policy of this

16  state.  However, fees, costs, and other incidental payments

17  made in accordance with statutory provisions for adoption,

18  foster care, and child welfare are permitted, and a person may

19  agree to pay expenses in connection with a preplanned adoption

20  agreement as specified below, but the payment of such expenses

21  may not be conditioned upon the transfer of parental rights.

22  Each petition for adoption which is filed in connection with a

23  preplanned adoption agreement must clearly identify the

24  adoption as a preplanned adoption arrangement and must include

25  a copy of the preplanned adoption agreement for review by the

26  court.

27         1.  Individuals may enter into a preplanned adoption

28  arrangement as specified herein, but such arrangement shall

29  not in any way:

30         a.  Effect final transfer of custody of a child or

31  final adoption of a child, without review and approval of the

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  1  department and the court, and without compliance with other

  2  applicable provisions of law.

  3         b.  Constitute consent of a mother to place her child

  4  for adoption until 7 days following birth, and unless the

  5  court making the custody determination or approving the

  6  adoption determines that the mother was aware of her right to

  7  rescind within the 7-day period following birth but chose not

  8  to rescind such consent.

  9         2.  A preplanned adoption arrangement shall be based

10  upon a preplanned adoption agreement that must which shall

11  include, but need not be limited to, the following terms:

12         a.  That the volunteer mother agrees to become pregnant

13  by the fertility technique specified in the agreement, to bear

14  the child, and to terminate any parental rights and

15  responsibilities to the child she might have through a written

16  consent executed at the same time as the preplanned adoption

17  agreement, subject to a right of rescission by the volunteer

18  mother any time within 7 days after the birth of the child.

19         b.  That the volunteer mother agrees to submit to

20  reasonable medical evaluation and treatment and to adhere to

21  reasonable medical instructions about her prenatal health.

22         c.  That the volunteer mother acknowledges that she is

23  aware that she will assume parental rights and

24  responsibilities for the child born to her as otherwise

25  provided by law for a mother, if the intended father and

26  intended mother terminate the agreement before final transfer

27  of custody is completed, or if a court determines that a

28  parent clearly specified by the preplanned adoption agreement

29  to be the biological parent is not the biological parent, or

30  if the preplanned adoption is not approved by the court

31  pursuant to the Florida Adoption Act.

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  1         d.  That an intended father who is also the biological

  2  father acknowledges that he is aware that he will assume

  3  parental rights and responsibilities for the child as

  4  otherwise provided by law for a father, if the agreement is

  5  terminated for any reason by any party before final transfer

  6  of custody is completed or if the planned adoption is not

  7  approved by the court pursuant to the Florida Adoption Act.

  8         e.  That the intended father and intended mother

  9  acknowledge that they may not receive custody or the parental

10  rights under the agreement if the volunteer mother terminates

11  the agreement or if the volunteer mother rescinds her consent

12  to place her child for adoption within 7 days after birth.

13         f.  That the intended father and intended mother may

14  agree to pay all reasonable legal, medical, psychological, or

15  psychiatric expenses of the volunteer mother related to the

16  preplanned adoption arrangement, and may agree to pay the

17  reasonable living expenses of the volunteer mother.  No other

18  compensation, whether in cash or in kind, shall be made

19  pursuant to a preplanned adoption arrangement.

20         g.  That the intended father and intended mother agree

21  to accept custody of and to assert full parental rights and

22  responsibilities for the child immediately upon the child's

23  birth, regardless of any impairment to the child.

24         h.  That the intended father and intended mother shall

25  have the right to specify the blood and tissue typing tests to

26  be performed if the agreement specifies that at least one of

27  them is intended to be the biological parent of the child.

28         i.  That the agreement may be terminated at any time by

29  any of the parties.

30         3.  A preplanned adoption agreement shall not contain

31  any provision:

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  1         a.  To reduce any amount paid to the volunteer mother

  2  if the child is stillborn or is born alive but impaired, or to

  3  provide for the payment of a supplement or bonus for any

  4  reason.

  5         b.  Requiring the termination of the volunteer mother's

  6  pregnancy.

  7         4.  An attorney who represents an intended father and

  8  intended mother or any other attorney with whom that attorney

  9  is associated shall not represent simultaneously a female who

10  is or proposes to be a volunteer mother in any matter relating

11  to a preplanned adoption agreement or preplanned adoption

12  arrangement.

13         5.  Payment to agents, finders, and intermediaries,

14  including attorneys and physicians, as a finder's fee for

15  finding volunteer mothers or matching a volunteer mother and

16  intended father and intended mother is prohibited.  Doctors,

17  psychologists, attorneys, and other professionals may receive

18  reasonable compensation for their professional services, such

19  as providing medical services and procedures, legal advice in

20  structuring and negotiating a preplanned adoption agreement,

21  or counseling.

22         6.  As used in this paragraph, the term:

23         a.  "Blood and tissue typing tests" include, but are

24  not limited to, tests of red cell antigens, red cell

25  isoenzymes, human leukocyte antigens, and serum proteins.

26         b.  "Child" means the child or children conceived by

27  means of an insemination that is part of a preplanned adoption

28  arrangement.

29         c.  "Fertility technique" means artificial

30  embryonation, artificial insemination, whether in vivo or in

31  vitro, egg donation, or embryo adoption.

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  1         d.  "Intended father" means a male who, as evidenced by

  2  a preplanned adoption agreement, intends to have the parental

  3  rights and responsibilities for a child conceived through a

  4  fertility technique, regardless of whether the child is

  5  biologically related to the male.

  6         e.  "Intended mother" means a female who, as evidenced

  7  by a preplanned adoption agreement, intends to have the

  8  parental rights and responsibilities for a child conceived

  9  through a fertility technique, regardless of whether the child

10  is biologically related to the female.

11         f.  "Parties" means the intended father and intended

12  mother, the volunteer mother and her husband, if she has a

13  husband, who are all parties to the preplanned adoption

14  agreement.

15         g.  "Preplanned adoption agreement" means a written

16  agreement among the parties that specifies the intent of the

17  parties as to their rights and responsibilities in the

18  preplanned adoption arrangement, consistent with the

19  provisions of this act.

20         h.  "Preplanned adoption arrangement" means the

21  arrangement through which the parties enter into an agreement

22  for the volunteer mother to bear the child, for payment by the

23  intended father and intended mother of the expenses allowed by

24  this act, for the intended father and intended mother to

25  assert full parental rights and responsibilities to the child

26  if consent to adoption is not rescinded after birth by the

27  volunteer mother, and for the volunteer mother to terminate,

28  subject to a right of rescission, in favor of the intended

29  father and intended mother all her parental rights and

30  responsibilities to the child.

31

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  1         i.  "Volunteer mother" means a female person at least

  2  18 years of age who voluntarily agrees, subject to a right of

  3  rescission, that if she should become pregnant pursuant to a

  4  preplanned adoption arrangement, she will terminate in favor

  5  of the intended father and intended mother her parental rights

  6  and responsibilities to the child.

  7         (2)  This section does not Nothing herein shall be

  8  construed to prohibit a licensed child-placing agency from

  9  charging fees reasonably commensurate to the services

10  provided.

11         (3)  It is unlawful for any adoption entity

12  intermediary to fail to report to the court, prior to

13  placement, the intended placement of a minor child for

14  purposes of adoption with any person not a stepparent or a

15  relative within the third degree, if the adoption entity

16  intermediary participates in such intended placement.

17         (4)  It is unlawful for any adoption entity

18  intermediary to charge any fee over $1,000 and those costs as

19  set out in paragraph (1)(d) over $2,500, other than for actual

20  documented medical costs, court costs, and hospital costs

21  unless such fee is approved by the court prior to the

22  assessment of the fee by the adoption entity intermediary and

23  upon a showing of justification for the larger fee.

24         (5)  It is unlawful for any adoption entity

25  intermediary to counsel a birth mother to leave the state for

26  the purpose of giving birth to a child outside the state in

27  order to secure a fee in excess of that permitted under s.

28  63.097 when it is the intention that the child be placed for

29  adoption outside the state.

30         (6)  It is unlawful for any adoption entity

31  intermediary to obtain a preliminary home study or final home

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  1  investigation and fail to disclose the existence of the study

  2  to the court.

  3         (7)  A person who violates any provision of this

  4  section, excluding paragraph (1)(h), is guilty of a felony of

  5  the third degree, punishable as provided in s. 775.082, s.

  6  775.083, or s. 775.084.  A person who violates paragraph

  7  (1)(h) is guilty of a misdemeanor of the second degree,

  8  punishable as provided in s. 775.083; and each day of

  9  continuing violation shall be considered a separate offense.

10         Section 30.  Section 63.072, Florida Statutes, is

11  repealed.

12         Section 31.  Any petition for adoption filed before

13  October 1, 1998, shall be governed by the law in effect at the

14  time the petition was filed.

15         Section 32.  This act shall take effect October 1,

16  1998.

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  1          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
  2                         Senate Bill 550

  3

  4  This committee substitute makes the following provisions:

  5  -    Amends Chapters 39 and 63, Florida Statutes, to provide
         that ch. 39, F.S., applies to all adoptions that involve
  6       children surrendered to the Department of Children and
         families (DCF) and ch. 63, F.S., applies to all other
  7       adoptions.

  8  -    Provides that an adoption entity has an affirmative duty
         to follow specified due process provisions of the bill
  9       and that a material failure on the part of the entity to
         meet this duty may result in the entity being liable to
10       the adoptive parents for all sums paid by the adoptive
         parents in connection with the adoption.
11
    -    Requires repayment to the adoptive parents of certain
12       fees, costs and expenditures by the adoption entity if
         the court sets aside a consent to adoption or a judgment
13       under Chapter 63 due to fraud or duress attributable to
         the adoption entity. Requires an award of attorneys fees
14       to the adoptive parent in such circumstances.

15  -    Requires that a copy of any order imposing sanctions
         under Chapter 63 be forwarded by the court to DCF if
16       against an agency and the Florida Bar if against an
         intermediary.
17
    -    Provides that if the court sets aside a consent to
18       adoption or a judgment under Chapter 63 due to acts or
         omissions attributable to the adoption entity that the
19       entity is liable to the prevailing party for a reasonable
         attorney's fee.
20
    -    Provides that consent must be obtained or notice under
21       Chapter 63 must be provided to any man who is the child's
         father by marriage, adoption or an order of paternity,
22       and if there is no one, then any man who has been
         established to be the father by paternity testing, and if
23       there is no one, then any man who registers with the
         department of vital statistics, has provided support to
24       the child or to the mother during her pregnancy in a
         repetitive customary manner, has been identified under
25       oath by the birth mother as the father, or is a party in
         a legal proceeding in which the custody, paternity or
26       termination of parental rights regarding the child is at
         issue.
27
    -    Provides that an affidavit of nonpaternity may be
28       executed in lieu of a consent in certain circumstances.
         Sets out form affidavit.
29
    -    Requires that certain persons with potential rights
30       regarding a minor being placed for adoption execute a
         consent to adoption, an affidavit of nonpaternity, or
31       receive notice by personal or constructive service of an
         action to terminate parental rights. Sets out form
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  1       notice.

  2  -    Allows person executing consent to an adoption or an
         affidavit of nonpaternity to have an independent witness
  3       present and requires advanced notice of this right.

  4  -    Provides that a consent to an adoption may be withdrawn
         by certified mail within three business days after
  5       execution or 1 business day after a birth mother's
         discharge from a hospital or birth center whichever is
  6       later. Business day for this purpose is defined as a day
         on which the post office accepts certified mail.
  7
    -    Permits termination or parental rights of an incarcerated
  8       parent based upon the incarceration under certain
         circumstances.
  9
    -    Specifies the fees and expenditures related to the
10       adoption that may be collected from adoptive parents by
         the adoption entity. Prohibits the charging of certain
11       fees including nonrefundable lump sum payments and
         facilitation fees.
12
    -    Allows a party to an agreement for payment of fees, costs
13       and expenditures related to an adoption to cancel the
         agreement within a period of 3 business days after
14       signing it.

15  -    Requires that the adoption entity file an affidavit with
         the court detailing all fees, costs and expenditures and
16       the basis for such related to the termination of parental
         rights and subsequent adoption and that the adoption
17       entity provide a copy of the affidavit to the adoptive
         parents at the time the affidavit is executed.
18
    -    Grants the court certain authority to disallow certain
19       fees, costs, or expenditures charged to an adoptive
         parent and to order reimbursement to the adoptive parent
20       of monies collected by the adoption entity from the
         adoptive parent but not subsequently supported by the
21       required affidavit of fees, costs and expenditures.

22  -    Provides that petitions for declaratory statement,
         termination of parental rights pending adoption, and
23       adoption filed under Chapter 63 pertaining to the same
         minor may be consolidated upon the motion of any party or
24       order of the court and prohibits the charging of more
         than one filing fee.
25
    -    Requires that, when readily obtainable, the social
26       security number and date of birth of each birth parent be
         included on the social and medical history form filed
27       with the court.

28  -    Requires that the clerk of the court forward the
         statement of final decree of adoption to the adoption
29       registry maintained by DCF for retention.

30  -    Creates a statute of repose prohibiting any challenge to
         an order of adoption or underlying order terminating
31       parental rights on any ground, including fraud or duress,
         more than 1 year after entry of the order terminating
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  1       parental rights.

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