Severing Parental Rights Due to Abandonment
By: Joseph M. Herbert, Esq.
As opposed to following a process for either putting a child up for adoption or providing for the care of a child through loved ones in a time of crisis, simple and pure abandonment of a child is one of the more challenging aspects of family law to navigate. For the people that must pick up the pieces and care for a child that has been abandoned, a sense of finality in the custody of the effected young person(s) is often crucial to helping regain a sense of continuity and balance in the child’s life. The law must balance this interest against the fundamental and deeply rooted rights of a parent to the custody and care of their child.
A recent decision provides an excellent overview of the framework for determining the rights of both (a) a parent that has potentially abandoned their child and (b) the custodian caring for the child in the parent’s absence. It should be noted that the facts of this case, N.A.G. v. J.L.G. (In the Interest of B.W.G.), the alleged “abandonment” was not exactly of the type described above (and are quite complicated), but rather seems to have been alleged due to lack of effort to contact and support the children after the father obtained “no contact” injunctions against the children’s mother and moving the children from one school to another so that the mother was not able to locate them for a period of time. 198 So. 3d 1025, 1026 (Fla. 2d DCA 2016). Further, the mother allegedly had an issue with alcohol use and the father allegedly made contact with the children very challenging for the mother and attempted to alienate the children from their mother. Id. However, the legal discussion provided in the case serves as an excellent primer:
Chapter 63 allows a parent or person having physical custody of a child to seek termination of parental rights and subsequently adopt the child. See § 63.087(4); see also V.C.B. v. Shakir, 145 So. 3d 967, 968 (Fla. 4th DCA 2014). If a parent does not consent to the termination, the court may enter a judgment terminating parental rights if it determines by clear and convincing evidence supported by written findings of fact that the parent has been given notice and has abandoned the child. See § 63.089(3)(e). “Abandonment” is defined as a situation in which
the parent or person having legal custody of a child, while being able, makes little or no provision for the child's support or makes little or no effort to communicate with the child, which situation is sufficient to evince an intent to reject parental responsibilities. If, in the opinion of the court, the efforts of such parent or person having legal custody of the child to support and communicate with the child are only marginal efforts that do not evince a settled purpose to assume all parental duties, the court may declare the child to be abandoned.
S. 63.032(1); see also M.A.F. v. E.J.S., 917 So. 2d 236, 238 (Fla. 5th DCA 2005) (explaining that a finding of abandonment under chapter 63 “must be predicated on ‘conduct which manifests a settled purpose to permanently forgo all parental rights' ” (quoting Webb v. Blancett, 473 So. 2d 1376, 1378 (Fla. 5th DCA 1985))).
In making an abandonment determination under this chapter, the trial court must consider, among other factors, “[w]hether the actions alleged to constitute abandonment demonstrate a willful disregard for the safety or welfare of the child.” § 63.089(4)(a)(1). Specifically, the inquiry is whether the parent has demonstrated a commitment to the child, which has been defined as “a manifestation of a willingness to accept custody and assume responsibility for the support and maintenance of the child.” G.T. v. Adoption of A.E.T., 725 So. 2d 404, 410 (Fla. 4th DCA 1999); see also Solomon v. McLucas, 382 So. 2d 339, 346 (Fla. 2d DCA 1980) (“[A]bandonment is absolute, complete, and intentional[ ] and must be established by clear and convincing evidence.”); M.M. v. Adoption of J.T.M., 821 So. 2d 1134, 1138 (Fla. 4th DCA 2002) (holding that “[a]bandonment, in its purest form, requires a complete relinquishment of responsibility” and a “deliberate action by the parent to leave the child behind or the refusal to assume parental responsibilities”).
This court must determine if the trial court's ruling is supported by competent substantial evidence, and our review of the trial court's termination order is highly deferential. See R.C. v. Dep't of Children & Family Servs., 33 So. 3d 710, 714 (Fla. 2d DCA 2010).
N.A.G. v. J.L.G. (In the Interest of B.W.G.), 198 So. 3d 1025, 1026 (Fla. 2d DCA 2016).
As the court makes clear, there are several levels to prove abandonment. First, the court has to try to divine the intent and desire of the parent whose rights are in question; (1) did the parent show a “willful disregard for the safety or welfare of the child” (i.e., was the disregard show some level of intent or was it more likely negligent?), (2) did the parent manifest a willingness regarding acceptance of custody and an assumption of responsibility for the care and support of the child, and (3) did the parent exhibit the intent to leave permanently and to completely relinquish his or her rights to that child (never to return)? Id.
Further, abandonment must be proven to the evidence that is “clear and convincing” (which falls somewhere between a preponderance of the evidence—more likely than not, i.e., more than 50% chance—and beyond a reasonable doubt on the evidentiary spectrum). Given the evidentiary requirements, circumstances are difficult to conceive that could clearly and convincingly establish an absolute, unequivocal, and full intention to permanently and finally abandon a child and relinquish of all responsibility for the care and support of that child.
However, perhaps alarmingly, the lower court in this case did find that abandonment had been established against the children’s mother despite this high burden and an appellate court’s intervention was required in order to establish that the lower court’s ruling departed from the essential requirements of the law. Id.
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