63.039 Duty of adoption entity to prospective adoptive parents; sanctions.
63.039 Duty of adoption entity to prospective adoptive parents; sanctions.
(1) An adoption entity placing a minor for adoption has an affirmative duty to follow the requirements of this chapter and specifically the following provisions, which protect and promote the well-being of persons being adopted and their parents and prospective adoptive parents by promoting certainty, finality, and permanency for such persons. The adoption entity must:
(a) Provide written initial disclosure to the prospective adoptive parent at the time and in the manner required under s. 63.085.
(b) Provide written disclosure to the parent at the time and in the manner required under s. 63.085.
(c) When a written consent for adoption is obtained, obtain the consent at the time and in the manner required under s. 63.082.
(d) When a written consent or affidavit of nonpaternity for adoption is obtained, obtain a consent to adoption or affidavit of nonpaternity that contains the language required under s. 63.062 or s. 63.082.
(e) Include in the petition to terminate parental rights pending adoption all information required under s. 63.087.
(f) Obtain and file the affidavit of inquiry pursuant to s. 63.088(4), if the required inquiry is not conducted orally in the presence of the court.
(g) When the identity of a person whose consent to adoption is necessary under this chapter is known but the location of such a person is unknown, conduct the diligent search and file the affidavit required under s. 63.088(5).
(h) Serve a petition and notice of hearing to terminate parental rights pending adoption at the time and in the manner prescribed by law.
(i) Obtain the written waiver of venue required under s. 63.062, if applicable.
(j) Provide an adoption disclosure statement, as required under s. 63.085(1), to all persons whose consent is required under s. 63.062(1).
(2) If a court finds that a consent to adoption or an affidavit of nonpaternity taken under this chapter was obtained by fraud or duress attributable to the adoption entity, the court may award all sums paid by the prospective adoptive parents or on their behalf in anticipation of or in connection with the adoption. The court may also award reasonable attorney’s fees and costs incurred by the prospective adoptive parents in connection with the adoption and any litigation related to placement or adoption of a minor. The court may award reasonable attorney’s fees and costs, if any, incurred by the person whose consent or affidavit was obtained by fraud or duress. Any award under this subsection to the prospective adoptive parents or to the person whose consent or affidavit was obtained by fraud or duress must be paid directly to them by the adoption entity or by any applicable insurance carrier on behalf of the adoption entity if the court determines, after an evidentiary hearing held subsequent to the entry of a final order in the underlying termination of parental rights or adoption action, that the actions or failures of the adoption entity directly contributed to the finding of fraud or duress.
(3) The prevailing party in an action to set aside a judgment terminating parental rights pending adoption or a judgment of adoption may be awarded reasonable attorney’s fees and costs pursuant to Rule 1.540(b)(3), Florida Rules of Civil Procedure. An award under this subsection must be paid by the adoption entity or by the applicable insurance carrier on behalf of the adoption entity if the court finds that the acts or omissions of the entity were the basis for the court’s order granting relief to the prevailing party.
(4) Within 30 days after the entry of an order of the court finding sanctionable conduct on the part of an adoption entity, the clerk of the court must forward to:
(a) The Florida Bar any order that imposes sanctions under this section against an attorney acting as an adoption entity.
(b) The Department of Children and Family Services any order that imposes sanctions under this section against a licensed child-placing agency or a child-placing agency licensed in another state that is qualified by the department.
(c) The entity under s. 409.176 that certifies child-caring agencies any order that imposes sanctions under this section against a child-caring agency registered under s. 409.176.
(d) The Office of Attorney General any order that imposes sanctions under this section against the department.
History. s. 9, ch. 2001-3; s. 3, ch. 2003-58; s. 5, ch. 2008-151.