Opinion
No. M-229.
June 16, 1970.
Appeal from the Circuit Court for Duval County, A.W. Graessle, Jr., J.
Mahon Mahon, Jacksonville, for appellant.
Earl Faircloth, Atty. Gen., Wallace E. Allbritton, and Robert W. Olive, Asst. Attys. Gen., for appellee.
Defendant father has appealed a final judgment ordering him to pay a stipulated monthly sum for the support and maintenance of the three minor children born of the marriage between him and plaintiff mother. It is appellant's contention that a final judgment previously rendered by the Juvenile Court of Duval County permanently committing his three children to a licensed child placing agency for adoption effectively severed the filial tie together with his correlative right to their custody, control, services, and earnings, resulting in a termination of any obligation on his part to contribute to their maintenance and support. Upon this premise appellant contends that the judgment appealed herein is erroneous and should be reversed.
The facts in the case were stipulated by the parties and are not in dispute. Appellant father and appellee mother were divorced by a final decree rendered in Duval County in 1960 in which the custody of the children was granted to the mother. By a subsequent modifying order the children's custody was transferred to the father in 1962. In January, 1965, the Juvenile Court of Duval County rendered a final judgment permanently committing the children to the Florida Methodist Children's Home, a licensed child placing agency, for adoption. After a period of three years during which none of the children involved herein were accepted for adoption, they were placed by the Home in the custody of their mother, appellee herein, who is now a resident of California. This proceeding was instituted by the mother under the Uniform Reciprocal Enforcement of Support Act seeking an order requiring appellant to contribute to the support and maintenance of the children. Based upon the foregoing facts the trial court found the question presented for his decision to be one of first impression without controlling precedent in our state, and held that until the law of the case is established by appellate authority, the natural mother was entitled to receive assistance from the father for the maintenance and support of the children during such period of time as she retains their physical custody.
F.S. Ch. 88, F.S.A.
The Juvenile Court Act of this state provides that when a child shall be adjudicated to be a dependent or delinquent child, the juvenile court having jurisdiction shall have the power to (a) place the child under supervision of its counselor in its own home or in the home of a relative or other suitable place; (b) commit the child to a detention home or to a licensed child caring institution; (c) commit the child to an industrial school; or, (d) permanently commit the child to a licensed child placing agency for subsequent adoption. The statute further grants to the court the power to order the natural parents of such child to pay the person or institution having custody of the child reasonable sums of money at such intervals as the court may consider adequate and proper for the care, support, maintenance, training, or education of such child.
F.S. § 39.11(1), F.S.A.
From the foregoing statutory provisions it clearly appears that even though the children in the case sub judice were permanently committed to a child placing agency in accordance with the terms and provisions of the statute, the court nevertheless is empowered to require the parent to contribute to the support and maintenance of the child while in custody of the child placement agency and before adoption.
Appellant invites attention to that provision of the above-quoted section of the Juvenile Court Act which provides:
"* * * A permanent order of commitment, whether pursuant to consent or after notice served as herein prescribed, shall permanently deprive the parents and legal guardian of any right to the child * * *."
F.S. § 39.11(5), F.S.A.
Appellant seriously urges that since the order permanently committing the three children here involved to a child placing agency effectively deprived him of any right to the custody, control, services, and earnings of his children, then his obligation to contribute to their support ceased. He bases this contention upon the principle of law quoted in American Jurisprudence as follows:
"* * * The parental duty to support minor children is usually accompanied by the parental right to the custody, control, services, and earnings of such children, and is often spoken of as correlative or reciprocal to such right. * * *"
39 Am.Jur. 634, Parent and Child, § 35.
Appellant argues that the order permanently committing his children to a licensed child placing agency for subsequent adoption is itself tantamount to a decree of adoption which relieves him from the obligation of contributing to their maintenance and support as provided by the statutory law of this state, to wit:
"* * * After the adoption the natural parents, if living, are relieved of all legal duties and obligations due from them to the child and are divested of all rights with respect to the child, * * *."
F.S. § 63.151, F.S.A.
There can be no question but that a final judgment rendered by a juvenile court in Florida which permanently commits a child to a licensed child placing agency for subsequent adoption permanently deprives the parents of all further rights to the child. Such a provision is necessary in order that adoptive parents of the child may be free from annoyance, harassment, or interference by the natural parents in the future life of the child after adoption. Such provision does not, however, relieve the natural parents from contributing to the child's support while it is in the custody of the child placing agency, if the parent is able to do so. The statute clearly gives the juvenile court the power to require such monetary contribution by the natural parent so long as the child placing agency is responsible for the child's maintenance and support prior to adoption.
The Juvenile Court Act provides that after rendition of a permanent order of commitment placing the custody of a child with a licensed child placing agency for adoption, the juvenile court shall no longer exercise jurisdiction over the child. Because of the foregoing statutory restriction on the power of a juvenile judge, it is questionable whether he is vested with jurisdiction to order appellant as the natural parent of the children to contribute to their support under the facts of this case. Such question, however, does not preclude the circuit court from exercising its concurrent jurisdiction in all equity matters not exclusively conferred on juvenile courts to require parental support and maintenance of minor children. The inability of the juvenile court to act in this matter activates the power of the circuit court to require the payment of support by appellant for his children as authorized by the statutory law of this state. As said by the Supreme Court in Ponce v. Children's Home Society of Florida:
F.S. § 39.11(5), F.S.A.;
State ex rel. Jannoni v. Yergey, (Fla.App. 1966) 188 So.2d 833, 835.
Art. V, § 6(3), Fla. Constitution, F.S.A.
F.S. §§ 61.13, 61.14, F.S.A.
"* * * As a general rule where a juvenile court has assumed jurisdiction over a dependent child as in the case at bar, a circuit court judge, although he may have the power to do so, should not entertain a petition for adoption of such child until the juvenile court has made a permanent commitment of the child to a licensed placement agency pursuant to Sec. 39.11, or otherwise relinquished jurisdiction."
Ponce v. Children's Home Society of Florida, (Fla. 1957) 97 So.2d 194, 197; See also Perdue v. Perdue, (Fla.App. 1963) 155 So.2d 665.
It is our view that for the reasons hereinabove stated the Circuit Court of Duval County has the jurisdiction and authority to render the judgment appealed herein even though the children involved stand permanently committed on the record to a licensed child placing agency for subsequent adoption. The fact that physical custody of the children had been delivered by the child placing agency to their natural mother does not affect appellant's obligation to contribute to their support, nor does it defeat the power of the court to make and enforce such requirement. For the foregoing reasons the judgment appealed herein is affirmed.
SPECTOR, J., concurs.
JOHNSON, C.J., specially concurs.
In concurring in the resultant effect of the holding in the majority opinion in this case, requiring the father to contribute to the support of his minor children, I think it important to point out that this being a case of first impression in this state, as found by the trial court, this case should not be held out as a desirable model of procedure because of the peculiar set of facts involved here.
The record is before us only on an agreed statement of facts which leaves this court, and probably the lower court, somewhat in the dark as to the actual procedures followed in the children being returned to their mother, the petitioner in this case. When the divorce was granted in 1960, the custody of the children, four in number at that time, was awarded to the mother. In 1962, the circuit court took the children from the mother and gave custody to the father. Why this was done the record does not show, but we can reasonably assume that some unfitness of the mother existed in order for the change of custody to be made.
When the children were permanently committed by the Juvenile Court of Duval County, Florida, on January 11, 1965, to the Florida Methodist Children Home, pursuant to the provisions of Chapter 39, Florida Statutes, F.S.A., said Home was, and still is, a licensed child placing agency. One of the four children was placed for adoption and therefore is not involved in this proceeding. The record indicates that the mother, petitioner herein initiated proceedings and was given custody of the three remaining children on December 22, 1968, and referred to a letter from the Florida Methodist Children's Home "attached," but said letter is not attached and we are at a loss as to by what authority said Home granted custody of the children to the mother, and whether or not the father was given an opportunity to oppose the same. Admittedly the father lost his rights to the children or notice of proceedings in adoptions when the Juvenile Court permanently placed them in the Home, but by the same token the mother lost her rights, too. She had been declared unfit by a competent court and therefore, I do not believe it was within the contemplation of F.S. Chapter 39, F.S.A. that the placing agency could circumvent a court order in this manner. I think before the reciprocal support enforcement act should apply there should be some explanation of why the change of custody was made. It is apparent in this case that the father is of limited financial means and therefore there is an unsurmountable financial obstacle to him going to California to ascertain the welfare of the children, whether the support money he may be directed to pay is actually spent on the children, and most important of all, whether the mother has now become a fit person to have the custody after having been once found to be unfit by the court.
I reiterate, I think the father should support the children to the best of his ability, but I think a showing should be required of the petitioner as to how she obtained custody of the children and a showing of her fitness to have such custody. This appears to me to be only fair to both parties and is demanded by equity and the welfare of the children.
Therefore, I don't think the majority decision in this case should be considered as establishing the law to be followed in future cases. I don't think the Home had any legal authority to dispose of its custody of the children except when placed out for adoption as provided by law.
The support by the father should be required pending further proceedings, as a legal requirement of a parent under the law, but not because of the petition filed in this case.