DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

I.B. and J.S.,

Appellants,

v.

IN RE: ADOPTION OF Z.E.S., a child,

Appellee.

No. 4D17-1730

[March 7, 2018]

Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm 

Beach County; Karen M. Miller, Judge; L.T. Case No. 2016-DR-000825.

John F. Schutz of John F. Schutz, P.L., West Palm Beach, for appellant, 

I.B.

Amy U. Hickman of Hausmann & Hickman, P.A., Boynton Beach, for 

appellant, J.S.

No brief filed for appellee.

GROSS, J.

This is an appeal from an order denying a petition for adoption. While 

all of the parties appear to have the child’s best interests at heart, we affirm 

on a pure question of law–the petition was legally insufficient under the 

Florida Adoption Act, sections 63.012 et seq., Florida Statutes (2016). 

I.B. is the maternal grandmother of Z.E.S. (the “child”). She filed a 

petition under the Adoption Act to terminate her daughter’s parental rights 

and adopt the child. I.B.’s husband, the child’s maternal grandfather, 

consented to the adoption, but did not seek to adopt the child. The child’s 

mother also consented to the termination of her parental rights and the 

adoption by I.B.

J.S. is the child’s biological and legal father; he is not married to the 

child’s mother. He joined in the petition to terminate the mother’s parental 

rights and for the maternal grandmother to adopt the child. He did not 

consent to the termination of his own parental rights. 
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The petition was amended twice and ultimately came before the circuit 

court as a “Petition for the Termination of Parental Rights and Petition for 

Second Parent Relative Adoption.” If the circuit court granted the petition, 

the father and maternal grandmother would be the child’s parents. 

The circuit court held an evidentiary hearing and listened to testimony 

from the father and both maternal grandparents. All of the witnesses 

testified that the father had been sharing parental responsibility with the 

maternal grandparents for two years due to the mother’s alcoholism and 

that the child was thriving under this de facto co-parenting arrangement.

Shortly after the hearing, the court denied the petition, finding that the

entry of judgment of adoption would sever the father’s parental rights 

under section 63.172(1), Florida Statutes (2016). The cited subsection 

provides: 

(1) A judgment of adoption . . . has the following effect:

(a) It relieves the birth parents of the adopted person, 

except a birth parent who is a petitioner or who is 

married to a petitioner, of all parental rights and 

responsibilities.

(b) It terminates all legal relationships between the 

adopted person and the adopted person’s relatives, 

including the birth parents, except a birth parent who 

is a petitioner or who is married to a petitioner, so that 

the adopted person thereafter is a stranger to his or her 

former relatives for all purposes . . . .

(c) . . . [I]t creates the relationship between the adopted 

person and the petitioner and all relatives of the 

petitioner that would have existed if the adopted person 

were a blood descendant of the petitioner born within 

wedlock. . . .

Id. Appellants argue that subparts (a) and (b) are plain and unambiguous

and that the father should retain his parental rights because as “a 

petitioner,” he fits within the statutory exception. We find that, while the 

father joined the petition, he was not “a petitioner” within the meaning of 

the Adoption Act because he did not seek to adopt the child. 

This is a case of statutory interpretation. While the subparts relied on 

by the Appellants appear unambiguous when viewed in isolation, “[i]t is 
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axiomatic that all parts of a statute must be read together in order to 

achieve a consistent whole.” Forsythe v. Longboat Key Beach Erosion 

Control Dist., 604 So. 2d 452, 455 (Fla. 1992). The statutory scheme at 

issue is the Adoption Act and because adoption is “wholly statutory in

nature,” it “can be decreed only in accordance with the statute.” Korbin v. 

Ginsberg, 232 So. 2d 417, 418 (Fla. 4th DCA 1970). 

Adoption is defined as: 

[T]he act of creating the legal relationship between parent and 

child where it did not exist, thereby declaring the child to be 

legally the child of the adoptive parents and their heir at law 

and entitled to all the rights and privileges and subject to all 

the obligations of a child born to such adoptive parents in 

lawful wedlock.

§ 63.032(2), Fla. Stat. (2016) (emphasis added). 

An adoption proceeding begins with the filing of a petition, meaning 

“the filing of a verified, truthful application for adoption.” Rodriguez v. 

Adoption of Rodriguez, 219 So. 3d 944, 946 (Fla. 3d DCA 2017). Section 

63.112, Florida Statutes (2016), sets forth an explicit list of those items 

which must be included in the petition. Among the requirements, the 

petition “shall be signed and verified by the petitioner and ... shall state ...

[t]he reasons why the petitioner desires to adopt the person.” § 63.112(1)(i), 

Fla. Stat. (emphasis added). 

Here, the father was named as “a petitioner” to the petition for adoption 

even though he did not “desire[] to adopt” the child, and a “legal 

relationship” already did “exist.” This was an apparent attempt to avoid 

the statutory effect of a judgment of adoption which is to terminate a birth 

parent’s parental rights “except a birth parent who is a petitioner or who 

is married to a petitioner.” See § 63.172(1)(a)-(b) (emphasis added). 

However, calling the father “a petitioner” was a misnomer because the 

Adoption Act does not allow a parent, whose parental rights are intact, to 

petition to adopt his or her own child. See § 63.032(2) (defining adoption 

as the act of creating the legal relationship between parent and child where 

it did not exist); § 63.172(1)(c) (stating that the effect of a judgment of 

adoption is to “create[] the relationship between the adopted person and 

the petitioner . . . that would have existed if the adopted person were a 

blood descendant of the petitioner born within wedlock”) (emphasis 

added); § 63.112(1)(i) (requiring a verified and truthful petition in which 

the petitioner states the reasons why he or she “desires to adopt the 

person.”) (emphasis added).
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Appellants cite In re Adoption of D.P.P., 158 So. 3d 633 (Fla. 5th DCA 

2014), as a case that allowed a parent to be a petitioner and to retain her 

parental rights following the child’s adoption by a non-spouse. We find 

that D.P.P. is factually distinguishable and therefore unpersuasive.

In D.P.P., a baby was born to a same-sex couple, and they filed a joint 

petition for stepparent adoption by the birth mother’s partner. The trial 

court granted the adoption petition and entered a final judgment of 

adoption. Id. at 636. A year later, the birth mother sought to void the 

adoption on the ground that her former partner “was not qualified to seek 

a step-parent adoption.” Id. The trial court vacated the adoption, finding 

“G.P. was not a step-parent or an unmarried adult seeking to adopt 

following the termination of C.P.’s parental rights.” Id. “The [trial] court 

concluded that a petition for adoption filed by two unmarried adults fails 

to invoke the subject matter jurisdiction of the circuit court, and thus, the 

final judgment of adoption was void.” Id.

D.P.P. is not directly on point because the appellate court, in reversing 

the trial court, focused on the trial court’s determination that it lacked 

subject matter jurisdiction. It is cited here because the Fifth DCA, in dicta,

found that the adoption by the unmarried couple “did not run afoul of the 

court’s power to enter judgments of adoption” and that “the adoption 

decree was consistent with the intent of the Legislature set forth in section 

63.022, Florida Statutes (2012).” Id. at 638 n.2.

While D.P.P. implicitly approves of a parent petitioning with a nonspouse to adopt her own child, that case cannot be stretched to cover the 

adoption proposed in this case because the petitioners here are not in a 

committed relationship so the proposed adoption is not “consistent with 

the intent of the Legislature.” Id. The petitioners in D.P.P. were in a 

“committed” relationship at the time of the adoption and the child was 

born into a two-parent home where the parents were in a familial 

relationship with each other and the child. Sanctioning the adoption in 

D.P.P. was essentially sanctioning adoption by a stepparent because at the 

time, same-sex marriage was illegal in Florida. The Legislature has clearly 

stated its preference that an adoption result in “adoptive parents” raising 

the adoptee as if the child were “born to such adoptive parents in lawful 

wedlock.” § 63.032(2). 

We find that the petitioners in D.P.P. (the same-sex couple) are 

distinguishable from the petitioners in this case (the father and maternal 

grandmother). Here, the proposed parents are not married and are not in 

a “committed relationship” as that term is commonly understood. Here, 

the adoption will result in the child having two parents who live completely 
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separate lives in separate households with their only connection being 

shared custody and financial obligation for the child. Unlike the adoption 

in D.P.P., we do not believe the proposed adoption in this case is 

“consistent with the intent of the Legislature.” 

Appellants also cite M.D.C. v. B.N.M.J., 117 So. 3d 489 (Fla. 1st DCA 

2013), as authority for the proposition that second-parent adoption by a 

non-spouse is sanctioned by Florida courts. In M.D.C., the father’s 

parental rights were terminated when the child was adopted by her 

stepfather. Years later, when the stepfather and the mother divorced, the 

birth father petitioned to adopt her. Id. at 490.

The trial court found that the end result would be that the child’s legal 

parents would also be her biological parents, a circumstance supported by 

public policy. Id. However, the trial court found that the adoption was 

not authorized by section 63.042(2)(c), Florida Statutes (2012) (governing 

when a married person can adopt without his spouse joining as a 

petitioner), because the statute “did not envision the adoption 

contemplated here.” Id. 

The First DCA reversed, finding the “failure of M.D.C.’s spouse to join 

in the adoption is not fatal.” Id. at 491. The court found the father 

qualified as an adoptive parent under the statute and that the trial court 

should have allowed the father to “proceed to an evidentiary hearing in 

which he would be given the opportunity either to show good cause why 

his present spouse did not join the adoption petition or to show that the 

adoption is in B.N.M.J.’s best interest.” Id. 

Because both the trial and appellate courts focused on whether the 

father was a person “who may adopt” under section 63.042(2)(c), M.D.C. is 

not directly on point. The case is cited by Appellants because the new 

family proposed in M.D.C. is similar to the new family proposed here–a 

married person who is otherwise qualified to adopt, petitioning to adopt 

and co-parent with the child’s natural parent who is not the spouse of the 

petitioner. 

We find, however, that like D.P.P., the characteristics of the petitioners 

distinguish M.D.C. from the case at bar. The father in M.D.C. was properly 

named as a petitioner because his parental rights had previously been 

terminated. He was therefore permitted by statute as a “birth parent” (not 

a “parent”) to join the petition as a petitioner. The father here is already a 

parent and cannot be a petitioner for the reasons set forth above.
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In addition, the trial court in M.D.C. found that the end result of the 

proposed adoption (that the child’s biological parents would also be her 

legal parents) was supported by public policy. In contrast, it is unclear

whether public policy would sanction the end result in this case, where 

the child’s father and the child’s maternal grandmother would become coparents. See In re Adoption of M.R.D., 145 A.3d 1117 (Pa. 2016)

(prohibiting the adoption of a child by her maternal grandfather who was 

joined in the petition by her mother); In re Adoption of Child by Nathan S., 

934 A.2d 64, 65 (N.J. Super. Ct. Ch. Div. 2006) (same, finding the 

legislature did not intend for two persons to adopt outside of marriage or 

partnership, and therefore “a married grandfather cannot become a coparent with his daughter by adopting his granddaughter when the 

biological father is alive.”); but see Adoption of a Child Whose First Name is 

Chan, 950 N.Y.S.2d 245 (N.Y. Surr. Ct. 2012) (adoption by two unmarried 

people, not in a relationship, was not barred by statute and petitioners 

were permitted to establish that adoption of a Cambodian child they 

brought to New York and raised was in the child’s best interests).

While a myopic reading of subparagraphs 63.172(1)(a) and (b) allows a 

birth parent to be “a petitioner” to an adoption proceeding and thereby 

retain his parental rights, the Adoption Act as a whole precludes an 

individual with parental rights at the time of the petition from joining in 

an adoption proceeding as “a petitioner” because a petitioner is one 

seeking to adopt the child and a parent (whose rights are intact) cannot 

adopt his own child.

We recognize that “[t]he legal parameters and definitions of parents, 

marriage, and family have undergone major changes in the past several 

decades . . . .” D.M.T. v. T.M.H., 129 So. 3d 320, 337 (Fla. 2013). We also 

recognize that the parenting arrangement proposed in this case may be in 

this child’s best interests. However, the right to adopt a person in Florida 

is a privilege bestowed by the Legislature. For the court to entertain the 

petition, the proposed familial arrangement must be within the parameters 

allowed by the Adoption Act. Under the current version of the Act, this 

father, whose parental rights are intact, cannot petition to adopt his own 

child.

For these reasons, we affirm the trial court’s order and remand for 

dismissal of the petition. 

FORST and KUNTZ, JJ., concur.

* * *
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Not final until disposition of timely filed motion for rehearing.