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S.M.K. v. S.L.E.

Florida Court of Appeals, Fifth District

March 2, 2018

S.M.K., Appellant,
v.
S.L.E., C.C. and M.C., Appellee.

         NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

         Appeal from the Circuit Court for St. Johns County, John M. Alexander, Judge.

          William S. Graessle and Jonathan W. Graessle, of William S. Graessle, P.A., Jacksonville, and J. Stephen Alexander, of Alexander Law Firm, LLC, St. Augustine, for Appellant.

          Bryan M. Callaway, of Robert P. Eshelman, P.A., Jacksonville, for Appellee, S.L.E.

          No Appearance for C.C. and M.C.

          COHEN, C.J.

         This case involves a natural parent's constitutional right to raise his own child, even if that determination is not necessarily in the best interest of the child. For the reasons set forth below, we reverse the order terminating S.M.K's ("Father") parental rights, which deemed Father's consent unnecessary for the relative adoption of O.R.K. ("Child"), pursuant to section 63.062(2), Florida Statutes (2016). The trial court found that Father had abandoned Child. During the proceedings, Father's knowledge of Child's whereabouts was a critical issue in the court's determination.

         In September 2015, S.L.E. ("Mother") gave birth to Child in Florida. There is no disagreement regarding Father's paternity. Soon after Child's birth, the family traveled to Indiana. The reason for the trip was in dispute, although both parties acknowledged that Father was renovating a house in Indiana. At one point, Mother testified that she believed the trip was a short term visit. At another point, she testified that the three were planning to move into the house, but when they arrived the house was uninhabitable.[1] Father testified that the trip was intended to be a permanent move.

         Mother claimed that a few weeks after arriving in Indiana, Father stole her car and "went on a crack bender." In late November 2015, Mother returned to Florida with Child without Father's consent. Upon returning to Florida, Mother and Child temporarily lived with M.C. ("Aunt") and C.C. ("Uncle") in St. Augustine. Mother left with Child in January 2016 and returned to her place of residence, which was a boat in Titusville. Within a week, Mother returned Child to Aunt because she was unable to care for Child herself.[2]

         Father remained in contact with Mother subsequent to her departure, and in December 2015, followed Mother to Florida, residing in the Bradenton area with his sister. Father arranged a meeting with Mother in Daytona Beach and drove there from Bradenton, but minutes before the meeting and despite knowing Father had driven from Bradenton, Mother informed him that she would not attend.

         In February 2016, Father requested that the Manatee County Sheriff's Department perform a wellness check on Child. Father provided law enforcement Aunt and Uncle's address as a possible location. He did not hear back from law enforcement on the results of the check, nor did he inquire.

         While Mother claimed she communicated with Father through texts and that Father knew Child was living with Aunt and Uncle, Mother failed to produce any of the text messages to substantiate that claim. Father maintained that he did not know the whereabouts of Child: Child could have been at Aunt's home, at maternal grandmother's home, with Mother on her boat, or wherever else Mother was residing.

         Mother also claimed that Father did not financially support her during their relationship or her pregnancy, maintaining that Father only marginally assisted with Child's care while in Indiana. Mother described her relationship with Father as "abusive, tumultuous, " and testified that the police were called several times during their relationship. The volatility of the relationship was echoed by Aunt, who described Father as abusive and threatening toward Mother. Mother also testified that Father has four other children, all of whom he has abandoned.[3]

         In May 2016, Father filed a complaint to establish paternity of Child in St. Augustine.[4] He listed Mother as respondent and Aunt and Uncle as interested parties. As of the filing date of the complaint, Child was less than one year old and residing with Aunt and Uncle.[5] Mother and Aunt opposed the complaint, claiming that Father was abusive, unemployed, ...


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