IN RE ADOPTION OF BABY E.A.W., 647 So.2d 918 (Fla.App. 4 Dist. 1994)

APPENDIX

(Opinion filed June 22, 1994)

FARMER, Judge.

This case began by presenting a single issue of admittedly great consequence — namely, whether a birth father had waived the right to consent to the adoption of his child by reason of his conduct during the pregnancy. Unhappily, it has since become needlessly complicated with multiple irrelevant issues and thereby unreasonably delayed, all to the detriment of the child. In the end, nearly one year after originally deciding the waiver issue in favor of the father, the trial judge — confronted by a welter of heated contentions — reversed his ruling and, after hearing much evidence on issues that had no bearing on the waiver question, concluded that the father had forfeited the right to object to the child's adoption. The father now appeals, raising multiple issues. We are compelled to reverse.

We begin with the relevant evidence, which is very much in conflict.¹The birth mother and father, Linda and Gary, had been living together without marriage for some eight months when she became pregnant in November 1991. She told him of the pregnancy one month later, at Christmas. She had been working as a waitress, while he was employed as a painter. He earned $300-400 net weekly; her income is unknown. She was in an automobile accident in January 1992 and ceased working thereafter.

At that time, Linda had a 2-year old child by another man living with her and Gary.²She hoped that she and Gary would be married and that they would have a "Brady Bunch kind of family life." Their financial arrangements, meanwhile, were that they would divide equally the monthly household bills consisting of rent ($600), electricity ($50-70), water ($25), and phone ($60). Each agreed to pay for her/his own food. Hence, without counting food, their base joint monthly living expenses for necessaries were more than $700.

In February 1992, out of work because of her accident, she applied for welfare benefits (AFDC) and food stamps. To assist her application, Gary signed papers reciting the above financial arrangements. It is not clear when she began receiving public assistance, i.e. April or May 1992, but she ultimately began to receive monthly AFDC checks in the sum of $241, out of which she gave him $200 toward her share of household expenses. She also received monthly food stamps of $203, which she used to buy food for herself and her custodial child.

Hence, for the first six months of her pregnancy, he contributed more than half of their expenses, and thus regularly and continuously supported her in helping to maintain the household in which she resided. A brother of Gary, who had lived with Gary and Linda for a short time at the beginning of her pregnancy, testified that her financial contributions to the household were "a joke." Their joint arrangement lasted until she voluntarily left the household on June 3rd.

During this period of joint residency, she never asked him to help her find health care; nor did he do anything to obtain medical care for her pregnancy. Along with welfare benefits, however, she received Medicaid prenatal care. There is no evidence in the record to show that either Gary or Linda were covered by any health insurance plan or that either or both together were in fact financially able to bear the costs themselves of prenatal health care services. Indeed, the only conclusionPage 942that the evidence will bear is that, at their combined income level with her pregnant,togetherthey qualified for Medicaid.³Hence, he was not financially able to have provided her with prenatal health or medical care. From the very beginning, Medicaid was thus the only possible source of necessary obstetrical services.

Linda described Gary's reaction to the news of her pregnancy as: "He smiled a little and basically that was it." She also testified that he was cold to her during her pregnancy and offered no emotional support. Several witnesses testified that Gary drank alcoholic beverages frequently, was often drunk, and verbally abused her when he had been drinking. When she first broached the subject of adoption with him, she described his response as: "Do whatever you have to do." At another point, when asked to illustrate how he had abused her, she recounted an incident in which he spat at her after she had used his razor. At other times he would call her names and tell her to "get out."

A chiropractor treating Linda for her automobile accident injuries testified that Linda was always crying and very depressed. She complained to the chiropractor that Gary was offering her no emotional support. That was also the substance of testimony given by several of her friends.

From the time Linda began getting health care services for her pregnancy, she looked to other people for transportation to and from her providers. Gary did nothing to assist her in that regard. On the other hand, he worked during the day, and she usually saw her treating health care professionals during ordinary business hours. The evidence does not reveal whether she ever asked him to take her, although one of her friends testified that on occasion he would be home when the friend provided transportation for Linda. She testified that later, after they separated, he did accompany her for a sonogram.

Gary's version was decidedly different. He described his reaction to the news that Linda was pregnant as "pretty happy, honestly overjoyed as a matter of fact. It was my first child. I was excited, wanted it, wanted a baby." He acknowledged her growing unhappiness throughout her pregnancy, but explained that he accepted his mother's advice that this was normal in pregnancy. He testified that he accompanied Linda for a sonogram on June 18th and that he posted the sonogram on his refrigerator. At one point he said ironically: "I supported Linda for a year and a half and her child, and now I don't want my own?"

Furthermore, neighbors who had socialized with both testified that they observed the pair as being very loving during the time when Linda resided with Gary and that Gary brought the sonogram over to show them and was happy about impending fatherhood. His mother had even assisted him in his impending fatherhood by buying a crib which they set up in their house.

On June 3, 1992, without being compelled by him to do so, she decided to leave the house. At first she moved in with a girlfriend, but left that temporary housing on July 9th and moved into her own apartment, paid for through the prospective adoptive parents. Although she did not tell him where she was actually staying, she gave him a telephone number where she could be reached. Linda said that he called her several times over the ensuing three months, sometimes in the late night hours, trying to harass her, but he did not try to visit her. In fact, Linda testified that after he received notice of the adoption proceedings from the intermediary, Gary did attempt to contact her in what she described as one of his late night harassing telephone calls. Gary testified that she also called him after she had moved out.Page 943

Gary did not inquire as to her medical care after she moved out, and he did not offer her any assistance during the three months before she delivered. On the other hand, neither did she ask him for any help in that regard. In fact, at the first hearing, she testified that after she moved out, she tried to avoid him. She had acquired an automobile by then and now drove herself to her providers. It was during this period that he accompanied her for the sonogram.

It is undisputed that when he received a letter from counsel for petitioners in July 1992 seeking his consent to the adoption, he telephoned the attorney/intermediary and "told her emphatically that I had no — there was no way that I was going to give this child up for adoption no matter what Linda has been telling her, there was no way." He added that he immediately sought legal assistance from Legal Aid, and was ultimately referred to his present attorney, because "I want my daughter." The attorney for petitioners testified that, in response to a notice she had sent Gary, he called her some two weeks before the actual birth and refused to consent to the adoption. She added:

"I said this is what you need to do and he said, oh, and they are going to pay all her fees and who's helping me or something like that. I don't know. He said, I'm not paying for nothing and he hung up on me, as a matter of fact."

At the end of July 1992, the attorney/intermediary, Charlotte H. Danciu, filed a pre-birth petition for approval of expenses for an adoption of Linda's baby, listing the expenses that the prospective adoptive parents had agreed to pay for Linda. These expenses included $625 for monthly rent and utilities, and $240 for food.⁴The judge signed an order authorizing payment of these expenses.

Danciu, as intermediary, also filed other necessary papers, including a report of intended placement, dated August 12, 1992, stating: "The birth father['s] consent has been waived by the court." On August 12th, the judge also signed an order waiving Gary's consent, stating: "The father was advised of the pendency of this hearing by attorney Danciu but has deliberately avoided receiving notice of this hearing by a duly appointed process server." It also recited that: "The father abandoned the mother of the unborn child." On September 1st, the intermediary filed with the court an unclaimed certified mail letter addressed to Gary indicating that the last postal notice to the addressee was dated August 13th, which happened to be the dayafterthe order waiving Gary's consent was signed.⁵

Danciu, as attorney/intermediary, also failed to inform the court of her telephone conversation with Gary, near the middle of August, in which he told the attorney that he contested the adoption and refused to consent to it.⁶We are just as appalled to learn that there is later testimony of the prospective adoptive parents that the attorney likewise failed to inform them of Gary's objection and refusal to consentuntilafter the birth of the baby.⁷We cannot help but think that a little candor from this intermediary might have prevented some of what occurred later.

E.A.W. was born without complication on August 28, 1992. On September 3rd, Gary served a motion to set aside the ex parte order waiving his consent. In sworn testimony, he said that after his mid-August conversationPage 944with the intermediary he sought legal assistance to contest the adoption even before the baby was born. He contacted Legal Aid offices in both Broward and Palm Beach Counties. His efforts to obtain legal representation were delayed by Hurricane Andrew, as the Broward County office was closed for a week. Nevertheless, the evidence is unrefuted that he sought to assert his rights even before his child was born.

On September 8th, the prospective adoptive parents [petitioners], through the attorney/intermediary, filed a petition for the adoption of Baby E.A.W. The petition contained a statement that the birth father's consent was waived by the August 12th order, but made no mention of either the intermediary's mid-August telephone conversation with Gary or his September 3rd motion to set aside the order of waiver. The petition was also accompanied by an HRS form with background information signed by Linda clearly identifying Gary as the father of the child. On September 18th, the court entered an order setting aside its August 12th order waiving the father's consent. The court promptly scheduled an evidentiary hearing on the issue whether Gary's consent should be deemed waived by his conduct.

After hearing substantially all of the above evidence at a hearing on October 9th, the trial judge entered an order one week later, on October 16, 1992, on petitioners' motion to waive the birth father's consent. The judge concluded from the evidence that "under any definition of abandonment, the natural father has not abandoned the natural mother or the child." The court thereupon denied the motion to waive the birth father's consent. On the very next day, Gary filed a petition for habeas corpus seeking custody of his child.

Within 10 days after the entry of the waiver order, however, petitioners moved for a rehearing on the abandonment issue. On November 3rd, counsel for petitioners in her capacity as the "Intermediary" filed a motion — which the court promptly granted — calling for the appointment of anattorneyad litem for the child.⁸On December 8th the attorney ad litem filed a motion in the name of the child for a rehearing of the waiver/abandonment issue, praying for a new hearing on the issue.

On January 5, 1993, the trial court entered an order granting rehearing, saying as follows:

"While the Court is convinced that its order denying the request that the birth father be deemed to have abandoned the child was appropriate, the Court is concerned with due process in that the prospective adoptive child was not represented at the hearing and as such, may be able to develop factual information which could persuade the Court to reverse the previous decision that this Court made. Therefore, with reluctance, this Court grants the motion for rehearing as was filed by the prospective adoptive child through the child's attorney * * *."

The order then set February 11th for a de novo evidentiary hearing "on the question of the alleged abandonment by the birth father of the prospective adoptive child."

The rehearing began on February 11th but ended without hearing from all the witnesses whom the attorney ad litem intended to call. All of the evidence relating to the issue of abandonment presented at the rehearing by the petitioners and the attorney ad litem was in substance a rehash of the evidence that had been first presented at the October 9, 1992, hearing. To be sure, new witnesses testified. But, except for the intermediary, none of them gave additional evidence regarding the abandonment issue. The repeat witnesses (who had already testified at the first hearing) merely restated their previous testimony without offering any significant new facts.

On the other hand, much of the evidence received actually related only to the "bestPage 945interests of the child" and consisted of extensive facts surrounding the father's conviction in Minnesota in 1977 for burglary and sexual battery. Included also was evidence about a 1985 arrest for sexual battery which resulted in an acquittal. It is fair to say that this criminal conviction and the later criminal charges, along with many collateral features, became the very focus of the rehearing.⁹The February 11th hearing ended with the court stating that it would set a date for a resumption of the rehearing testimony.

The rehearing finally resumed on August 3rd, and all the remaining additional evidence was received then. On September 20th, the court entered an order on rehearing essentially reversing its October 16, 1992, order (which had found no abandonment and no waiver), and instead found an abandonment and thus a waiver.¹⁰Explaining that the issue was whether there was clear and convincing evidence to establish that the father had abandoned the mother "financially and/or emotionally" during her pregnancy, the trial court based its turnabout on three essential grounds:

(1) the father failed to support the mother financially during her pregnancy and allowed her to become a public charge by having Medicaid pay for her prenatal care;

(2) the father failed to support the mother emotionally during her pregnancy; and

(3) instead of consenting to the adoption, the father sought the assistance of Legal Aid to assert his parental rights, which had the effect of creating chaos in the life of E.A.W.

The father timely filed his notice of appeal, and we have expedited these proceedings.¹¹

We first pause to comment on the amount of time elapsing between the first presentation of the waiver issue and the final decision on that subject. What we say on this subject is not meant to be a criticism of the trial judge in this case, but is instead intended to be advisory to the trial judges who hear these cases. Clearly a judge sitting in equity has the authority to change the judicial mind after a final judgment and order a trial de novo.See Hollywood Inc. v. Clark,153 Fla. 501,15 So.2d 175, 180 (1943). We think it may be improvident, however, to take months or more to do so in a contested adoption of a newborn infant.Page 946

The strong interest of the child in having a stable family during the critical formative period of life argues with great force against the kind of judicial delays that may be appropriate in ordinary civil litigation. If a court is to rehear discrete issues in an adoption case, and the waiver issue is among the most critical, the rehearing should usually take place as soon as practicable and ahead of almost any other pending matter. Delays of months should be tolerated only when no possible consequence of delay can affect any interest of the child. Trial and appellate judges should be ever vigilant to press these cases to finality with alacrity, and should simply not allow the parties by inaction or stipulation to delay the matter.

Before we decide the legal sufficiency of the trial court's grounds for concluding that the father had abandoned the mother during pregnancy, we must first discussIn the Matter of theAdoption of Doe,543 So.2d 741(Fla. 1989),cert. denied,493 U.S. 964, 110 S.Ct. 405, 107 L.Ed.2d 371 (1989) [Doe]. There the court decided the certified question whether generally an unmarried father's failure to assume support responsibilities and medical expenses for an unmarried mother who requires such assistance, and he is aware of her needs, is a basis for a trial court to excuse his consent to the adoption of his child on the grounds of abandonment.

In answering in the affirmative, the court paused to acknowledge the general validity of the fifth district's holding in that case "that the best interest of the child is not a relevant factor unless the child was legally available to be adopted."¹²543 So.2d at 744. The court approved that statement, but with a qualification: when the birth father has delayed in making his interest in custody known and the child's situation has changed during the period of the father's delay, then the best interests of the child may be relevant to the waiver issue. As the court explained:

"For instance, there may well be circumstances where a natural father does not acknowledge or declare a parental interest in the child until after the child has been with the adoptive parents for a significant period of time during which substantial bonding has occurred. In such a case bonding would be a material consideration on the issue of abandonment."

543 So.2d at 744.

Clearly that is not the case here. This father acknowledged and declared his parental interest in the child before she was even born. Indeed the attorney for the petitioners admitted that she had spoken to the father at least two weeks before the birth of the child and that the father had refused to consent to the adoption and stated his interest in raising the child. It is thus clear that the supreme court's qualification on the irrelevancy of best interests evidence at the waiver hearing has no application here. Evidence relating to the best interests of E.A.W. was thus inadmissible on the issue whether this father had abandoned the mother during pregnancy.

This is really not a new holding, as that rule has long been applied in this state and by this court. InIn re the Adoptionof M.A.H.,411 So.2d 1380(Fla. 4th DCA 1982), where the issue of abandonment was vigorously contested, we observed that the adoption law before 1973 did not require the child to be abandoned for the child to be adoptable. Although the legislative change requiring that the child be abandoned in order to be available for adoption was "hard to accept" in the opinion of Judge Letts, and the best interests of the child not yet relevant, we nevertheless decided that abandonment was indispensable to a court considering adoption and the best interests of the child.See also In re the Matter of Adoption ofNoble,349 So.2d 1215(Fla. 4th DCA 1977); andIn re theAdoption of J.C.E.,487 So.2d 1117(Fla. 4th DCA 1986). In two widely publicized recent cases in other states, the same principle was applied.In re Petition of John Doe and Jane Doe,159 Ill.2d 347, 202 Ill.Dec. 535,638 N.E.2d 181(1994); andInthe Interest of B.G.C.,496 N.W.2d 239(Ia. 1993).

We thus restate what has simply been the law in this state for a considerable amount of time and cannot be seen as new or revolutionary.Page 947The best interests of the child, except in the limited circumstance described inDoe,is not relevant to the threshold issue whether the birth father has waived his right to consent to the adoption by prebirth abandonment of the mother. Nor is this principle at odds with the legislative intent set forth in section63.022(2)(l), Florida Statutes (1993), that "[i]n all matters coming before the court pursuant to this act, the court shall enter such orders as it deems necessary and suitable to promote the best interests of the person to be adopted." Earlier in the same statute, in subsection63.022(2)(a) to be exact, the legislature has articulated, as its very first purpose in the listing of its intentions under the adoption statutes, thus: "The child is legally free for adoption."

Giving section63.022(2)(l) its literal and, we think, obvious meaning, therefore, there is no question of best interests to be considered because until there is a "person to be adopted" there is yet no specific child capable of being given to adoptive parents. Waiver must necessarily be first determined because, unless both birth parents consent to the adoption or their consent has been excused by reason of abandonment, the adoption proceedings are at an end.

Moreover, from a relevancy standpoint, waiver evidence is concerned with the past conduct of the parents; it is thus retrospectively concerned about parental history. In contrast, while it may include past conduct of the people whose claims are at issue, best interest evidence is concerned exclusively with the future of the child. When the question is solely whether a father has waived his right to consent to adoption by his conduct during pregnancy, it is irrelevant to consider evidence that tends to prove with whom, among the contenders, it will be in the best interests of the child to be placed for adoption.

We now analyze the facts inDoeand those in this case. As regards the answer to the certified question inDoe,the court's discussion of the operative facts begins by noting that the father refused marriage and urged the mother to have an abortion. Although he and the mother saw each other regularly, when she lost her job and went on welfare he offered her no support at any time. In fact the trial court found that he initially agreed to adoption when she suggested it. The trial court had also found that when the father learned that the mother was pregnant, just before a planned ski vacation at Christmas break in December, he had already accumulated savings of $10,000 during that month on a job that was just ending.

Even though he knew he had to find a new job and that she was pregnant, he nevertheless went on the ski holiday with the mother and spent $4,000 of his savings on that vacation alone. He did however pay one month's rent for the mother in February after their holiday and allowed her to use some furniture and a microwave oven. Aside from that single month's rent and the use of these goods, he made no contribution out of his remaining $6,000 toward her support during her pregnancy. In her seventh month, she moved to Florida where her mother began arranging an adoption. She remained in contact with him and told him of the adoption plans. He now did not want an adoption but still refused marriage and offered no help. It was only after the child was born and given to the prospective adoptive parents that he finally came forward to object to adoption, proposed marriage and acknowledged paternity. 543 So.2d at 742-743.

The court ruled that this conduct by the father during pregnancy "tend[ed] to prove or disprove material facts bearing on abandonment and may be properly introduced and used as a basis for finding abandonment under the statute." 543 So.2d at 746. The court explained:

"* * * the issue of abandonment turns on the question of whether the parent has evinced a settled purpose to assume parental duties. Providing prebirth support to the unborn child is a parental duty. Evidence of whether the parent has or has not furnished customary support to the pregnant mother is relevant to the issue of abandonment. In answer to the certified question we hold that an unwed father's prebirth conduct in providing or failing to provide support responsibilities and medical expenses for the natural mother is relevant to the issue of abandonment underPage 948section 63.072(1). We caution that this analysis cuts both ways. In circumstances other than those here, an unwed father would be justifiably entitled to argue that his conduct in providing prebirth support to his unborn child was relevant to his claimed right to refuse consent to the adoption of his child."

543 So.2d at 746. The court went on to state that it was "satisfied that the record supports the trial judge's conclusion that the [father's] efforts were marginal and did not evince a settled purpose to assume parental duties." 543 So.2d at 747.

We contrast the facts here with those inDoe.This birth father never suggested abortion, and the mother even admitted that he was happy when she told him that she was pregnant. Whether he impliedly acceded to an adoption early on is equivocal at best: "Do what you have to do." Most importantly, he furnished more than half of the costs for housing for himself and the mother jointly, as well as for her 2-year old child, for at least a period of 6 months during her pregnancy. He stopped furnishing such support only because she decided to move out.

The evidence shows without contradiction that he regularly and continuously contributed to her support during the six months that they lived together. And there is no evidence in this record that Gary had the financial resources that the father inDoeenjoyed, or was able to furnish more than he did. Also inDoe,the father's income would not have made father and mother living together eligible for Medicaid benefits, while here father and mother together were eligible for Medicaid. Unlike the mother inDoewho asked the father for help, Linda said that she had tried to avoid Gary after she moved out. Finally, Gary had made his objection to the adoption known well before the birth and placement of E.A.W. with the petitioners, while the father inDoewas urging other solutions right up until the child was born.

In 1992, the Florida legislature codified the decision of the supreme court inDoeas to the certified question.SeeCh. 92-96, § 3, Laws of Fla. With that change, section63.032(14) now defines abandonment as follows:

"(14) `Abandoned' means a situation in which the parent or legal custodian of a child, while being able, makes no provision for the child's support and makes no effort to communicate with the child, which situation is sufficient to evince a willful rejection of parental obligations. If, in the opinion of the court, the efforts of such parent or legal custodian 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. In making this decision, the court may consider the conduct of a father towards the child's mother during her pregnancy."

§63.032(14), Fla. Stat. (1993).¹³

We turn to a consideration of the three grounds on which the trial court essentially based its decision on rehearing. As to the first ground of financial abandonment, the adoptive parents and attorney ad litem primarily base their contention on the fact that Gary failed to pay, or offer to pay, any of Linda's prenatal medical expenses and that Linda had to resort to public welfare and Medicaid. They specifically point to Justice Shaw's opinion inDoe,where he speaks of fathers who transfer their own burden of support to society at large. 543 So.2d at 749.

But his comments cannot be read in isolation and must be understood in the context of the facts inDoe,where a father squandered $4,000 on a ski vacation and failed to use any part of his $6,000 in savings (not to mention what he was capable of earning) to support the mother. Thus, the father inDoewas deemed to have abandoned the pregnant mother by allowing her to rely solely on welfare benefits when, all the while, the fatherPage 949had assets from which he could have supported her.

Here, there are no such comparable facts. To the contrary, neither this father or mother ever had the resources to pay for Linda's prenatal care. Mother and baby were destined from the very moment of conception to receive their medical care out of public funds. To charge this father with abandonment because both mother and father could not afford prenatal care is to charge him for being poor.

The critical statutory text for this case is "while being able" in the definition of "abandoned." When a father's income is such that the father and mother living together as a family unit are eligible for Medicaid to pay necessary obstetrical expenses, it cannot be said that the father "while being able" has abandoned the mother financially or has lived off of her during her pregnancy, when he merely "acquiesces" in the mother's acceptance of Medicaid benefits for prenatal care.¹⁴The presence of those words in the statutory definition of abandonment prevents fathers who are incapable of paying for health care from being accused of abandoning their parental duties. As we have already observed, with Gary and Linda's combined income they qualified as a family unit for Medicaid pregnancy benefits. There was no reasonable basis to charge Gary with failing to pay for all or part of her prenatal medical costs, when the governmental standards establish that persons with Gary and Linda's joint incomerequiredMedicaid assistance in order to assure adequate prenatal care. Here, the proponent of abandonment, the petitioners, failed to show that Gary had the ability with his income level to furnish the necessary level of obstetrical care. Hence, the first ground for the trial court's change of mind is legally insufficient.¹⁵

The second ground for finding an abandonment on rehearing is equally insufficient. The focus of both the trial court and appellees is on whether he supported heremotionally.To rely on a father's lack of emotional support for the mother during pregnancy, without any showing that the lack of emotional support so harmed the mother that the child she was carrying suffered direct physical injury, is entirely too vague a standard on which to base a finding of abandonment. Even assuming that the legislature could leave this important ingredient to judicial definition on a case by case basis, there would still have to be some statutory standards as to precisely what emotional support is required. Without a textual foundation in the statute, we are unable to infer abandonment from the mere failure of a father to give prenatal emotional support to the mother.

Moreover, even if there were a statutory element of emotional support, it would necessarily apply to all parents, married or unmarried, divorcing or divorced. That is true because there is nothing in the statute itself to suggest that such a requirement applies only to unmarried fathers. Indeed it is the very application of the abandonment law toPage 950married parents, as well as the unmarried, that saves the statute from unconstitutionally denying equal protection.Doe,543 So.2d at 747. We cannot help but note that applying to married fathers the requirement of emotional support to the mother during pregnancy yields very curious results: e.g. one might then colorably contend that divorcing parents forfeit the right to custody of minor children because they stop supporting each other emotionally during a pregnancy. Hence, the statute simply will not bear the construction that an unmarried father is required to provideemotionalaid and comfort to the mother during pregnancy in order to avoid a finding of abandonment.

The statutory definition speaks of "support," not of love and caring.¹⁶We understand the statutory text, "makes no provision for the child's support" and "conduct of the father toward the mother during her pregnancy," to relate to the mother's material needs of shelter, food, and medical or prenatal care affecting herphysicalwell being.¹⁷Our statutory analysis begins with the fundamental interest that a birth parent has in the custody, fellowship and companionship of the parent's children.In re Guardianship of D.A.McW.,460 So.2d 368(Fla. 1984) (strong public policy in favor of natural parent having custody of child);State ex rel. Sparks v. Reeves,97 So.2d 18(Fla. 1957) (biological parent has natural God-given right to custody of child; rule is older than common law). The United States Supreme Court and the Florida Supreme Court have jointly established the rule that strict scrutiny is customarily given to statutes affecting the fundamental liberty interest in parenthood.See Santosky v. Kramer,455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982);Stanley v. Illinois,405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972);cf. Lehr v. Robertson,463 U.S. 248, 103 S.Ct. 2985, 77 L.Ed.2d 614 (1983) (constitution does not bar a state from allowing the adoption of 2-year old child without notice to the biological father, where the father had no significant custodial, personal or financial attachment to child);In re the Interest of R.W.,495 So.2d 133(Fla. 1986). Consequently, we find the second ground for the judge's change of decision also legally insufficient.

Last, we address what seems to have most affected the trial judge — the fact that the father sought help from Legal Aid to assert his parental rights. Access to legal services is not only a constitutionally protected right but, as the father's resort to Legal Aid demonstrates, we have now created statutory rights to publicly funded legal services.¹⁸ItPage 951should also come as no surprise that anyone whose income places them below the federal poverty level qualifies for such assistance. Hence if we are to castigate eligible parents for seeking legal aid, we might just as well blame them for seeking welfare benefits or Medicaid for which they have qualified under the applicable statutes and regulations.

Of course, this simply cannot be an attainder, any more than poverty itself can be understood as evidence of one's lack of legal worth. No one should be made to suffer some legal impediment for exercising an entitlement to Legal Aid, any more than one should suffer for exercising the underlying right to be vindicated by such legal services. To draw an adverse conclusion from asserting the legal rights of a birth father, i.e. to infer harm to the child from the very assertion of the father's claim to the child, is to damn the parental right.

Florida has long recognized that a parent is entitled to counsel when the state seeks to terminate parental rights.SeeIn the Interest of D.B.,385 So.2d 83(Fla. 1980);see also§ 39.465(1)(a), Fla. Stat. (1993). Can we logically leap from that recognition to penalizing a father simply for seeking legal aid to contest whether he should be deemed to have abandoned his unborn child during pregnancy? It would be strange legal reasoning to provide counsel in the one circumstance but punish the use of legal services in the other. It would also be entirely antithetical to the basic right of a birth parent to the society and custody of a child. We thus find this last ground legally insufficient for the court's abandonment decision.

Among the most difficult cases encountered by judges are those concerning the contested adoption of a minor child. No matter what path judges choose in these cases, the effects on the child's life will be profound. Even with the brightest of auguries in the form of uncontradicted evidence, the future may be markedly different than envisioned and, in any event, not the same if another decision had been made. In short, even when everything has been done with scrupulous exactitude throughout the adoption proceedings, the best interests of the child are simply unknowable, and confidence that the best has been chosen is unattainable. It is primarily for that reason that we have laws to govern judges in adoptions, and not their hearts or emotions. Our decision today should be so understood.

The question of custody of E.A.W. is not before the court on this appeal. It is unfortunately true that the persons a child gets as parental custodians have a profound effect on the development of that child. In the great scheme of things, many children might benefit from having adoptive parents instead of their birth parents. And so while much of the evidence below might call into question the ability of either this father or this mother to be the best parent for E.A.W., that is of no interest to the law until the nondependent child is available for adoption, through either a waiver/abandonment or a termination of parental rights.

We decide cases on the legal issues presented to us, as we are required to do within the system of justice that governs disputes between our citizens. Our code of laws, rather than the primal feelings of human judges, is the source of our strength as the world's oldest democracy. The right of birth parents to the society and custody of their children is an ancient right of civilized people and among the most prized. Florida's statutory laws recognizing and enforcing these interests of birth parents are too well established to be ignored. That explains what we have been compelled to do today.

We therefore reverse the order finding that the birth father has waived his right to consent to the adoption and the final judgment of adoption. On remand, the court shall also set aside the mother's consent, which was itself conditioned on the father's consent being obtained, and conduct further proceedings consistent with this opinion.

REVERSED AND REMANDED WITH DIRECTIONS.

WARNER, J., concurs.

HERSEY, J., dissents with opinion.