Opinion
No. 70-951.
January 14, 1972. Rehearing Denied March 3, 1972.
Appeal from the Circuit Court, St. Lucie County, D.C. Smith, J.
Sam E. Murrell, of Sam E. Murrell Sons, Orlando, for appellants.
Gerald S. James, Fort Pierce, for appellees.
This is an appeal from a final order denying appellants' petition for adoption. The lower court found that it was not in the best interest of the minor child to grant the adoption petition.
The disposition of this cause would not be furthered by a protracted discussion of the facts and evidence in the record. In this connection the observations in Smith v. Lyst, Fla.App. 1968, 212 So.2d 921, at 923, are relevant:
"The lower court received evidence and heard all of the testimony; its findings were made accordingly. The decree of the lower court arrives at the appellate level carrying with it a presumption of correctness. Absent a showing by appellant that there existed before the lower court no substantial competent evidence upon which the decree could be founded, the decision of the chancellor will not be reversed. . . ."
The paramount consideration in any proceeding of this type is the best interest and welfare of the minor child. From our examination of the record we are of the opinion that there was sufficient competent evidence before the chancellor to support his finding that it would not be in the best interest of the minor child to grant appellants' petition for adoption. The record poignantly reveals the full extent of the trial court's deep concern for the best interest of the child and the gravity and seriousness of its determination. As the court so eloquently pointed out:
"Everyone here, I am certain, is well-aware of the fact that we are dealing with a most delicate relationship and with a most delicate problem, the best interests and best welfare of the child, . . ."
* * * * * *
"This is with anything other than pleasure, and only because from the evidence and from a consideration of the evidence as a whole, that the court is forced to announce that the Court will enter an order denying the petition. . . ."
In passing, it might be well to observe that while the Division of Family Services, appellee, in its investigative report which was part of the record below, did not contest the adoption, leaving such matter for the determination of the trial court, the conclusion is inescapable from a reading of the report as well as a review of the testimony as a whole that the Division could not recommend approval of appellants' petition. As the Division's report and the testimony reflect "the Division believes and continues to believe, that the placement" (with appellants) "is not in the best interest of the child".
It is not the function of an appellate court to substitute its judgment for that of a chancellor who heard the evidence unless it has been made to appear that the findings are clearly erroneous when considering all the evidence. Town of Medley v. Seminole Rock Products, Inc., Fla.App. 1962, 138 So.2d 534. The test is not what the appellate court would have decided had they heard the original testimony but only whether there was sufficient evidence in the record to justify the lower court's determination. R.H. James, Inc. v. Anderson, Fla.App. 1964, 165 So.2d 829; Old Equity Life Ins. Co. v. Levenson, Fla.App. 1965, 177 So.2d 50.
This principle would seem to be applicable with greater force where the evidence is conflicting as it often may be where both sides are claiming what is in the best interest of the child; under such circumstances where the trial court resolves conflicting evidence one way or the other an appellate court ought not to interfere with such determination unless clearly erroneous or without evidentiary foundation. State v. Thomas, Fla. App. 1968, 212 So.2d 910.
The appellants have not carried the burden of demonstrating that the findings of the trial court are not supported by the record. Accordingly, the order of the trial court is affirmed.
REED, C.J., and MAGER, J., concur.
CROSS, J., dissents, with opinion.
I respectfully dissent.
Appellants-petitioners, Grady B. Morrison and Edna E. Morrison, his wife, appeal an order denying their petition for adoption of a certain minor child.
The petition for adoption was uncontested. The State of Florida Division of Family Services, to which the child had been permanently committed shortly after his birth, did not oppose the adoption, although the Division did file a report in which the opinion was expressed that the adoption was not in the best interest of the child. This opinion was based on the facts that the Division felt that the child needed younger parents, petitioners being in their fifties, that both petitioners worked, and that the child had been previously placed for adoption with the daughter and son-in-law of petitioners.
The evidence was uncontradicted, and the Division of Family Services report recognized, that the primary need of the child was a warm, stable family environment. It was likewise uncontradicted that petitioners could provide such an environment. Petitioners were in comfortable financial circumstances, were highly respected in their community, and had successfully raised three children of their own.
The welfare of the child is the principal question and prime concern of the trial court in an adoption proceeding. Clements v. Banks, Fla.App. 1964, 159 So.2d 892. We recognize the great weight which must be given to the trial court's determination in an adoption case. See Smith v. Lyst, Fla.App. 1968, 212 So.2d 921. However, where the court's determinations are not supported by the evidence pertaining to the child's welfare, an appellate court will not hesitate to reverse those determinations. See In re Duke, Fla. 1957, 95 So.2d 909; In re Brown's Adoption, Fla. 1956, 85 So.2d 617.
The uncontradicted evidence in this uncontested adoption proceeding established that the best interest of the child would be served by placing him in the type of family environment provided by petitioners. Had the Division of Family Services seriously thought otherwise, it could easily have opposed the adoption. The alternative to granting the petition, as the Division's report itself recognized, was to remand the child to the custody of the Division of Family Services, where prospects for a subsequent adoption were dim indeed. I would reverse the order appealed and remand with directions to grant the adoption.