Opinion
No. 72-358.
October 11, 1972. Rehearing Denied November 10, 1972.
Appeal from the Circuit, Court, Pinellas County, Charles M. Phillips, Jr., J.
William J. Castagna, of MacKenzie, Castagna, Bennison Gardner, Clearwater, for appellant.
Robert R. Tench, Clearwater, for appellees.
The judgment of adoption, terminating the right of appellant, the girl's natural father, cannot be upheld consistently with the law as declared by our Supreme Court. Torres v. Van Eepoel, Fla. 1957, 98 So.2d 735; Wiggins v. Rolls, Fla. 1958, 100 So.2d 414; In re Whetstone, 1939, 137 Fla. 712, 188 So. 576. See also In re Prangley, Fla.App.2d 1960, 122 So.2d 423; Roy v. Holmes, Fla.App.2d 1959, 111 So.2d 468; Annot., 35 A.L.R.2d 662.
The home of her aunt and uncle, who have kept her since her mother's death, and in which she wishes to remain, is probably preferable. She does well in school, is active in her church and happy. But the father's home is concededly suitable. The evidence that he abandoned her after his divorce from her mother is simply inadequate.
Reversed and remanded.
LILES, Acting C.J., and McNULTY, J., concur.
ON PETITION FOR REHEARING
Appellees suggest that we have overlooked In re Vincent, Fla.App. 1st 1961, 219 So.2d 454. We have not. In that case the natural father had never seen the child during its first five years, and was so indifferent to its welfare that a decree of adoption was properly granted the child's stepfather, the only father she had ever known. That case is completely different from this one. There is in this record some evidence of laxity in providing support, but not enough to support a finding of abandonment, and an effort to make much of the father's allowing his present wife to write the child on behalf of both of them, a circumstance appellees are unwilling to credit even slightly to the appellant. The child was in fairly regular communication with her father and stepmother. There is no basis for a finding of abandonment, actual or constructive, on this record.
The other point urged upon us on petition for rehearing concerns a question not involved in this appeal.
Rehearing denied.
LILES, Acting C.J., and McNULTY, J., concur.