        Third District Court of Appeal
                                State of Florida

                            Opinion filed May 31, 2017.
          Not final until disposition of timely filed motion for rehearing.

                                ________________

                                 No. 3D16-2191
                           Lower Tribunal No. 16-18708
                               ________________

                          Maria Dolores Rodriguez,
                                     Appellant,

                                         vs.

          In re: The Adoption of Mariana Andrea Rodriguez,
                                     Appellee.


      An Appeal from the Circuit Court for Miami-Dade County, David C. Miller,
Judge.

      Maria Dolores Rodriguez, in proper person.

      No appearance for appellee.

Before SALTER, FERNANDEZ and LOGUE, JJ.

      FERNANDEZ, J.

      Appellant, Maria Dolores Rodriguez, appeals the denial of her petition to

adopt her adult niece. The final order denying the petition reads, in pertinent part,

as follows:
             Denied as the only valid reason given for this adoption is to
             facilitate the adoptee’s immigration desires. The Adoptee has
             not lived with the Petitioner “always” as alleged. The Adoptee
             just came here this year but it was alleged that she lived with
             Petitioner “always”—but Petitioner lived here 11 years without
             the adoptee. Adoptee did not tell me her cousin lived w/
             petitioner & her.         Claimed Adoption would provide
             “protection” which is not true either given proposed adoptee is
             an adult.

       The Petition for Adoption of Adult by Aunt, did indeed include the

allegation that the prospective adoptee “has always lived under my roof and I want

to provide her with legal and familial protection.” Based on the trial court’s

finding, that allegation in the petition is false.

       Chapter 63, Florida Statutes (2016), provides the statutory scheme that

governs adoptions. Sections 63.102 and 63.112 establish the required content of

the petition. Section 63.042 establishes who may adopt and who may be adopted.

None of the relevant provisions of chapter 63 establish the consideration of public

policy as a factor to be considered by the trial court in deciding whether to grant or

deny the petition.     The Fifth District Court of Appeal had an opportunity to

consider the denial of an adult adoption petition in the matter of In re Adoption of

Holland, 965 So. 2d 1213 (Fla. 5th DCA 2007). In Holland, the grandfather

wanted to adopt his adult grandson in order to take advantage of a program for

disabled veterans that provided financial aid to the children of the veteran, but not

to the grandchildren. Id. at 1214. The trial court concluded:



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            The final issue is whether this court should participate in the
            petitioner's plan to adopt his grandchildren so that they can
            obtain federal aid not otherwise available to them. If Congress
            had intended for grandchildren to have these benefits it would
            have made them available to them. Surely, Congress did not
            intend the result which the petitioner and his other family
            members are trying to accomplish in this case. The court finds
            that the petitioner and his family are working together to obtain
            from the United States government benefits that Congress did
            not intend for the Adoptee and consequently, the petition should
            be denied because it violates public policy and is repugnant to
            the laws of Florida.

Id. The Fifth District held:

             Even assuming that a trial court may deny a legally sufficient
             petition to adopt an adult on public policy grounds, no such
             grounds are present here. The public policy of Florida expressly
             permits the adoption of adults. § 63.042(1), Fla. Stat. (2007). If,
             as a result, the adoptee becomes entitled to a benefit authorized
             by law, it cannot be said that the adoption is in violation of
             public policy.

Id.

      Chapter 63 does require the filing of a verified, truthful application for

adoption. The trial court correctly found that the petition was not accurate and

therefore was insufficient. The remedy, however, was dismissal of the petition

with leave to amend rather than denial. See Yancey v. Dep’t of Health and Rehab.

Servs., 413 So. 2d 438 (Fla. 3d DCA 1982) (where the facts or circumstances of

abandonment or any other necessary allegations were not fully and adequately set

forth in the petition, the appropriate ruling would have been a dismissal with leave




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to amend). We therefore reverse and remand with directions to dismiss the petition

with leave to amend.

      Reversed and remanded with instructions.




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