IN THE CIRCUIT COURT OF THE EIGHTH JUDICIAL CIRCUIT, IN AND FOR ALACHUA COUNTY, FLORIDA

 

IN RE: THE ADOPTION OF CASE NO.: 6815-C

 

MICHAEL EDWARD CHALEK

_____________________________/

 

 

PETITION FOR ANNULMENT OF ADOPTION AND

TERMINATION OF PARENTAL RIGHTS AND FOR

AMENDMENT OF CERTIFICATE OF LIVE BIRTH

 

Petitioner, MICHAEL EDWARD CHALEK, hereby petitions the Court for an Order annulling the adoption of Petitioner by Alex D. Chalek and Adela S. Sutton Chalek on the grounds of fraud and duress exerted upon the natural birth mother at the time of the adoption, and for an Order commanding the Department of Health, Office of Vital Statistics to issue an amended Certificate of Live Birth identifying Petitioner's natural birth mother, Winnie Faye Higginbotham Yarber as the mother of Petitioner, and states:

COUNT I

1. This is an action for annulment of adoption and termination of parental rights pursuant to Sections 39.806 and 382.015, Fla. Stat.

2. Petitioner, Michael Edward Chalek, a resident of Estes Park, Colorado, was born on January 25, 1952 at St. Lukes Hospital in Jacksonville, Florida.

3. Petitioner's adoptive parents, Alex D. Chalek and Adela S. Sutton Chalek, were, at the time of Petitioner's adoption, residents of Gainesville, Florida. Alex D. Chalek and Adela S. Sutton Chalek are both deceased.

4. On July 17, 1952, Alex D. Chalek and Adela S. Chalek by and through attorney William D. Hopkins of Tallahassee, Florida, filed a "petition. . . for the adoption of baby Barnwell, a minor, also known as Michael Edward Chalek" in the Circuit Court of the Eighth Judicial Circuit in and for Alachua County, Florida. The case was assigned No. 6815. In that Petition, Adela S. Chalek misrepresented the number of prior marriages.

5. The adoption was finalized on May 5, 1953, by Circuit Judge John A. H. Murphree. On June 18, 1953, a Certificate of Live Birth was issued identifying Alex D. Chalek and Adela S. Sutton Chalek as the father and mother of Michael Edward Chalek.

6. During the period from his adoption to the time at which he fled his adoptive home of age 16, Petitioner was subject to various forms of abuse at the hands of Alex D. Chalek and Adela S. Sutton Chalek. Petitioner has not returned to his adoptive parents for approximately the thirty (30) years. During that time Petitioner received no emotional or financial support from his adoptive parents.

7. In mid-1995, Petitioner requested non-identifying information on his birth family from the closed adoption record. On August 15, 1995, Josette P. Marquess, Director of the Florida Adoption Reunion Registry, Children and Families Services Programs, State of Florida, Department of Health and Rehabilitative Services, wrote Mr. Chalek with the requested information. Her review of the closed record revealed the following:

a. Petitioner's adoption was arranged by an adoption broker doing business at 143 Talullah Street in Jacksonville, Florida, by the name of Leanora Fielding, the wife of a police captain. Mrs. Fielding is deceased.

b. Mrs. Fielding advised Petitioner's birth mother to enter the hospital under an assumed name and to sign her consent to the adoption using an assumed name.

c. The state welfare case worker who was attempting to locate the birth mother to determine consent noted that Mrs. Fielding was "particularly uncooperative" with the case worker and it took several weeks in order to locate the birth mother. Leanora Fielding was sued over just such a matter.

d. On September 9, 1952, prior to the date of the adoption, the birth mother was interviewed by the case worker. At that time the birth mother asked if there was a chance that Petitioner could be returned to her. The case worker noted that it was difficult for the birth mother to discuss the matter without crying.

e. Petitioner's birth mother had a difficult marital relationship and had separated from her husband in 1948. A legal divorce had not been obtained at the time of the birth of Petitioner. Petitioner's legal father, Thomas D. Yarber, now deceased, was not Petitioner's natural father.

f. Petitioner's natural father was not the husband of his birth mother.

g. Petitioner's birth mother had concealed her pregnancy from her father and siblings and was afraid for them to know of Petitioner's birth.

h. Subsequent to Petitioner's birth, the birth mother wanted to register Petitioner's birth in either her married name or her maiden name. However, Mrs. Fielding would not allow this and Petitioner's birth was registered under a purely fictitious name. This matter was subsequently explained to the court prior to the adoption but there was never any effort undertaken to correct the original birth certificate to show correct information.

i. The birth mother was quite upset with Mrs. Fielding and felt that she had been taken advantage of.

j. Petitioner's birth mother explained to the case worker that she felt she could probably care for Petitioner on her salary, but was reluctant to separate Petitioner from the putative adoptive parents since Petitioner had been with them for so long.

A copy of the August 15, 1995, letter is attached hereto as Exhibit A1@.

8. On November 2, 1998, Petitioner filed a Petition for Adoption Information in the Circuit Court of the Eighth Judicial Circuit In and For Alachua County, Florida.

9. On November 3, 1998, the Florida Department of Children and Families wrote to the Honorable Robert P. Cates, Circuit Judge for the Eighth Judicial Circuit, regarding the Department's recommendation as to the unsealing of Petitioner's adoption records. The November 3, 1998 letter discusses the influence of Ms. Fielding over Petitioner's birth mother and recommended to Judge Cates that the birth records be opened.

10. On December 10, 1998, the Florida Department of Children and Families wrote to Judge Robert P. Cates, Circuit Court Judge, Eighth Judicial Circuit, recommending that the adoption records be released to Petitioner. The letter described the duress under which Petitioner's birth mother acted at the time of the adoption.

11. On December 14, 1998, the Honorable Robert P. Cates, Circuit Judge, entered an order directing the Florida Department of Children and Families to release adoption records. The order noted that the petition based the request for disclosure of adoption records on alleged fraud on the court in the original adoption proceeding.

12. The actions of the adoption broker, Leanora Fielding, in concealing the identity of Petitioner's natural birth mother and perpetuating the fraud by participating in the filing of fraudulent documents in the public records in the state of Florida and in hindering the efforts of the Child Welfare Agency in determining the identity of the birth mother until the adoptive parents had custody of Petitioner for an extended period constitutes fraud.

13. The oppressive and domineering influence of Mrs. Fielding, coupled with the familial and societal pressures placed on Petitioner's birth mother to conceal the existence of Petitioner's birth constituted duress which improperly influenced the decision of Petitioner's birth mother to the surrender and consent to Petitioner's adoption.

14. Petitioner's birth mother has agreed that the annulment of the adoption is appropriate and is consistent with her maternal desire to recognize Petitioner as her natural offspring.

15. Petitioner is not advancing this petition for annulment of the adoption for any improper purpose or for any other reason other than to recognize the familial bond between Petitioner and Petitioner's birth mother.

COUNT II

16. Petitioner realleges paragraphs 1 through 14 as though fully set forth herein.

17. This is an action for amendment of Certificate of Live Birth pursuant to Section 382.016, Fla. Stat.

18. Due to the fraud and duress exerted by Mrs. Fielding, Petitioner's birth mother was compelled to record Petitioner's birth under the assumed name of Faye Barnwell.

19. The legal name of Petitioner's birth mother at the time of his birth was Winnie Faye Higginbotham Yarber.

20. Petitioner's Certificate of Live Birth should be amended to reflect the lawful name of Petitioner's birth mother.

WHEREFORE, for the reasons set forth herein, Petitioner, Michael Edward Chalek requests that the Court enter an order annulling the adoption of Michael Edward Chalek and terminating the parental rights of Alex D. Chalek and Adela S. Sutton Chalek, correcting the original birth certificate to remedy the fraud which resulted in Petitioner's birth mother's failure to list her correct name, and compelling the Department of Health, Office of Vital Statistics to enter a Certificate of Live Birth identifying Petitioner's birth mother, Winnie Faye Higginbotham Yarber as the natural and legal mother of Michael Edward Chalek.

 

_________________________________________

MALLORY E. HORNE, ESQUIRE

Florida Bar No. 037265

Akerman, Senterfitt & Eidson, P.A.

216 South Monroe Street, Suite 200

Tallahassee, Florida 32301

Telephone: (850) 222-3471

Facsimile: (850) 222-8628

Attorney for Petitioner

 

 

CERTIFICATE OF SERVICE

 

I HEREBY CERTIFY that a true and correct copy of the foregoing Petition has been furnished by Certified Mail Return Receipt Requested, to the Florida Department of Children and Families, Bureau of Adoptions, 1317 Winewood Boulevard, Building 7, Room 206, Tallahassee, Florida 32399 and Florida Department of Health, Bureau of Vital Statistics, 1217 Pearl Street, Jacksonville, Florida 32202; on this 4th day of June, 1999.

 

 

_________________________________________

MALLORY E. HORNE, ESQUIRE