DILGENT SEARCHES AND EVERYTHING IN BETWEEN
Summary: The diligent search for an unlocated birth father or legal father is of critical importance to the integrity of an adoption. If the diligent search is deficient, the entire adoption could be void. Consequently, diligent searches and diligent search affidavits comprise one of the highest exposure areas for liability for the adoption entity.
The diligent search for an unlocated birth father or legal father is of critical importance to the integrity of an adoption. If the diligent search is deficient, the entire adoption could be void. Consequently, diligent searches and diligent search affidavits comprise one of the highest exposure areas for liability for the adoption entity.
I plan to share with you some of our investigative tools and techniques to help in your search for birth fathers and legal fathers. Of course, if a legal father is not located, you ordinarily have to publish in the county where the litigation is pending, and the county where he is last thought to have resided.
Let’s begin with –
I. When do I do a diligent?
§63.088(2) - states search begins within a reasonable period of time after the date the BM has provided in writing to the agency her desire to place her child for adoption – or no later than 30 days after any money permitted by §63.097 is provided to BM.
Remember, §63.085(1) – Disclosure provided to BF within 14 days after he is identified and located.
II. BIRTH MOTHER
Search only as good as information gathered.
Begins with thorough questioning of BM and her relatives. Press for clear answers. Gathering of information never ceases. May need to go back
to her multiple times for additional information or clarification. Gathering of information is a continuing process.
Section 63.088(5)(a-m) –
This subsection of the statute lists the information required to be provided to the court in a sworn affidavit by a person having personal knowledge of the facts.
(a) The person’s current address, or any previous address, through an inquiry of the United States Postal Service through the Freedom of Information Act;
(b) The last known employment of the person, including the name and address of the person’s employer;
(c) Names and addresses of relatives to the extent they can be reasonably obtained from the petitioner or other sources, contacts with those relatives, and inquiry as to the person’s last known address. The petitioner must pursue any leads to any addresses where the person may have moved;
(d) Information as to whether or not the person may have died and, if so, the date and location;
(e) Telephone listings in the area where the person last resided;
(f) Inquiries of law enforcement agencies in the area where the person last resided;
(g) Highway patrol records in the state where the person last resided;
(h) Department of Corrections records in the state where the person last resided;
(i) Hospitals in the area where the person last resided;
If hospital refuses to provide, must subpoena (include birth mother pursuant to HIPPA)
(j) Records of utility companies, including water, sewer, cable television and electric companies, in the area where the person last resided;
(k) Records of the Armed Forces of the United States as to whether there is any information as to the person;
(l) Records of the tax assessor and tax collector in the area where the person last resided; and
(m) Search of one Internet databank locator service.
Begin search with last known address – mail letter to every possible address. If letter not returned, then you will need to send your server. Server should question current resident and neighbors. Current resident may know him and can get him a message. If not located, then continue your search.
If you have BF’s first and last name OR partial name and any other piece of information – cell phone, relative’s name, employer, school, last known address.
If you have a too common name to search – John Brown, Jose Garcia, etc., the Investigator’s affidavit will state he was unable to perform a diligent search because the results were too numerous to investigate
FREEDOM OF INFORMATION ACT (FORMS)
Check Google, MyFloridaCounty.com, MyFlorida.com, Facebook, LinkedIn and other social media sites.
Check Sheriff office arrest records in any area he was last known to reside.
Florida Department of Law Enforcement (A-Z listing – name some – criminal searches, sexual offender/predator database, warrant information)
Check court records (most counties have online service). Can obtain hearing dates and serve
Department of Corrections – probation or parole officer? Subpoena records or call and
talk to officer. Very helpful. Check Federal Bureau of Prisons.
Employer --- If you know his employer, call him to see if he will talk with you. Offer to provide a friendly subpoena. We’ll talk about subpoenas later.
Relatives – the birth mother should provide you with a good start on relative information, but one of the tools we will talk about will give you a lot of information.
Death Index –Pursuant to law passed in December 2013 (section 203 of the Bipartisan Budget Act of 2013), access to information contained in the SS Administration’s Death Master File is limited for a three year period beginning on the date of an individual’s death. As of March 26, 2014, access is limited to authorized users and recipients who qualify for certification (issued by the National Technical Information Service). Lexis Nexis (Accurint) has been certified.
Run a Vinelink check --- invaluable tool. Designed to help victims obtain custody status of offenders for their protection. Will tell you if birthfather is currently incarcerated (either in jail or prison) and where and if under supervision. Can register to be notified of offender’s release. You can then check sheriff arrest records --- many times these records will give you his date of birth to help you in your search. Once you have date of birth, run a FDLE.
Call all hospitals in the area he was last known to reside. If the hospital refuses to provide information, you will need to subpoena. Call BM first so she understands what the subpoena is for. (She should be copied on subpoena according to HIPPA).
Check utilities company (water, sewer, cable and electric) in the area last known to have resided. Some companies (such as Bright House/Neustar) will require a subpoena due to confidentiality.
Write the Military --- The Army has recently closed their World-Wide Locator Service to the general public, and you must now have an Army Knowledge Online account (that means you must be a member of the Army, Army National Guard, Army Reserves, Army Retired member or an Army dependent) to access.
BF illegal alien, contact Miami Krome.
For any ICE inquiries, you will need name and date of birth.
Foreign country – Very difficult to search in a foreign country. Suggest hiring a professional. We have used Crowe Foreign Services in Portland/served in Africa, Pakistan and on a cruise ship in Norway
I have been asked how far do I go in our diligent search, and the answer is simple -- you go until have no more leads.
One of the tools we use most is Accurint by Lexis Nexis. This web application is a records search which accesses reliable information about people and businesses generated from millions of records. It is also one of the few places I know where you can determine the race of a birth father, which as you can imagine is very helpful in the process of elimination. (driver’s license) Also marriage and divorce.
Another excellent tool is Risk/Watch by Appriss, the same company who runs Vinelink. You must have the birth father’s name and one other form of identification (date of birth, driver’s license or social security number). Will alert when birth father is arrested and provide country-wide details of arrests ….
SUBPOENA POWER -
Prepaid phones. BM can’t remember BF’s number, subpoena BM’s records to obtain BF’s number.
If you only have BF’s first name and place of employment or apartment complex- Subpoena.
If you have a phone number for him, subpoena his carrier for his billing address.
If you have his name and employer (current or past), call the employer.
Get a great process server. Invaluable. SEE RETURN (homeless man (day labor)(called day labor supervisor who had homeless man call us on his cell phone – server served him within the hour) and Frank – risk watch texted me that he had been arrested after months of trying to serve him at his residence --- served him in jail before he was released.
At this point, if you are unable to locate birth father, we recommend contacting your private investigator to perform the full diligent search as required by the statutes. Not required to hire investigator under statutes, but provides extra layer of protection for the attorney. You should also prepare the Affidavit of Diligent Search while the facts are fresh in your mind. You will need to compare the birth mother’s affidavit, the attorney’s affidavit and the investigator’s affidavit for consistency and completeness at the end of the diligent process.
You should provide the investigator with the results of your search and continue your efforts to locate. Share all information with the investigator as you learn it. CORRECT SPELLING of the birth father’s name/if not correct or DOB not correct, search is invalid.
Affidavit must be thorough and complete. Judges scrutinize these affidavits and want to be certain when they terminate a man’s rights that all efforts to locate him have been exhausted.
The search does not stop with affidavit --- you can amend affidavits or serve the birth father once you locate him --- right up until you have a termination of final judgment.
The question is not “have I done enough?” The question is “Is there anything I haven’t done?”
If there is something you haven’t done, then you haven’t done enough.
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