LACK OF NOTICE TO A PUTATIVE FATHER IN ADOPTION IS NOT FATAL TO FINDING LEGAL ADOPTION, NOR VEST RIGHTS IN THE CHILD AS AN HEIR OF THE PUTATIVE FATHER

The Fifth District Court of Appeal ruled in Kemp & Assocs. v. Chisholm, 2015 Fla. App. LEXIS 1555 (Fla. 5th DCA 2015), that the trial court erred in refusing to recognize the Texas adoption judgment, and in finding the daughter, adopted by persons other than the decedent, to be the sole heir of the decedent. In the subject case, Teofil E. Shablowski (“Shablowski”) and a woman (“JKT”) conceived a child in the summer of 1960. Shablowski did not know that he had fathered a child; JKT put the child of hers and Shablowski’s up for adoption in Texas in 1961 without his knowledge. The child, Lisa Lou Chisholm (“Chisholm”), was adopted by Thomas and Maxine Chisholm in Texas. Shablowski received no notice of Chisholm’s birth or her subsequent adoption. Decades later, Chisholm sought out to find her biological parents. She found JKT, and based on information she provided located Shablowski in 1997 who was unmarried and otherwise childless. He acknowledged Chisholm as his biological daughter and they established a relationship, communicating frequently and meeting in person twice before he died in 2010, intestate. Shablowski had no spouse, lineal descendants (aside from potentially Chisholm), nor parents or siblings. Chisholm and a few of Shablowski’s distant cousins filed claims to his estate. Shablowski’s distant cousins, represented by Kemp & Associates, Inc., filed petitions for administration and to determine heirs.    

One of the cousins, Mark Iveson (“Iveson”) and Chisholm filed competing motions for summary judgment.  According to Sections 63.172 and 732.108, Fla. Stat., once adopted a child is no longer a legally-recognized lineal descendant of the natural parent. Chisholm argued her adoption was invalid, which would mean that she would be the sole surviving lineal descendant and would be entitled to all of the estate under Section 732.103, Fla. Stat.,  because Shablowski had no knowledge of the pregnancy or her birth and wasn’t provided with notice of the adoption proceeding. The trial agreed with Chisholm based upon the lack of notice to the putative father, ruling the absence of notice failed to “satisfy the minimum procedural requirements of the Fourteenth Amendment’s Due Process Clause.”  Kremer v. Chem. Constr. Corp., 456 U.S. 461, 481 (1982). 

Chisholm argued on appeal that, although notice to the putative father was not statutorily mandated by Texas law, notice was required as a matter of constitutional due process. The 5th rejected that notion.  In Florida, notice is not given based on a putative father’s biological connection to the child alone.  Notice to an unwed father of the pending adoption of his child has been required since the U.S. Supreme Court’s ruling in Stanley v. Illinois, 405 U.S. 645 (1972). Florida amended its statutory notice requirements for adoptions under Section 63.062, Fla. Stat., in accordance with the Stanley decision, requiring notice and hearing to a putative father before his parental rights can be terminated.

On appeal, the Fifth DCA reversed the trial court, holding that Stanley should not apply retroactively. The court acknowledged that a ruling on an issue of federal law by the United State Supreme Court is to be given full retroactive effect in all cases “still open on direct review . . .”, but noted that the 1961 adoption case was closed long before the rule of Stanley was announced and the relevant event here is the adoption, not Shablowski’s subsequent death. The court observed that their decision was not only driven by constitutional precedent, but also by public policy grounds.  Florida Statutes make clear that it is the Florida Legislature’s intent to “protect and promote the well-being of persons being adopted and their birth and adoptive parents and to provide to all children who can benefit by it a permanent family life.”  Section 63.022(3), Fla. Stat. Invalidating the 1961 Texas adoption judgment based on the lack of notice to the putative father would undercut the Legislature’s clearly stated goal of promoting the finality and permanence of adoptions.  Further, affirming the trial court’s judgment, would call into question the legal relationship between Chisholm and her adopted parents, Thomas and Maxine Chisholm, and siblings, if any. “If a 1961 Texas adoption is not entitled to recognition in Florida, then adoption judgments under the laws of Florida and other states that did not require notice to putative fathers at the time of the child’s adoption, would also be of questionable validity.  This would lead to increased litigation and disruptions to many families, both adoptive and biological.” The Fifth DCA concluded that the trial court erred in refusing to recognize the Texas adoption judgment.

If you or anyone you know is in need of representation in actions involving Guardianship, Probate and/or Trust Disputes, or questions pertaining to such proceedings, please contact The Law Offices of Glenn M. Mednick, P.L., at (954) 315-1154 or gmednick@mednicklawgroup.com.