Kemp & Assocs., Inc. v. Chisholm

• Decision Date: 06 February 2015
• Docket Number: No. 5D13–2790.,5D13–2790.
• Citation: 162 So.3d 172
• Parties: KEMP & ASSOCIATES, INC., etc., et al., Appellants, v. Lisa CHISHOLM, et al., Appellees.
• Court: Florida District Court of Appeals

162 So.3d 172

KEMP & ASSOCIATES, INC., etc., et al., Appellants

v.Lisa CHISHOLM, et al., Appellees.

No. 5D13–2790.

District Court of Appeal of Florida, Fifth District.

Feb. 6, 2015.

Richard L. Pearse, Jr., of Pearse & Stinson, P.A., Clearwater, for Appellants.

Jonathan D. Kaney III and Jonathan D. Kaney Jr., of Kaney & Olivari, P.L., Ormond Beach, for Appellees.

Opinion

ORFINGER, J.

In the summer of 1960, a romance blossomed between J.K.T., a young, unmarried woman, and Teofil E. Shablowski, now deceased. That relationship ended before J.K.T. discovered that she was pregnant. She never told Mr. Shablowski that she was pregnant, and they were never in contact again. Instead, she entered the Texas Mission Home & Training School, a home for unwed mothers, intending to place her child for adoption. A healthy baby girl was born to J.K.T. in January 1961. Shortly thereafter, that child was adopted by Thomas and Maxine Chisholm in accordance with Texas law, and named Lisa Lou Chisholm. Though J.K.T. gave the Mission Home Mr. Shablowski's name and enough information to locate him, he received no notice of Ms. Chisholm's birth or her subsequent adoption.

As Ms. Chisholm grew older, she became curious about her biological parents and eventually located J.K.T. With the information learned from J.K.T., and utilizing the services of a private investigator, Ms. Chisholm found Mr. Shablowski in 1997. Mr. Shablowski, unmarried and believing himself to be childless until then, acknowledged Ms. Chisholm as his biological daughter. They established a good relationship, had frequent telephone and written communication, and met in person twice before his death in 2010.

Mr. Shablowski died intestate, leaving no surviving spouse, lineal descendants (other than possibly Ms. Chisholm), parents, or siblings. Soon thereafter, Ms. Chisholm and a group of Mr. Shablowski's distant cousins represented by Kemp & Associates, Inc., filed competing petitions for administration and to determine heirs. Appellant, Mark Iveson, who was identified as one of Mr. Shablowski's potential heirs, subsequently filed a motion for summary judgment, contending that the 1961 Texas adoption judgment was valid and was entitled to recognition under the Full Faith and Credit provision of the United States Constitution. Ms. Chisholm filed a competing motion for summary judgment, arguing that the Texas adoption judgment should be disregarded because Mr. Shablowski had no knowledge of J.K.T.'s pregnancy or her birth, and no notice of the adoption proceedings, thus, depriving Mr. Shablowski of due process. As a result, Ms. Chisholm reasoned that she was Mr. Shablowski's heir at law and sole survivor.¹ The trial court agreed with Ms. Chisholm, holding that the Texas adoption judgment was ineffective because Mr. Shablowski received no notice of J.K.T.'s pregnancy or the adoption proceedings. The failure of notice, the trial court ruled, 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, 102 S.Ct. 1883, 72 L.Ed.2d 262 (1982).” After entering a final judgment declaring Ms. Chisholm to be Mr. Shablowski's sole heir, Kemp and Iveson (collectively, “Kemp”) appealed.²

On appeal, Kemp contends that the trial court's finding presupposes that Mr. Shablowski was entitled to notice, a notion it disputes. Kemp argues that at the time of Ms. Chisholm's adoption, Texas law did not require notice to a putative father. Since notice was not required, Kemp reasons that Mr. Shablowski's failure to receive notice did not offend due process.

When Ms. Chisholm was adopted in 1961, Texas law did not require the biological father's consent to the adoption of his child born out of wedlock. Rather, the mother's consent to an adoption of her child born out of wedlock was sufficient.³ Ms. Chisholm's biological mother, J.K.T., signed a sworn statement, requesting that the Mission Home place Ms. Chisholm for adoption and consenting to her child's adoption, all that was required by Texas law in 1961. While conceding that the adoption complied with Texas law, Ms. Chisholm argues that notice, though not statutorily mandated, was required as a matter of constitutional due process. We disagree. Even today, although due process generally requires notice to putative fathers of adoptions, such notice is not an absolute right.⁴

The United States Supreme Court has recognized a distinction between married and unmarried fathers, finding that “the mere existence of a biological link does not merit equivalent constitutional protection.” Lehr v. Robertson, 463 U.S. 248, 261, 103 S.Ct. 2985, 77 L.Ed.2d 614 (1983). Florida law also recognizes that distinction. In Florida, notice is not given based on a putative father's biological connection to the child alone. Rather, the unmarried father must take some statutorily mandated steps to protect his inchoate due process rights. See §§ 63.054, 63.062, Fla. Stat. (2010). An unwed father obtains a protected interest if he establishes a full commitment to the responsibilities of parenthood and participates in the upbringing of his child. Lehr, 463 U.S. at 261, 103 S.Ct. 2985 (holding that failure to give biological father notice of adoption proceedings did not violate due process where father did not have significant relationship with daughter); Dep't of Health & Rehabilitative Servs. v. Herzog, 317 So.2d 865, 865 (Fla. DCA 2d 1975) (holding that biological father was not entitled to notice of adoption when there was no indication that he had any interest in his biological child).

Of course here, it was impossible for Mr. Shablowski to assume parental responsibilities since he was not aware of J.K.T.'s pregnancy or Ms. Chisholm's subsequent birth and adoption. Nevertheless, his right to notice of the adoption proceeding can only be based upon an established relationship with the child or a demonstrable commitment to the responsibilities of parenthood, not biology alone.⁵

We are informed in our views by decisions from other states. In In re Adoption of A.A.T., 287 Kan. 590, 196 P.3d 1180 (2008), a Kansas court held that a biological father's belated attempt to assert parental interest six months after his child's adoption was final, despite lack of notice of pregnancy and birth, could not overcome the interests of the adoptive family and state in ensuring permanence and stability of the adoption. See also In re Baby Girl S., 407 S.W.3d 904 (Tex.App.2013) (holding that biological father, unaware of pregnancy or birth, was not denied due process in adoption proceedings when he waited more than four months after learning of birth to file legal action and failed to file with paternity registry). Here, Ms. Chisholm's attempt to contest Mr. Shablowski's parental rights based on lack of notice takes place almost fifty years after her adoption was finalized. Such an action would overturn the permanency and stability of an adoption finalized almost half a century ago.

The United States Constitution requires: “Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State.” Art. IV, § 1, U.S. Const. “Florida courts are obligated by the Full Faith and Credit Clause to recognize judgments which have been validly rendered in the courts of sister states....” Boardwalk Regency Corp. v. Hornstein, 695 So.2d 471, 471 (Fla. 4th DCA 1997). “To give full faith and credit to a foreign judgment is to give it the same effect that the foreign state would have given it.” Atwell v. Atwell, 730 So.2d 858, 860 (Fla. 1st DCA 1999).

Section 63.192, Florida Statutes (2010), which we must interpret consistent with the Full Faith and Credit Clause, provides

[a] judgment ... establishing the relationship by adoption ... issued pursuant to due process of law by a court or authorized body of any other jurisdiction within or without the United States shall be recognized in this state, and the rights and obligations of the parties shall be determined as though the judgment or decree were issued by a court of this state.

While this statute requires Florida courts to recognize the adoption judgments of other states, an exception exists when “the laws governing the adoption in the foreign state are so different as to be ‘repugnant to the laws or policy of the state of Florida upon the subject.’ ” Dennis v. Kline, 120 So.3d 11, 22 (Fla. 4th DCA 2013) (quoting Mott v. First Nat'l Bank, 98 Fla. 444, 124 So. 36, 37 (1929) ). A policy is considered repugnant only if it is a serious departure from Florida's core values. Id. That is clearly not the case here, as the laws of Florida and Texas were, in 1961, virtually identical regarding the biological father's right to notice of a pending adoption of a child born out of wedlock.

Notice to an unwed father of the pending adoption of his child has been required since the United States Supreme Court's decision of Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972).⁶ Ms. Chisholm would have us apply Stanley's holding retroactively to challenge the validity of the Texas adoption judgment. We decline to do so. It is true that a ruling on an issue of federal law announced by the United State Supreme Court is to be given full retroactive effect in all cases “still open on direct review and as to all events, regardless of whether such events predate or postdate [the Supreme Court's] announcement of the rule.” Harper v. Va. Dep't of Taxation, 509 U.S. 86, 97, 113 S.Ct. 2510, 125 L.Ed.2d 74 (1993). But, the 1961 Chisholm adoption case was closed long before the rule of Stanley was announced. And, the “event” here is Ms. Chisholm's adoption, not Mr. Shablowski's subsequent death.

Our decision is driven not only by constitutional precedents, but also by public policy considerations. “The state has a compelling interest in providing stable and permanent homes for adoptive children in a prompt manner [and] in...