Department of Health and Rehabilitative Services v. Herzog, 73--734

• Decision Date: 20 August 1975
• Docket Number: No. 73--734,73--734
• Citation: 317 So.2d 865
• Parties: DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Appellant, v. John Arthur HERZOG and Marlene Herzog, Appellees.
• Court: Florida District Court of Appeals

Page 865

317 So.2d 865

DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Appellant, v. John Arthur HERZOG and Marlene Herzog, Appellees.

No. 73--734.

District Court of Appeal of Florida, Second District.

Aug. 20, 1975.

Chester G. Senf and Eve Dunkerley Peck, Jacksonville, for appellant.

Robert E. Pyle, Lake Alfred, for appellees.

PER CURIAM.

This appeal arises out of an adoption proceeding in the court below.

A petition for adoption was filed below by appellees to adopt a minor child born out of wedlock. This petition was filed pursuant to Chapter 63, Florida Statutes 1971, which did not require notice to be given to the putative father. Attached to the petition for adoption was the written consent of the living mother of the child.

Appellant's Division of Family Services commenced the social investigation required by Fla.Stat. § 63.091 (1971). At this point, the trial court entered an injunction without notice enjoining appellant from inquiring into the identity of the natural father. Thereafter, appellant filed its report stating that it did not question the suitability of the petitioners as adoptive parents but advised the court that it felt the natural father of the illegitimate child would be denied due process of law if he were not given notice of the adoption proceedings and an opportunity to be heard. The court declined to change its order.

The appellees contend that appellant has no legal standing to raise this issue. However, Fla.Stat. § 63.091 (1971) specifies that the agency which files the written recommendations as to the desirability of the adoption shall be deemed a party to the cause. Under these circumstances, we cannot say that appellant was without standing to suggest that the failure to give a notice and hearing to the putative father might result in a subsequent attack on the validity of the adoption which would be detrimental to the welfare of the child.

Appellant's position was that the recent decision of the United States Supreme Court in Stanley v. Illinois, 1972, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551, required the natural father to be made a party to the proceedings. In Stanley, following the death of the mother of some illegitimate children, the State of Illinois instituted a dependency proceeding whereupon the children were declared wards of the state and placed with court-appointed guardians. Illinois law provided that children of unwed fathers became wards of the state upon the death of the mother and did not provide for a notice or hearing to the father. The United States Supreme Court held that the unwed father was entitled to notice and hearing before his parental rights could be terminated.

Two weeks after the filing of the Stanley opinion, Supra, the United States Supreme Court in Rothstein v. Lutheran Social Services of Wisconsin and Upper Michigan, 1972, 405 U.S. 1051, 92 S.Ct. 1488, 31 L.Ed.2d 786, reversed the Supreme Court of Wisconsin which had held that an unwed father was not denied his constitutional rights when he was not given notice of a hearing prior to the termination of his parental rights in an adoption proceeding. The court simply entered a memorandum order in which the case was reversed and remanded in light of Stanley.

Stanley involved a compelling situation where a putative father who had lived with his children and supported them for many years was deprived of their custody without notice or hearing and can be limited to its facts. Cf. Cheryl Lynn H. v. Superior Court for Cty. of Los Angeles, Cal.App.1974, 41 Cal.App.3d 273, 115 Cal.Rptr. 849. However, the Rothstein adoption had taken place only one week after the child was born. According to the opinion of the Wisconsin Supreme Court upon remand, the putative father in Rothstein apparently denied that he was the father when the child's mother first became pregnant but later changed his mind prior to its birth and began to manifest an interest in the child. State ex rel....