Kemp & Associates, Inc. v. Chisholm

162 So. 3d 172, 2015 Fla. App. LEXIS 1555, 2015 WL 477856
CourtDistrict Court of Appeal of Florida
DecidedFebruary 6, 2015
DocketNo. 5D13-2790
StatusPublished

This text of 162 So. 3d 172 (Kemp & Associates, Inc. v. Chisholm) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kemp & Associates, Inc. v. Chisholm, 162 So. 3d 172, 2015 Fla. App. LEXIS 1555, 2015 WL 477856 (Fla. Ct. App. 2015).

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. Sha-blowski had no knowledge of J.KT.’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.KT.’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

[175]*175On appeal, Kemp contends that the trial court’s finding presupposes that Mr. Sha-blowski 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.KT.’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

[176]*176We 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).

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Bluebook (online)
162 So. 3d 172, 2015 Fla. App. LEXIS 1555, 2015 WL 477856, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kemp-associates-inc-v-chisholm-fladistctapp-2015.