Typically, when the Supreme Court of the United States announces a new Rule of Federal Constitutional Law dealing with due process, the new Rules are applied retroactively. However, Florida probate courts are left with the power and discretion to carve out exceptions to the general rule in their own probate, will, trust, and adoption jurisprudence. One Florida case serves as an example of exactly how such a carve-out is created.
In Stanley v. Illinois, 405 U.S. 645 (1972), the United States Supreme Court issued an opinion that requires notice of a pending adoption be given to the biological father of a non-marital child. Recently, the Florida Fifth District Court of Appeals in Kemp & Associates, Inc. v. Chisholm, dealt with the important issue of whether or not the Stanley v. Illinois requirement of notice be applied retroactively to a long-closed adoption that was completed in 1961.
Kemp involved a proper adoption under Texas law for a child born out of wedlock in 1961. Texas law at the time of the adoption required consent only of the child’s mother and it was undisputed that the father of the child did not receive any notice of the child’s adoption (or even birth). Many years passed and as the child grew older, she became curious about her biological parents and eventually located her father using a private investigator. The father, unmarried and believing himself to be childless until then, acknowledged the child as his biological daughter. They established a good relationship, had frequent telephone and written communication, and met in person multiple times before he died intestate (without a will) in Florida.
After the father’s death, the child and the father’s remote cousins filed competing actions in Florida, each seeking to be the Personal Representative and beneficiaries of the estate. The issue worked its way up to the Fifth District Court of Appeals on the grounds that the Texas adoption was not valid since the father had never received notice of the adoption (as required by the United States Supreme Court). The Kemp court acknowledged the lack of notice to the father in the adoption process but also noted that 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.
We have observed in our Florida probate litigation practice that Florida courts consistently recognize that birth parents have constitutionally protected parental rights and it has also been suggested that mothers acquire full parental rights by giving birth, but the contribution of genetic material by the biological father does not compare to months of pregnancy and hours of labor and delivery.
The Fifth District Court of Appeals in Kemp declined to apply the rule announced in Stanley v. Illinois, requiring notice of the pending adoption to the biological father of a non-marital child retroactively to this particular case because it applied the Full Faith and Credit to the 1961 adoption which was proper under Texas law consistent with the public policy favoring the finality of adoptions:
“The importance of finality in the lives of children involved in the adoption process is so obvious as to require little elaboration. One of the most crucial elements of a healthy childhood is the availability of a stable home in which each family member has a secure and definite place. In addition to the stake of the adopted child, the adoptive family is unquestionably adversely affected by any lingering uncertainty about the permanence of the adoption. … The bond, the love, the intense emotion between the adoptive parents and the child placed in their home, is created the very moment their dream is fulfilled and a child comes through the door.”
Lastly, the Court said that society has an independent interest in the finality of adoptions since the adoptive relationship implicates many legal rights of the parties, including the right to inherit and the right to receive certain governmental benefits.
Important in the court’s analysis was the fact that since a child’s right to inherit from his natural father does not commence until the death of the father, the child’s rights of inheritance are governed by the laws that are in effect at that time. The court noted that pursuant to §§63.172 and 732.108, Fla.Stat., an adoption terminates the legal relationship between the adopted child and its natural parents so that for purposes of intestate succession, the adopted child is no longer a lineal descendent of the natural parent.