Florida’s Putative Father Registry: More Work is Needed to Follow the Established National Trends Toward Stable Adoption Placements
In 2003, the legislature revised Florida’s adoption law to ensure the stability of adoption judgments.1 This law evolved after several years where adoption reform was the subject of judicial and legislative scrutiny. Several high profile contested adoption cases caught the attention of the public, the media, and the legislature, calling into question the security of the adoption placements under Florida law.2 After a highly criticized 2001 reform, the Florida Legislature followed the majority of states by rejecting a complicated, open-ended notice requirement for birth fathers, and enacted Florida’s Putative Father Registry.3 Nationally, states have enacted putative father registries as a constitutional means of protecting an unwed father’s rights while advancing the prompt, secure placement of children in adoptive homes.4
Florida’s Putative Father Registry was premised upon well-established U.S. Supreme Court and Florida Supreme Court precedent.5 The legislation protects the due process rights of all parties to the adoption process and strictly defines the grounds and timing of any challenge to an adoption judgment.6 In a handful of cases, the Florida district courts of appeal have reviewed the registry provisions and the districts have reached widely different results. Some districts have questioned the validity of the registry,7 while others have applied the specific dictates of the law.8 In a series of decisions by the Second District Court of Appeal,9 The court gutted the registry and disregarded the law’s legislative directives.10 Recently, the Florida Supreme Court disapproved of the majority of these lower court decisions and interpreted the law to impose a mandatory notice requirement for all identified and locatable fathers in all adoptions.11
Paternity registries appear at the center of the majority of the states’ adoption laws and in the emerging federal adoption legislation. In an effort to understand the case law interpreting Florida’s adoption statute and the emergent need for stability to protect the most vulnerable citizens of our state, the following presents a review of the history of Florida’s adoption reforms; the enactment of Florida’s Putative Father Registry; the recent case law interpreting the registry; and state and federal legislative proposals designed to reduce contested adoptions, ensure protection of father’s rights, and protect the stability of adoption.
History of Florida’s Adoption Reform
In 2001, the Florida Legislature passed a massive and controversial overhaul of Florida’s adoption act, embodied in F.S. Ch. 63.12 The rewrite provided for an open-ended notice requirement which mandated that a potential father, regardless of his legal status, receive actual or constructive notice of an adoption action. The law’s extensive notice provisions mandated that a woman consent to publishing her personal sexual history that could have led to conception when a father’s location or identity was unknown. Governor Bush declined to sign the legislation, criticizing the law’s failure to require that a birth father take affirmative action on behalf of his child if he later wanted to raise a parental claim.13 The governor proposed the enactment of a putative father registry “similar to those already in existence in the vast majority of states around the country.”14
The 2001 adoption reform also faced substantial challenges in the judicial system as well as the courts of public opinion.15 The Fourth District Court of Appeal declared the law’s notice provisions16 unconstitutional, concluding that the law substantially interfered with a woman’s independence in choosing adoption and her constitutional right not to publicly disclose intimate personal information regarding her sexual relations when a father is unknown.17 Faced with the responsibility to protect the constitutional rights of all persons involved in an adoption, the legislature soon passed a second reform of Florida’s adoption law.18
2003 Enactment of Florida’s Putative Father Registry
To promote the stability and permanency of adoption judgments, the Florida Legislature rejected the open notice requirements of the 2001 law and enacted a putative father registry.19 Putative father registries are designed to protect the rights of all parties to an adoption proceeding, including the rights of the unmarried biological father to notice and an opportunity to be heard.20 Registries also protect the rights of the birth mothers to make an independent decision in their child’s best interest when the father fails to act and timely assert his legal rights to the child.21 The legislature’s stated purpose in enacting the 2003 revisions of the Florida adoption act was to bring certainty and uniformity to Florida’s adoption proceedings by balancing the rights of the child, the birth mother, the putative biological father, and the adoptive parents; preventing protracted litigation in adoption cases, which is undeniably harmful to the child; ensuring the integrity of adoptive placements and the finality of adoptions; encouraging responsible fatherhood; and combating fraud.22
A state registry provides the biological father with the control and means to notify any adoption entity of his desire to parent the child. If a pregnant woman disappears or misrepresents the identity of the biological father, the biological father can protect his own interests by registering. The registry protects the rights of a birth mother who wishes to plan an adoption for her child, but is uncertain of the father’s identity, is fearful of him, or wishes to assert her privacy rights. The registry also provides the prospective adoptive family with security when receiving a child into their home. A diligent search of public records and the confidential centralized registry establishes a bright line test as to who must consent to a proposed adoption.23
An unmarried biological father’s24 right to register begins at conception.25 A man may register even when he is not certain of the identity of the biological mother. The statute requires that the Office of Vital Statistics of the Department of Health maintain the following information: the mother’s name, physical description and place of residence; the father’s name, physical description and address; the place of conception; and the child’s date and place of birth.26 All requests for a diligent search of the registry must include this information, as available, and is the predicate for the Department of Health’s diligent search.27
The Putative Father Registry is clear about the consequences of an unmarried biological father’s failure to timely assert his rights and register his claim of paternity. If a father fails to legally establish his rights by the date a petition to terminate his parental rights is filed concerning the child, his rights are deemed waived and surrendered.28 The law was designed to provide a clear, unambiguous framework for identifying fathers who have legal rights to object to an adoption proceeding.
Proponents and opponents of the paternity registry articulated two primary issues of concern when drafting Florida’s Putative Father Registry. These two issues were protecting the privacy rights of the parties and assuring notice to a biological father who timely established his legal rights by registering his paternity before the filing of the petition to terminate parental rights or otherwise legally establishing rights to the child.29 Florida’s registry was designed to protect these rights.
First, the law contains several provisions to protect a party’s privacy. The registry allows a father to appoint a designated agent or alternative address for service of notice and pleadings.30 The registry is exempt from the provisions of the Sunshine Act31 and the information in the registry is only available to the adoption entity handling the child’s adoption and pro se applicants in possession of a court order. The database comprising the Florida Putative Father Registry is confidential and separate from all other state databases, and no local, state, or federal agency has standing to search the registry.32
Second, the 2003 revisions and Florida case law include provisions concerning notice of the registry to all Florida residents and notice of a particular adoption to the child’s parents. The Office of Vital Statistics of the Department of Health must create and disseminate forms and informational pamphlets and/or publications through its offices and informational Web site, the Florida Department of Children and Families’ offices and informational Web site, public and charter schools’ health class curricula, hospitals, adoption entities, libraries, medical clinics, schools, universities, and providers of child-related services. Additionally, the Department of Highway Safety and Motor Vehicles shall offer each person applying for a Florida driver’s license or identification card or renewal of a license or identification card these information pamphlets or publications.33 While the law presumes that a biological father is on notice of a pregnancy at conception, the adoption entity handling a particular adoption has a duty to notify and secure a consent from each registered unmarried biological father and those fathers who timely act and meet the criteria of a man whose consent is required to the adoption.34
Constitutionality of Florida’s Putative Father Registry
The 2003 adoption reforms followed the dictates and reasoning of the U.S. Supreme Court and the Florida Supreme Court.35 In 1983, the U.S. Supreme Court in Lehr v. Robertson, 463 U.S. 248 (1983),36 upheld the constitutionality of New York’s putative father registry which was substantially similar to Florida’s registry. The Court reviewed the constitutional rights of the unwed biological father and concluded that constitutional rights do not emerge from a mere biological connection.37 An unwed biological father has an inchoate interest that acquires federal constitutional protections only when he takes certain specified steps demonstrating “a full commitment to the responsibilities of parenthood by ‘com[ing] forward to participate in the rearing of his child.’”38 The U.S. Supreme Court concluded that a putative father registry is constitutional as a registry places the right to receive notice within the control of the putative father.39
In 1989 and 1995, the Florida Supreme Court followed the reasoning and conclusions of Lehr and held that an unwed father must take affirmative steps to establish his rights to a biological child.40 The Florida Supreme Court determined that an unmarried biological father must act diligently, even prior to his child’s birth, to secure his constitutional parental rights.41 The court recognized the “paramount interest in the welfare of children” and noted that “the rights of parents are counterpart to the responsibilities they have assumed.”42 Thus, Florida law, even before enactment of the registry, required unmarried putative biological fathers to take affirmative action toward establishing their rights to a child, prior to filing an action for adoption seeking to terminate the father’s parental rights, in order to be able to assert any parental right or interest over the child in the context of the adoption proceeding.43
Many states enacted putative father registries to balance the rights of the child, the birth mother, the adoptive parents, and the putative father. The virtually unanimous weight of authority across the country has required the putative father to strictly comply with the laws of the state and timely register, or forfeit the right to notice of an adoption.44 The Utah Supreme Court upheld a putative father registry which was remarkably similar to Florida’s.45 In that case, the birth father attempted to register on the day he was required to do so, but did not get this accomplished until one day later. The court found that it was not too harsh to require that those responsible for bringing children into the world outside the established institution of marriage be required either to comply with those statutes that accord them the opportunity to assert their parental rights, or to yield to the method established by society to raise children in the manner best suited to promote their welfare. The court further found the policy reasons behind a bright-line rule were compelling, and that if in each adoption case, the court had to individually assess the putative father’s diligence in establishing paternity rights, the finality of adoption systems would be seriously undermined. Because of the unique nature of adoptions, the court held that the firm cutoff date established by the registry was reasonable, if not essential, and rejected the claims of a birth father who registered one day late.46
Florida Case Law Regarding the Registry
Prior to the recent Supreme Court decision addressing this law, six reported district court of appeal cases discussed Florida’s Putative Father Registry. In each case, the appellate courts gave conflicting or limited credence to the U.S. Supreme Court and Florida Supreme Court precedent behind Florida’s adoption law. Initially, the Fourth District Court of Appeal in J.S. v. S.A.,912 So. 2d 650 (Fla. 4th DCA 2005), affirmed the termination of a birth father’s parental rights who was determined to have abandoned a child by failing to establish his parental rights in a prompt, timely manner. The Fourth District upheld the lower court ruling which explained that “Florida adoption laws may be confusing, but they are clear about one thing: the legislature will no longer let children whose parents do not affirmatively and adequately care for them linger in the purgatory of uncertain security and love.”47 The J.S. court commented on the registry in a footnote and questioned its constitutionality, but failed to consider the U.S. Supreme Court ruling that an unmarried father who fails to timely assert rights is not entitled to constitutional protections regardless of whether he is on notice of an adoption placement.
In two cases, the district courts strictly applied the putative father registry requirement. First, the Fifth District Court of Appeal in A.F.L. v. Department of Children and Families,927 So. 2d 101 (Fla. 5th DCA 2006), ruled that a father who fails to timely assert his parental rights by complying with the mandates of §63.062(1) is not a party to an adoption proceeding or a father whose consent is required. The A.F.L. court ruled that the statute strictly required that a father establish his rights by meeting the criteria of §63.062(1) by the date the child is placed for adoption. In the second case, B.B. v. P.J.M., B.B. v. P.J.M., 933 So. 2d 57 (Fla. 1st DCA 2006), the First District Court of Appeal also strictly applied the registry, concluding that “[t]he legislative intent behind chapter 63 is to prevent the disruption of an adoption when the father has not been identified prior to adoptive placement.”48 The question in dispute was not the legality of the registry, but what constituted court established paternity.49
Later, the Second District Court of Appeal reversed this trend in the A.S. v. Gift of Life Adoptions, Inc. (In re: Baby A), 944 So. 2d 380 (Fla. 2d DCA), rev. den., 944 So. 2d 344 (Fla. 2006). In the A.S. case, the court addressed the rights of an unmarried biological father whose child was placed for adoption at birth. The biological mother did not provide his name to the adoption entity and, thus, he did not receive actual knowledge of the pregnancy or of the adoption plan. He was identified after the child was placed for adoption and the petition to terminate parental rights in favor of an adoption was filed with the court. He responded by filing an admittedly tardy claim with the Putative Father Registry, and a Ch. 742 paternity action. On appeal, the court reversed the judgment of the trial court terminating his parental rights and ruled that a trial court must stay a properly filed adoption action in favor of a later filed paternity action concluding that Ch. 742 provided the primary jurisdiction and procedure for determining paternity for out of wedlock children.50 The specific language of the opinion limited its application to the “particular facts” and provided “precedent for perhaps a handful of unmarried biological fathers who have not filed a claim in the Florida Putative Father Registry but who become aware of an adoption proceeding after it has been filed and before it is concluded.”51
The Second District Court of Appeal expanded the A.S. ruling in J.C.J. v. Heart of Adoptions, Inc. (In re Baby R.P.S),942 So. 2d. 906 (Fla. 2d DCA 2006), and J.A. v. Heart of Adoptions, Inc. (In re: Baby H.), 32 Fla. L. Weekly D807 (March 28, 2007). In J.C.J., the court extended the scope of the prior ruling to further undercut the stability of many adoptions by concluding that a trial court could not terminate the rights of a biological father whose consent was not required under the strict language of Ch. 63. The Second District Court reasoned that the adoption statute did not contemplate that such a biological father would be a party to the termination action, thus, the law did give the trial court the authority to terminate his parental rights.52 In J.A. v. Heart of Adoptions, Inc., the Second District followed its prior precedent and declared that “it was fundamental error to terminate parental rights based on a failure to register with the Putative Father Registry.”53 The court, however, certified the following registry issue to the Florida Supreme Court as one of great public importance: “In a a proceeding on a petition for termination of parental rights pending adoption, may the putative father’s rights in relation to the child be terminated based on the putative father’s failure to properly file a claim of paternity with the Florida Putative Father Registry?”54
Before the Florida Supreme Court issued an opinion on the certified question, the First District Court of Appeal rejected a father’s attempt to set-aside a final judgment terminating his rights, which was entered without notice to him, because he failed to timely assert his rights. In S. D. T. v. Bundle of Hope Ministries, Inc., 949 So. 2d 1132 (Fla. 1st DCA 2007), the court upheld the trial court’s ruling terminating parental rights and finalizing an adoption when the father failed to file a claim with the putative father registry or a paternity action prior to the filing of the termination of parental rights proceeding and he appeared before the court holding himself out as the father.55
In answering the certified question posed in J.A. the Florida Supreme Court in JA. v. Heart of Adoptions, Inc. (In re: Baby H.), SC 07-738 (Fla. Supreme Court July 12, 2007), held that “the rights of an unmarried biological father in relation to the child, who is known or identified by the mother as the potential father and who is locatable by diligent search, may be terminated based on his failure to file with the Putative Father Registry only if he is served with a Notice of Intended Adoption Plan under §63.062(3)(a), Florida Statutes (2005), and he fails to comply with the requirements of that subsection within thirty-day period.” The court reviewed the statutory structure of Florida’s adoption law, confirmed the legality of the law, and concluded that “the Second District Court disregarded the clear intent of the [l]egislature.” The court reasoned that:
The entire statutory scheme would be frustrated, including the interest in prompt adoption proceedings, if an unmarried biological father could avoid having his parental rights terminated prior to an adoption, even though he failed to comply with the requirements of section 63.062(2). In fact, section 63.054(1) contemplates that the termination of parental rights proceedings will operate against unmarried biological fathers in order to promote finality and certainty by providing that an unmarried biological father must file a claim of paternity with the Registry ‘[i]n order to preserve the right to notice and consent to an adoption.’
Further, §63.022(4)(a), Florida Statutes (2005), states that one of the safeguards intended to be provided by the chapter is that the minor be ‘legally free for adoption.’ In order for the child to be determined ‘legally free for adoption,’ the Legislature must have intended to make provision for the trial court to terminate the inchoate or potential parental rights of unmarried biological fathers who have not complied with the requirements of the chapter after notice and an opportunity to do so.56
In upholding the procedure set forth in §63.062(3)(a), the court mandated that, in order to protect his rights to the child, a father served pursuant to the law must proceed to timely file a claim of paternity with the registry, execute and file an affidavit in the proceeding that he is personally fully able and willing to take responsibility for the child, set forth his plans for care of the child, and agree to a court order of child support and a contribution to the payment of living and medical expenses incurred for the mother’s pregnancy and the child’s birth in accordance with his ability to pay. The court further confirmed the provisions requiring that a father who is aware of the pregnancy pay a fair and reasonable amount of expenses incurred as a result of the pregnancy and the child’s birth, in accordance with his financial ability, provided he is not prevented from rendering such support by the biological mother or the child’s lawful custodian. If the birth father demonstrates compliance with all applicable subsections, the adoption entity is still entitled to pursue a claim of abandonment as a basis to terminate his parental rights.
The majority opinion also discussed and upheld the notice provision of the law contained in §63.088(1) which provides that an unmarried biological father is on notice of a pregnancy and potential adoption when he engages in a sexual relationship with a woman. While the opinion did not discuss how this notice provision impacted its ruling mandating the notice of intended adoption plan, Justice Lewis’ concurring opinion questioned whether such notice was sufficient, to protect the inchoate rights of such father, absent receipt of an adoption plan. This element of the case becomes troubling as adoption professionals, adoptive families, and biological parents proceed with future adoption placements. These participants in the adoption process are left to question when an adoption placement becomes stable under Florida’s adoption law.
The Supreme Court’s decision in J.A. swings the burden of providing notice back to the birth mother and the adoption entity and the risk of disrupted placements onto the adoptive parents and the child, in contravention of the intent and purposes behind the 2003 revisions to Ch. 63.57 This decision leaves in question the stability of an adoption placement when the mother does not identify the unmarried father. The law is no longer clear on when an adoption placement becomes stable or whether the placement could be disrupted due to fraud. The opinion only considers those cases when a biological mother properly identifies a potential biological father who is locatable. The exceptions and concerns created when a mother does not properly identify a father are numerous. What liabilities does an adoption entity incur and what risks do an adoptive family and an adoptive child incur when the biological mother names a potential father after the child is placed for adoption or when she provides incomplete or fraudulent information concerning the birth father? Do the provisions in the law concerning a parties’ liability for fraud stand to protect the family58 or is each family subject to disruption by the revelation of a newly identified unmarried biological father? Florida’s adoption law was designed to create permanency when the child is placed with the adoptive family. In light of the J.A. decision, the courts will be charged with the responsibility to protect each adoption placement from the late identified father. Because the biological parents are in the unique position to know that their actions could result in the conception of a child, the notice provisions of §63.088(1) should be upheld to protect Florida’s adoptive children from disrupted placements when a father is not identified or located, or is not identified until after placement.
The Supreme Court’s decision also leaves open to question the extent of the birth mother’s right of privacy and her ability to protect against disclosure of her sexual history and the birth father’s identity, especially if she is fearful of him or he has been abusive to her. A right of privacy is recognized both statutorily in §63.022(1)(b) and §63.053(3), and in the Florida and federal constitutions.59 If the birth father is known or locatable by the birth mother, but she refuses to disclose this information to the adoption entity, are they able to pursue a termination of parental rights and secure stability for the child? Several states recognize that the birth mother’s right of privacy allows her to refuse identification of the birth father.60 Absent a right of privacy, many birth mothers may chose to abandon their children pursuant to the statutory framework in §63.0423, where neither identification of the birth mother nor the birth father is required. This would certainly result in a disservice to children and the security of adoptions.
Ch. 63 was never designed to leave such periods of uncertainty, and a legislative remedy is needed to provide clarity to the current maze which can disable an adoption entity from determining whether a child is available for adoption at the time of placement. Since infants born to unwed mothers rose to an all time high in 2003 to 34.6 percent of all births,61 Florida would be well served to shore up the Putative Father Registry consistent with the growing national trends in adoption law.62
1 Senate Staff Analysis and Economic Impact Statement, CS/SB 2456; House of Representative Staff Analysis, H.B. 835, April 2, 2003.
2 Ex Party C.V., 810 So. 2d 700 (Ala. 2001) (birth mother defrauded birth father and adoptive parents when she misrepresented the identity of the birth father causing emotional and protracted litigation over Baby Sam); In re Petition of Doe, 638 N.E. 2d 181 (Ill. 1994) (protracted litigation resulted from birthmother failing to disclose birth father’s identity and saying the birth father of Baby Richard had died shortly after birth); In re Interest of B.G.C., 496 N.W. 2d 239 (Iowa 1992) (Baby Emily).
3 Beck, Toward a National Putative Father Registry Database, 25 Harv. L. Rev. 1031 (2002); Lehr v. Robertson, 463 U.S. 248 (1983) (“The New York legislature concluded that a more open-ended notice requirement would merely complicate the adoption process, threaten the privacy interests of unwed mothers, create the risk of unnecessary controversy, and impair the desired finality of adoption decrees.”).
4 Id. at 1033. “Despite pro-adoption federal policy and case law protecting the parental rights of birth parents, contested adoptions continue to arise. Wrenching publicity caught the nation’s attention when the thwarted father of Baby Jessica, who was born to an unwed mother, disrupted the adoption of a two-year old Jessica. Babies Richard and Emily followed Jessica, and in their wake states began following New York’s lead by enacting putative father registries for unwed fathers in an effort to decrease contested adoptions.”
5 Lehr v. Robertson, 463 U.S. 248 (1983); In the Adoption of Baby E.A.W., 658 So. 2d 961 (Fla. 1995); In the Matter of the Adoption of Doe, 543 So. 2d 741 (Fla. 1989).
6 Fla. Stat. §63.142(4) (2003). The provision shortened the statute of repose to a defined one-year period for all challenges to an adoption judgment.
7 J.S. v. S.A., 912 So. 2d 650 (Fla. 4th D.C.A. 2005).
8 A.F.L. v. Dep’t of Children & Families, 927 So. 2d 101 (Fla. 5th D.C.A. 2006); B.B. v. P.J.M. 933 So. 2d 57 (Fla. 1st D.C.A. 2006).
9 A.S. v. Gift of Life, Inc. (In re: Baby A.), 944 So. 2d 380 (Fla. 2d D.C.A. July 21, 2006), rev. den. 944 So. 2d 344 (Fla. 2006).
10 The Florida Legislature, when enacting Florida’s adoption act, found “that the interests of the state, the mother, the child, and the adoptive parents described in this chapter outweigh the interest of an unmarried biological father who does not take action in a timely manner to establish and demonstrate a relationship with his child in accordance with the requirements of this chapter. An unmarried biological father has the primary responsibility to protect his rights and is presumed to know that his child may be adopted without his consent unless he complies with the provisions of this chapter and demonstrates a prompt and full commitment to his parental responsibilities.” (Emphasis added.) Fla. Stat. §63.053(2).
In §63.022, the Florida Legislature further expressed its intent: “An unmarried biological father has an inchoate interest that acquires constitutional protection only when he demonstrates a timely and full commitment to the responsibilities of parenthood, both during the pregnancy and after the child’s birth. The state has a compelling interest in requiring an unmarried biological father to demonstrate that commitment by providing appropriate medical care and financial support and by establishing legal paternity rights in accordance with the requirements of this chapter.” (Emphasis added.)
11 J.A. v. Heart of Adoptions, Inc. (In re: Baby H.), SC 07-738 (Fla. Supreme Court July 12, 2007).
12 H.B. 141 (2001).
13 April 17, 2001 letter from Governor Jeb Bush to Secretary of State Katherine Harris, “However, House Bill 141 does have its deficiencies. Foremost, in its effort to strike the appropriate balance between rights and responsibilities, there is a shortage of responsibility on behalf of the birth father that should be corrected by requiring some proactive conduct on his part…. A better alternative exists. Yesterday, the House of Representatives passed House Bill 415 prepared by Rep. Johnnie Byrd and Rep. Evelyn Lynn that uses House Bill 141 as its base, but addresses many of the concerns raised above. First, it provides for a paternity registry similar to those already in existence in the vast majority of states around the country. This registry imposes a duty on the birth father to take affirmative action if he wants to later raise a parental claim. The registry, which will be well publicized, also gives greater finality to adoptions by cutting off a birth father’s ability to later claim a child on the basis that he was unaware of the child’s birth.”
15 G.P. v. State, 842 So. 2d 1059 (Fla. 4th D.C.A. 2003); Shaming Young Mothers, New York Times August 23, 2002. “Just read the Florida newspapers. Sandra is being forced by Florida state law to buy advertisements that give her full name (which I’m not repeating) and physical description; 5 feet 2 inches, 142 pounds, brown eyes. Then, as the law requires, she has to list and describe the five men she had sex with late last summer: Bill, Tommy, Allen, Eric and Joshua. This new state law requires women — even 14 and 15 year-old girls, even rape victims — to disclose the name and address of the father of a baby offered for adoption, or else to publish these ads for four weeks. Perhaps not since a tribal council in Pakistan ordered a woman to be gang-raped in June has a government treated women with such contempt.”
16 Fla. Stat. §63.087, §63.088(5) (2001).
17 G.P. v. State, 842 So. 2d at 1062 (“We deem the invasion of both of these interests so patent in this instance as to not require our analysis of cases interpreting this constitutional provision.”).
18 H.B. 835 (2003); S.B. 2526 (2003).
19 Fla. Stat. §63.054, §63.062, §63.088 (2003).
20 Beck, Toward a National Putative Father Registry Database, 25 Harv. L. Rev. 1031 (2002).
21 Fla. Stat. §63.054 provides, “In order to preserve the right to notice and consent to an adoption under this chapter, an unmarried biological father must, as the ‘registrant,’ file a notarized claim of paternity form with the Florida Putative Father Registry maintained by the Office of Vital Statistics of the Department of Health and shall include therein confirmation of his willingness and intent to support the child for whom paternity is claimed in accordance with the state law. The claim of paternity may be filed at any time prior to the child’s birth, but a claim of paternity may not be filed after the date a petition is filed for termination of parental rights.”
22 The legislative intent is specifically expressed in Fla. Stat. §63.022 and §63.053 (2004). Section 63.022 states, “(1) The Legislature finds that: (a) The state has a compelling interest in providing stable and permanent homes for adoptive children in a prompt manner, in preventing the disruption of adoptive placements, and in holding parents accountable for meeting the needs of children. (b) An unmarried mother faced with the responsibility of making crucial decisions about the future of a newborn child is entitled to privacy, has the right to make timely and appropriate decisions regarding her future and the future of the child, and is entitled to assurance regarding an adoptive placement. (c) Adoptive children have the right to permanence and stability in adoptive placement. (d) Adoptive parents have a constitutional privacy interest in retaining custody of a legally adopted child. (e) An unmarried biological father has an inchoate interest that acquires constitutional protection only when he demonstrates a timely and full commitment to the responsibilities of parenthood, both during the pregnancy and after the child’s birth. The state has a compelling interest in requiring an unmarried biological father to demonstrate that commitment by providing appropriate medical care and financial support and by establishing legal paternity rights in accordance with the requirements of this chapter. (2) It is the intent of the Legislature that in every adoption, the best interest of the child should govern and be a foremost concern in the court’s determination. The court shall make a specific finding as to the best interest of the child in accordance with the provisions of this chapter.” (Emphasis added.)
Section 63.053 states, “(1) In enacting the provisions contained in this chapter, the Legislature prescribes the conditions for determining whether an unmarried biological father’s actions are sufficiently prompt and substantial so as to require protection of a constitutional right. If an unmarried biological father fails to take the actions that are available to him to establish a relationship with his child, his parental interest may be lost entirely, or greatly diminished, by his failure to timely comply with the available legal steps to substantiate a parental interest. (2) The Legislature finds that the interests of the state, the mother, the child, and the adoptive parents described in this chapter outweigh the interest of an unmarried biological father who does not take action in a timely manner to establish and demonstrate a relationship with his child in accordance with the requirements of this chapter. An unmarried biological father has the primary responsibility to protect his rights and is presumed to know his child may be adopted without his consent unless he complies with the provisions of this chapter and demonstrates a prompt and full commitment to his parental responsibilities. (Emphasis added.)
The staff analysis of House Bill 835, which ultimately became the law enacting these provisions, see Ch. 2003-58, §§1, 10 at 458, 470, Laws of Fla., succinctly summarized the purpose of these sections as follows: “Makes… legislative finding[s] that the interests of the state, the mother, the child, and the adoptive parents outweigh the interests of an unwed biological father who does not take action in a timely manner to establish and demonstrate a relationship with his child; and that the unwed father has the primary responsibility to protect his rights, and is presumed to know that his child may be adopted without his consent unless he complies with the provisions of this legislation and demonstrates a prompt and full commitment to parental responsibilities.” Fla. H.R. Comm. On Jud., HB 835 (2003) Staff Analysis 1 (Apr. 2, 2003).
23 The 2003 revisions amended the list of the fathers whose consent is required. Under the 2001 law, consent was required from any man who may be the father or who cohabitated with the mother on or about the time of conception. Fla. Stat. §63.062 (2001). The revisions of §63.062 create stability and accountability by requiring the consent of a legal father and a man who has registered with Vital Statistics through the registry or by affidavit. Fla. Stat. §63.062(1)(b) (2003).
24 “[C]hild’s biological father who is not married to the child’s mother at the time of conception or birth of the child and who has not been declared by a court of competent jurisdiction to be the legal father of the child.” Fla. Stat. §63.032(19), (2003).
25 An unmarried biological father is on notice of pregnancy and a potential adoption at the time of the sexual act. Fla. Stat. §63.088 (2003).
26 Fla. Stat. §63.054 (2003).
28 Fla. Stat. §63.062(2)(d) (2004), provides that “[a]n unmarried biological father who does not comply with each of the conditions provided in this subsection is deemed to have waived and surrendered any rights in relation to the child, including the right to notice of any judicial proceeding in connection with the adoption of the child, and his consent to the adoption of the child is not required.”
29 Fla. Stat. §63.054(1) (2003); Fla. Stat. §63.062(1) & (2) (2003). The law’s clear language and legislative intent require that the father establish rights prior to placement. All unmarried biological fathers must act by the date the termination of parental rights is filed with the court. The only fathers excepted from the definition of unmarried biological father is one who is legally married to the mother at the time of conception or birth of the child or a man who “has been declared by a court of competent jurisdiction to be the legal father of the child.” Section 63.088(1) reiterates that an unmarried biological father is deemed to be on notice that a pregnancy and adoption may occur and has a duty to protect his own rights. A father must act to secure his right to consent prior to the date the petition seeking to terminate his rights is filed with the court. Wylie v. Botos, 416 So. 2d 1253 (Fla. 4th D.C.A. 1982).
30 The father is responsible for all acts or omissions of his agent. Fla. Stat. §63.054(4) and (5) (2003).
31 Fla. Stat. §63.0541 (2003).
33 Id. The Florida Department of Health shall provide this information in English, Spanish, and Creole.
34 Fla. Stat. §63.062(1)(b), §63.085 (2003).
35 Lehr v. Robertson, 463 U.S. 248 (1983); In the Adoption of Baby E.A.W., 658 So. 2d 961 (Fla. 1995); In the Matter of the Adoption of Doe, 543 So. 2d 741 (Fla. 1989).
36 “After this court’s decision in Stanley, the New York Legislature appointed a special commission to recommend legislation that would accommodate both the interests of biological fathers in their children and the children’s interest in prompt and certain adoption procedures. The commission recommended, and the legislature enacted a statutory adoption scheme that automatically provides notice to seven categories of putative father who are likely to have assumed some responsibility for the care of their natural children. If this scheme were likely to omit any responsible, and if qualifications for notice were beyond the control of an interested putative father, it might be though procedurally inadequate. Yet, as all of the New York courts that reviewed this matter observed, the right to receive notice was completely within appellant’s control. mailing a postcard to the putative father registry, he could have guaranteed that he would receive notice of any proceedings to adopt Jessica. The possibility that he may have failed to do so because of his ignorance of the law cannot be a sufficient reason for criticizing the law itself. The New York Legislature concluded that a more open-ended notice requirement would merely complicate the adoption process, threaten the privacy interests of unwed mothers, create the risk of unnecessary controversy and impair the desired finality of the adoption decrees.” (Footnotes omitted.)
37 Id. “Parental rights do not spring full-blown from the biological connection between parent and child. They require relationships more enduring,” quoting Caban v. Mohammed, 441 U.S. 380 at 397 (1979).
38 Id., quoting Caban, 441 U.S. at 392. “The significance of the biological connection is that it offers the natural father an opportunity that no other male possesses to develop a relationship with his offspring. If he grasps the opportunity and accepts some measure of responsibility for the child’s future, he may enjoy the blessings of the parent-child relationship and make uniquely valuable contributions to the child’s development. If he fails to do so, the Federal Constitution will not automatically compel a state to listen to his opinion of where the child’s best interests lie.” (Footnote omitted.)
39 Id. “mailing a postcard to the putative father registry, he could have guaranteed that he would receive notice of any proceedings to adopt Jessica. The possibility that he may have failed to do so because of his ignorance of the law cannot be a sufficient reason for criticizing the law itself.”
40 In the Adoption of Baby E.A.W., 658 So. 2d 961, 966-67 (Fla. 1995); In the Matter of the Adoption of Doe, 543 So. 2d 741, 748-99 (Fla. 1989).
41 In the Adoption of Baby E.A.W., 658 So. 2d at 966-67 “[T]he mere existence of a biological link does not merit equivalent constitutional protection.” An unwed father only has a constitutional right to due process in adoption and custody cases when he “demonstrates a full commitment to the responsibilities of parenthood by coming forward to participate in raising his child.”
42 In the Matter of the Adoption of Doe, 543 So. 2d 741, 748 (Fla. 1989), quoting Lehr v. Robertson, 463 U.S. 248, 261 (1983).
43 In Re A.J.B., 548 So. 2d 906, 908 (Fla. 1st D.C.A. 1996) (holding that in In Re Adoption of Mullenix, 359 So. 2d 65 (Fla. 1st D.C.A. 1978), and Wylie v. Botos, 416 So. 2d 1253 (Fla. 4th D.C.A. 1982) (the courts “recognized that section 63.062 imposes upon a natural father the duty to take some type of affirmative action in order to make his consent…a prerequisite to the child’s adoption”).
44 See In Re Petition to Adopt O.J.M., 687 N.E.2d 113 (Ill. 1st D.C.A. 1997) (birth mother’s misrepresentation as to birth father’s identity did not provide an excuse for failing to register); Heidbreder v. Carton, 645 N.W 2d 355 (Minn. 2002) (Minnesota Supreme Court held that a birth father that was one day late in registering was cut off from his paternity and custody claim, rejecting his “substantial compliance” exception, as it would weaken the permanence and stability adoption registries give adopted children); Burns v. Crenshaw, 733 P.2d 922 (Ore. App. 1987) (birth father could not set aside adoption decree based on the fact that he was not provided notice because his failure to register did not entitle him to notice); Hylland v. Doe, 867 P.2d 551 (Ore. App. 1984) (prior filing of paternity action did not give birth father the right to notice or the ability to object to the adoption when he did not file with registry; summary judgment for adoptive parents was proper); Matter of Adoption of W, 904 P. 2d 1113 (Utah App. 1995) (although birth mother lied about identity of birth father, his failure to register was fatal; 10 days was sufficient time to register); Beltran v. Allan, 926 P.2d 892 (Utah App. 1996) (summary judgment proper to terminate rights of birth father who failed to register even though he filed paternity action weeks before birth); In re Adoption of B.B.D., 984 P.2d 967 (Utah App. 1990) (birth father’s rights should be terminated when he fails to register as he has no right to an evidentiary hearing and no right to contest the adoption).
45 Sanchez v. L.D.S. Social Services, 680 P.2d 753, 755 (Utah 1984).
46 Id. at 756.
47 Id. at 660. The court further expanding this observation and stated: “Courts agree that the passage of time can be harmful to the well-being of a child and that a stable home environment for the child deserves consideration along with the interest of biological parents. See Adoption of Michael H., 10 Cal. 4th 1043, 898 P.2d 891, 43 Cal.Rptr.2d 445 (1995) (holding that father’s constitutional interest is inchoate and does not ripen into constitutional rights that he can assert to prevent adoption unless he proves that he has promptly come forward and demonstrated full commitment to his parental responsibilities); Matter of Kailee C.C., 179 A.D.2d 891, 579 N.Y.S.2d 191, 192 (1992) (‘Bearing in mind a child’s need for early permanence and stability, the key to the unwed biological father’s constitutional right to consent to the adoption is the prompt assertion of his interest and a manifestation of his ability and willingness to assume custody of the child….’); Matter of Adoption of Baby Boy D., 742 P.2d 1059, 1067-68 (Okla. 1985) (‘Children are not static objects. They grow and develop, and their growth and development require more than day to day satisfaction of their physical needs… [A] child’s need for permanence and stability, like his or her other needs, cannot be postponed. The need for early assurance of permanence and stability is [therefore] an essential factor in a constitutional determination … of whether or not to protect [an unwed father’s] potential relationship with his child.’); In re Baby Girl Eason, 257 Ga. 292, 358 S.E.2d 459, 462-63 (1987) (although an unwed father has an ‘opportunity interest’ in developing a parent-child relationship under the due process and equal protection clauses of the Fourteenth Amendment, that interest ‘begins at conception’ and may be lost if not timely and diligently pursued).”
48 Id. at 662, citing J.S. v. S.A., 912 So. 2d 650, 661-62 (Fla. 4th D.C.A. 2005).
49 B.B., 933 So. 2d at 71, fn 9. The majority concluded that an unmarried biological father is a “parent” whose consent was required to an adoption when he was listed on a juvenile shelter order as a parent even though he never took action to legally establish his rights through a paternity action. In a lengthy dissent, Justice Wolf questioned whether a juvenile court notation in a shelter order was a court determination of paternity within the meaning of the statute. Justice Wolf found that the majority decision directly contravened the express legislative intent of the law, prior case law and the overwhelming precedent from around the country. Justice Wolf concluded that the unequivocal language of the statute and the clear expression of legislative intent required an unmarried biological father to register with the Putative Father Registry prior to the filing of the petition to terminate his parental rights in order to have his consent required to an adoption. Failing that, the father was deemed to have waived and surrendered any claim to the child.
50 See Chapters 61, 39, and 63. See also BB v. P.J.M, 933 So. 2d 57, 61 (Fla. 1st D.C.A. 2006) (in an adoption opinion decided after Baby A, court cited examples of court proceedings that could establish the identity of a father, including §768.21(4), §985.215(6), and §790.22(4)).
51 A.S. v. Gift of Life, Inc. (In re: Baby A.), 944 So. 2d 380 (Fla. 2d D.C.A.), rev. den. 944 So. 2d 344 (Fla. 2006).
52 J.C.J., 942 So. 2d at 908-910. The appellate court made this ruling despite the fact that it was not raised below, finding fundamental error. The court overlooked, however, the difference between (a) terminating the rights of an unmarried biological father or parent who has “rights” because he has timely acted on his inchoate opportunity and complied with the requirements of the Putative Father Registry, and (b) a determination that an unmarried biological father has no rights because he failed to comply with §63.062. In the former scenario, notice and an opportunity to be heard must be provided and a termination of parental rights judgment can only be entered if one of the grounds for terminating parental rights set forth in §63.089(3) is established. In the later case, which represented the situation at bar, the unmarried biological father should have had no rights because he has failed to grasp his inchoate opportunity as outlined in Lehr, and was not entitled to notice. Fla. Stat. §63.062(2)(d), §63.088(1).
53 J.A. v. Heart of Adoptions, Inc. (In re: Baby H.), Fla. L. Weekly D807 (March 28, 2007).
55 The First District Court of Appeal also affirmed the trial court’s finding that he abandoned the child. The decision is confusing in its attempts to reconcile the A.S. decision. The court adopted the ruling of the A.S. court, stating that a court should give priority to a paternity action filed before the termination of parental rights action, but differentiated the case by extending the BB decision to conclude that a father who subsequently appears in court holding himself out as the father has taken sufficient steps to allow the court to enter a finding of paternity and terminate his rights prior to resolution of the paternity action.
56 J.A. v. Heart of Adoptions, Inc. (In re: Baby H.), SC 07-738 Fla. Supreme Court, July 12, 2007).
57 Thus, instead of forcing the birth mother to name the birth father or hunt him down to provide notice, the legislative scheme in Florida requires the birth father to protect his own rights and register his intentions with the state so that the adoptive parents, the birth mother, and the adoption entity can know, at placement, if a child is legally free for adoption. If an unmarried biological father fails to take the actions that are required of him, his parental interest may be lost entirely, or greatly diminished, by his failure to timely comply with the available legal steps to substantiate a parental interest. Fla. Stat. §63.053(1). The public policy considerations are clear. Registries ensure the child’s right to a stable environment by limiting judicial discretion when birth fathers do not assert their rights timely. A birth mother who decides to abort her child need not identify the birth father, or provide notice to or obtain consent from him, even if he is her husband, Planned Parenthood of Southeastern PA. v. Casey, 503 U.S. 833, 837 (1992); In re T.W., 551 So. 2d 1186 (Fla. 1989), and a birth mother who decides to parent her child need not identify the birth father or advise him of her pregnancy or the child’s birth. The Florida Legislature puts a birth mother who decides to place her child for adoption on this same footing as other birth mothers and allows her to do so without notice to or consent from the father — except in very limited circumstances when the birth father strictly follows the statutory scheme to protect his rights.
58 Section 63.063(1)&(2) provides that each parent is responsible for their own fraud and a parent may not seek an excuse to the requirements of the statute due to another parent’s fraud. Subsection (3) states that “[i]n balancing the rights and interests of the state and all parties affected by fraud, including the child, the adoptive parents, and the unmarried biological father, the [l]egislature has determined that the unmarried biological father is in the best position to prevent or ameliorate the effects of fraud and, therefore, has the burden of preventing fraud.”
59 According to the legislative intent in §63.022(1)(b): “An unmarried mother faced with the responsibility of making crucial decisions about the future of a newborn child is entitled to privacy, has the right to make timely and appropriate decisions regarding her future and the future of the child, and is entitled to assurance regarding an adoptive placement.” See also Fla. Const. art. I, §23.
60 Courts across the country have recognized a birth mother’s right to privacy in an adoption context, upheld her right to refuse to name the birth father, and found that the rights of unmarried biological fathers can and should be terminated without notice. In Matter of Christopher L., 450 N.Y.S.2d 269 (N.Y. Ct. 1982), the birth mother refused to reveal the identity of the birth father, a man who had not registered with the putative father registry or been adjudicated to be the child’s father. In holding that no notice to the birth father was required in order to terminate his parental rights, the court found: “The time has come to address the problem in adoptions of the putative father who is known to the surrendering natural mother but whose identity she refuses to disclose. The adamant refusal of the mother of a non-marital child to disclose the identity of the child’s father, even when it is known to her, is far from an unusual phenomenon. Even in the light of the escalated status of putative fathers as a result of Caban v. Mohammed, 441 U.S. 380, and the legislation flowing therefrom, this circumstance does not present an insurmountable obstacle to the conclusion of an adoption.”
See also Matter of Karen A.B., 513 A.2d 770 (Del. Supr. 1986) (recognizing the birth mother’s right of privacy to be free of harassment from the birth father, the Court found that the birth mother’s refusal to name the birth father was not an impediment to the termination of his parental rights; no notice was required to the birth father, who did not know about the pregnancy or the birth of the child); Evans v. S.C.D.S.S., 303 S.C. 108 (1990) (even though state statute required notice to unwed fathers whether or not their consent was necessary, the court found that the birth mother’s refusal to reveal the birth father’s identity was not an impediment to the adoption and the trial court erred in refusing to finalize the adoption without notice to him).
61 National Center for Health Statistics, 2004 data, available at.
62 Efforts are being made at the state and federal level to create uniformity and stability in adoptions and avoid the gut-wrenching turmoil and extreme anguish created by disrupted adoption placements. At the federal level, Senator Mary Landrieu (D-LA) introduced legislation to create a federal putative father registry. The Florida Legislature, in a bill sponsored by Representative Mark Mahon, attempted to cure the defects exposed by the Baby A court. No matter where the line is ultimately drawn, it must be drawn to deter protracted litigation and establish a bright line test prior to placement for determining if a child is legally free for adoption. Since every third child born in the United States is born to an unwed mother, the adoption laws must also protect privacy rights and provide viable options for a crisis pregnancy. Our children deserve no less.
Jeanne T. Tate received a J.D. degree with honors from the University of Florida College of Law and practices exclusively in the area of adoptions. Ms. Tate is owner of Heart of Adoptions, Inc. She is a member of the American Academy of Adoption Attorneys and the Florida Adoption Council. Ms. Tate was honored in 2006 by the Congressional Coalition as an Angel in Adoption and is the recipient of a lifetime achievement award from the Florida Adoption Council.
Amy U. Hickman is a graduate of the University of Florida College of Law and a partner in Hausmann & Hickman, P.A. Mrs. Hickman serves as chair of the Family Law Section’s Adoption and Juvenile Committee and is a founding member of the Florida Adoption Counsel, and vice president of Kids Sanctuary, a local special needs group foster home. She is a former staff attorney with the juvenile advocacy project of the Legal Aid Society of Palm Beach County.
This column is submitted on behalf of the Family Law Section, Allyson Hughes, chair, and Susan W. Savard, Laura Davis Smith, and Jeffrey A. Weissman, editors.