STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ROSA WISE and EDWIN WISE, )

)

Petitioners, )

)

vs. ) CASE NO. 96-0928

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

On July 10, 1996, a formal administrative hearing was held in this case in Sarasota, Florida, before J. Lawrence Johnston, Hearing Officer, Division of Administrative Hearings.

APPEARANCES

For Petitioners: Richard C. Reinhart, Esquire

Reinhart & Moreland

538 Old Main Street Bradenton, Florida 34205

For Respondent: C. Michael Kelly, Esquire

Department of Health and Rehabilitative Services

349 Sixth Avenue West Bradenton, Florida 34205

STATEMENT OF THE ISSUE

The issue in this case is whether HRS should select the Petitioners as the adoptive parents of M. C.

PRELIMINARY STATEMENT

On or about November 15, 1995, HRS notified the Petitioners that HRS had chosen another person to adopt M. C. Through counsel, the Petitioners requested formal administrative proceedings under Section 120.57, Fla. Stat. (1995), on or about November 21, 1995. The request was not immediately referred to the Division of Administrative Hearings (DOAH). Meanwhile, on

November 28, 1995, the parties went before the circuit judge presiding over dependency proceedings involving the child, and the circuit court entered an order on December 18, nunc pro tunc November 28, 1995, authorizing the child to remain in the care and custody of the prospective adoptive parent chosen by HRS pending the resolution of Section 120.57 administrative proceedings.

The matter was not referred to DOAH after the circuit court order. On or about December 29, 1995, the Petitioners filed an Amended Request for Administrative Hearing. HRS did not refer the Amended Request for Administrative Hearing to DOAH until February 21, 1996. The DOAH file contains no explanation for the delay.

Initially, final hearing was scheduled for May 14, 1996. But on the day before the hearing, the Petitioners moved ore tenus to continue, and the motion was granted over the objection of HRS. (The record is not clear on the reasons for either the

motion to continue or HRS's opposition to it.) Final hearing was rescheduled for July 10, 1996. On July 8, 1996, the case was reassigned to the undersigned hearing officer.

At final hearing, the Petitioners testified in their own behalf and called seven additional witnesses, including the HRS's sole witness. The Petitioners also had their Exhibits 1-3, 5-8, 10, 12 and 13 admitted in evidence. (Ruling was reserved on HRS's relevance and hearsay objections to Exhibit 6, and those objections are now overruled.) HRS had Respondent's Exhibit 1 admitted in evidence.

At the conclusion of the evidence, HRS ordered the preparation of a transcript of the final hearing, and the parties were given ten days from the filing of the transcript in which to file proposed recommended orders. The transcript was filed on July 24, 1996. Neither party filed their proposed recommended order on time. The Petitioners' was filed on August 8; HRS's was not filed until August 13. Explicit rulings on the proposed findings of fact contained in the parties' proposed recommended order may be found in the Appendix to Recommended Order, Case No. 96-0928.

FINDINGS OF FACT

1. The Petitioners, Rosa and Edwin Wise, live in Bradenton, Florida. They have been married since 1986. They have a strong and sharing marriage relationship; each considers the other not only spouse but best friend. They have been HRS-licensed foster parents since approximately 1992. Both are in good health.

2. The Wises have experience foster-parenting children with "special needs." For approximately 18 months to two years, they were the foster parents of two African-American siblings. The older boy was nine months old when the Wises became his foster parents; the younger girl was just three months old when the Wises became her foster parents. The girl was cocaine-dependent at birth and had developmental delays as a result. Happily, not only were the Wises very successful foster parents for the children but the family was able to be reunified successfully. Today, some two years after reunification, the Wises continue to have a wonderful relationship with the children and their mother, and children's mother continues to be grateful to the Wises for what they have done and continue to do for her and her children.

   
   

3. Since the Wises had notified HRS that they would be happy to foster parent one or two "special needs" children again, HRS contacted them in early July, 1995, to ask if they would be foster parents for a high risk, cocaine-dependent African- American newborn girl, M. C. The Wises readily agreed. Rosa went to see the infant in the hospital the next day, and they continued to visit daily during the infant's week-long hospital stay. They began acting as the child's foster parents as soon as the baby was discharged from the hospital.

   
   

4. A warm and loving relationship quickly blossomed between the Wises and the infant, and the Wises soon expressed a desire to adopt the child if parental rights were terminated-- unfortunately, a probable outcome in this case. (The infant's mother was addicted to cocaine, had abandoned the child at the hospital after birth, and gave no indication of having any desire or ability to mother the child.) M. C. had older siblings, but all but one of them were in the full-time care and custody of family members who were unable to care for any more full-time. One brother was in the care and custody of another foster parent, who had expressed a desire to adopt him. It was agreed between HRS and the two sets of foster parents that it was not especially desirable for the infant and her brother to be adopted as a sibling group.

   
   

5. Due to alleged "confidential information pertaining to another child," HRS refused to disclose to the Petitioners the entire contents of the Referral for Permanency Staffing form signed by the Wises on August 9, 1995, and the Petitioners did not further pursue disclosure of the information. But the evidence is clear that the Wises consistently expressed to HRS their desire to adopt M. C. (and, if necessary, her brother) if parental rights were terminated. HRS staff urged them to be patient in awaiting termination of parental rights, a prerequisite to initiation of the adoption process.

6. A staffing conference was held on August 8, 1995, in the matter of the children. Participating were the Wises, their foster care counselor, the adoption counselor, the adoption counselor's acting supervisor, the program specialist, and others. The evidence was that, as a result of the staffing conference, the staffing committee approved a plan to expedite termination of parental rights. The committee specified the need for a "complete developmental evaluation" by August 25, 1995.

   The evidence was not clear what a "complete developmental evaluation" entails, or whether one was completed.

   
   

7. No HRS employee who would have knowledge of exactly how HRS initially went about exploring the suitability of the Wises to adopt M. C. was available to testify at final hearing, and the Petitioners were not able to prove those details. However, the evidence was clear that, by approximately September 9, 1995, the program specialist involved in the matter expressed to the Wises his "concerns" about the Wises. When they asked him what the concerns were, he answered vaguely that they were "cultural." When pressed, he declined to be more specific but instead referred the Wises to the adoption counselor. The Wises suspected that the "concern" was that the Wises are Americans of European ancestry.

   
   

8. HRS did have available at final hearing its "One Church One Child Coordinator," 1/ who testified that in approximately late September or early October, 1995 (she also could not specify when, and the Petitioners could not prove exactly when), she received a telephone contact from within HRS asking her for the names and home studies of qualified African-American prospective adoptive parents who might be interested in adopting M. C.

   
   

9. The HRS One Church One Child Coordinator reviewed the information available to her and provided several names and home studies to the adoption counselor working on the M. C. adoption and the adoption counselor's acting supervisor. From the names and home studies, the three HRS workers chose three prospective adoptive parents for consideration along with the Wises.

   
   

10. On or about October 11, 1995, HRS's adoption and related services (ARS) Children and Family (C&F) senior counselor and supervisor wrote the program specialist an Inter-Office Memorandum recommending that the Petitioners "be approved for adoption for one or two children" and noting that they "indicated, they would like to have a sibling group of two of any race." 2/ In addition, by this time bonds had formed between M.

    C. and the Wises that were as strong as any a three to four month old could have.

11. Despite the October 11, 1995, memo, an HRS meeting was held some time before the end of October, 1995 (the HRS witness again could not specify the date), among the One Church One Child Coordinator, the adoption counselor, the adoption counselor's acting supervisor, an operation program administrator, a district program manager, an HRS attorney and perhaps others for the purpose of selecting adoptive parents for M. C. from among four sets of prospective adoptive parents--the Wises and the three chosen from among the One Church One Child names and home studies.

    
    

12. On or about October 31, 1995, Rosa Wise was notified by telephone that HRS had chosen one of the others, a single

    African-American female, to adopt M. C. The Wises were required to allow the person chosen to have overnight visitation with the child.

    
    

13. There is no evidence as to whether the HRS staff decision was reviewed by the HRS district administrator,3 but HRS staff notified the Wises on November 15, 1995, that HRS had chosen one of the others to adopt M. C. Staff also notified the Wises that the adoptive parent selected by HRS staff was supposed to have overnight visitation from November 17-20 and again from November 22-27, 1995, with placement to be made the next day. By letter from HRS's attorney dated November 17, 1995, the Wises and their attorney were given notice "of HRS' intention to exercise final adoptive placement in favor of another family."

    
    

14. The child was not returned to the Wises on November 21, 1995, as planned.4 Then, instead of having the child returned to the Wises on November 28, 1995, the parties went before the circuit judge in the dependency case involving M. C., and the judge entered an order authorizing the child to remain in the care and custody of the prospective adoptive parent chosen by HRS pending the resolution of Section 120.57 administrative proceedings.

    
    

15. The Wises did not believe that HRS would allow them visitation or other contact with M. C. during the pendency of these proceedings, and they did not pursue it. They have not seen the child since approximately November 16, 1995. The evidence indicated that, by the time of the final hearing, M. C. had grown at least as attached to her new foster mother as she was to the Wises.

    
    

16. Based on the evidence, there is no reason not to believe that the Wises would have been, and still would be, warm and loving parents who would provide M. C. with a home in which the child would thrive. They clearly were "suitable" adoptive parents. HRS did not allow the adoption to proceed only because

    of "cultural concerns"--i.e., the Wises were not African- American. It was felt by HRS staff--in particular, the program specialist--that these "cultural concerns" could override any foster parent preference in favor of the Wises and that inquiry should be made as to whether there were African-American prospective adoptive parents who could adopt M. C.

    
    

17. After the African-American prospective adoptive parents entered the picture, HRS staff decided what it considered to be the best interest of the child, taking into account the "cultural" considerations. Essentially, as between the Wises and the person ultimately chosen to be the adoptive parent, HRS staff decided that the latter would be better able to "maintain the child's culture and give the child emotional support," although the Wises clearly were committed to value, respect, appreciate, and educate the child regarding her racial and ethnic background and to permit the child the opportunity to know and appreciate her ethnic and racial heritage. On balance, the other factors cited by HRS actually were neutral at best; some seemed bogus.5

    
    

18. On the evidence presented at final hearing, it is difficult to say whether HRS's choice against the Wises was, on balance, against the best interest of the child. There were factors in favor of both the Wises and in favor of the person chosen by HRS. Perhaps, given HRS's rules, the choice HRS made at that time was wrong. However, the Wises clearly were unable to prove that, at this time, it is in the best interest of the child to require her to be adopted by the Wises instead of the foster mother she has had for the past seven to eight months.

    CONCLUSIONS OF LAW

    
    

    Standard of Review

    
    

19. The sole authority for this proceeding is found among HRS's F.A.C. Rule 10M-8.002(8) procedures for adoption of a foster child by foster parents. Under these procedures, if HRS decides under subsection (e) of the rule that a foster parent request to adopt a foster child is not "in the best interest of the child," HRS tries to persuade the foster parents to withdraw their request. If they do not, under subsection (f) of the rule, "they must be advised of their right to have the decision reviewed by the district administrator." Subsection (f) of the rule goes on to say: "If this issue is not resolved at the district administrator's level to the foster parent's satisfaction, the foster parent must be advised of their [sic] right to seek an administrative determination pursuant to s. 120.57, F.S."

20. F.A.C. Rule 10M-8.002(8) gives no further indication as to the nature of the 120.57 proceeding it authorizes. The Petitioners argued that the issue for determination in this proceeding is the best interest of the foster child. Citing the recent decision in C.S. and J.S. v. S.H. and K.H., 671 So.2d 260 (Fla. 4th DCA 1996), HRS argued that there is no jurisdiction to decide the best interest of the child in this case and that the only issue for determination in this case is whether HRS followed its rule procedures in deciding to reject the Petitioners' request to adopt. C.S. and J.S. v. S.H. and K.H. reaffirmed other appellate decisions holding that, in adoption proceedings under Chapters 39 and 63 of the Florida Statutes, a circuit court has no jurisdiction to "exercise any power or influence by the court over the selection of an adoptive parent." Section 39.47(4), Fla. Stat. (1995). See Dept. of Health, etc., v. Doe, 6443 So.2d 1100 (Fla. 1st DCA 1994); Matter of S.G., 517 So.2d

    125 (Fla. 4th DCA 1987). HRS argued that, if a circuit court has

    no jurisdiction, it follows that a mere hearing officer surely has no such jurisdiction.

    
    

21. HRS's argument is fundamentally flawed. It fails to appreciate that a proceeding under Section 120.57 is part of an agency's decision-making process and that, until the proceeding reaches its conclusion through entry of the agency's final order, no final decision has been made.6 The primary purpose of formal administrative proceedings under Section 120.57(1) is to provide "independent hearing officers as fact finders in the formulation of particularly sensitive administrative decisions . . . to expose, inform and challenge agency policy and discretion."

    State ex rel. Department of General Services v. Willis, 344 So.2d 580, 590-591 (Fla. 1st DCA 1977). In other words, the primary purpose of a Section 120.57(1) proceeding is to determine whether announced intended agency action should, prospectively and after the formal 120.57(1) proceeding, become final agency action. Cf. also McDonald v. Department of Banking and Finance, 346 So.2d 569 (Fla. 1st DCA 1977). Under Section 39.47(4) and the case law construing it, once HRS's decision becomes final, not even the circuit court has jurisdiction to "exercise any power or influence" over it; but, in this proceeding, the issue is whether HRS should grant the Petitioners' request to adopt. The paramount consideration in making such a decision is the best interest of the child.

22. HRS also takes the position that this proceeding should be dismissed on the basis of paragraph 3 of the standard form "Agreement to Provide Foster Care for Dependent Children" signed by the Petitioners: "We will take no action to acquire legal custody or guardianship of the child." But HRS'S proposal to construe paragraph 3 to apply to this proceeding is rejected as being directly contrary to F.A.C. Rule 10M-8.002(8)(f).

    Problems from Delay

    
    

23. The court in C.S. and J.S. v. S.H. and K.H. also observed:

    
    

    As recognized by the fifth district, "the passage of time required by these proceedings is harmful to everyone. As children grow older, bonding occurs and new directions are difficult." Rivera- Berrios v. Stefanos, 649 So. 2d 881, 882 (Fla.

    5th DCA 1994), quashed on other grounds, 21 Fla.

    L. Weekly S71 (Fla. Feb. 15, 1996). We urge the adoption of strict time standards for expedited hearings and appeals in these matters at both the trial and appellate levels. (Fn. omitted.)

    
    

    C.S. and J.S. v. S.H. and K.H., supra, at 270. While attempting to use the decision in C.S. and J.S. v. S.H. and K.H. incorrectly to limit jurisdiction, HRS apparently has not interpreted court admonitions to expedite proceedings involving the adoption of foster children to apply to its decision-making process. See Preliminary Statement.7 This case illustrates some of the problems that can result.

    
    

24. In this case, the Petitioners seek to enforce the foster parent preference in F.A.C. Rule 10M-8.002(7)(a) and (8)(c).8 However, when HRS gave notice of intent to deny the Petitioners' request for adoption, it changed the child's foster parents to the person HRS had chosen to adopt the child. By the time of the final hearing in this case, the child had been in the care of the subsequent foster parent since age four months. The bonds between the child and the subsequent (current) foster parent are now very strong, presumably at least as strong as the bonds used to be between her and the Wises. Under the same presumptions underlying the F.A.C. Rule 10M-8.002(7)(a) foster parent preference, it presumably now would be in the best interest of the child to stay with the subsequent foster parent.

    
    

25. In addition, it would seem that the subsequent foster parent, who also wants to adopt the child, would have the same rights under HRS's F.A.C. Rule 10M-8.002(8) procedures as the Petitioners. If HRS were to change positions and initiate proceedings to de-select the subsequent foster parent in favor of the Petitioners, the subsequent foster parent presumably should then have a right to administrative proceedings under Section

    120.57. It would seem that the only way to reach a final decision in favor of the Petitioners in this proceeding would

    have been to join the subsequent foster parent as a party, or at least give her a clear point of entry. In this case, neither was done.

    
    

    No Need to Adopt Sibling Group

    
    

26. The Petitioners cite statutes and rules that generally encourage the adoption of siblings as a group. Cf. Section 39.45(2), Fla. Stat. (1995); F.A.C. Rule 10M-8.002(6). In this case, except for a short period of time when a false rumor spread to the effect that the foster parents of M. C.'s brother no longer wanted to adopt him, there was no issue as to adopting the two children as a sibling group. It was agreed between HRS and the two sets of foster parents that it was not especially desirable for the infant and her brother to be adopted as a sibling group.

27. The Petitioners did not prove that the procedures in

    F.A.C. Rule 10M-8.002(6) were not followed in this case.

    
    

    Rule Requirement for "Full Exploration" of Foster Parents

    
    

28. HRS's rules are not clear as to when it is permitted to compare a foster parent with other potential adoptive parents in deciding the best interest of a foster child. F.A.C. Rule 10M- 8.002(7)(a) provides in pertinent part:

    
    

    (7) Foster Parent Conversion.

    (a) . . . For foster children who become free for adoption, the placement of choice is with the foster parents with whom they are living [if determined to be in the child's best interest].

    
    

    [Emphasis added.] F.A.C. Rule 10M-8.002(7)(a) then lists five "situations in which adoption by the foster parent is not the placement of choice," none of which existed in the case of the Petitioners.

    
    

29. F.A.C. Rule 10M-8.002(8) provides in pertinent part:

    
    

    1. Procedures for Initiating Adoption of Foster Child by Foster Parents.

       1. . . . The Referral for Permanency Staffing (HRS-CYF Form 5032) Mar 91 which is incorporated by reference will clearly indicate whether or not the child's current foster parents are interested in adopting him, the extent to which this interest has been explored with the foster parents, and foster care's recommendation regarding considering

          the foster parents as adoptive parents for the child. This issue must be thoroughly discussed at the staffing conference which addresses the plan to pursue termination of parental rights for the child in question.

          * * *

          (c) In evaluating the foster parents as potential adoptive parents for the child, the adoption and related services counselor must be guided by the department's commitment to encourage applications from foster parents for children in their care who are free for adoption. This commitment is based on the belief that moving children from homes where they are well established and cared for is damaging to the child and should be avoided when

          possible. [As in every instance, the best interest of the child must prevail and be the basis for our final decision.]

          * * *

          (i) [When adoption by foster parents is thought to be in the child's best interest], such will be thoroughly explored prior to considering and presenting the child to a different family. [Emphasis added.]

          
          

30. In ultimately choosing against the Petitioners,

    
    

    HRS appears to have taken the position that, since it never was "thought to be in the child's best interest" to be adopted by the Wises, it

    was not required to "thoroughly explore" adoption by them before "considering and presenting the child to a different family." While not an impermissible interpretation of these ambiguous rules, it noted that the rules beg the question how the best interest of the child ever can be decided without reference to other alternatives.

    Violation of Rule Two-Parent Preference

    
    

31. F.A.C. Rule 10M-8.005(6) provides in pertinent part:

    
    

    The best interest of the child is the paramount concern in making an adoptive placement decision. Factors to be considered in making the adoptive placement decisions include:

    * * *

    (f) Marital Status

    1. Families in which there is a mother and father are considered important for the well-rounded

       growth and development of a child. The department will give primary consideration to the applications of couples who have been married a sufficient length of time to establish stability. Couples married less than two years must be given particularly careful evaluation. . . .

    2. The department will accept the application of single persons seeking to adopt a child. Single parent placements will be considered when a suitable two-parent home is unavailable and the alternative for the child is extended foster home care, when there is an already existing relationship which is meaningful and healthful for the child or when the particular needs of

    a specific child can best be met by a single parent.

    
    

    In this case, HRS appears to have given the Wises no credit for having a strong marriage of ten years duration and appears to have downgraded the chosen prospective adoptive parent not at all for being single. Indeed, since the Wises clearly are "suitable," the only legitimate way for HRS to have even considered a single parent application at the time9 was to conclude that M. C. had a "particular need" to be adopted by an African-American. Such a conclusion would seem to be contrary to

    F.A.C. Rule 10M-8.005(1) and (6)(d).

    
    

32. F.A.C. Rule 10M-8.005(1) provides:

    
    

    The department shall use its best efforts to obtain adoptive families from every ethnic, racial and religious heritage. No child shall be prevented from being placed with an adoptive family because the child's ethnic, racial and religious heritage is not the same as that of the adoptive family.

    
    

    F.A.C. Rule 10M-8.005(6) provides in pertinent part:

    
    

    The best interest of the child is the paramount concern in making an adoptive placement decision. Factors to be considered in making the adoptive placement decisions include:

    * * *

    (d) A commitment to value, respect, appreciate, and educate the child regarding his or her racial, ethnic and religious heritage and to permit the child the opportunity to know and appreciate

    that ethnic and racial heritage, and practice that religion.

    While, contrary to the Petitioners' argument, these rules do not prohibit HRS from considering "racial and ethnic heritage" in choosing between prospective adoptive parents, it seems clear from them that F.A.C. Rule 10M-8.005(6)(f) should not be read to treat same-race adoptions as one of the "particular needs of a specific child" that would be sufficient to justify a single- parent adoption when suitable two-parent adoptive families are available.

    
    

33. In this case, the Wises clearly were "suitable" as well as "committed to value, respect, appreciate, and educate the child regarding his or her racial and ethnic background and to permit the child the opportunity to know and appreciate that ethnic and racial heritage." HRS should not have been even considering a single-parent application at the time.10

    
    

    No Post-Decision Interviews

    
    

34. F.A.C. Rule 10M-8.002(8)(f) provides that, if HRS staff decides to deny a foster parent request to adopt, the HRS adoption counselor must conduct at least one interview with the foster parents to encourage them to withdraw their request. If the foster parents do not withdraw their request, the adoption counselor's supervisor must conduct an additional interview. The evidence in this case was that no such interviews were conducted after HRS staff made its decision. However, while perhaps a technical rule violation, it should be noted in fairness to HRS that the Petitioners had legal counsel by this time, and it seemed fairly clear that they would not be persuaded to withdraw their request.

    Best Interest of the Child

    
    

35. The Petitioners were able to prove that F.A.C. Rule 10M-8.002(8) procedures--including some giving them procedural rights--were violated in this case and that HRS should not even have considered the application of the chosen prospective adoptive parent at the time. But the inquiry cannot end there. The ultimate question in this case is the best interest of the child at this time, and the Petitioners' procedural rights must be viewed as subordinate to the best interest of the child.11

    
    

36. In this case, unfortunately probably at least in part due to the passage of time, the Petitioners have not been able to prove that it is in the best interest of the child at this time to remove her from the care of the subsequent (current) foster parent for adoption instead by the Petitioners. Indeed, the

Petitioners did not present any evidence as to the current status of the child or how a change would affect her at this point in time.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that HRS enter a final order denying the Petitioners' request to be selected as the adoptive parents of M. C.

DONE and ENTERED this 15th day of August, 1996, in Tallahassee, Florida.

J. LAWRENCE JOHNSTON, Hearing Officer Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 15th day of August, 1996.

ENDNOTES

1/ One Church, One Child is a not-for-profit corporation created by the Legislature to operate under HRS's supervision in assisting HRS with the adoption of African-American children.

Section 409.1755, Fla. Stat. (1995). It utilizes the resources of African-American churches to help find permanent homes for African-American children who might otherwise have to languish in temporary foster care for longer periods of time. Id.

2/ At some point in the process (it is not clear whether before or after this memo was written), a false rumor spread within HRS that the foster parents of M. C.'s brother had changed their minds and no longer wanted to adopt. The Wises again volunteered to adopt M. C.'s brother if necessary to be allowed to adopt M.

1. However, their preference was to adopt only M. C. Her brother's foster parents soon corrected the false rumor, and adoption of M. C. and her brother as a sibling group never was a real issue for HRS, the Wises, or any of the prospective adoptive parents involved.

   3/ There is an unsigned copy of a letter to the Wises and their attorney dated November 15, 1995, in the official Division of Administrative Hearings (DOAH) file stating that review by the district administrator took place during the week of November 6, 1995, but neither this letter nor any other evidence was presented at final hearing as to whether the district administrator's review took place.

   
   

   4/ No evidence was presented to explain why not.

   
   

   5/ HRS downgraded the Wises because they both work and would have to use day care eight hours a day, while the other prospective adoptive parent worked out of her home and had a nanny for times when she had to leave the home. Meanwhile, the Wises apparently were given little or no credit for having been successful foster parents for high risk, cocaine dependence- influenced, developmentally delayed children. The evidence was that HRS made no inquiry as to whether the other prospective adoptive parent had any experience or special qualifications to provide for the special needs of a high risk, cocaine dependence- influenced as she grew up. (The HRS witness was not aware of any.) (Fortunately for M. C., it appears that the other foster parent has been able to provide for M. C.'s needs; according to the HRS witness, the child is now healthy and free of any cocaine dependence influences.)

   The Wises also were given no credit for having a backyard

   swimming pool available for when M. C. got older.

   HRS staff downgraded the Wises because they earned approximately $58,000 a year between the two of them, compared to the other prospective adoptive parent's $40,000 a year income, but would have to support four individuals on their income while the other prospective adoptive parent would only have to support two. They also were downgraded for having had several failed marriages in their adult lives. But, on the other hand, they were not given much credit for their present strong marriage of over ten years duration, and the other prospective adoptive parent was not downgraded for being a single parent.

   Finally, the Wises were downgraded for Rosa being "feisty or firey" and for vague and unsubstantiated allegations that they did not totally "cooperate" with HRS "on some issues," while the other adoptive parent was supposedly "more open and flexible to HRS and its desires."

   
   

   6/ It is true that F.A.C. Rule 10M-8.002(8)(d) refers to a "final decision" made by the "district C&F program office." But under subsection (f) of the rule, that supposedly "final" decision is subject to both "review" by the "district administrator" and proceedings under Section 120.57.

   7/ The Petitioners also did not seem particularly anxious to expedite the decision-making process in this case. Indeed, the only possible indication that HRS may have appreciated the need to expedite the decision-making process was its opposition to the Petitioners' motion to continue the final hearing scheduled for May 14, 1996. But the record is not clear on the reasons for either the motion to continue or HRS's opposition to it.

   
   

   8/ Quoted in Conclusions of Law 28-29, infra.

   
   

   9/ At this time, it would be possible to conclude that consideration should be given to the chosen adoptive parent's application because "there is an already existing relationship which is meaningful and healthful for the child."

   
   

   10/ But see fn. 9, supra.

   
   

   11/ It is ironic that HRS was the party seeking to limit the issues to whether it followed its procedures and while the Petitioners were urging consideration of the best interest of the child.

   
   

   APPENDIX TO RECOMMENDED ORDER, CASE NO. 96-0928

   
   

   To comply with the requirements of Section 120.59(2), Florida Statutes (1995), the following rulings are made on the parties' proposed findings of fact:

   
   

   Petitioners' Proposed Findings of Fact.

   
   

   1. Accepted and incorporated.

   2. Accepted and incorporated to the extent not subordinate or unnecessary.

3.-4. Accepted and incorporated.

1. Rejected as not proven.

2. First sentence, accepted and incorporated; second sentence, rejected as not proven. (It was the Petitioners' burden to prove the contents of the form and what transpired at the meeting.)

7.-9. Accepted and incorporated.

1. Accepted but unnecessary.

2. Accepted and incorporated.

3. Rejected as not proven that Grant was "from One Church, One Child"; otherwise, accepted and incorporated.

4. Rejected as not proven; she qualified her testimony with the "best interest of the child."

14.-16. Accepted and incorporated.

17. Accepted but subordinate and unnecessary.

18.-21. Accepted and incorporated to the extent not subordinate or unnecessary.

1. First sentence, accepted but subordinate to facts not proven. (It was never an issue whether either would take M. C.'s brother.) Second sentence, rejected as not proven that she is not a foster parent; otherwise, accepted and incorporated.

2. Accepted and incorporated.

3. Accepted; subordinate to facts found.

4. Rejected as not proven that only two letters were written; otherwise, accepted but subordinate and unnecessary.

HRS's Proposed Findings of Fact.

1.-6. Accepted and incorporated.

1. Accepted and incorporated that those were HRS's stated reasons. Rejected as contrary to the greater weight of the evidence that all were valid. See Finding of Fact 17, supra.

2. Conclusion of law.

3. Accepted and incorporated. (The Petitioners did not prove that it would be in the child's best interest.)

COPIES FURNISHED:

Richard C. Reinhart, Esquire REINHART and MORELAND

538 Old Main Street Bradenton, Florida 34205

C. Michael Kelly, Esquire Department of Health and

Rehabilitative Services

349 Sixth Avenue West Bradenton, Florida 34205

Gregory D. Venz Agency Clerk

Department of Health and Rehabilitative Services

1317 Winewood Boulevard, Room 204-X Tallahassee, Florida 32399-0700

Richard Doran General Counsel

Department of Health and Rehabilitative Services

1317 Winewood Boulevard, Room 204

Tallahassee, Florida 32399-0700

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit to the Department of Health and Rehabilitative Services written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should consult with the Department of Health and Rehabilitative Services concerning its rules on the deadline for filing exceptions to this Recommended Order.

Docket for Case No: 96-000928

Orders for Case No: 96-000928