STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LUCILLE HILLS,

Petitioner,

vs.

DEPARTMENT OF CHILDREN AND FAMILY SERVICES,

Respondent.

)

)

)

)

) Case No. 02-0402

)

)

)

)

)

)

RECOMMENDED ORDER

Notice was provided, and a formal hearing was held on March 20, 2002, in Gainesville, Florida, and conducted by Harry L. Hooper, Administrative Law Judge with the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Lucille Hills, pro se

3101 Northeast 15th Street Apartment H-63 Gainesville, Florida 32609

For Respondent: Lucy Goddard, Esquire

Department of Children and Family Services

Post Office Box 390, Mail Sort 3 Gainesville, Florida 32602-0390

STATEMENT OF THE ISSUE

Whether the Department of Children and Family Services (Department) lawfully denied Petitioner's application to become an adoptive parent.

PRELIMINARY STATEMENT

Petitioner applied to be the adoptive parent of her great- granddaughters, A. W. I, A. W. II, and A. W. III (the children), who are approximately four, five, and seven years of age. The Department, after investigation, and after referral to an Adoption Review Committee, disapproved Petitioner's application.

The disapproval was communicated to Petitioner in a letter dated January 4, 2002. The letter set forth five reasons why Petitioner's application was denied, as follows:

1. Verified abuse complaints that Petitioner's daughter and granddaughter abused and neglected the children and Petitioner's denial that the abuse and neglect occurred raised a concern that she would not protect the children from exposure to future abuse or neglect by her daughter and granddaughter.

   
   

2. Petitioner's lack of cooperation in providing information to the Department and resistance to the involvement of social service agencies to provide services for the children.

   
   

3. Petitioner's failure to provide for a back-up provider for the children in the event of Petitioner's illness or death.

   
   

4. The presence in Petitioner's household of her daughter who has a history of explosive behavior and might be a danger to the three small children.

   
   

5. Petitioner's failure to provide living quarters suitable for Petitioner, her adult daughter, and the children.

On January 12, 2002, Petitioner requested a hearing. The matter was forwarded to the Division of Administrative Hearings and filed on February 4, 2002. The hearing was set for March 20, 2002, and was heard as scheduled.

Petitioner presented the testimony of Lucille Hills, Ida Mae Watson, Michelle Williams, and Robert Christopher Robinson.

Petitioner offered one exhibit which was admitted into evidence. The Department presented the testimony of Gary Tomblin, Ph.D., Gail Batey, Waysharnda Mosley, and Judy Parks. The Department offered three exhibits which were admitted into evidence.

A transcript was filed on April 11, 2002. The Department filed a Proposed Recommended Order which was considered in the preparation of this Recommended Order. Petitioner did not file a proposed recommended order.

FINDINGS OF FACT

1. The Department, in accordance with Chapters 39 and 63, Florida Statutes, is the agency which is tasked with determining the eligibility of persons who apply to become adoptive parents in the state.

2. Petitioner is a 69 year old woman who has given birth to nine children. She is the great-grandmother of the children at issue here. In late 2000 she attempted to become the foster parent of the children but the Department disapproved her

   application. Subsequently, she embarked on an effort to adopt the children.

3. The children came into the custody of the Department sometime prior to July 25, 2000, because of allegations that the mother, Elizabeth Watson, abused the children, or permitted the abuse of the children. Subsequently, the children were placed with the children's grandmother. The Department eventually removed them from the care of their grandmother because of allegations of abuse. At the time of the hearing the children were in the custody of foster parents who were unrelated to Petitioner.

4. The Children's Home Society (CHS), pursuant to a contract with the Department, investigates applicants who wish to be adoptive parents. CHS, at the request of the Department, investigated Petitioner. Gary Tomblin, Ph.D., is the program supervisor for CHS and he conducted a thorough investigation into the facts and circumstances surrounding the application of Petitioner.

5. Petitioner told Dr. Tomblin on two occasions that she didn't think that the Department should have taken the children from her granddaughter, and subsequently from her daughter. She also told this on one occasion to Waysharda Mosley, an employee of the Department who is charged with the responsibility for

   children in foster homes, and A. W. I, A. W. II, and A. W. III, in particular.

6. Petitioner's belief that the treatment of the children by her granddaughter and daughter was permissible, in the face of substantial evidence to the contrary, indicates that she is not as concerned as she should be for the physical well-being of her great-granddaughters.

7. Dr. Tomblin made visits to Petitioner on July 20, 25, and 26, 2001, and August 3, 13, and 21, 2001. The purpose of these visits was to determine if Petitioner would be able to meet the physical, emotional, social, and financial needs of the children. Initially, Petitioner cooperated with Dr. Tomblin but by August 21, 2001, she became uncooperative.

8. Petitioner objected to providing Dr. Tomblin with some of the background information he requested. She refused to provide him with required medical information and refused to provide a release so that her medical records could be obtained. She refused to provide information with regard to her former husbands. She did not identify a back-up caregiver who could take care of the children in the event Petitioner became ill or died.

9. Efforts by Dr. Tomblin to identify a back-up caregiver failed. Although Petitioner provided the names of two potential caregivers, a daughter and granddaughter, who are not the

   grandmother or mother of the children, the evidence provided with regard to their enthusiasm for these duties was unpersuasive.

10. Petitioner has a daughter, Carrie, who is currently living with her. Carrie was born in 1959 and is profoundly mentally retarded. Carrie has a history of emotional outbursts and has on occasion been physically violent.

11. Carrie is a large woman who could be dangerous to herself and others should she have a tantrum. That this is true was evidenced during the hearing when a recess had to be called because of an explosive outburst by Carrie, who was observing the proceedings.

12. So long as Carrie is living with Petitioner she would present a danger to the children. Attempts by the Department to move Carrie to a home where she could receive professional care may eventually remove this disqualifying fact.

13. Petitioner lives in a three-bedroom, one bath, 1008 square-foot apartment in a large apartment complex. This facility is too small for two grown women and three young children. The furnishings are inadequate. The neighborhood was observed to have a population of unsupervised children who could be a danger to A. W. I, A. W. II, and A. W. III.

    CONCLUSIONS OF LAW

    
    

14. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this

    proceeding pursuant to Sections 120.569 and 120.57(1), Florida Statutes, and Rule 65C-16.008, Florida Administrative Code.

15. Chapter 39, Florida Statutes, provides for the termination of parental rights. Section 39.812(1), Florida Statutes, provides that the Department, subsequent to being awarded custody by a court, may become a party to any proceeding for the legal adoption of the child, and may consent to the adoption.

16. The burden of proof is on the party asserting the affirmative of an issue before an administrative tribunal, Florida Department of Transportation v. J.W.C. Company, Inc., 396 So. 2d 778 (Fla. 1st DCA 1981). Therefore, Petitioner has the burden of proving her fitness as an adoptive parent of the children by a preponderance of the evidence. Section 120.57(1)(j), Florida Statutes.

17. Rule 65C-16.001(17), Florida Administrative Code, defines the suitability of intended placement of a child for adoption as including:

    [T]he fitness of the intended placement with primary consideration given to the welfare of the child and the fitness and capabilities of the adoptive parents to function as parents for a particular child.

    
    

18. Rule 65C-16.005, Florida Administrative Code, provides guidance to the Department as it carries out its duty to ensure

    that the persons to be adopted are properly placed. The rule provides in part as follows:

    65C-16.005 Adoption Placement -- Evaluation of Applicants.

    
    

    * * *

    
    

    (5) Criteria Used in the Evaluation of Applicants. The prioritization given different factors shall be documented in the record of the assessment of the adoptive family and shall be provided to the court before the final adoption hearing or within

    90 days following the prospective family's initial petition for adoption. No one factor shall be given greater weight than any other, but each factor must be weighed to provide a placement which meets all of the child's needs as an individual and furthers the child's best interests. Where choices are made between prospective adoptive families, the prioritization of factors used to make that placement decision must be expressly stated in the documented record. Matching a child with an adoptive family involves the consideration of many issues. The criteria listed in this section establish policy to assist staff in making adoption placement decisions. These criteria cannot substitute for the judgment of staff and must be used in conjunction with a thorough assessment of the adoptive environment and the extent to which it can best meet the individual needs of a child and his or her sibling group.

    
    

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

    
    

    * * *

    
    

    1. Applicants with previous child rearing experience who exhibit the energy, physical

       stamina, and life expectancy which would allow them to raise the child to adulthood and the applicants have a demonstrated history of having provided consistent financial support to other minor children, either birth or adopted;

       
       

    2. 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. Unmarried couples living together in a sexually cohabitating relationship will not be considered by the department as adoptive parents.

       
       

    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.

    
    

    * * *

    
    

    1. Health. As with a potential adoptive child, applicants will be required to fully disclose health history, current health status, including any condition that is progressive and debilitating in its course, and any past and current treatment and services received for such condition regarding themselves and each member of the household. This information will be obtained through the use of HRS-CF 1910, July 1994,

       Authorization for Release of Health and Medical Information for Prospective Foster and Adoptive Parents which is incorporated by reference. The physical, mental and emotional health of the prospective adoptive household must not jeopardize the safety and permanency of the child's placement and will be considered in determining the best interest of the child.

       
       

    2. Other Children in the Family. When families have children by birth or adoption, it is necessary to ascertain that the parents have the capacity, stamina, physical accommodation, and desire to extend parenthood to another child and to work out any problems that might occur as a result of the introduction of another child into the family. Interviews with the children must be conducted to determine their attitudes regarding placement of a child. If such children express negative attitudes about the adoption, the parents and the counselor must decide together if the negative attitudes expressed mitigate against adoption by the parents at this time, or if it is simple fear, misunderstanding or sibling rivalry which can be resolved within the family setting.

    
    

19. As noted in Rule 65C-16.001(17), Florida Administrative Code, in determining the appropriateness of a particular adoption, the primary concern is the welfare of the child. Rule 65C-16.005(6), Florida Administrative Code, emphasizes that the best interests of the child is the paramount concern in making an adoptive placement. In order to ensure the welfare of the child, the Department must consider the fitness and capabilities of the adoptive parent.

20. To be sure, Petitioner, because she is the great- grandmother of the children, has an important interest in being the adoptive mother of the children. However, Petitioner's interest is not so substantial that it outweighs the negative factors present in this case, such as the uncertainty of her health, the unsuitable nature of her living quarters, and the potential danger of maintaining the children in the same household as Carrie. Accordingly, it is not in the best interest of the children that they become adopted by Petitioner.

RECOMMENDATION

Based upon the Findings of Fact and Conclusions of Law, it

is

RECOMMENDED

That a final order be entered finding that Petitioner is not

eligible to be the adoptive parent of A. W. I, A. W. II, and

A. W. III.

DONE AND ENTERED this 1st day of May, 2002, in Tallahassee, Leon County, Florida.

HARRY L. HOOPER

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 1st day of May, 2002.

COPIES FURNISHED:

Lucy Goddard, Esquire Department of Children and

Family Services

Post Office Box 390, Mail Stop 3 Gainesville, Florida 32602

Lucille Hills

3101 Northeast 15th Street Apartment H-63

Gainesville, Florida 32609

Peggy Sanford, Agency Clerk

Department of Children and Family Services Building 2, Room 204B

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

Josie Tomayo, General Counsel

Department of Children and Family Services Building 2, Room 204B

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.

Docket for Case No: 02-000402

Orders for Case No: 02-000402