STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

U. J., )

)

Petitioner, )

)

vs. ) Case No. 03-0071

)

DEPARTMENT OF CHILDREN AND )

FAMILY SERVICES, )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case by video teleconference on April 3, 2003, with the parties appearing from West Palm Beach, Florida, before J. D. Parrish, a designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: U. J., pro se

(Address of Record)

For Respondent: Laurence Scher, Esquire

Acting Chief District Legal Counsel Department of Children and Family

Services

111 South Sapodilla Avenue Suite 201

West Palm Beach, Florida 33401 STATEMENT OF THE ISSUE

Whether the Petitioner's request to adopt her grandchildren should be approved.

PRELIMINARY STATEMENT

On October 23, 2002, the Respondent, Department of Children and Family Services (Respondent or Department), issued a letter advising the Petitioner, U. J., that her application to adopt her grandchildren (M. H., T. S., T. S., and T. S.) had been denied. The basis for the denial was the Adoption Review Committee's belief that the Petitioner is not able to provide appropriate parenting for the children. More specifically, the letter outlined ten concerns related to the Petitioner's ability to provide an appropriate environment for the minor children.

By an undated letter, the Petitioner contested the denial and requested an opportunity to "make the true facts known." Thereafter the matter was transferred to the Division of Administrative Hearings for formal proceedings.

At the hearing the Respondent presented testimony from Darlene Levy, the director of program operation for the Children's Home Society; Mary Bosco, a program administrator employed by the Respondent who served on the Adoption Review Committee; and Barbara Barr, the guardian ad litem for the minor children. The Respondent's Exhibits 1-3 were admitted into evidence. The Petitioner testified in her own behalf and offered testimony from Dashica Davis, Tanika Miller, and Patricia Brady.

A transcript of the proceedings has not been filed. The Respondent filed a Proposed Recommended Order on April 7, 2003, that has been considered in the preparation of this order. The Petitioner did not file a proposed order.

FINDINGS OF FACT

1. The Petitioner is a resident of Palm Beach County, Florida, and is the biological grandmother of the children she sought to adopt. The Petitioner and the grandchildren are identified by their initials in this order to ensure confidentiality in the matter.

2. The Respondent is the state agency charged with the responsibility of reviewing adoptions for children within their jurisdiction. It is not disputed that the Respondent, by law, was required to review the instant adoption application.

3. In April 2002, the Respondent contracted with the Children's Home Society for services in connection with adoption proceedings. The subject matter of this case was one of the adoption applications transferred at that time.

4. Accordingly, Mary Bosco and Darlene Levy worked together to review the Petitioner's application and to form an Adoption Review Committee to make a recommendation regarding the instant matter.

5. The Adoption Review Committee met on more than one occasion to consider the facts regarding this Petitioner's ability to parent the four grandchildren.

6. The case worker assigned to this matter raised several concerns that were fully investigated and reviewed. Among those concerns was the fact that the Petitioner's legal husband has a lengthy criminal record, including drug-related offenses.

7. Further, Petitioner's husband was charged with cruelty toward a child and is prohibited from having unsupervised contact with his own children.

8. Additionally, the Petitioner is not able to control the home environment as her extended family comes and goes from the residence.

9. The Petitioner is also ill equipped to deal with the medical and educational needs of the children. The Petitioner's children did not perform well in school and the absenteeism and/or tardy rate for the grandchildren is unacceptable. The Petitioner has not demonstrated any improvement where education is concerned. The Petitioner has not followed up on tutoring or therapy for the grandchildren.

10. Finally, neither the Petitioner nor her spouse has a strong employment history to demonstrate financial stability for the home.

11. Despite several efforts to explain the home environment issues to the Petitioner, as well as a court- ordered participation in a program called "Family Builders," the Petitioner has not demonstrated significant improvement in any of the areas of concern identified by caseworkers and the guardian ad litem.

12. The Petitioner has allowed transient houseguests to reside within the home and to assist with the children.

13. On or about September 23, 2002, the Adoption Review Committee met for its final review of the instant application. At that time the committee determined it would not be in the children's best interests to allow the Petitioner to adopt them.

14. The Petitioner has presented no credible evidence to refute the findings reached by the Adoption Review Committee. Such findings (set forth in Respondent's Exhibit 1 and supported by the testimony of Respondent's witnesses) are adopted by reference.

15. It is undisputed that the Petitioner genuinely loves her grandchildren. Moreover, it is accepted that the Petitioner would do her best to provide a stable home for the children. Unfortunately, based upon the Petitioner's track record to date, it is unlikely the Petitioner will be able to provide the parenting and environment these children require.

    This finding is supported by the fact that all of the children are doing better academically since they were removed from Petitioner's home. Further, all of the children are in better health according to their guardian ad litem. Thus it must be concluded that the home environment offered by the Petitioner was inadequate to meet the needs of these children.

    CONCLUSIONS OF LAW

    
    

16. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of these proceedings. Section 120.57, Florida Statutes.

17. Rule 65C-16.005, Florida Administrative Code, provides in pertinent part:

    1. 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.

       
       

    2. A social study which involves careful observation and evaluation is made of the child and adoptive applicants prior to the placing of a child in an adoptive home. The study of the child and the adoption homestudy, including the group or individual preparation of the adoptive family, are a part of this process. The aim of this evaluation is to select families who will be able to meet the ongoing and dynamic physical, emotional, social, and financial needs of a child placed in their home in order to safeguard the child from further loss and separation of primary caretakers. The study may be

       done in a group setting, individually, or a combination of the two.

       
       

    3. Matching a child with an adoptive family involves the consideration of many issues. This section of the rule provides guidelines to assist staff who are responsible for making adoption placement decisions. These guidelines cannot substitute for the judgment of staff and must be used in conjunction with a thorough assessment of the adoptive environment.

       The following potential adoptive families should be considered in making adoptive placement decisions:

       
       

       1. Relatives of the child to be adopted;

          * * *

          1. 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.

             
             

          2. The best interest of the child is the paramount concern in making an adoptive placement decision…[Factors to be considered]

          
          

          * * *

          
          

          (c) The ability and willingness of the adoptive family to promote and encourage the child's education and fulfillment of potential as an individual;

          
          

          * * *

          
          

          1. Income. The family must have income and resources to assure financial stability and security to meet expenses incurred in adequate care of the family. While a family's income must meet the needs of its current members, a family interested in a special needs child must not be precluded from consideration if the availability of an adoption subsidy would enable them to adopt a special needs child. Management of current income and the ability to plan for future changes in income so that the child's social, physical and financial needs will be met, are as important as the amount of income.

          2. Housing and Neighborhood. Housing

          and neighborhoods must provide adequate space and the living conditions necessary to promote health, safety, and well-being of the family.

          
          

          * * *

          
          

          (k) 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. . .

18. The Petitioner bears the burden of proof in this matter to establish that she is entitled to approval of her application for adoption. She has failed to meet that burden. In contrast, the Respondent has demonstrated credible and substantial facts supporting the denial of the instant application. The Petitioner's inconsistent efforts to obtain tutoring, require proper school attendance, maintain a stable home environment, exclude improper influences, and provide financial support all document the inappropriateness of this proposal.

19. No one doubts that this Petitioner loves the grandchildren. Love alone, however, does not demonstrate adequate parenting skills or ability. The Respondent must consider the needs of these children. In reaching the conclusion of denial the Department has appropriately considered the factors outlined by the Adoption Review Committee and applied that information to the law. The Petitioner may continue visitation with the grandchildren but unless and until she can demonstrate a consistent stability and a modicum of understanding regarding the needs of these children her application to adopt cannot be approved.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and

Family Services enter a Final Order denying the Petitioner's application for adoption of the grandchildren.

DONE AND ENTERED this 1st day of May, 2003, in Tallahassee, Leon County, Florida.

___________________________________

J. D. PARRISH 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, 2003.

COPIES FURNISHED:

Paul Flounlacker, Agency Clerk Department of Children and

Family Services

1317 Winewood Boulevard Building 2, Room 204B

Tallahassee, Florida 32399-0700

Josie Tomayo, General Counsel Department of Children and

Family Services

1317 Winewood Boulevard

Building 1, Room 202

Tallahassee, Florida 32399-0700

Laurence Scher, Esquire

Acting Chief District Legal Counsel Department of Children and Family Services

111 South Sapodilla Avenue Suite 201

West Palm Beach, Florida 33401

U. J.

(Address of Record)

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: 03-000071

Orders for Case No: 03-000071