STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LARRY RICHARDS AND LINDA RICHARDS,

Petitioners,

vs.

DEPARTMENT OF CHILDREN AND FAMILY SERVICES,

Respondent.

)

)

)

)

)

) Case No. 01-2838

)

)

)

)

)

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was conducted on December 14, 2001, by video teleconference between West Palm Beach and Tallahassee, Florida, before Claude B. Arrington, a duly-designated Administrative Law Judge of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Amy U. Hickman, Esquire

1903 South Congress Avenue, Suite 420 Boynton Beach, Florida 33426

For Respondent: Colleen Farnsworth, Esquire

Terry Verduin, Esquire Department of Children and

Family Services

111 South Sapodilla Avenue, Suite 201 West Palm Beach, Florida 33401

STATEMENT OF THE ISSUES

Whether the Division of Administrative Hearings has jurisdiction over this matter.

Whether Petitioners applied to adopt the two young granddaughters of Petitioner Linda Richards and, if so, whether Respondent failed to appropriately consider that application.

Whether Respondent's counselors had the duty to advise Petitioners as to their legal rights pertaining to the adoption of the two children and whether they failed to perform that duty.

PRELIMINARY STATEMENT

At the final hearing, both Petitioners testified and they presented the additional testimony of Cheryl Lynn Crane (a mental health counselor). Petitioners offered 12 sequentially numbered exhibits, each of which was admitted into evidence.

Respondent presented the testimony of Margaret Kwiatkowski (a protective services supervisor), Nadine Sindelar (a family services supervisor), Charlotte Law (a guardian ad litem), Holly Plank (a family services supervisor), and Nancy Bent Wilkins (a family services counselor). Ms. Bent Wilkins testified by late- filed deposition. Respondent presented sequentially numbered Exhibits 1-34. Respondent’s Exhibits 1-30 and 34 were admitted into evidence. Respondent’s Exhibit 31 was not offered into

evidence, Respondent’s Exhibit 32 was rejected, and Respondent’s Exhibit 33 was offered and subsequently withdrawn.

No transcript of the proceedings has been filed. Each party filed a Proposed Recommended Order, which has been duly- considered by the undersigned in the preparation of this Recommended Order.

FINDINGS OF FACT

1. Petitioners are married. Petitioner Linda Richards is the paternal grandmother of B. T., a female born May 2, 1997, and of M. E. W., a female born August 13, 1998. Although B. T. and M. E. W. have different last names, they are sisters.

2. On August 25, 2000, the parents of the two children executed in open court affidavits of surrender and consent for termination of their respective parental rights to the minor children under Section 39.806(1)(a), Florida Statutes. By Order signed and dated October 3, 2000, the Honorable Moses J. Baker, Circuit Judge in and for Palm Beach County, Florida, terminated the parental rights of the parents and placed the children in the permanent care and custody of Respondent for subsequent adoption. Judge Baker ordered Respondent to provide a plan for permanency for the children and ordered that a hearing be scheduled within 30 days.

3. Petitioners had taken care of the children for much of their lives, and the children were in their custody when the

   rights of the parents were terminated. The children resided in the legal and physical custody of Petitioners from January 13, 1999, to February 17, 2001.

4. When the children's case was transferred to Respondent's adoption unit, Petitioners were suitable candidates for their adoption, and their application for adoption would have received priority over other applications.1 Respondent evaluated the home and found it suitable when the children were initially placed there.

5. On November 29, 2000, Nancy Bent (Wilkins), a family services counselor, requested certain information from Petitioners. Petitioner Linda Richards wrote Ms. Bent the following letter in response:

   We are the grandparents to [sic] [the two children]. I filled out the papers you sent to me. We are not willing to adopt the children to a family we have not first met and agreed to. The children are very important to us and we are seeking an open adoption2 with a family in California. I was told by Nadine Sindelar that you have been advised of that. The children are doing very well. They are well adjusted. They are very happy. They live in an affluent neighborhood and have all the amenities and social pleasures that go along with a family that earns over $130,000 a year. We want to keep their life style similar to that which they now have. We want to remain in some contact with the children after they are adopted. If this is not a possibility or if this cannot be guaranteed then we would like to proceed with the adoption ourselves.

6. Petitioners thereafter worked with Respondent in trying to have the children adopted by a couple in California. After they learned that the California couple had recently adopted another child, Petitioners and Respondent’s counselors agreed that other arrangements should be made for the permanent placement of the children.

7. Petitioners maintained as their goal the adoption of the children to younger individuals within the parameters set forth in Ms. Richards’ letter to Ms. Bent.

8. After the California couple was eliminated, Petitioners expressed concern that the adoptive process was moving too slowly and pressured Respondent to find alternative placement for the children.

9. Thereafter, Respondent found a local couple who wanted to adopt the children and who met the Respondent's criteria for adoptive parents. The match staffing for Respondent’s selection of an adoptive family was held on December 21, 2000. Petitioners were kept advised of this process and that the local couple had been selected to become the adoptive parents.

10. The local couple selected by Respondent to be the adoptive parents expressed a willingness to have an open adoption. Initially, Petitioners expressed pleasure with Respondent’s selection of adoptive parents for the children, they made repeat visits to the prospective adoptive home, and

    made multiple deliveries of the children’s clothes and other belongings to the prospective adoptive home.

11. In the beginning of February 2001, discussions began between Respondent’s counselors and Petitioners about the transfer timing to the adoptive home. It was at this juncture that Petitioners began to second-guess the prospective adoption, primarily because they were concerned that the adoption was proceeding too rapidly for a smooth transition and because they were concerned about the prospective adoptive parents willingness to permit Petitioners to be involved in the children’s post-adoptive lives. Petitioners expressed an interest in challenging the proposed adoption of the children with their own petition to adopt.

12. On February 13, 2001, Petitioners filed a Petition for Adoption and Injunctive Relief in Circuit Court in Palm Beach County. By their Petition, Petitioners sought to adopt the two children and to enjoin the proposed adoption by the couple selected by Respondent.

13. Petitioners delivered the children to the proposed adoptive family on February 17, 2001. Respondent did not forcibly remove the children from Petitioners.

14. At no time prior to their filing a petition in Circuit Court for the adoption of the children did Petitioners

    unequivocally express to Respondent their desire to adopt the children.

15. At no time did Respondent’s counselors tell Petitioners that an open adoption could be guaranteed.

16. Once the selection of the proposed adoptive parents was made, Respondent ceased to consider any additional proposals for the permanent placement of the children.

17. Because the children were committed to the custody of Respondent for adoption, Respondent's consent to any adoption is required. Respondent has not consented to the adoption of these children by Petitioners.

18. Respondent has not evaluated Petitioners as prospective adoptive parents for the two children because they never applied to adopt the children prior to filing their petition in Circuit Court.

19. On July 18, 2001, Judge Baker entered an order dismissing the petition filed by Petitioners. At the time of the final hearing in this proceeding, that final judgment of dismissal was on appeal to the Fourth District Court of Appeal.

20. Petitioners failed to establish that Respondent's counselors misled them in any way or failed to provide them accurate information in response to any inquiry. Petitioners also failed to establish that Respondent's counselors were required to explain Petitioners' legal rights to them.

    CONCLUSIONS OF LAW

    
    

21. This proceeding should be dismissed. Chapter 39, Florida Statutes, provides for the termination of parental rights of children and the placement of those children in the custody of Respondent for subsequent adoption. Chapter 63, Florida Statutes, the Florida Adoption Act, provides for the adoption of children. The Division of Administrative Hearings has no jurisdiction to adjudicate issues arising under the provisions of Chapter 39 or under the provisions of Chapter 63, Florida Statutes. The Circuit Courts of Florida have exclusive jurisdiction of those matters, subject to a party's right to appeal.

22. Assuming, arguendo, that the Division of Administrative Hearings has jurisdiction to determine the limited issues raised in this proceeding, the instant proceeding should still be dismissed. Petitioners have the burden of proving by a preponderance of the evidence their allegations that Respondent's counselors breached a duty to advise them of their administrative rights as they pertain to the adoption of

B. T. and M. E. W. or that they breached a duty to consider Petitioners as applicants to adopt the children. Florida Department of Transportation v. J. W. C. Co., 396 So. 2d 778 (Fla. 1st DCA 1981). As reflected by the findings of fact, Petitioners failed to prove those allegations.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of Law, it is RECOMMENDED that Respondent enter a final order dismissing this proceeding.

DONE AND ENTERED this 14th day of February, 2002, in Tallahassee, Leon County, Florida.

CLAUDE B. ARRINGTON

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 14th day of February, 2002.

ENDNOTES

1/ Section 65C-16.002(2), Florida Administrative Code, provides, in pertinent part, as follows:

(2) Relative Placements. It is the policy of this state and of the department's adoption program that relatives must be explored as placement possibilities for children who cannot live with their parents and that except where a child's needs cannot be adequately and safely served, relatives are the placement of choice. Grandparents with whom a child has lived for at least six months must be notified that their grandchild is being considered for adoption as specified in s. 63.0425, F.S. Such grandparents must be afforded the opportunity to petition for the child's adoption, and the court is required to give

first priority to that petition. Although the possibility of relatives as placement resources should have been thoroughly explored by protective investigations or foster care long before adoption planning is initiated, adoption staff must assure that such explorations were made and that there are, indeed, no available relatives willing to take the child.

2/ An open adoption is where the child knows he or she has been adopted and has contact with members of his or her natural family. In a closed adoption, the natural family has no further contact with the child after he or she has been adopted.

COPIES FURNISHED:

Colleen Farnsworth, Esquire Terry Verduin, Esquire Department of Children and

Family Services

111 South Sapodilla Avenue Suite 201

West Palm Beach, Florida 33401

Amy U. Hickman, Esquire 1903 South Congress Avenue Suite 420

Boynton Beach, Florida 33426

Larry Richards Linda Richards 1512 Donald Road

Jupiter, Florida 33469

Peggy Sanford, 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 2, Room 204

Tallahassee, Florida 32399-0700

Kathleen A. Kearney, Secretary Department of Children and

Family Services

1317 Winewood Boulevard

Building 1, Room 202

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.

1 Section 65C-16.002(2), Florida Administrative Code, provides, in pertinent part, as follows:

(2) Relative Placements. It is the policy of this state and of the department's adoption program that relatives must be explored as placement possibilities for children who cannot live with their parents and that except where a child's needs cannot be adequately and safely served, relatives are the placement of choice. Grandparents with whom a child has lived for at least six months must be notified that their grandchild is being considered for adoption as specified in s. 63.0425, F.S. Such grandparents must be afforded the opportunity to petition for the child's adoption, and the court is required to give first priority to that petition. Although the possibility of relatives as placement resources should have been thoroughly explored by protective investigations or foster care long before adoption planning is initiated, adoption staff must assure that such explorations were made and that there are, indeed, no available relatives willing to take the child.

2 An open adoption is where the child knows he or she has been adopted and has contact with members of his or her natural family. In a closed adoption, the natural family has no further contact with the child after he or she has been adopted.

Docket for Case No: 01-002838

Orders for Case No: 01-002838