STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ARTHUR LEE DAY and SHEILA D. ) DAY, )

)

Petitioners, )

)

vs. ) Case No. 02-1223

)

DEPARTMENT OF CHILDREN AND )

FAMILY SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was conducted on

May 15, 2002, by video teleconference between Tallahassee and Fort Lauderdale, Florida, before Claude B. Arrington, a duly- designated Administrative Law Judge of the Division of

Administrative Hearings.

APPEARANCES

For Petitioners: Arthur Lee Day, pro se

Sheila D. Day, pro se 2736 Dewey Street

Hollywood, Florida 33020

For Respondent: Colleen Donahue, Esquire

Department of Children and Family Services

201 West Broward Boulevard

Fort Lauderdale, Florida 33301

STATEMENT OF THE ISSUE

Whether Respondent has grounds to deny Petitioners' application for adoption.

PRELIMINARY STATEMENT

Arthur Lee Day (Mr. Day) and Shelia D. Day (Mrs. Day) want to adopt the four minor children of Mrs. Day's daughter. By letter dated January 29, 2002, Respondent informed Petitioners that their application was denied based on the negative findings reflected in their respective background screenings and their failure to provide proof of rehabilitation. Petitioners timely challenged Respondent's proposed action, the matter was referred to the Division of Administrative Hearings, and this proceeding followed.

At the final hearing, Petitioners testified on their own behalf, but presented no other testimony and no exhibits.

Respondent presented the testimony of two of its employees: Karen Coppin (a Family Services Counselor) and Marianne Missi (an Adoption Specialist). Respondent presented 25 sequentially numbered exhibits, each of which was admitted into evidence.

No transcript of the proceedings was filed. Respondent filed a Proposed Recommended Order, which has been duly considered by the undersigned in the preparation of this Recommended Order. Petitioners did not file a proposed recommended order.

FINDINGS OF FACT

1. Mr. and Mrs. Day applied to adopt four minor children born to Mrs. Day's biological daughter. Mr. and Mrs. Day enrolled in and completed Respondent's training program for prospective adoptive parents generally referred to as MAPP, which is an acronym for Model Approach to Partnerships in Parenting. Prior to enrolling in MAPP, Mr. and Mrs. Day knew that they were probably not eligible to adopt because of their backgrounds.

2. Mrs. Day had five children before she attained the age of 20, including the mother of the children she seeks to adopt in this proceeding. The State of Delaware terminated Mrs. Day's parental rights to those children by a proceeding brought in that state, and placed Mrs. Day's children for adoption. After that adoption failed, there was an attempted reunification between Mrs. Day and her five children. That attempted reunification failed.

3. In 1992 a verified abuse report identified Mrs. Day as the perpetrator of abuse against one of the children she now seeks to adopt. As reflected by the abuse report, Mrs. Day's intoxication caused her to neglect the child who was in her care.

4. Mrs. Day has a long criminal history, which includes arrests for drug possession, theft, and assault.

5. Mrs. Day has a long history of alcohol and drug abuse.

   
   

   She claims to have rehabilitated herself in 1994 through Alcoholics Anonymous and through her religion.

6. Mrs. Day has been hospitalized on at least three occasions in a mental hospital for suicide attempts and self- mutilation. Mrs. Day quit taking prescribed psychotropic medication and is not presently under the care of any mental health professional. Mrs. Day refused repeated requests to provide a current psychological evaluation from a qualified mental health professional. Without such evaluation, Mrs. Day's current psychological status cannot be determined.

7. Mr. Day's criminal history includes two felony convictions for aggravated assault in 1986. Following his conviction, he was placed on probation, which he subsequently violated. Mr. Day joined the U.S. Air Force after he graduated from high school in the 1970s, where he served for six years. Mr. Day threatened to blow up an airplane while he was in the Air Force. Although Mr. Day asserts that he has an honorable discharge from the Air Force, he has not provided Respondent with proof thereof after having been requested to do so. While in the Air Force, Mr. Day began to abuse alcohol and drugs. That abuse continued until 1995. Mr. Day asserts that he has been sober since undergoing a residential treatment program

   between February 17, 1995, and May 26, 1995. Mr. Day also asserts that he has been rehabilitated through his religion.

8. Mr. Day does not know any of the children he seeks to adopt. Mr. Day had no meaningful relationship with his two biological children, who are now adults.

9. Mrs. Day has not maintained a relationship with her five children or with the four grandchildren she now seeks to adopt.

10. The children Petitioners seek to adopt have never lived with the Petitioners.

11. In a dependency proceeding brought by the State of Florida, the parental rights of Mrs. Day’s daughter for the four children were terminated. Mr. and Mrs. Day did not know about that dependency proceeding until after it was over. Consequently, they did not participate in the dependency proceeding.

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction over the subject matter parties to this case pursuant to Sections 120.569 and 120.57(1), Florida Statutes.

13. Section 63.0425, Florida Statutes, provides a priority for a grandparent who wishes to adopt his or her grandchild where the grandchild has lived with the grandparent for six months or more. Because the children at issue in this

    proceeding have never lived with Petitioners, that priority is inapplicable.

14. Pursuant to the authority conferred upon it by Section 63.233, Florida Statutes, Respondent has enacted

    Rule 65C-16.005, Florida Administrative Code, which pertains to Respondent's evaluation of applicants for adoption.

    Subsection (6)(j), provides that the Respondent shall evaluate an applicant's health, including the applicant's mental health. Subsection (6)(p) provides that the applicant must be of good moral character. Subsection (9)(j) provides that the Respondent shall consider whether the applicant has been identified as a perpetrator in a verified report of abuse. Subsection (9)(j) further requires that the Respondent consider an applicant's criminal history.

15. Section 435.045, Florida Statutes, provides, in pertinent part, as follows:

    (1)(a) . . . the department is authorized to conduct criminal records checks equivalent to the level 2 screening required in s. 435.04(1) for any person being considered by the department for placement of a child subject to a placement decision pursuant to chapter 39. Approval shall not be granted:

    1. In any case in which a record check reveals a felony conviction for child abuse, abandonment, or neglect; for spousal abuse; for a crime against children, including child pornography, or for a crime involving violence, including rape, sexual assault, or homicide but not including other physical

       assault or battery, if the department finds that a court of competent jurisdiction has determined that the felony was committed at any time; and

    2. In any case in which a record check reveals a felony conviction for physical assault, battery, or a drug-related offense, if the department finds that a court of competent jurisdiction has determined that the felony was committed within the past 5 years.

       
       

16. Mr. Day's felony convictions for aggravated assault occurred in 1986. Those convictions are not disqualifying convictions because they occurred more than five years before he applied to adopt the subject children. His criminal history, including the felony convictions for aggravated assault, may be considered in evaluating his application for adoption pursuant to Subsections 65C-16.005(6)(p) and (9)(j), Florida Administrative Code.

17. Respondent has complied with its established policies in evaluating Petitioners' application to adopt the subject children.

18. In reaching the conclusions that follow, the undersigned has considered the testimony of Petitioners that they have become active in their church and have turned their lives around. The undersigned has also considered that Petitioners' self-serving testimony is not supported by any competent proof of rehabilitation.

19. Mrs. Day's history of child abuse, her history of criminal behavior, her long history of drug and alcohol abuse, her dealings with her own children, and her questionable mental status justify Respondent's decision to deny her application to adopt these children.

20. Mr. Day's history of criminal behavior, his long history of drug and alcohol abuse, and his dealings with his own children justify Respondent's decision to deny his application to adopt these children.

21. Moreover, each Petitioner failed or refused to provide information that was necessary for Respondent to completely evaluate their applications. Mrs. Day did not provide a current mental evaluation. Mr. Day did not provide a copy of his honorable discharge from the Air Force. Those failures render the application for adoption incomplete and further justify its denial.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of Law, it is RECOMMENDED that Respondent enter a Final Order denying the subject application to adopt.

DONE AND ENTERED this 6th day of June, 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 6th day of June, 2002.

COPIES FURNISHED:

Arthur Lee Day Sheila D. Day 2736 Dewey Street

Hollywood, Florida 33020

Colleen Donahue, Esquire Department of Children and

Family Services

201 West Broward Boulevard Fort Lauderdale, Florida 33301

Paul Flounlacker, Agency Clerk Department of Children and

Family Services

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

Josie Tomayo, General Counsel Department of Children and

Family Services

1317 Winewood Boulevard, Room 204

Tallahassee, Florida 32399-0700

Kathleen A. Kearney, Secretary Department of Children and

Family Services

1317 Winewood Boulevard, 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.

Docket for Case No: 02-001223

Orders for Case No: 02-001223