STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RONALD JOSEPH GIBSON AND REBECCA ANNE GIBSON,

Petitioners,

vs.

DEPARTMENT OF CHILDREN AND FAMILY SERVICES,

Respondent.

)

)

)

)

) Case No. 02-1348

)

)

)

)

)

)

RECOMMENDED ORDER

Notice was provided, and a formal hearing was held on June 6, 2002, in Shalimar, Florida, and conducted by Harry L. Hooper, Administrative Law Judge with the Division of Administrative Hearings.

APPEARANCES

For Petitioners: Ronald and Rebecca Gibson, pro se

195 Homestead Street Niceville, Florida 32578

For Respondent: Rick Cserep, Esquire

Department of Children and Family Services

160 Governmental Center, Suite 601 Pensacola, Florida 32501

STATEMENT OF THE ISSUE

Whether Petitioners should be approved as adoptive parents.

PRELIMINARY STATEMENT

Sometime prior to March 4, 2002, Petitioners Rebecca and Joseph Gibson, husband and wife, (the Gibsons), applied to the Department of Children and Family Services (Department), to be adoptive parents. In a letter dated March 4, 2002, the Department informed the Gibsons that their application was denied based on Rule 65C-16.005(6)(j), Florida Administrative Code, which provides, "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."

On March 18, 2002, the Gibsons filed a request for administrative hearing. The request was forwarded to the Division of Administrative Hearings and filed on April 4, 2002. The matter was set for hearing on June 6, 2002, in Shalimar, Florida, and was heard as scheduled.

The Gibsons offered six exhibits, of which two were received into evidence. The Gibsons offered the testimony of Shirley Guthrie, Janice MacNichol, Joe Skelly, Jamie

Washburn, and Judy Welch. Additionally, both Ronald Gibson and Rebecca Gibson testified.

The Department offered five exhibits which were admitted into evidence. The Department offered the testimony of Constance Aldridge, Sally Lee Townsend, and Kathy Guy.

A Transcript was filed on June 14, 2002. Proposed Recommended Orders were timely filed by both parties and considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. The Gibsons are husband and wife and are residents of Niceville, Florida. It is their desire to adopt a special needs child. Neither Gibson is a parent of natural children.

2. The Department, in accordance with Chapters 39, 63, and 409, Florida Statutes, is the agency which is tasked with determining the eligibility of persons who apply to become adoptive parents in Florida.

3. Constance Aldridge is an adoption worker and family services counselor for the Department. She has worked at that position for seven years. She has a degree in social work.

4. Ms. Aldridge testified that special needs children test boundaries in an attempt to determine the permanency of their residence in the adoptive home. Special needs children are apt to cause extensive turmoil as they work through this process.

5. Ms. Aldridge participated in the adoption review committee. She voted to deny the Gibsons' application because special needs children cause great stress on the adoptive household and she did not believe the Gibsons could cope with it.

6. Sally Lee Townsend is a supervisor with the Department and has worked with the Department since 1992. She has been supervising adoptions since 2000. She works specifically with special needs adoptions. She testified that special needs children are those that are hard to place because they are older, or have medical, mental health, emotional problems, or are African-American or biracial.

7. Ms. Townsend reviewed the Gibsons' application. She had concerns about the mental health history of the applicants as well as a history of sexual abuse in the case of Ms. Gibson.

8. Special needs children typically have been through the foster care system and have experienced multiple moves and when they get to the point that they are going to be adopted they are anticipating that the placement will be permanent. If the children are placed, and then the placement is terminated, they may suffer attachment disorders and multiple mental health problems.

9. Kathi Guy works for the Department in the family safety office. She is a family services program specialist. She has held this job for two and one-half years. She has worked for the Department for a total of 20 years.

10. Ms. Guy reviewed the entire file with regard to the Gibsons' application. She felt the Gibsons had a multitude of

    issues which would disqualify them as adoptive parents of a special needs child. She chaired the adoption review committee.

11. The adoption review committee recommended denial of the Gibsons' application because Ms. Gibson has a long mental health history including five inpatient treatments, has suffered from depression and a bi-polar disorder, and has a history of being on the receiving end of sexual abuse from more than one abuser. Moreover, the adoption review committee found that Mr. Gibson had a history of refusing to take medication for his mental problems.

12. Shirley Guthrie has known Ms. Gibson since 1971. She helped raise Ms. Gibson. Although she doesn't know much about Mr. Gibson, a few years ago she did not believe Ms. Gibson would be a good parent but she believes Ms. Gibson would be a good parent now.

13. Janice MacNichol has known Ms. Gibson for 31 years and has known Mr. Gibson for four years. She sees the Gibsons almost every day. She is aware that Ms. Gibson has been diagnosed with depression but doesn't think that would prevent her from being a good adoptive parent of special needs children. Ms. MacNichol has three children with medical problems and

    Ms. Gibson has helped raise them.

    
    

14. Ms. MacNichol has worked as a teacher's assistant with learning impaired, emotionally impaired, and physically impaired

    children for ten to 15 years. She believes that Ms. Gibson would be a good parent to special needs children.

15. Joe Skelly is a licensed psychotherapist in the State of Florida and is in private practice in Mary Esther, Florida, for nine years. He has worked as a clinical therapist for Brideway, which is a community mental health agency. He was accepted as an expert witness in the mental health field.

16. Ms. Gibson was in psychotherapy with Mr. Skelly beginning in 1990 or 1991 and he continues to provide her therapy. He opined that Ms. Gibson had a personality disorder and depression but that currently she no longer meets the diagnostic criteria for a personality disorder. He opined that her depression was under control.

17. Mr. Skelly noted that Ms. Gibson was very open to professional help. He observed that Ms. Gibson had been a victim of sexual abuse but thought that did not mean that she would be a sexual abuser herself. He observed that her attitude toward children is very nurturing.

18. Mr. Skelly also knows Mr. Gibson and believes he is one of the kindest men he has ever met; she believes that the two compliment each other. He is aware that Mr. Gibson has attention deficit disorder but he does not believe that would interfere with his ability to take care of children.

19. However, Mr. Skelly opined that stress could affect Ms. Gibson's mental health status.

20. Mr. Skelly provided marital counseling to the Gibsons four or five years ago. Marital problems arose because Mr. Gibson had lived with his parents until he married, and Ms. Gibson had lived alone for a long time. They still have some unresolved marital issues.

21. Mr. Skelly noted that Ms. Gibson had been hospitalized for depression on several occasions. Generally, when she felt that her depression was getting to the point that she might execute a suicidal threat she would contact Mr. Skelly and he would have her hospitalized.

22. Mr. Skelly has observed Ms. Gibson with children and he believes she would never become physically aggressive with a child. All of the testimony of Mr. Skelly is taken as accurate.

23. Jamie Washburn has four children and her husband has six children of which she is the stepmother. The Gibsons have cared for the children on a number of occasions.

24. Ms. Washburn noted that the Gibsons are very calm with the children and are very loving. She said that the Gibsons have a solid marriage. She is aware that Ms. Gibson has been diagnosed with depression, but she feels that does not affect the care she gives to the children.

25. Judy Welch has been friends with the Gibsons for about six years. She was a registered nurse for ten years. She met Ms. Gibson when they were both in a treatment program. She has seen the Gibsons interact with children and described them as being loving and caring. She believes the Gibsons would be excellent adoptive parents for special needs children.

26. Ms. Gibson testified that she has had many children in her care. She stated that she has suffered several stressful situations in her life but that she now has control of her life. She testified she could take care of a child with minor disabilities but could not handle a child with severe disabilities. She would not attempt to take a child with a severe handicap.

27. Ms. Gibson had been sexually abused by several people over a long period of time. This abuse continued even when she was an adult. Her brother was one of the perpetrators of the abuse, although she still maintains a relationship with her brother.

28. Ms. Gibson testified that she has been diagnosed with a personality disorder and depression. On two occasions subsequent to her marriage she has committed herself to a hospital for the treatment of mental illness.

29. Ms. Gibson stated that she could not really control her depression. She stated that when she experiences stress she finds it necessary to commit herself to a hospital.

30. Ms. Gibson stated that she would like to adopt a child under the age of five years.

31. Mr. Gibson testified that he and his wife could not have children. He said he and Ms. Gibson decided that they had reached the point where, "We can handle a child." He noted that the first two years of their marriage were rough but that through the use of therapy they have learned a lot. He admits to being co-dependent for a while but he has learned to adjust and become more independent.

32. Mr. Gibson testified that he had a "pre-diagnosis" of attention deficit hyperactivity disorder (ADHD). He was given medicine to control it but he said it was too strong for him. It caused intense hyperactivity and he couldn't sleep.

    CONCLUSIONS OF LAW

    
    

33. 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.

34. 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, Petitioners have the burden of proving their fitness to be adoptive parents by a preponderance of the evidence. Section 120.57(1)(j), Florida Statutes.

35. 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.

    
    

36. Rule 65C-16.005, Florida Administrative Code, provides guidance to the Department as it carries out its duty to ensure that persons to be adopted are properly placed. The rule provides in part as follows:

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

    
    

    * * *

    
    

    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 in making adoptive placement decisions include:

       
       

       * * *

       
       

       (j) 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.

37. Section 409.166, Florida Statutes, provides as follows:

    409.166. Special needs children; subsidized adoption program

    
    

    * * *

    
    

    1. Definitions.--As used in this section, the term:

       1. "Special needs child" means a child whose permanent custody has been awarded to the department or to a licensed child- placing agency and

          1. Who has established significant emotional ties with his or her foster parents; or

          2. Is not likely to be adopted because he or she is:

             1. Eight years of age or older;

             2. Mentally retarded;

             3. Physically or emotionally handicapped;

             4. Of black or racially mixed parentage; or

             5. A member of a sibling group of any age, provided two or more members of a sibling group remain together for purposes of adoption.

       2. "Department" means the Department of Children and Family Services.

       3. "Subsidy" means special services or money payments.

       
       

    2. Administration of program.--

    1. The department shall establish and administer an adoption program for special needs children to be carried out by the department or by contract with a licensed child-placing agency. The program shall attempt to increase the number of persons seeking to adopt special needs children and the number of adoption placements and shall extend subsidies and services, when needed, to the adopting parents of a special needs child.

       
       

    2. Authorization for subsidized adoption placement is to be granted only when all other resources available to place the child in question have been thoroughly explored and when it can be clearly established that this is the most acceptable plan for providing permanent placement for the child. Adoption subsidy will not be used as a substitute for adoptive parent recruitment or as an inducement to adopt a child who might be placed through nonsubsidized means. It shall be the policy of the department that no child be denied adoption when subsidy would make adoption possible. The best interest of the child shall be the deciding factor in every case. Nothing contained herein shall prohibit foster parents from applying to adopt a special needs child placed in their care.

    
    

38. Rule 65C-16.005, Florida Administrative Code, provides as follows:

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

    * * *

    
    

    (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;

    2. Foster parents of the child to be adopted; and

    3. Other persons who want to adopt a child.

39. The Gibsons' desire to adopt a special needs child is admirable. However, the Respondent's staff, after a thorough inquiry, has found them to be unqualified due to the Gibsons' questionable mental health troubles. The findings of the staff are not dispositive of the issue; however, their findings have great weight. Additionally, it is found as a fact that the Gibsons are not currently suitable to be adoptive parents because the likelihood of recurring mental health problems is such that it is probable, that if a special needs child were placed with them, the placement would ultimately be unsuccessful. An unsuccessful placement would cause unnecessary mental trauma to the adoptive child.

RECOMMENDATION

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

is

RECOMMENDED that a final order be entered which finds

Petitioners unqualified to be adoptive parents.

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

COPIES FURNISHED:

Ronald Joseph Gibson Rebecca Anne Gibson

195 Homestead Street Niceville, Florida 32578

Rick Cserep, Esquire Department of Children and

Family Services

160 Governmental Center, Suite 601 Pensacola, Florida 32501

Katherine A. Kearney, Secretary Department of Children and

Family Services

1317 Winewood Boulevard

Building 1, Room 202

Tallahassee, Florida 32399-0700

Josie Tomayo, General Counsel Department of Children and

Family Services

1317 Winewood Boulevard

Building 1, Room 204

Tallahassee, Florida 32399-0700

Paul F. Flounlacker, Jr., Agency Clerk Department of Children and

Family Services

1317 Winewood Boulevard Building 1, Room 204B 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: 02-001348

Orders for Case No: 02-001348