03-000071 Uniadella Johnson vs. Department Of Children And Family Services Status: Closed Recommended Order on Thursday, May 1, 2003.

Summary: Petitioner failed to demonstrate she is able to provide a healthy, stable environment for the children she seeks to adopt.

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 Petitione r: 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, 20 02, 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 environm ent 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 Bar r, 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 wi th 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 th e 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

stron g 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 abou t 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 t hat 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 i n 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 f amilies 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 a doptive

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 rul e 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:

(a) Relatives of the child to be

adopted;

* * *

(5) Criteria Used in the Evaluation of

Applicants. The prioritization given

different factors shall be docu mented 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

f actors 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 an d 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]

* * *

(c) The ability and willingness of

the adoptive family to promote and

encourage the child's education and

fulfillment of potential as an individual;

* * *

(h) 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.

(i) 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 l oves 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 F amily 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.