03-003302RX Ivar Baklid And Denise Baklid | I. B. And D. B. vs. Department Of Children And Family Services Status: Closed DOAH Final Order on Sunday, January 4, 2004.

Summary: Respondent exceeded its grant of rulemaking authority by enacting Rule 65C-008(2), which deprives prospective adoptive parents of the opportunity to challenge Respondent`s decision regarding the adoption of a particular child.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

I. B. AND D. B., )

)

Petitioners, )

)

vs. ) Case No. 03 - 3302RX

)

DEPARTMENT OF CHILDREN )

AND FAMILY SERVICES, )

)

Respondent. )

)

FINAL ORDER

A final hearing was conducted in this case on November 18,

2003, in Daytona Beach, Florida, before Suzanne F. Hood,

Administrative Law Judge with the Division of Administrative

Hearings.

APPEARANCES

For Petitioners: Richard J. D'Amico, Esquire

619 North Grandview Avenue

Daytona Beach, Florida 32118

For Respondent: George P. Beckwith, Jr., Esquire

Department of Children

and Family Services

210 North Palmetto Avenue, Suite 412

Daytona Beach, Florida 32114 - 3269

STATEMENT OF THE ISSUE

The issue is whether Florida Administrative Code Rule 65C -

16.008(2) is an invalid exercise of delegated legislative

authority be cause it exceeds Respondent's grant of rulemaking

authority.

PRELIMINARY STATEMENT

On September 15, 2003, Petitioners I.B. and D.B.

(Petitioners) filed a Petition to Challenge the Validity of

Florida Administrative Code Rule 65C - 16.008(2). Subsequently ,

the undersigned issued a Notice of Hearing by Video

Teleconference. The notice scheduled the hearing on October 17,

2003.

On September 26, 2003, Respondent Department of Children

and Family Services (Respondent) filed a Motion to Dismiss

Petition to Ch allenge the Validity of Florida Administrative

Code Rule 65C - 16.008(2). The undersigned issued an Order

Denying Motion to Dismiss on October 6, 2003.

On October 3, 2003, Respondent filed an unopposed Motion to

Continue or Reschedule Hearing in a relate d case, DOAH Case No.

03 - 1641. In subsequent telephone conversations, the parties

indicated that the motion applied to the instant case as well as

DOAH Case No. 03 - 1641. During the telephone conference, the

parties also agreed to waive the 30 - day time fr ame set forth in

Section 120.56(1)(c), Florida Statutes (2003), as it applies to

the instant case.

On October 10, 2003, the undersigned issued an Order

Granting Continuance and Re - scheduling Hearing. The Order

scheduled the hearing for November 18, 200 3.

During the hearing, neither party presented any witnesses

or offered any exhibits. Instead, the parties agreed that there

were no disputed issues of material fact.

A transcript of the proceeding was not filed with the

Division of Administrative H earings.

Petitioners and Respondent filed their Proposed Final

Orders on December 15, 2003.

FINDINGS OF FACT

1. In 2001, Petitioners requested Respondent to approve

them as adoptive parents. In July 2001, Respondent completed an

Adoption Home Study on the Petitioners and approved them as

prospective adoptive parents.

2. On October 26, 2001, Petitioners filed an application

for license to provide foster care for dependent children.

3. T.T. was born on October 26, 2001. He has been

adjudicate d dependent in accordance with Chapter 39, Florida

Statutes, since October 29, 2001.

4. On December 13, 2001, Petitioners signed an Agreement

to Provide Substitute Care for Dependent Children. T.T. began

residing in Petitioners' licensed foster home in February 2002.

5. A Florida Circuit Court terminated the parental rights

of T.T.'s biological parents on June 10, 2002.

6. Petitioners filed an application to adopt T.T. in

November 2002.

7. T.D. and J.D. are T.T.'s biological relatives from

Tennes see. They filed an application to adopt T.T. in February

2003.

8. In March 2003, Respondent approved the adoption

application submitted by T.T.'s biological relatives and denied

the adoption application submitted by Petitioners. The denial

of Petition er's application to adopt T.T. advised Petitioners

that they had a right to contest the decision by requesting an

administrative hearing pursuant to Florida Administrative Code

Rule 65C - 16.008.

9. In March 2003, Florida Administrative Code Rule 65C -

16.0 08 stated as follows:

65C - 16.008. Complaints, Dispute Resolutions

and Appeals.

(1) Adoptive applicants must be helped to

understand that the department reserves the

right to reject the application of any

applicant who does not meet its eligibility

criteria as outlined in Sections 65C - 16.005

and 10M - 8.0051, 65C - 16.006 and 65C - 16.007.

If applicants cannot be encouraged to

withdraw their application, the adoption

counselor must arrange for them to have a

conference with the supervisor. If after

this conference the family still refuses to

withdraw and wishes to pursue the matter

further, arrangement must be made within the

district to convene the district Adoptive

Applicant Review Committee as outlined in

65C - 16.005(11). If this review results in a

de cision by the district administrator that

the application will be rejected, the

applicants must be told of that decision in

writing and be advised of their judicial

option as described in the Administrative

Procedures Act, Chapter 120.68, Florida

Statutes, and of their right to a hearing

pursuant to Section 120.57, Florida Statutes,

and in the manner prescribed therein.

(2) When adoptive parents or other relevant

parties are adversely affected by other

action in this program, the above outlined

procedure s must also apply.

(3) The department will make this

information available in writing and

accessible in the waiting rooms of all

department offices.

10. On April 18, 2003, Petitioners requested an

administrative hearing to challenge Respondent's denial of their

application to adopt T.T. Respondent referred the hearing

request to the Division of Administrative Hearings on May 7,

2003. See I.B. and D.B. v. Department of Children and Family

Services , Case No. 03 - 1641 (DOAH case in abeyance pending

resolution of the instant rule challenge).

11. T.T. resided with Petitioners until he was placed in

the home of his biological relatives, T.D. and J.D. A Florida

Circuit Court Judge ordered the change in placement on or about

June 6, 2003.

12. The F lorida Circuit Court ruled that T.T. shall reside

with his biological relatives in Tennessee pending completion of

the adoption proceeding. Additionally, the Circuit Court

dismissed Petitioners' Petition for Adoption of T.T. See In the

Interest of: T.T. (a.k.a. C.M.), DOB 10/26/01 , Case No. 01 -

33109 - CJCI (Fla. 7th Cir. Ct. June 6, 2003).

13. On September 8, 2003, Respondent moved to dismiss DOAH

Case No. 03 - 1641 because an amendment to Florida Administrative

Code Rule 65C - 16.008, effective August 19, 20 03, precludes an

administrative hearing. The rule currently states as follows:

65C - 16.008 Dispute Resolutions and Appeals.

(a) When an adoptive applicant or parent is

adversely affected by a decision or action

taken by the department, or by a commun ity

based agency action for the department,

efforts should be made to settle the dispute

and the counselor/supervisor level. If this

attempt is unsuccessful, the Adoption Review

Committee will be convened as outlined in

Subsection 65C - 16.005(9), Florida

A dministrative Code. If this review results

in a decision by the district administrator

that supports the departments/agency's

original decision, the applicant or parent

must be told of that decision in writing and

advised of their judicial option as descr ibed

in the Administrative Procedures Act, Section

120.68, Florida Statutes, and of their right

to a hearing pursuant to Section 120.57,

Florida Statutes.

(2) Adoptive applicants do not have the

right to appeal the department's decision on

the selectio n of and [sic] adoptive home for

a particular child.

The only portion of the rule at issue here is Florida

Administrative Code Rule 65C - 16.008(2).

CONCLUSIONS OF LAW

14. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

proceeding. § § 120.56(1) and 120.56(3), Fla. Stat. (2003).

15. Respondent denied Petitioners' application to adopt

T.T. and seeks to rely on Florida Administrative Code Rule 65C -

16.008(2) to deny Petitioners a right to challenge that

decision. Accordingly, Petitioners have standing to challenge

the validity of the subject rule.

16. Because Petitioners are attacking an existing agency

rule, they have the burden to prove by a preponderance of the

evidence that the rule constitut es an invalid exercise of

delegated legislative authority. See Cortes v. State Board of

Regents , 655 So. 2d 132 (Fla. 1st DCA 1995).

17. Section 120.52(8), Florida Statutes (2003), reads in

pertinent part as follows:

(8) "Invalid exercise of delegated

legislative authority" means action which

goes beyond the powers, functions, and duties

delegated by the Legislature. A proposed or

existing rule is an invalid exercise of

delegated legislative authority if any one of

the following applies:

* * *

(b ) The agency has exceeded its grant of

rulemaking authority, citation to which is

required by Section 120.54(3)(a)1.;

* * *

A grant of rulemaking authority is necessary

but not sufficient to allow an agency to

adopt a rule; a specific law to be

imple mented is also required. An agency may

adopt only rules that implement or interpret

the specific powers and duties granted by the

enabling statute. No agency shall have

authority to adopt a rule only because it is

reasonably related to the purpose of the

enabling legislation and is not arbitrary and

capricious or is within the agency's class of

powers and duties, nor shall an agency have

the authority to implement statutory

provisions setting forth general legislative

intent or policy. Statutory language

granting rulemaking authority or generally

describing the powers and functions of an

agency shall be construed to extend no

further than implementing or interpreting the

specific powers and duties conferred by the

same statute.

18. Florida Administra tive Code Rule 65C - 16.008 cites the

following statutory authority: (a) Specific Authority -- Sections

120.57, 120.68, 409.026(8), and 409.145, Florida Statutes; and

(b) Law Implemented -- 120.68 and 409.145, Florida Statutes.

19. Section 120.57, Florida Sta tutes, sets forth the

procedures for administrative hearings in particular cases.

Section 120.68, Florida Statutes, sets forth the procedures for

judicial review of administrative cases. These statutes do not

provide authority for adoption of Florida Adm inistrative Code

Rule 65C - 16.008(2).

20. Section 409.026(8), Florida Statutes, does not exist.

Neither party has shown that Respondent made a scrivener's error

in listing this non - existent statute as specific authority for

Florida Administrative Code Ru le 65C - 16.008(2). It follows that

Section 409.026(8), Florida Statutes, cannot provide authority

for the rule at issue here.

21. Section 409.145, Florida Statutes, states as follows:

409.125 Care of children. --

(1) The department shall conduct,

sup ervise, and administer a program for

dependent children and their families. The

services of the department are to be

directed toward the following goals:

(a) The prevention of separation of

children from their families.

(b) The reunification of famil ies who have

had children placed in foster homes or

institutions.

(c) The permanent placement of children who

cannot be reunited with their families or

when reunification would not be in the best

interest of the child.

(d) The protection of dependent c hildren or

children alleged to be dependent, including

provision of emergency and long - term

alternate living arrangements.

(e) The transition to self - sufficiency for

older children who continue to be in foster

care as adolescents.

(2) The following dep endent children shall

be subject to the protection, care,

guidance, and supervision of the department

or any duly licensed public or private

agency:

(a) Any child who has been temporarily or

permanently taken from the custody of the

parents, custodians, or guardians in

accordance with those provisions in Chapter

39 that relate to dependent children.

(b) Any child who is in need of the

protective supervision of the department as

determined by intake or by the court in

accordance with those provisions of Chapter

39 that relate to dependent children.

(c) Any child who is voluntarily placed,

with the written consent of the parents or

guardians, in the department's foster care

program or the foster care program of a

licensed private agency.

(3) The circu it courts exercising juvenile

jurisdiction in the various counties of this

state shall cooperate with the department

and its employees in carrying out the

purposes and intent of this chapter.

(4) The department is authorized to accept

children on a perma nent placement basis by

order of a court of competent jurisdiction

for the single purpose of adoption placement

of these children. The department is

authorized to provide the necessary services

to place these children ordered to the

department on a permane nt placement basis

for adoption.

(5) Any funds appropriated by counties for

child welfare services may be matched by

state and federal funds, such funds to be

utilized by the department for the benefit

of children in those counties.

(6) Whenever any ch ild is placed under the

protection, care, and guidance of the

department or a duly licensed public or

private agency, or as soon thereafter as is

practicable, the department or agency, as

the case may be, shall endeavor to obtain

such information concernin g the family

medical history of the child and the natural

parents as is available or readily

obtainable. This information shall be kept

on file by the department or agency for

possible future use as provided in Sections

63.082 and 63.162, Florida Statutes, or as

may be otherwise provided by law.

(7) Whenever any child is placed by the

department in a shelter home, foster home,

or other residential placement, the

department shall make available to the

operator of the shelter home, foster home,

other reside ntial placement, or other

caretaker as soon thereafter as is

practicable, all relevant information

concerning the child's demographic, social,

and medical history.

22. Section 409.145, Florida Statutes, grants Respondent

very broad powers and duties rega rding the care of dependent

children. However, the statute does not provide specific

authority or a law to be implemented that is sufficient to

justify a rule prohibiting appeals of Respondent's decisions on

the selection of adoptive homes for particular children.

23. During the hearing, Respondent argued that statutes

not cited in the rule, but read together with Section 409.145,

Florida Statutes, provide the necessary legislative authority.

Respondent referred to specific additional provisions in

Cha pters 39, 63, 409, and 435, Florida Statutes.

24. For example, Respondent argued that the following

statutes in Chapter 39, Florida Statutes, are relevant here:

39.001 Purposes and intent; personnel

standards and screening. —

(1) PURPOSES OF CHAPTER. - - The purposes of

this chapter are:

* * *

(h) To ensure that permanent placement with

the biological or adoptive family is

achieved as soon as possible for every child

in foster care and that no child remains in

foster care longer than one year.

* * *

39.012 Rules for implementation. -- The

department shall adopt rules for the

efficient and effective management of all

programs, services, facilities, and

functions necessary for implementing this

chapter. . . .

39.0121 Specific rule making authority. --

Pursuant to the requirement of Section

120.536, the department is specifically

authorized to adopt, amend, and repeal

administrative rules which implement or

interpret law or policy, or describe the

procedure and practice requirements

ne cessary to implement this chapter,

including, but not limited to the following:

* * *

(12) Legal and casework procedures,

including, but not limited to, mediation,

diligent search, stipulations, consents,

surrenders, and default, with respect to

depende ncy, termination of parental rights,

adoption, guardianship, and kinship care

proceedings.

* * *

39.013 Procedures and jurisdiction; right to

counsel. --

* * *

(2) The circuit court shall have exclusive

original jurisdiction of all proceedings

unde r this chapter, of a child voluntarily

placed with a licensed child - caring agency,

a licensed child - placing agency, or the

department, and of the adoptions of children

whose parental rights have been terminated

pursuant to his chapter. Jurisdiction

attach es when the initial shelter petition,

dependency petition, or termination of

parental rights petition is filed or when a

child is taken into the custody of the

department. . . . When the court obtains

jurisdiction of any child who has been found

to be dep endent, the court shall retain

jurisdiction, unless relinquished by its

order, until the child reaches 18 years of

age.

* * *

39.812 Postdisposition relief; petition for

adoption. --

(1) If the department is given custody of a

child for subsequent adopt ion in accordance

with this chapter, the department may place

the child with an agency as defined in

Section 63.032, with a child - caring agency

registered under Section 409.176, or in a

family home for prospective subsequent

adoption. The department may t hereafter

become a party to any proceeding for the

legal adoption of the child and appear in

any court where the adoption proceeding is

pending and consent to the adoption, and

that consent alone shall in all cases be

sufficient.

* * *

(5) The petition for adoption must be filed

in the division of the circuit court which

entered the judgment terminating parental

rights, unless a motion for change of venue

is grant pursuant to Section 47.122. A copy

of the consent executed by the department as

required u nder Section 63.062(7) must be

attached to the petition. . . .

25. Respondent also argued that the following statutes in

Chapter 63, Florida Statutes, provide legislative authority:

63.022 Legislative intent. --

(1) The Legislature finds that:

(a) Th e state has a compelling interest in

providing stable and permanent homes for

adoptive children in a prompt manner, in

preventing the disruption of adoptive

placements, and in holding parents

accountable for meeting the needs of

children.

* * *

(c) Ad optive children have the right to

permanence and stability in adoptive

placements.

* * *

(2) It is the intent of the Legislature

that in every adoption, the best interest of

the child should govern and be of foremost

concern in the court's determinati on. The

court shall make a specific finding as to

the best interest of the child in accordance

with the provisions of this chapter.

* * *

63.032 Definitions. -- As used in this

chapter, the term:

* * *

(3) "Adoption entity" means the department,

an age ncy, a child - caring agency registered

under Section 409.176, an intermediary, or a

child - placing agency licensed in another

state which is qualified by the department

to place children in the State of Florida.

* * *

(7) "Court" means any circuit court of this

state and, when the context requires, the

court of any state that is empowered to

grant petitions for adoption.

* * *

63.062 Persons required to consent to

adoption; affidavit of nonpaternity; waiver

of venue. --

* * *

(7) If parental rights t o the minor have

previously been terminated, the adoption

entity with which the minor has been placed

for subsequent adoption may provide consent

to the adoption. In such case, no other

consent is required.

* * *

63.233 Rulemaking authority. -- The depa rtment

shall adopt rules pursuant to Sections

120.536(1) and 120.54, to implement the

provisions of this chapter.

26. Allowing for reference to be made to provisions not

found within the subject rule's statement of authority, there

are no statutes, colle ctively or individually, that provide

Respondent with the necessary specific legislative authority to

promulgate a procedural rule depriving prospective adoptive

parents of the right to appeal Respondent's decision on the

selection of an adoptive home for a particular child even if

that outcome results from the effect of the statutory law.

ORDER

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

ORDERED:

That Florida Administrative Code Rule 65C - 16.008(2) is an

invalid exercise of deleg ated legislative authority.

DONE AND ORDERED this 7th day of January, 2004, in

Tallahassee, Leon County, Florida.

S

SUZANNE F. HOOD

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apa lachee 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 7th day of January, 2004.

COPIES FURNISHED :

George P. B eckwith, Jr., Esquire

Department of Children

and Family Services

210 North Palmetto Avenue, Suite 412

Daytona Beach, Florida 32114 - 3269

Richard J. D’Amico, Esquire

619 North Grandview Avenue

Daytona Beach, Florida 32118

Josie Tomayo, General Counsel

Department of Children

and Family Services

1317 Winewood Boulevard

Building 2, Room 204

Tallahassee, Florida 32399 - 0700

Paul Flounlacker, Agency Clerk

Department of Children

and Family Services

Building 2, Room 204B

1317 Winewood Boulevard

Tallahass ee, Florida 32399 - 0700

Scott Boyd, Acting Executive Director

and General Counsel

Administrative Procedures Committee

Holland Building, Room 120

Tallahassee, Florida 32399 - 1300

Liz Cloud, Chief

Bureau of Administrative Code

Department of State

The Ell iott Building

Tallahassee, Florida 32399 - 0250

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this Final Order is

entitled to judicial review pursuant to Section 120.68, Florida

Statutes. Review proceedings are governed by the Florida Rules

of Appellate Procedure. Such proceedings are commenced by

filing the original notice of appeal with the Clerk of the

Division of Administrative Hearings and a copy, accompanied by

filing fees prescribed by law, with the District Court of

App eal, First District, or with the District Court of Appeal in

the Appellate District where the party resides. The notice of

appeal must be filed within 30 days of rendition of the order to

be reviewed.