14-002066 Silvia Brooks| S. B. vs. Department Of Children And Families Status: Closed Recommended Order on Thursday, June 26, 2014.

Summary: Petitioner failed to demonstrate that she meets the minimum standards to adopt a minor child.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

**,

Petitioner,

vs. Case No. 14 - 2066

DEPARTMENT OF CHILDREN AND

FAMILIES,

Respondent.

_______________________________/

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case on

June 13, 2014, via video teleconference in Tampa and Tallahassee,

Florida, before Lynne A. Quimby - Pennock, an Administrative Law

Judge of the Division of Administrative Hearings (Division).

APPEARANCES

For Petitioner: **, pro se

( Address of Record )

For Respondent: Deanne Cherisse Fields, Esquire

Department of Children and Families

Suite 900

9393 North Florida Avenue

Tampa, Florid a 33612

STATEMENT OF THE ISSUE

The issue in this case is whether Petitioner Ó s application

to adopt a minor child should be denied because it is in the best

interest of the child.

PRELIMINARY STATEMENT

Petitioner was notified by letter dated March 19, 20 14, that

her request to be considered as an adoptive parent for the minor

child had been denied by Respondent, Department of Children and

Families. The Regional Adoption Applicant Review Committee

(AARC) provided the following factors as the basis for den ying

Petitioner Ó s application:

1. A pattern of child/abuse reports and

criminal charges you Ó ve been involved in

since 1990 for which you do not appear to

have accepted responsibility, increasing the

likelihood of reoccurrence;

2. You are currently on f elony probation for

Fraudulent Use of Credit Card, Grand Theft

that occurred on November 20, 2010 and you

have been violated three times, the most

recent violation was on January 4, 2014;

3. There is a concern for the home

environment, cleanliness and a pattern of

unstable housing which does not provide

needed stability for [the minor child];

4. Your financial stability is a concern as

your monthly income is $808 in disability

benefits which is currently supplemented by

one of your young adult daughters who is

living in the home; however, she may be

leaving the home with her son;

5. You have significant health issues

including congestive heart failure, diabetes,

high blood pressure and a bulging disc,

affecting mobility and attending to a ten

month old baby; and

6. You are legally married and have been

separated from your husband for the past 20

years.

Petitioner timely filed a request for an administrative

hearing with Respondent. On May 6, 2014, Respondent referred the

case to the Division for assi gnment of an Administrative Law

Judge. The case was noticed for hearing on June 13, 2014, and it

was concluded on that date.

At the final hearing, Petitioner testified on her own behalf

and called Aulena Maria Clement, Vanessa Ransom, and Alfreda

Robinso n as witnesses . Petitioner did not offer any exhibits.

Respondent presented the testimony of Phyllis Ho - Zuhars, Peggy

Niermann, Emily Perez, Lesa Sims, and Anita Spofford. Respondent

offered Exhibits A through F and H through L, which were admitted

into evidence without objection. Petitioner objected to

Respondent Ó s Composite Exhibit G, pages 1 and 2, as her name was

not listed on the Ð CLERK Ó S CERTIFICATE OF DISPOSITION Ñ

(Certificate). Respondent was allowed 10 days to provide proof

that the individual identified on the Certificate was, in fact,

Petitioner. To date, no such proof has been provided. 1/

Respondent Ó s Composite Exhibit G, pages 1 and 2 , are rejected ;

Respondent Ó s Composite Exhibit G, pages 3 and 4 , are admitted.

A court reporter was present during the hearing ; however , no

transcript was ordered. P roposed recommended orders (PROs) were

to be filed by the close of business on Monday,

June 23, 2014. Petitioner filed a two - page letter on June 23,

2014. To the extent that the letter contained new testimony or

evidence, not subject to cross - examination, that information has

not been considered. Respondent timely filed its PRO. 2/ Both

parties Ó filings have been considered in the preparation of this

Recommended Order.

FINDING S OF FACT

1. Respo ndent , in accordance with chapters 39 , 63, and 409

Florida Statutes (2013), 3/ is the agency tasked with, among other

things, the responsibility to den y or approv e adoption

applications.

2. The minor child was born in May 2013 and placed in

Petitioner Ó s ho me in that same month. 4/ At all times relevant to

this case, the minor child Ó s biological parents were unable or

unwilling to take responsibility for their child. Termination of

parental rights was completed in October 2013. Petitioner is the

minor chil d Ó s step - grandmother.

3. Petitioner filed an application to adopt the minor child

on November 25, 2013, listing her address as 4203 E ast Hanna

Ave nue , Tampa, Florida. A home study, which is an assessment of

the potential adoptive parent Ó s home environmen t, parental

capacity to support the child and the relationships with

individuals both inside and outside the home of the potential

adoptive parent , must be conducted prior to an adoption. On

November 26, 2013, the home study was conducted at the Hanna

Ave nue address. Several areas of concern were noted in the home

study ; the home was cluttered and dirty with soiled dishes in the

sink and fast food bags and wrappers throughout the home .

4. On February 11, 2014, the AARC met to review

Petitioner Ó s applicat ion to adopt the minor child. Petitioner

was present at the A ARC meeting. The following concerns were

expressed during the A ARC meeting: Petitioner Ó s monthly expenses

far exceed her income; Petitioner has a criminal history and is

currently on probation for the last offense, and served 10 days

in jail in January 2014 without telling Respondent where she was

and who was attending the minor child; Petitioner has significant

health issues including congestive heart failure, diabetes, high

blood pressure and a bulging disc in her back; Petitioner is

legally married but has been separated from her husband for over

20 years without any knowledge of whether her husband is alive or

dead; and there have been multiple abuse reports, although some

indicators of abus e were not substantiated. Additionally,

Petitioner has moved from the residence where the home study was

conducted in November. That move to a different address

invalidated the home study and another home study would have to

be conducted to evaluate Peti tioner Ó s current living situation.

5. Petitioner Ó s expenses, as she detailed, fa r exceed her

income. Petitioner receives approximately $820 a month in

income, yet her living expenses include $800 rent, $150 in

utility services, and $50 for water. Curren tly , Petitioner Ó s two

daughters and their children (each daughter has a child) live

with her in a three - bedroom home. Petitioner has her own

bedroom. Each daughter has her own bedroom which is shared with

her child. One daughter, (B), currently works at a hotel.

Daughter B supplements Petitioner Ó s income to run the household.

However, Daughter B has indicated she wants to move out . S he has

not given a specific move date. The other daughter, (M), was

arrested in May 2014 for allegedly stealing electri city from

Tampa Electric. The charge was dropped when Daughter M paid the

electrical bill and court costs. That daughter is applying for a

job but is without an income to support herself and her child at

this time .

6. Respondent does not consider income from persons other

than the applicant in its review of potential adoptive parent Ó s

application.

7. In November 2010 Petitioner entered a plea of guilty to

allegations of fraudulent use of a credit card and grand theft.

The c ircuit c ourt in Hillsborough County withheld adjudication of

guilt, but placed Petitioner on 24 months of probation with the

requirement to re - pay the money and all mandatory court costs.

Petitioner has been arrested three times on violation of

probation (VOP) for her failure to time ly pay the costs.

Petitioner Ó s last arrest, in January 2014 resulted in a ten - day

jail term for the VOP. Although Petitioner Ó s adult daughters

were tending to the minor child, neither Petitioner nor her

daughters notified Respondent that Petitioner was n ot available

for the minor child Ó s needs. Petitioner anticipates paying the

remainder of the costs within the next few weeks when one of her

daughter s receives her income tax refund .

8. Petitioner has significant health concerns. While at

work s everal y ears ago , Petitioner sustained a back injury, a

bulging disc. She is not seeking rehabilitation for her back,

and is not planning on returning to work. Petitioner confirmed

she has a history of high blood pressure and congestive heart

failure, although s he is currently feeling well. Additionally,

Petitioner verified that she takes insulin four times a day to

control her diabetes.

9. Petitioner married D.B. on June 28, 1993 . Petitioner

has obtained the form to file for a divorce , but to date no

petition for divorce has been filed by either Petitioner or D.B.

10. Petitioner has had several reports of child abuse since

1990; however , some of those reports have been unsubstantiated.

11. Petitioner and the minor child have lived in no less

than three diffe rent homes over the past year. Petitioner

submitted her adoption application while residing at one home and

Respondent conducted the requisite home study at that location.

However, even before the AARC meeting could take place,

Petitioner had moved to an other home, thus voiding the home

study . Petitioner Ó s frequent moves do es not provide a stable

living environment for the minor child.

12. Ms. Spoff o rd has worked as a guardian ad litem (GAL)

for over three years. A GAL advocates for the best interest o f

the child and may, at times, express different advocacy positions

than the biological parents, potential adoptive parents,

caregivers or , as in this case, Petitioner . GAL Spoff o rd was

appointed as the minor child Ó s GAL approximately three weeks

after hi s birth , and she has visited with the minor child at

least once a month since that appointment. GAL Spoff o rd makes

both announced and unannounced visits to Petitioner Ó s home to

visit with the minor child.

13. As a small baby, the minor child was not mobi le, and

GAL Spoff o rd was not as concerned about his home environment.

However, the minor child is now mobile and GAL Spoff o rd has a lot

of concerns. On one particular unannounced visit , GAL Spoff o rd

was allowed into the home by a three - or four - year old c hild,

when no adult was present. 5/ GAL Spoffo rd picked up the minor

child and discovered he had a wad of paper in his mouth, which

GAL Spoff o rd removed. In this one instance alone, the

supervision of the minor child and the other young children was

inade quate. B ased on the totality of the circumstances, GAL

Spoffo rd believes it i s in the minor child Ó s best interest to be

adopted by another family.

14 . There is no dispute that Petitioner loves the minor

child. Petitioner has cared for the minor child si nce his

discharge from the hospital. Petitioner Ó s witnesses were unified

in their observations of how Petitioner loved the minor child and

looks out for his interest. Although Petitioner wants to adopt

and care for the minor child, current circumstances do not render

that a viable option.

15 . Respondent has a formidable task in ascertaining the

best interest of any child. It requires a look into the future

and a prediction of what will happen. Petitioner Ó s past

indiscretions do not lend themselves to a stable and secure

environment for the minor child. It is in the minor child Ó s best

interest to be adopted by someone other than Petitioner.

CONCLUSIONS OF LAW

16 . The Division of Administrative Hearings has

jurisdiction over the parties to and the subje ct matter of this

proceeding pursuant to sections 120.569 and 120.57, Florida

Statutes.

17 . Petitioner Ó s substantial interests will be determined

by Respondent Ó s action on her application to adopt the minor

child, and Petitioner has standing in this case.

1 8 . Petitioner is entitled to an administrative hearing to

contest Respondent Ó s decision that it is in the minor child Ó s

best interest to reject Petitioner Ó s application to adopt the

minor child. See Dep Ó t of Child. & Fam. Servs. v. I.B . & D.B. ,

891 So. 2d 1168 (Fla. 1st DCA 2005) (substantially affected

person has right to administrative hearing to change agency Ó s

mind before agency reaches final decision on approval of adoptive

home for a particular child).

19 . A request for a hearing commences a de no vo proceeding

intended to formulate agency action and not to review action

taken earlier or preliminarily. Beverly Enterprises - Fla., Inc.

v. Dep Ó t of HRS , 573 So. 2d 19, 23 (Fla. 1st DCA 1990).

Accordingly, no deference is given here to Respondent Ó s

preli minary decision to reject Petitioner Ó s application to adopt

the minor child.

2 0 . Petitioner has the burden to prove , by a preponderance

of the evidence, that it is in the best interest of the minor

child that her application to adopt the minor child be ap proved .

E.C. v. Dep Ó t of Child. & Fam. Servs. , Case No. 05 - 2618 (Fla.

DOAH Apr. 27, 2006), rejected in part , Case No. 06 - 090 (Fla. DCF

May 22, 2006). See also Fla. Dep Ó t. of Transp. v. J.W.C. Co. ,

396 So. 2d 778 (Fla. 1st DCA 1981) (party asserting the

af firmative of an issue in administrative hearing has burden of

proof); N.W. v. Dep Ó t of Child. & Fam. Servs. , 981 So. 2d 599

(Fla. 3rd DCA 2008) (findings of fact shall be based on a

preponderance of the evidence).

2 1 . Adoption proceedings are wholly stat utory in nature

since the right of adoption was unknown at common law. Hamilton

v. Beard , 490 So. 2d 1297, 1297 (Fla. 2d DCA 1986).

Section 409.145 , Florida Statutes, provides:

(1) SYSTEM OF CARE. Ï The department shall

develop, implement, and administer a

coordinated community - based system of care

for children who are found to be dependent

and their families. This system of care must

be directed toward the following goals:

* * *

(c) Reunification of families who have had

children removed from their care.

(d) Safety for children who are separated

from their families by providing alternative

emergency or longer - term parenting

arrangements.

(e) Focus on the well - being of children

through emphasis on maintaining educational

stability and providing ti mely health care.

(f) Permanency for children for whom

reunification with their families is not

possible or is not in the best interest of

the child.

2 2 . Rule 65C - 16.005 provides for the evaluation of adoption

applicants. It provides in pertinent part :

* * *

(2) A social study which involves careful

observation, screening and evaluation shall

be made of the child and adoptive applicants

prior to the placement of the child. The aim

of this evaluation is to select families who

will be able to meet the physical, emotional,

social, educational and financial needs of a

child, while safeguarding the child from

further loss and separation from primary

caretakers.

(3) In determining which applications for

adoption should be approved, all of the

followi ng criteria, not listed in any order

of priority, must be considered:

* * *

(c) The commitment of the applicant to

value, respect, appreciate, and educate the

child regarding his or her racial and ethnic

heritage and to permit the child the

opportun ity to know and appreciate that

ethnic and racial heritage;

(d) The family Ó s child rearing experience.

Applicants with previous child - rearing

experience who exhibit the energy, physical

stamina, and life expectancy which would

allow them to raise the chi ld to adulthood

and who have a demonstrated history of having

provided consistent financial support to

other minor children, either birth or

adopted, will be considered . . . .

(e) Marital Status. Applications to adopt

will be accepted from married coupl es and

from single adults. Couples married less than

two years must be given particularly careful

evaluation;

(f) Residence. Florida families must be

prepared to remain in Florida long enough to

have the adoption study completed, the child

placed, and t he adoption finalized . . . .

(g) Income. The family must have income and

resources to ensure financial stability and

security to meet expenses incurred in

adequate care of the family . . . . Management

of current income and the ability to plan for

futur e changes in income so that the child Ó s

social, physical and financial needs will be

met are as important as the amount of income;

(h) Housing and neighborhood. Housing and

neighborhoods must provide adequate space and

the living conditions necessary to promote

the health and safety of the family;

(i) Health. 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. The physical, mental and emotional

health of the prospective adoptive household

members must not jeopardize the safety and

permanency of the child Ó s placement and will

be considered in determining the best

interest of the child;

* * *

(m) All adoptive parent applicants must

disclose to the department or community based

care provider any prior or pending local,

state or national criminal proceedings in

wh ich they have been involved;

(n) All adoptive applicants must complete

the requirements for background screening as

outlined in Rule 65C - 16.007, F.A.C. . . .

2 3 . Here, Petitioner does not have a stable environment in

that she has moved three times in l ess than one year. Petitioner

does not have the means to support herself and the minor child.

Petitioner has poor health at this time. Petitioner is on

probation for criminal offenses . S he anticipates resolving those

issues in the near future but has no t yet done so. Petitioner Ó s

marital status, by rule , is an issue ( even if it alone does not

r equire disqualification ) .

2 4 . Adoption is not a right, but is a statutory privilege

that will be granted only if it is in the best interest of the

child.

2 5 . Pe titioner failed to meet her burden of proving that it

would be in the minor child Ó s best interest to be adopted by her.

Consistent with the criteria set forth in chapter 409 and the

Florida Administrative Code R ules set forth above, Petitioner Ó s

applicatio n to adopt the minor child must be denied.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Department of Children and

Families enter a final order denying Petitioner Ó s application to

adopt the minor child.

DONE AND ENTERED this 26th day of June , 2014 , in

Tallahassee, Leon County, Florida.

S

LYNNE A. QUIMBY - PENNOCK

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkwa y

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 26th day of June , 2014 .

ENDNOTE S

1/ Respondent Ó s discussion of Composite G, pages 1 a nd 2, in its

P RO at paragraph 18, is insufficient.

2/ Respondent e - filed one PRO on June 23, 2014 at 5:00 p.m. Two

additional PROs , which appear to be the same as the e - filed PRO,

were fax - filed on June 23 at 5:08 p.m. and 5:13 p.m.

3 / All statutory references are to Florida Statutes (2013),

unless otherwise indicated.

4/ The standard used to determine if a temporary placement for a

child is acceptable is less demanding than the standard used for

the permanent adoption process.

5/ Apparently an a dult was in a back bedroom but did not come

forward until GAL Spoffard sent one of the small children to find

an adult.

COPIES FURNISHED:

Deanne Cherisse Fields, Esquire

Department of Children and Families

Suite 900

9393 North Florida Avenue

Tampa, Flor ida 33612

Gregory D. Venz, Agency Clerk

Department of Children and Families

Building 2, Room 204B

1317 Winewood Boulevard

Tallahassee, Florida 32399

Petitioner

(Address of Record)

Mike Carroll, Interim Secretary

Department of Children and Families

Bu ilding 1, Room 202

1317 Winewood Boulevard

Tallahassee, Florida 32399

Rebecca Kapusta, Interim General Counsel

Department of Children and Families

Building 2, Room 204

1317 Winewood Boulevard

Tallahassee, Florida 32399

NOTICE OF RIGHT TO SUBMIT EXCEP TIONS

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.