Dept. of Children and Family Servs. v. Ps

932 So. 2d 1195
CourtDistrict Court of Appeal of Florida
DecidedJuly 3, 2006
Docket1D05-4421
StatusPublished
Cited by6 cases

This text of 932 So. 2d 1195 (Dept. of Children and Family Servs. v. Ps) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dept. of Children and Family Servs. v. Ps, 932 So. 2d 1195 (Fla. Ct. App. 2006).

Opinion

932 So.2d 1195 (2006)

DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Appellant,
v.
P.S.: In the Interest of C.S., G.S. and M.S., Appellee.

No. 1D05-4421.

District Court of Appeal of Florida, First District.

July 3, 2006.

*1197 Joann M. Humburg, Attorney Supervisor, Lake City, for Appellant.

Donald K. Rudser, Jasper, for Appellee.

BROWNING, J.

The Florida Department of Children & Family Services (Department) appeals the circuit court's final judgment of adoption, which allowed the minor children, C.S., G.S., and M.S., to be adopted by their paternal grandmother, P.S. (formerly known as P.C.). The Department contends that the trial court reversibly erred in allowing an out-of-state relative to adopt these children (whose parental rights previously had been terminated) without statutory findings and a favorable preliminary adoptive home study being done and filed with the petition for adoption. Having determined that the trial court misconstrued and misapplied the pertinent statutes in granting the paternal grandmother's petition for adoption, we reverse the final judgment of adoption and remand for further proceedings consistent with the opinions expressed herein.

FACTS

In August 2003, while dependency proceedings were ongoing in Suwannee County, Florida, pursuant to chapter 39, Florida Statutes (2003), the three children were placed in the physical care and custody of their paternal grandparents and have continuously remained with them. When the grandparents and the three children moved to Georgia, the Department (as required by law) requested an Interstate Compact for the Placement of Children (ICPC) home study. On August 21, 2003, the Department filed the State of Georgia's response to the Department's request for a home study. The Georgia Department of Human Resources' response neither "approved" nor "disapproved" the paternal grandmother as a permanent placement option. Instead, the Georgia Department stated:

At this time all we can recommend is that [the paternal grandmother] be considered as a placement resource for [the three grandchildren], but due to concerns with [the paternal grandmother's] stability we cannot approve change of custody or assignment of guardianship for these children. We request a minimum 6 month supervisory period in order to monitor this placement and assure that stability will be maintained.

Subsequently, the three children's parents signed voluntary surrenders, and their parental rights were terminated. See § 39.811, Fla. Stat. (2003). On June 7, 2004, the children were committed by court order to the Department's permanent custody for purposes of adoption. See §§ 39.622 & 39.812, Fla. Stat. (2004). In mid-2004, the Georgia Department voiced "many concerns" about the children's safety and welfare, supported by specific written allegations, which were reported to the trial court in Florida. Given these ongoing concerns, and pursuant to the request of the Georgia family service workers (sent through the Florida office of the ICPC), the Department asked the trial court to remove the children from the paternal grandmother's custody. Specifically, the Department presented the court *1198 with documentation, notes, and testimony of the Georgia case workers expressing their serious concerns.

On August 30, 2004, the trial court denied the request to remove the children, terminated the Department's protective supervision of them, and left the children in the long-term custody of the paternal grandmother in Georgia.[1]

On April 12, 2005, the paternal grandmother filed a petition to adopt the three children, supported by her affidavit, based on the termination of the children's parental rights. The paternal grandmother did not file a preliminary favorable adoptive home study with her petition for adoption. The only home evaluation conducted on the paternal grandmother and the three children was the previously mentioned one, which was tentative at best. No adoptive home study had been sought or conducted. At the hearing on the petition for adoption, the Department was made a party to the adoption proceedings. The Department presented oral and written objections to the trial court's granting the petition where proper statutory procedures had not been followed.

On June 15, 2005, the trial court sua sponte entered a "Corrected Order Terminating Parental Rights," which did not alter its ruling terminating the parental rights under chapter 39, but "revoked" the language permanently committing the three children to the Department for purposes of subsequent adoption, and reaffirmed the previous placement of the children in the long-term relative custody of their paternal grandmother.

On July 12, 2005, the trial court entered an order "granting" the adoption; a final judgment of adoption was entered subsequently. The Department moved for a rehearing, requested that the trial court require the paternal grandmother to obtain a favorable preliminary adoptive home study before the adoption was granted, and asked the court to stay the children's adoption until the home study could be reviewed by the Department and by the court. The trial court denied rehearing but agreed to stay the adoption pending the Department's filing this direct appeal.

LAW

We have de novo review of issues involving the interpretation of statutes. See Dep't of Revenue v. Lockheed Martin Corp., 905 So.2d 1017, 1020 (Fla. 1st DCA 2005). The starting point in determining what procedures are to be followed under Florida law relating to post-termination adoptions is section 63.037, Florida Statutes (2005), which states:

63.037 Proceedings applicable to cases resulting from a termination of parental rights under chapter 39.
A case in which a minor becomes available for adoption after the parental rights of each parent have been terminated by a judgment entered pursuant to chapter 39 shall be governed by s. 39.812 and this chapter. Adoption proceedings initiated under chapter 39 are exempt from the following provisions of this chapter: disclosure requirements for the adoption entity provided in s. 63.085; general provisions governing termination of parental rights pending adoption provided in s. 63.087; notice and service provisions governing termination of parental rights pending adoption provided in s. 63.088; and procedures for terminating parental rights pending adoption provided in s. 63.089.

The children's parental rights were terminated by judgment entered pursuant to chapter 39, Florida Statutes. Thus, by the *1199 express terms of section 63.037, Florida Statutes, this case "shall be governed by s. 39.812 and this chapter [63]." Another provision in chapter 63, Florida Statutes, addresses persons required to consent to adoption. The statutory language is as follows:

63.062 Persons required to consent to adoption; affidavit of nonpaternity; waiver of venue. —
* * *
(7) If parental rights to 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. The consent of the department shall be waived upon a determination by the court that such consent is being unreasonably withheld, provided that the petitioner has filed with the court a favorable preliminary adoptive home study performed by a licensed child-placing agency, a child-caring agency registered under s.

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Bluebook (online)
932 So. 2d 1195, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dept-of-children-and-family-servs-v-ps-fladistctapp-2006.