Gs v. Tb

985 So. 2d 978, 33 Fla. L. Weekly Supp. 325, 2008 Fla. LEXIS 1243
CourtSupreme Court of Florida
DecidedMay 22, 2008
DocketSC07-2370
StatusPublished

This text of 985 So. 2d 978 (Gs v. Tb) is published on Counsel Stack Legal Research, covering Supreme Court of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gs v. Tb, 985 So. 2d 978, 33 Fla. L. Weekly Supp. 325, 2008 Fla. LEXIS 1243 (Fla. 2008).

Opinion

985 So.2d 978 (2008)

G.S., et al., Petitioners,
v.
T.B., et al., Respondents.

No. SC07-2370.

Supreme Court of Florida.

May 22, 2008.
Rehearing Denied June 30, 2008.

*979 Bryan Scott Gowdy and John Stewart Mills of Mills and Creed, P.A., Jacksonville, FL, for Petitioner.

William S. Graessle of William S. Graessle, P.A., Jacksonville, FL, for Respondent.

Michael Ufferman, Tallahassee, FL, and Alan Isaac Mishael, Miami, FL, on behalf of The Florida Adoption Council, as Amicus Curiae.

WELLS, J.

This case is before the Court for review of the decision of the First District Court of Appeal in G.S. v. T.B., 969 So.2d 1049 (Fla. 1st DCA 2007). In its decision, the district court ruled upon the following question, which the court certified to be of great public importance:

DOES A TRIAL COURT ABUSE ITS DISCRETION GRANTED BY CHAPTER 63, FLORIDA STATUTES, WHEN IT DENIES AN ADOPTION PETITION FILED BY THE ORPHANED CHILD'S MATERNAL GRANDPARENTS, WHO ARE DEEMED TO BE FIT PROSPECTIVE PARENTS, BASED ON THE COURT'S DETERMINATION THAT DENYING THE PETITION IS IN THE CHILD'S BEST INTEREST FOR ENSURING THE PATERNAL GRANDPARENTS' INVOLVEMENT IN THE CHILD'S LIFE?

Id. at 1054 (on motion to certify questions of great public importance). We have jurisdiction. *980 See art. V, § 3(b)(4), Fla. Const.

FACTS

This case concerns the denial of an adoption of two minor children: I.S. and C.S. (hereinafter "the children"). Both of the children's natural parents are deceased. The children's mother died shortly after C.S. was born. Following the mother's death, the children stayed much of the time in the home of the maternal grandfather and his wife. This lasted for approximately four months until the father was able to arrange for a suitable daycare. Thereafter, the father died in an automobile accident. At the time of the father's death, the children were ages two years and one year. Upon the father's death, the children immediately moved into the maternal grandfather's home, where he and his wife provided the children's primary care. During this period, the children's paternal grandmother and her husband stayed in regular contact with the children and visited with the children primarily at the maternal grandfather's home.

Soon after the father's death, the maternal grandfather and his wife filed a petition for adoption. On the day following the filing of the adoption petition, the paternal grandmother filed a petition to have the court appoint her as guardian of the children. The paternal grandmother asserted that, under the circumstances, guardianship was preferable to adoption because the court would retain jurisdiction over the guardian and could ensure that the children would maintain a relationship with both the maternal and paternal grandparents and could ensure that the children's best interests were served. The trial court consolidated the adoption and the guardianship cases, ordered the parties to mediation, and later appointed a child custody evaluator.

The paternal grandmother filed a motion to set specific visitation or placement of the children with her, alleging that the maternal grandfather had physically taken control of the children without any legal authority; petitioned for adoption in an attempt to cut off her right to see the children; and frustrated her attempts in arranging visitation, outright refusing any contact between the children and the paternal grandmother during the holidays. In response to this motion, the court granted visitation rights to the paternal grandmother, setting forth explicit dates and times when she could have visitation with the children.

The trial judge expressed a favorable impression of both the maternal and paternal grandparents, finding they were "fit and appropriate parties to serve as primary caregivers for these children." The court further found from the evidence that it was the wish of the children's father that in the event of his death, the children should be raised by the maternal grandfather and his wife.

During the hearing, the focus of the paternal grandmother's argument against adoption and in favor of guardianship was the contention that visitation with the children should be legally secured. She asserted that if the adoption was granted, her ability to see her grandchildren would be entirely at the discretion of the maternal grandfather. The issue of visitation by the paternal grandparents was also a major concern to the trial judge. The judge emphasized that he was struggling with the decision in this case because involvement with both sets of grandparents would be beneficial to the children, and he was concerned as to how to ensure continued visitation with the children's paternal grandparents if the adoption was granted:

[THE COURT:] However, in light of what took place, I think it was the preference *981 of ... the father of the children, that [the maternal grandfather and his wife] raise these children primarily. So the Court desires the children being raised in their household which they've basically been in now for about two and a half years since their mother died.
I'm cognizant of the other issues that we're all concerned with so give me a solution that takes care of the position. Put your brains to work. Otherwise, I'm going to have to just do an adoption and hope for the best.
MR. THOMPSON: Do an adoption? So you're leaning towards an adoption, I guess.
THE COURT: I'm leaning—no. Whether you call it a guardianship or not, the kids are not going to know. They're not going to know the difference. They're just going to be living in a place, and they're going to be—
MR. THOMPSON: Sure.
THE COURT: So I'm trying to keep the children in the home which I think is the preference of their father in this case. It was his intention after the mom died and that they pretty much have had the hands-on raising these children for the last two years, but I want the assurance that—not only [the paternal grandmother], but [the paternal grandfather] as well that there will still be a relationship, an ongoing relationship with all, you know, all the blood relatives, primarily [the paternal grandparents].
The only way I can do that is if you work out maybe they're guardians of the property and da, da, da, da, da, or he does some affidavit that consents to that portion of the adoption knowing full well their rights and they're willing to waive it and permit these other parties under these unique circumstances and blah, blah, blah.

After the hearing, the trial court issued an order holding that it was in the children's best interests to "enjoy the love, affection and involvement of all of their grandparents in their lives, no matter who maintains their primary residence." In re Adoption of I.S. & C.S., No. 16-2005-DR-2737-FM (Fla. 4th Cir. Ct. order filed Sept. 15, 2006) at 2. The court denied the petition for adoption of the maternal grandfather and his wife and denied in part the paternal grandmother's petition for guardianship. The judge ordered that the children remain in the primary care and custody of the maternal grandfather and his wife. The maternal grandfather's wife was appointed as the guardian of the person of the children. The paternal grandmother and her husband were appointed as guardians of the property for the children and were permitted to have liberal and frequent visitation with them.

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G.S. v. T.B.
985 So. 2d 978 (Supreme Court of Florida, 2008)

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Bluebook (online)
985 So. 2d 978, 33 Fla. L. Weekly Supp. 325, 2008 Fla. LEXIS 1243, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gs-v-tb-fla-2008.