B.B., In Re The Adoption of: M.E., etc. v. Department of Children and Families

In these two consolidated appeals, Appellant appeals from final orders denying
her motion to intervene in a dependency action involving her twin grandchildren and her
subsequent petition for adoption of those children, without addressing the adoption
petition on the merits. We reverse the final order dismissing the petition for adoption, and remand for an evidentiary hearing. In light of this ruling, Appellant's appeal of the
final order denying her motion to intervene is rendered moot.

I. Factual Background

Appellant is the paternal grandmother of four-year-old twins. For reasons not
connected with this appeal, the Appellee, Department of Children and Families (DCF)
sheltered the twins from their parents. While in shelter care, the twins resided in
placements other than with Appellant. Subsequently, DCF filed a motion to change
custody to Appellant, noting Appellant had been previously approved by the court to
supervise the parents' visitation with the twins, and DCF had approved Appellant as
the twins' relative custodian.

After the twins had resided with Appellant for approximately three months, DCF
informed her that the twins' father could no longer reside in her home if the twins were
to remain. DCF gave Appellant 24 hours to have her son move from her home.
DCF's ultimatum was based upon a psychological/psychosexual evaluation of the
twins' father which indicated he posed a threat to all children and should not be allowed
access to any child without completing all case plan tasks and recommendations
submitted by the evaluating psychologist. When Appellant's son failed to move within
the 24-hour deadline, DCF sheltered the twins from Appellant. C o n t r a r y t o t h e
urgency DCF felt in regard to the twins, there was apparently no urgency as to the other children which remained in her care. The record indicates that, at the time DCF
removed the twins based on the evaluation which indicated the twins' father posed a
threat to all children and should not be allowed access to any child, DCF left five of
Appellant's minor nieces and nephews in her home, and requested she provide shelter
care for an infant sibling of those children.

A. Appellant's Court-Ordered Opportunity to Adopt

Subsequently, at the termination of parental rights (TPR) trial, held under Chapter
39, the court terminated the parents' parental rights to the twins. During the trial, the
court ordered1 that a cousin, Ms. Sykes, be considered as suitable to adopt the twins
and, if she was unable or unwilling, then DCF was to give Appellant that opportunity.
Appellant's opportunity to adopt her grandchildren was to be premised on two
conditions: (1) the parents not having visitation alone with the children, and (2) the
parents moving out of the building occupied by Appellant. If those conditions were
not met, the trial court stated it would entertain a recommendation for another placement.

At the time of the court's order, the Guardian Ad Litem (GAL) sought
clarification, asking if the court had indicated it would consider Appellant as an adoptive placement. The trial court responded: "Yes, only if Ms. Sykes cannot or will
not be doing that; and only if [Appellant's son] moves out into another building and
any visitation would have to be approved by y'all, and it would have to be supervised
visitation."

DCF counsel repeated the court's ruling and made a procedural inquiry about
visitation issues. Counsel stated: "In the event that - - if it comes to pass that
[Appellant] is not willing to comply with what the Court has ordered, regarding restrict
any contact and if [Appellant's son] does not move out of the building. Does the
Court then want to reserve a ruling or make a ruling now as to whether or not
[Appellant] will have visitation rights as a grandparent?" To which the court replied it
would "reserve jurisdiction over that question until we find out what [Appellant's]
reaction is." The direct appeal of the TPR final order was affirmed. Neither DCF nor
the GAL objected at the TPR trial, nor cross-appealed the trial court's order that Appellant be given the opportunity to adopt her grandchildren.

B. Appellant's Attempts To Enforce The Order

Ms. Sykes was unable or unwilling to adopt the twins. DCF took no action to
permit or assist Appellant in obtaining custody of the twins, and even reduced her
visitation rights. Because of these facts, and the court's order granting Appellant the
opportunity to adopt her grandchildren, Appellant filed a "Motion to Intervene and Enforce Court Order" in the Chapter 39 dependency proceeding. A hearing on
Appellant's motion was conducted before a different trial judge than the one who
presided over the TPR trial. The new trial judge accepted DCF's argument that
Appellant's motion was premature. The trial judge held that, due to "the lull period"
in Chapter 39 proceedings between TPR and the filing of an adoption petition, there
were no proceedings into which Appellant could intervene. The trial court concluded
that its jurisdiction could not be invoked until an adoption petition was filed under
Chapter 63.

To invoke the trial court's jurisdiction under Chapter 63, Appellant filed an
adoption petition, and a hearing was held before the same trial judge who presided at
the hearing on Appellant's motion to intervene. At the hearing on the adoption petition,
Appellant again relied, in part, on the court order that she was to be given an
opportunity to adopt her grandchildren.

The trial court denied Appellant's adoption petition. DCF argued and the trial
court held that the court: lacked jurisdiction, because the dependency court [under
Chapter 39] has ongoing reviews and jurisdiction until the children are adopted; that
DCF had identified another adoptive home for the twins; that DCF did not consent to
Appellant's adoption of the twins and, absent DCF's consent, an adoption petition
must be denied for the reasons discussed in C.S. v. S.H., 671 So. 2d 260 (Fla. 4th DCA), rev. denied, 680 So. 2d 424 (Fla. 1996); and that Appellant had been denied
intervenor status in the dependency case. In so doing, the trial court erred.

II. Discussion

We discuss three aspects of the court's ruling: (1) its holding that it lacked
jurisdiction to consider the adoption petition; (2) its failure to recognize the import of
the TPR order granting Appellant an opportunity to adopt her grandchildren; and (3)
the deference due DCF's placement choices.

A. The Trial Court Has Continuing Jurisdiction

First, the trial court erred by concluding it lacked jurisdiction based on DCF's
arguments, which resulted in Appellant getting whipsawed without any forum in which
to be heard. The dependency court is not divested of jurisdiction after a TPR trial
simply because subsequent adoption proceedings will be conducted pursuant to
Chapter 63. See §§ 39.812(4) and 39.813, Fla. Stat. (2001). The dependency court
never loses jurisdiction after a TPR trial, and continues to retain exclusive jurisdiction
throughout the adoption process. See §§ 39.812(4) and 39.813, Fla. Stat. In fact, "a circuit court has ‘inherent and continuing jurisdiction to entertain matters pertaining to
child custody and to enter any order appropriate to a child's welfare.'" Henry & Rilla
White Found., Inc. v. Migdal, 720 So. 2d 568, 573 (Fla. 4th DCA 1998) (quoting In the
Interest of J.M., 499 So. 2d 929, 931 (Fla. 1st DCA 1986)) (emphasis added). Thus, at the hearings on both the motion to intervene and petition for adoption, the trial court
had jurisdiction to allow Appellant to participate in a meaningful way in proceedings
involving the ultimate placement of her grandchildren.

B. The Trial Court's Order

At the conclusion of the TPR trial, the trial court ordered DCF to give Appellant
the opportunity to adopt her grandchildren if a cousin could not or would not adopt
them, and if Appellant met certain conditions. Since the cousin chose not to adopt the
twins, DCF was required to give Appellant the opportunity to adopt her grandchildren
if she met the court's conditions.

If DCF believed the court order imposed inadequate conditions or was contrary
to law at the time it was entered, DCF should have objected. DCF's failure to do so
waives any objection DCF may now have. Compliance with the order is now DCF's
only option.

DCF provided no evidence that they complied with the order. Rather, DCF's
counsel stated he could provide evidence that DCF had considered and rejected
Appellant as an adoptive placement.2 DCF's rejection was apparently due to concerns that Appellant might permit her son to see the twins. Significantly, the TPR trial court
did not order that the twins' father not have visitation. The order was conditioned
upon Appellant not permitting the parents to have unsupervised visitation with the
twins, and requiring the parents to move out of the building occupied by Appellant.
Thus, even if DCF's assertions were supported by evidence, its actions would have
failed to comply with the trial court's order.

Appellant clearly had a right to be apprised of the status of the adoption
proceedings. In spite of this right, the transcript indicates DCF failed to give Appellant
any information as to the status of the adoption proceedings involving her
grandchildren, or any indication that she was being given an opportunity to adopt them.
Compliance with the court order would have required, at a minimum, that Appellant be
apprised of the status of her grandchildren's adoption proceedings, and the steps DCF
was taking to approve her as an adoptive placement.

C. Deference Due DCF

DCF argues, in essence, that because it did not consent to Appellant's adoption
of the twins, and had chosen another adoptive placement, no other factors are relevant
and the court must give unqualified deference to its placement decision. DCF
misconstrues Florida law. DCF's authority and discretion are not absolute. For
instance, the court is not precluded from placing conditions on the exercise of DCF's discretion to place the twins. See Dep't of Health & Rehab. Servs. v. Brooke, 573 So.
2d 363 (Fla. 1st DCA 1991). Nor is the trial court required to grant the adoption
petition of the non-relatives to whom DCF has consented. See L.R. v. Dep't of
Children & Families, 822 So. 2d 527 (Fla. 4th DCA 2002). The rule is that "a trial court
cannot interfere with DCF's decision to select an adoptive family ‘where [DCF's]
selection was appropriate, consonant with its policies and made in an expeditious
manner.'" Dep't of Children & Families, & M.W. & K.W. v. Adoption of B.G.J., 819
So. 2d 984, 986 (Fla. 4th DCA 2002) (quoting C.S., 671 So. at 262) (emphasis
supplied). Certainly an appropriate selection depends on the facts of a particular case, and must always be consistent with Florida law.

Therefore, it falls to the trial court to ensure that DCF's selection is appropriate
and consonant with DCF's policy. It is the law of Florida and DCF policy "that
relatives must be explored as [adoptive] placement[s]" and "relatives are the placement
of choice." Fla. Admin. Code R. 65C-16.002(2). "[DCF] adoption staff must assure
that such explorations were made and that there are, indeed, no available relatives willing
to take the child." Id.

Grandparents are given particular preference, and "[w]hen a child who has lived
with a grandparent for at least six months is placed for adoption, the adoption entity
shall notify the grandparent of the impending adoption before the petition for adoption is filed." § 63.0425(1), Fla. Stat. (2001) (emphasis added). "If the grandparent
petitions the court to adopt the child, the court shall give first priority for adoption to
that grandparent." Id. (emphasis added). Where grandparents have priority status to
adopt, they have standing to file an adoption petition or intervene in the petition filed
by non-relatives. See L.R., 822 So. 2d at 531. Here, although Appellant's
grandchildren did not live with her for six months, they did live with her for three
months. Moreover, Appellant visited with her grandchildren at every opportunity DCF
offered, and was clearly interested in providing for their welfare. These are factors
properly considered by the trial court when deciding to approve Appellant as a potential adoptive placement.

Since a legal interest sufficient to permit intervention can be created by an out-ofstate
order granting visitation rights,3 an enforceable legal interest is also created by a
court order approving Appellant as a potential adoptive placement and granting her the
opportunity to adopt her grandchildren. Thus, we conclude that, because Appellant
was a grandparent, court-approved as a potential adoptive placement, the court order
created for her the equivalent of the statutory priority of section 63.0425(1), Florida Statutes.

Clearly, DCF's choice here of a non-relative adoptive placement was neither
appropriate under the facts of this case, nor consonant with its own policy and Florida
law that relatives are the placement of choice. Thus, by failing to comply with the court
order to give Appellant an opportunity to adopt her grandchildren, and by failing to
make an appropriate placement choice consonant with their own policies, DCF failed
to meet the requirements necessary to qualify for the deference they seek.

* * *

Click the case caption above for the full text of the Court's opinion.