In re: The Adoption of K.A.G., 2014 WL 7331269 (Fla. 5th DCA)

Paternal grandmother and Father appeal the trial court’s judgment dismissing Grandmother’s petition to adopt K.A.G.

Father was charged with killing his child’s mother and was incarcerated awaiting trial. The Department of Children and Families (department) began dependency proceedings, placed the child with his aunt and petitioned to terminate Father’s parental rights. Concurrently, Grandmother petitioned the court to adopt the child with Father’s executed written consent pursuant to Florida Statute § 63.087. Aunt filed a counter-petition to adopt and later moved to intervene in Grandmother’s adoption proceeding. Both were denied by the trial court. The trial court excluded the department and the guardian ad litem from the courtroom and heard testimony from the Grandmother and the Aunt. The trial court dismissed Grandmother’s petition.

In its findings, the trial court found that Father consented to adoption and subsequent placement with Grandmother. The court stated that it could not consider the same evidence and factors in Grandmother’s adoption proceedings as it would in the dependency matter. The court felt it had to determine whether Grandmother was fit and proper without determining whether adoption by Grandmother was in the child’s best interest. Finally, the court found it was not able to appoint a guardian ad litem in the adoption proceedings and was not presented any evidence from mental health professionals regarding the impact adoption would have on the child’s mental or emotional state. The trial court found “no reasonable explanation as to why the adoption proceeding should be considered without requiring inclusion of such pertinent information and such key participants.”

Both Grandmother and Father moved for a rehearing. Grandmother argued that because Father chose her to adopt the child, the court’s best interest analysis should have been limited to only whether she was appropriate, fit and able to protect the child’s well-being. Father argued that the court should have examined whether his consent was valid by clear and convincing evidence and then whether adoption by Grandmother was in the child’s best interest by a preponderance of the evidence. Father argued that the court cannot interfere with a parent’s ability to make decisions on how to rear their children absent harm to the children and that all those individuals interested in the child agreed that adoption as a goal was in the child’s best interest.

Florida Statute § 63.087(3) provides for the adoption by relatives without the filing of a separate petition for termination of parental rights proceeding the adoption. The termination and adoption are handled in the same proceeding. When the court is presented a petition filed under this statute, as Grandmother’s petition was so filed, the court must first determine by clear and convincing evidence whether the parent executed a valid consent. After a determination is made as to the validity of consent, then the trial court must determine whether adoption by the petitioner is in the best interest by a preponderance of the evidence. In the instant case, the trial court failed to determine whether Father’s consent was valid and erroneously required Grandmother to prove by clear and convincing evidence rather than by a preponderance of the evidence whether adoption served the child’s best interest. The Fifth DCA accordingly reversed and remanded the matter for further proceedings.

The Fifth DCA addressed several other issues that may occur on reconsideration. First the Fifth DCA disagreed with the trial court’s finding that it could not appoint a guardian ad litem in the adoption proceeding, citing to Florida Statute § 63.022(4)(k) and Simms v. State, Dept of Health & Rehabilitative Servs. , 641 So.2d 957 (Fla. 3d DCA 1994). Second, the Fifth DCA agreed that Father’s consent to terminate his parental rights was conditioned on Grandmother adopting the child. If the trial court decides that adoption by Grandmother is not in the child’s best interest, Father’s consent to terminate his rights should be deemed withdrawn. Third, the Fifth DCA recognized the trial court’s concern that it was not able to consider the same evidence in the adoption proceeding as it would in a dependency proceeding. The Fifth DCA pointed to the recent adoption of Florida Family Law Rule of Procedure 12.003, which allows the court to consider as many issues as practical in adoption and dependency matters and to conduct joint hearings in related cases.

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