Intervention Under F.S. 63.082(6) and

Normalcy (HB 215, 2013-21, Laws of Florida)

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Stephen Pennypacker, Esq. Deputy Director, Children’s Legal Services ICPC Deputy Director Department of Children and Families

April 26, 2013

Intervention under F.S. 63.082(6)

• What is it? • When can it occur? - Notice requirement of availability of

private placement of the child with an adoption entity

• What is required for court to grant motion to intervene?

• Once motion is granted, what happens next?

Notice Requirements for Intervention

Private Adoption Entities and the Adoption Process - Intervention in

Chapter 39 Proceeding - F.S. 63.082(6) • In all dependency proceedings, after it is determined that reunification is

not a viable alternative and prior to the filing of a petition for termination of parental rights, the court shall advise the biological parent who is a party to the case of the right to participate in a private adoption plan. F.S. 63.082(6)(g)

• At the time of filing of the petition for termination of parental rights in a

Chapter 39 (dependency) proceeding, the parents of the child will be informed by the court and DCF of the availability of placement of the child with a private adoption entity. The TPR petition must contain allegations to this effect. F.S. 39.802(4)(d)

Adoption Entity – F.S. 63.032(3)

• (3) “Adoption entity” means the department, a child-caring agency registered under s. 409.176, an intermediary, a Florida child-placing agency licensed under s. 63.202, or a child-placing agency licensed in another state which is licensed by the department to place children in the State of Florida.

Intervention - F.S. 63.082(6)

• (6)(a) If a parent executes a consent for placement of a minor with an adoption entity or qualified prospective adoptive parents and the minor child is in the custody of the department, but parental rights have not yet been terminated, the adoption consent is valid, binding, and enforceable by the court.

Intervention - F.S. 63.082(6)

• If only one parent signs a consent to adopt, is the motion to intervene sufficient?

- What is the status of the other parent (served and participating in the case, not located, undetermined)?

- Should DCF/CLS scrutinize the consent, assess the competence of the parent who executes it?

- Consent is irrevocable if child under 6 months of age, can be revoked within 3 business days if child over 6 months of age, F.S. 63.082(3)(c)

- What if one parent consents and the other objects? • Does consent have to be to the adoption entity or can it be to the

prospective adoption parent(s)? • When does motion to intervene have to be filed? Up until rendition of

TPR judgment in dependency matter (statute says “parental rights not yet been terminated”)

Intervention - F.S. 63.082(6)

• What does “in the custody of the Department” mean?

- Child in foster care? - Child placed with relatives? - What is the specific language in the last

court order determining custody? In the custody of the Department, placed

with _____? In the temporary legal custody of ____, under

the supervision of the Department?

F.S. 63.082(6)(b)

• (6)(b) Upon execution of the consent of the parent, the adoption entity shall be permitted to intervene in the dependency case as a party in interest and must provide the court that acquired jurisdiction over the minor, pursuant to the shelter or dependency petition filed by the department, a copy of the preliminary home study of the prospective adoptive parents and any other evidence of the suitability of the placement. The preliminary home study must be maintained with strictest confidentiality within the dependency court file and the department’s file.

F.S. 63.082(6)(b) (con’t.)

• A preliminary home study must be provided to the court in all cases in which an adoption entity has intervened pursuant to this section. Unless the court has concerns regarding the qualifications of the home study provider, or concerns that the home study may not be adequate to determine the best interests of the child, the home study provided by the adoption entity shall be deemed to be sufficient and no additional home study needs to be performed by the department.

Preliminary Home Study – F.S. 63.092(3)

• This statute says not required for a relative, but 63.082(6) does not exempt relatives when placement is through dependency court – it expressly states that a preliminary home study is required in all cases. (Also see F.S. 63.112(20(b) for exemption for stepparent or relative)

• Preliminary home study must: - determine the suitability of the intended adoptive parents and

may be completed prior to identification of a prospective adoptive minor

- is valid for 1 year after the date of its completion - a signed copy of the home study must be provided to the intended

adoptive parents who were the subject of the home study - a minor may not be placed in an intended adoptive home before a

favorable preliminary home study is completed unless the adoptive home is also a licensed foster home under s. 409.175.

Preliminary Home Study F.S. 63.092(3)

• The preliminary home study must include, at a minimum: (a) An interview with the intended adoptive parents; (b) Records checks of the department’s central abuse registry and

criminal records correspondence checks under s. 39.0138 through the Department of Law Enforcement on the intended adoptive parents;

(c) An assessment of the physical environment of the home; (d) A determination of the financial security of the intended adoptive

parents; (e) Documentation of counseling and education of the intended

adoptive parents on adoptive parenting; (f) Documentation that information on adoption and the adoption

process has been provided to the intended adoptive parents; (g) Documentation that information on support services available in the

community has been provided to the intended adoptive parents; and (h) A copy of each signed acknowledgment of receipt of disclosure

required by s. 63.085.

Preliminary Home Study

• If prospective adoptive placement resides in another state, ICPC compliance is required for placement

• Was home study completed in the receiving state?

• Does receiving state require licensing, MAPP training or the equivalent?

• Review state pages for the receiving state at http://icpc.aphsa.org/Home/states.asp

State Pages

F.S. 63.082(6) (con’t.)

• (c) If an adoption entity files a motion to intervene in the dependency case in accordance with this chapter, the dependency court shall promptly grant a hearing to determine whether the adoption entity has filed the required documents to be permitted to intervene and whether a change of placement of the child is appropriate.

F.S. 63.082(6) (con’t.)

• (d) Upon a determination by the court that the prospective adoptive parents are properly qualified to adopt the minor child and that the adoption appears to be in the best interests of the minor child, the court shall immediately order the transfer of custody of the minor child to the prospective adoptive parents, under the supervision of the adoption entity.

Best interest determination – F.S. 63.082(6)(e)

• (e) In determining whether the best interests of the child are served by transferring the custody of the minor child to the prospective adoptive parent selected by the parent, the court shall

- consider the rights of the parent to determine an appropriate placement for the child,

– the permanency offered, – the child’s bonding with any potential adoptive

home that the child has been residing in, – and the importance of maintaining sibling

relationships, if possible.

Best interest determination

• Look at each case individually – don’t automatically contest the intervention

• Some cases will be clear that intervention is in the child’s best interest

- early in proceeding, no adoptive home identified

- child going to be adopted into home where siblings already adopted

Best interest determination • If it is not clear that intervention is in the child’s best interest, staff

the case • If child is of sufficient age, intelligence, and maturity to express a

preference, ask him or her what they desire – work with GAL • Consider seeking a bonding assessment with the current caregiver

to include: -whether the child has ever demonstrated "attachment

difficulties“ - age of child at placement and current age of child - needs of the child and what are the future and projected

needs of child based on family and medical history • Is there likely to be a relationship with the parents? Is that

detrimental to the child?

Best Interest Determination

• Are there siblings? Where are they now? Were siblings previously adopted? Have the adoptive parents been contacted (they should be contacted at removal)?

• A transition plan may require the assistance of therapist

• Post communication or contact should be discussed and allow foster parent/relative to be considered as you would an aunt/uncle

Best interest determination

• If changing placement is not in the child’s best interest, prepare for a contested hearing

• Identify witnesses relevant to statutory criteria • Consider depositions of parent(s) and prospective

adoptive parents • Depose witnesses to be called by adoption entity • Develop a transition plan in the event the change

of placement is granted

When the court grants the change of placement – F.S. 63.082(6)(d)

• (d) Upon a determination by the court that the prospective adoptive parents are properly qualified to adopt the minor child and that the adoption appears to be in the best interests of the minor child, the court shall immediately order the transfer of custody of the minor child to the prospective adoptive parents, under the supervision of the adoption entity. The adoption entity shall thereafter provide monthly supervision reports to the department until finalization of the adoption.

When the court grants the change of placement – F.S. 63.082(6)(f)

• (f) The adoption entity shall be responsible for keeping the dependency court informed of the status of the adoption proceedings at least every 90 days from the date of the order changing placement of the child until the date of finalization of the adoption.

- Adoption entity is responsible for post-placement supervision, must provide reports to DCF

- DCF (cbc) to continue to prepare JR’s and court to continue to conduct judicial reviews until adoption finalized

When the court grants the change of placement – F.S. 63.082(6)(f)

• How long should it take for the adoption to be finalized?

• What if the prospective adoptive parent changes their mind about adopting before finalization? Does child come back into care?

• Should TPR be held in abeyance if already filed in the dependency?

• Does case plan goal remain in place?

Intervention – F.S. 63.082(6)(d)

• If the child has been determined to be dependent by the court, the department shall provide information to the prospective adoptive parents at the time they receive placement of the dependent child regarding approved parent training classes available within the community. The department shall file with the court an acknowledgment of the parent’s receipt of the information regarding approved parent training classes available within the community.

Intervention – Case Law

• S.M.A.L. v. DCF and Gift of Life Adoptions, 902 So.2d 328 (Fla. 2nd DCA 2005) – legal father objected to intervention consented to by mother and biological father.

• S.N.W., Adoption Miracles, LLC, v. S.C.W., 912 So.2d 368 (Fla. 2nd DCA 2005) – mother tried to withdraw consent, dependency court has exclusive jurisdiction over Chapter 39 proceedings.

• C.G. v. Guardian ad Litem Program, 920 So.2d 854 (Fla. 4th DCA 2006) – mother could not withdraw consent even when original placement she chose did not occur.

Intervention - Case Law

• P.K. v. DCF, 927 So.2d 131 (Fla. 5th DCA 2006) - mother’s petition to intervene using conditional surrenders

denied.

• J.T. v. DCF, Heart of Adoptions, Inc., and A.M., 947 So.2d 1212 (Fla. 2nd DCA 2007) – procedural nightmare,

good language on intent of intervention statute.

• D.T.S. v. J.M. and S.M., 33 So3d 106 (Fla. 1st DCA 2010) – - revocation of consent must comply with statute, form of

consent must comply with statute.

Normalcy • Quality Parenting for Children in Foster Care Act – HB

215, Chapter 2013-21, Laws of Florida • Signed by Governor Scott on April 11, 2013 • Effective date July 1, 2013 • Creates F.S. 39.4091 • Caregivers for children in out of home care make

decisions every day that parents make • Laws, rules, and regulations designed to safeguard

health and safety of the child have been interpreted in the past to prohibit children from participating in extra-curricular activities

Normalcy • Purpose of the law is to normalize the lives of children

in out-of-home care by empowering a caregiver to approve or disapprove a child’s participation in activities using a “reasonable and prudent parent standard”

• “Reasonable and prudent parent standard” means careful and sensible parental decisions that maintain the child’s health, safety, and best interests while encouraging emotion and developmental growth when deciding to allow a child in out of home care to participate in extracurricular, enrichment, and social activities, F.S. 39.4091(2)(c)

Normalcy

• “Caregiver” is a person with whom the child is placed in out-of-home care, or a designated official for group care facilities licensed by DCF, F.S. 39.4091(1)(b)

• “Age-appropriate” means activities or items that are generally accepted as suitable for children of the same age or maturity level. Age appropriateness is based on the development of cognitive, emotional, physical, and behavioral capacity that is typical for an age or age group, F.S. 39.4091(2)(a).

Normalcy

• Considerations for caregiver in giving permission to participate in extracurricular, enrichment, and social activities:

- child’s age, maturity, developmental level to maintain overall health and safety

- potential risk factors and appropriateness of the extracurricular, enrichment, and social activity

Normalcy • Considerations by caregiver (con’t.) - best interest of the child based on information

known to the caregiver - importance of encouraging the child’s emotional

and developmental growth - importance of providing the child with the most

family-like living experience possible - behavioral history of the child and the child’s

ability to safely participate in the proposed activity

Normalcy

• Caregiver liability: A caregiver is not liable for harm caused to

a child in care who participates in an activity approved by the caregiver, provided that the caregiver has acted as a reasonable and prudent parent. This section does not remove or limit any existing liability protection afforded by statute. F.S. 39.4091(3)(d)

Normalcy

• Goals and objectives for participation in extracurricular, enrichment, and social activities, as well as specific information on the child’s progress toward meeting those objectives, must be incorporated into the judicial review social study report and reviewed by the court at each hearing under F.S. 39.701. F.S. 409.1451(3)(a)3.

Normalcy

• Department must engage in rule-making to provide that children in care participate in normal activities in connection with the reasonable and prudent parent standard.

Questions: Can a foster parent travel out state without a

court order? What if a parent objects to a child participating in

an activity or social event? Is notice to the parent required before

participation begins?

Normalcy – Post-Disposition Change of Custody under F.S. 39.522

• If a child has been removed from one parent and placed with another parent and the removal parent seeks reunification, court must find:

- substantial compliance with the case plan - child would not be endangered by return,

and - it is in the best interest of the child to be

reunified.

Questions?

Stephen Pennypacker (352) 415-6254 or (850) 284-0611 stephen_pennypacker@dcf.state.fl.us