DCF Interventions

DCF Interventions

DCF Interventions

Taking Children Out of State Custody for Private Adoption

When Reunification with Your Child Cannot Happen

If a child is in state custody, it is because the Department of Children and Families (“DCF”), under Chapter 39 of the Florida Statutes, has opened a dependency or termination of parental rights case on the birth parents due to suspected abuse, abandonment, or neglect. If the child is removed from the birth parents and subsequently sheltered, the child may be placed with a relative, non-relative, or in foster care.

Even if removal is necessary to safeguard a child, it does not negate the trauma that the child suffers from the sudden disruption to family life and routine. Ameliorating and healing from this trauma is accomplished through obtaining permanency for the child as soon as possible. Chapter 39 requires permanency to be accomplished within one year, though in practice it may unfortunately take longer. Florida law recognizes that, if it can be accomplished safely, the best permanency option is reunification of parent and child. If this is not possible, the second best permanency option is adoption. § 39.621(3), Fla. Stat.

DCF will often offer the birth parents a case plan, tailored to their specific situation, that will provide the birth parents a pathway to reunifying with their child. Although the primary goal in Chapter 39 is reunification of the parents and child, DCF may petition for termination of parental rights on an expedited based on certain egregious circumstances.

While many parents want to reunify with their children, the unfortunate reality is that the dire circumstances of many Chapter 39 cases sometimes make reunification (or attempting reunification) risky or improbable. If, after consultation with an attorney, a birth parent decides not to reunify, the birth parent has many options, including arranging a permanent guardianship for the child (usually with an older child who does not wish to be adopted or who is unlikely to be adopted) or executing a surrender of parental rights in favor of DCF so that the child can be adopted.

If the birth parent desires the child to be adopted, executing a surrender of parental rights in favor of DCF is not the only option. The risk and uncertainty in executing a surrender of parental rights in favor of DCF is that the birth parent has no control over the adoptive placement of the child. Although sometimes the birth parent will have a good guess as to where the child will end up (for example, if the child has been placed with grandparents the entire time and is thriving in that placement), there is no legal guarantee that the birth parent’s placement wishes will be honored. Further, because adoptive placements are statutorily confidential, there is a likelihood that the birth parent may not know where the child ended up and may not be able to receive updates on the child.

Permanency through Private Adoption

This is where DCF Intervention under Section 63.082(6), Florida Statutes comes into play. Instead of surrendering parental rights to DCF, a birth parent can choose private adoption by executing a consent to adoption in favor of an adoption entity such as Lisa Paige Glass, Esq. of Glass Law Office, P.A. By choosing private adoption, the birth parents have the ability to take their child out of state custody, select a permanent home for their child with loving adoptive parents, and arrange for post-adoption updates if so desired.

Armed with the consent to adoption of at least one parent along with an approved home study for the prospective adoptive parents, the adoption entity can intervene as a party in interest in the Chapter 39 case and ask the court to grant the private adoption. In determining whether to permit the adoption entity to initiate the proposed private adoption proceedings, the court will determine whether the prospective adoptive family is qualified to adopt the child and whether the proposed adoption is in the child’s best interest. In doing so, the court will consider the following non-exclusive statutory factors:

(f) At a hearing to determine whether it is in the best interests of a child to change placement to the prospective adoptive parents selected by the parent or adoption entity, the court shall consider and weigh all relevant factors, including, but not limited to:

1. The permanency offered by both the child’s current placement and the prospective adoptive placement selected by the parent or adoption entity;

2. The established bond between the child and the current caregiver with whom the child is residing if that placement is a prospective adoptive placement;

3. The stability of the prospective adoptive placement in which the child has been residing, which must be presumed stable if the placement meets the requirements of paragraph (e), as well as the desirability of maintaining continuity of placement;

4. The importance of maintaining sibling relationships, if possible;

5. The reasonable preferences and wishes of the child, if the court deems the child to be of sufficient maturity, understanding, and experience to express a preference;

6. Whether a petition for termination of parental rights has been filed pursuant to s. 39.806(1)(f), (g), or (h); and

7. What is best for the child.

§ 63.082(6)(f), Fla. Stat.

When a Chapter 39 case is pending, the consent to adoption must be executed within 30 days of the filing of a petition to terminate parental rights. There are two types of consents to adoption: those that identify a specific adoptive placement (“identified”) and those that do not identify a specific adoptive placement (“non-identified”). Both types of consents are valid and binding upon execution. If the child is 6 months of age or younger, the consent is irrevocable absent a showing of fraud or duress. If the child is older than 6 months of age, the consent is subject to a three-business-day revocation period, then becomes irrevocable absent a showing of fraud or duress.

With an identified consent, the birth parent gets to choose the prospective adoptive placement, which can be the child’s current caregivers or another prospective adoptive family. The consent to adoption is only effective as to that particular placement. This means that if the court decides that the identified adoptive placement is not in the child’s best interest, the consent to adoption is no longer effective because its condition (the specified placement) failed, and the Chapter 39 case would pick up where it left off. Depending on whether and when a termination of parental rights petition had been filed in the Chapter 39 case, the birth parent may or may not be able to execute a subsequent consent to adoption.

With a non-identified consent, the adoption entity has the final discretion to choose the prospective adoptive placement. Although a birth parent may still participate in selecting an adoptive family, that selection is non-binding. Practically, this means that if the court rejects the family initially selected by the adoption entity, the consent to adoption is still valid and binding, and the adoption entity would be required to select another adoptive family.

Although it makes for a smoother proceeding if both parents agree to an adoption plan, the adoption entity only requires the consent to adoption of one parent to initiate DCF intervention proceedings. The parent who does not consent to the adoption will have the opportunity to present evidence and argument to the court as to why that parent believes the adoption is not in the child’s best interest or why the prospective adoptive family is not qualified to adopt the child. If the court grants the adoption entity’s motion to transfer custody despite the non-consenting parent’s objection, then the adoption entity is authorized to initiate private adoption proceedings and, in order to be successful, must either obtain that parent’s consent or prove by clear and convincing evidence one of the grounds to terminate that parent’s rights (abandonment, neglect, or unfitness).

Minimizing Trauma through Prompt DCF Intervention

The circumstances of each DCF Intervention case are unique. It is generally recommended to initiate a DCF Intervention proceeding as soon as possible to ensure the child’s quickest path to permanency. Nevertheless, there are circumstances where the child may have been in state custody for a lengthy period prior to initiating DCF Intervention proceedings (such as if the birth parent was making concerted efforts to reunify). The longer the child is in state custody, the more difficult attaining the contemplated adoption becomes if the contemplated adoption requires the child to change physical placements.

This is because the legislature recognizes the potential for a DCF Intervention to further traumatize a child through disruption of a stable and bonded long-term placement. As such, the legislature has provided certain long-term, pre-adoptive caregivers with limited party status (meaning they can file motions and present evidence), as well as with a rebuttable presumption that the long-term placement (9 continuous months or 15 of the last 24 months) is stable and that it is in the child’s best interest to remain in that placement. In order to rebut the presumption, the adoption entity must prove by clear and convincing evidence that it is in the best interests of the child to disrupt the placement.

Because of the party status and rebuttable presumption, it is important for birth parents to promptly and realistically evaluate all options given the particular circumstances of their case, including the likelihood of reunification, strategies for defending a termination of parental rights proceeding, and the desirability of adoptive placement. If a birth parent concludes that reunification is not likely or desirable, prompt DCF Intervention is key in minimizing the child’s trauma and increasing the likelihood that the court will permit the proposed adoption.

For Caregivers

The safety, stability, and love that caregivers provide to children in state custody is essential and invaluable to these children’s well-being and healing. One of the most loving and selfless things a caregiver can do is to help further Chapter 39’s primary goal of reunification of parents and children. It is only natural for caregivers to grow attached to and even to love children who have come to live in their homes due to suspected abuse, abandonment, or neglect by the birth parents.

Sometimes, what starts off as an initial placement turns into a long-term, pre-adoptive placement. For example, the birth parents are not complying with their case plans, a termination of parental rights petition has been filed, the goal has been changed from reunification to adoption, and the caregivers have expressed their desire to adopt the child. Just when the caregivers cautiously begin to believe they may be able to adopt the child they have been caring for long enough to be considered family, the birth parents sign consents to adoption and an adoption entity intervenes proposing that the child be transferred from the caregivers to another proposed adoptive placement.

Although the birth parents have a constitutional right to the care, custody, and control of their child—including the right to place their child for adoption—that right is not absolute, and all proposed adoptive placements must be deemed to be in the best interests of the child. The child’s long-term, pre-adoptive caregivers are in a unique position to advocate for the child’s best interest in a DCF Intervention proceeding.

In recognition of the potential for a DCF Intervention case to disrupt a stable and bonded long-term placement, the legislature has provided certain long-term, pre-adoptive caregivers with a rebuttable presumption of stability and best interest, along with limited party status:

If the child has been in his or her current placement for at least 9 continuous months or 15 of the last 24 months immediately preceding the filing of the motion to intervene, and that placement is a prospective adoptive placement, there is a rebuttable presumption that the placement is stable and that it is in the child’s best interests to remain in that current stable placement. The court shall grant party status to the current caregiver who is a prospective adoptive placement for the limited purpose of filing motions and presenting evidence pursuant to this subsection. This limited party status expires upon the issuance of a final order on the motion to intervene and change of placement of the child. To rebut the presumption established in this paragraph, the intervening party must prove by clear and convincing evidence that it is in the best interests of the child to disrupt the current stable prospective adoptive placement using the factors set forth in paragraph (f) and any other factors that the court deems relevant.

§ 63.082(6)(e), Fla. Stat.

If you are a birth parent who is considering utilizing DCF Intervention to place a child for private adoption, if you and your co-parent do not agree whether to utilize DCF Intervention, or if you are a caregiver to a child who is the subject of a DCF Intervention proceeding, please contact us to arrange a consultation.

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