Why “Best Interest” is not Always Best Interest

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Photo Courtesy: Raquel Okyay

By: Lauren Anthony

On its way to Governor Rick Scott’s desk for his signature is a benign-sounding change to existing Florida dependency and adoption law, which reportedly clarifies a conflict arising from the circumstances surrounding a proposed adoption. Chapter 63, the statute governing adoption, allows parent(s) to choose who will adopt their child, without requiring the court to consider the child’s best interest. Under Chapter 39, if a dependent child’s permanency plan is adoption, the process is governed by pertinent sections of Chapter 63. The apparent conclusion is that this creates a situation that is universally contrary to the child(ren)’s best interest, in that it permits allegedly unfit parents to make a permanency decision in regard to their children which could be motivated by malice or revenge.

There are several problems with this legislation.

In the first place, Florida’s dependency statute allows the state to seize children from parents based on a “probable cause” standard, which legally is very low – the same as for an arrest. The changes passed by both houses of the Florida legislature are applicable for any family at any stage of the dependency process, either when they voluntarily consent to adoption, or just prior to a termination of parental rights (TPR). While the most significant portion of the text sounds reassuring, in that it requires the court to consider “the right of the parent to determine an appropriate placement for the child,” this is now the last of eight factors that the court must consider. In practice, those who have had experience in Florida’s dependency system, either as attorneys or parents, know that trial judges regularly pick and choose which portions of the statute they will use to support their findings and that appellate courts more often uphold the trial courts’ decisions without an opinion, effectively eliminating any further appeals on the part of the parent.

In order to lobby for changes to the law, proponents used a very extreme case, which few would argue represented a miscarriage of justice. As reported by News4 in Jacksonville:

“While he was in prison, and the child was with the maternal aunt, the father surrendered his rights to his biological mother … basically cutting off the (child’s mother’s) entire family and no actual recognition about what’s best for this child,” Abramowitz said.

In typical knee-jerk fashion, the Office of Adoption and Protection, established under Chapter 39 and administered by a Chief Child Advocate appointed by the governor, set to work to amend Chapters 39 and 63 to close this loophole and prevent such a situation from ever happening again. The assumption is that such an agency is unbiased, that the courts have only the best interest of child(ren) at heart, and that nothing can go horribly wrong by such a subjugation of parental rights.

Consider, however, the infamous Barahona case. These twins were born to an allegedly drug addicted former prostitute, but not removed from their parents until after their father was accused of improperly touching another child. Few details are available since dependency cases in Florida are confidential, but what is clear is that they were placed in the care of state-licensed foster parents who later adopted them, in spite of the fact that there were blood relatives in Houston who wanted them, multiple calls alleging that the children were being abused, and documented concerns of the children’s Guardian ad Litem. Instead, the court relied primarily on “expert testimony” which concluded that there was a “significant bond” between the children and their foster parents. According to the new improved legislation, this is a higher priority consideration than parental rights, even before termination.
Unfortunately for Nubia, the decision signed her death warrant. And Victor barely escaped.

It could have all been a terrible mistake. Or it could be an exercise of the OAP’s mission to “work to secure funding …from the state, the Federal Government, and other public and private sources…for the promotion of adoption…” (F.S. Chapter 39.001(9)(b)(3) ) – funds that are only available for in-state adoptions, and funds which, according to multiple sources, are bought at the expense of parental rights but are actually being used to balance state budgets (Source: https://articles.mercola.com/sites/articles/archive/2011/02/05/legal-child-abduction.aspx).




Lauren Anthony has been a freelance writer since 1990, a Florida resident for over 15 years, and resides with her family in Tampa.

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