She has physical custody, not legal custody yet.
Guardianships give both legal and physical custody to the guardian. However, the courts maintain jurisdiction over the case, unlike with an adoption. And there can be conditions for the guardianship that are set. Such as keeping the child in the state unless there is a court order.
Just an FYI: social services and GAL will still be a present force in this matter. Social services even recommended and supported Mary to take the girls to CT permanently. With that said, the paternal side still has a battle in regards to the the adoption by Mark's brother.
You're right. And that's good. Because although guardianships don't terminate parental rights, and still allow the parent to consent to an adoption, the law surrounding guardianships and adoption in Florida is the best interest standard. So even if Mark consents to the kids being adopted by his brother, the brother will not automatically be granted the right to adopt. The best interests of the kids will be considered, even though it appears that Florida favors adoptions over guardianships and the parents' wishes regarding placement and/or adoption are very important.
With regard to what's considered as to the kids best interests, here are some examples:
Who has been caring for them? It appears they've been with grandma for a year and half almost.
Who can provide stability? If they go with the brother, they will also have to move - to Minnesota.
Who are they attached to? Who do they want to live with?
Who has shown interest in their care? I don't think the brother has been involved thus far, right?
Who is more likely to foster a relationship with the other side of the family? I don't have facts to say.
But all of that will be considered.
The opinions of the GAL an social services will also be super important. It would be unlikely, IMO, that the court would go against their opinions, unless favoring adoption is much more important in Florida than I think. (But a case below makes me feel that may not be the case).
His parental rights would indeed have to be severed for their to be an adoption. But he has to consent to that and his consent can be conditional on who is adopting.
http://www.leg.state.fl.us/statutes...g=&URL=0000-0099/0039/Sections/0039.6221.html
http://www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&URL=0000-0099/0063/0063.html
Here is a case that's very similar:
2015 ADOPTION AND CHILD WELFARE CASE LAW UPDATE 2015 ADOPTION AND CHILD WELFARE CASE LAW UPDATE
Directed Consent
In re Adoption of K.A.G, 152 So. 3d 1271 (5th DCA 2014).Background - After father-killed mother, DCF placed the child in custody of the maternalaunt. Father executed written consent for paternal grandmother to adopt. (conditionalconsent to parental grandmother) Aunt filed a counter petition to adopt in paternalgrandmother's 63.087 adoption proceeding. Court granted paternal's grandmotherMotion to Strike. Aunt's subsequent motion to intervene was denied. Trial courtdismissed paternal grandmother's petition because there was not clear and convincing 2evidence adoption was in best interest. Court relied on considerations such as thechild's needs and bonding with caregiver as if it were an intervention.Holding - Appellate Court found it was error to dismiss paternal grandmother's petition toadopt the child because the trial court failed to determine whether the father's consentwas valid. The trial court erred when it required the grandmother to prove by clear andconvincing evidence that allowing her to adopt the child served the best interest of thechild, as the preponderance of the evidence standard applied. Court has authority toappoint guardian ad litem. Appellate court found that Father's consent was conditional topaternal grandmother and if the trial court found the adoption by the paternalgrandmother was not in the best interest of the child, the father's consent to histermination of parental rights is deemed withdrawn.
https://clarielaw.com/images/uploads/Adoption_Case_Law_Update_Rev-2015.pdf
A child's best interests must be at the forefront when the court considers an adoption. See § 63.022(2), Fla. Stat. (2013). Our standard of review in a termination of parental rights case is highly deferential. N.L. v. Dep't of Children & Family Servs., 843 So.2d 996, 999 (Fla. 1st DCA 2003). A trial court's finding of clear and convincing evidence will not be overturned unless it may be said that, as a matter of law, no one could reasonably find such evidence to be clear and convincing. Kingsley v. Kingsley, 623 So.2d 780, 786-87 (Fla. 5th DCA 1993); L.F. v. Dep't of Children & Families, 888 So.2d 147, 148 (Fla. 5th DCA 2004) (finding that "[w]here a trial court has found that there is clear and convincing evidence supporting a termination of parental rights, such findings enjoy a presumption of correctness and will not be overturned unless clearly erroneous and lacking evidentiary support"). We review a judgment of adoption for substantial, competent evidence. Noonan v. Snipes, 569 So.2d 1381, 1381 (Fla. 2d DCA 1990).Here, the trial court dismissed Grandmother's petition because it "[did] not find by clear and convincing evidence that the father's parental rights should be terminated pending adoption by the paternal grandmother." Grandmother and Father contend that the trial court applied an erroneous "best interests" standard utilizing section 63.082(6), thereby disregarding Father's constitutional right to select an adoptive parent for Child. They argue that the trial court should have considered only Grandmother's fitness and whether her home was suitable when making a best interests determination.
[T]he petition for adoption should be determined on the basis of the fitness of a petitioner who is petitioning to adopt the child and whether the adoptive home that would be provided for the child by that petitioner is suitable for the child so that the child can grow up in a stable, permanent, and loving environment. It is within those criteria that the determination as to the best interests of the child is to be made with regard to an adoption petition.
The trial court had before it two separate questions: (1) whether Father's parental rights could be terminated based upon his consent; and (2) if so, was adoption by Grandmother in Child's best interests. Different evidentiary burdens of proof apply to each determination. The former determination on "termination of parental rights" must be proven by clear and convincing evidence, while the latter, "best interests determination," is to be proven by a preponderance of the evidence. Compare § 63.089(3), Fla. Stat. (2013) (requiring that "a judgment terminating parental rights pending adoption" be determined "by clear and convincing evidence"), with Hack v. Janes, 878 So.2d 440, 444 (Fla. 5th DCA 2004) (stating that absent legislation to the contrary, the "preponderance or greater weight of the evidence [standard] is the generally accepted burden of proof in civil matters"). Here, the trial court required Grandmother to prove by clear and convincing evidence that allowing her to adopt served the best interests of Child. This was error.Finally, we briefly consider several issues that may reoccur when this matter is again reconsidered by the trial court. The trial court concluded that it had no authority to appoint a guardian ad litem for Child in this adoption proceeding. We disagree. Section 63.022(4)(k) provides: "In all matters coming before the court under this chapter, the court shall enter such orders as it deems necessary and suitable to promote and protect the best interests of the person to be adopted." We believe this statute authorizes the trial court, in its sound discretion, to appoint a guardian ad litem for a child in an adoption proceeding. In addition, courts have the inherent authority to protect children by appointing guardians ad litem when appropriate. See Simms v. State, Dep't of Health & Rehabilitative Servs., 641 So.2d 957, 960-61 (Fla. 3d DCA 1994) (citing James v. James, 64 So.2d 534, 536 (Fla. 1953)).
Next, we agree with the trial court that Father's consent to termination of his parental rights was not unconditional, but rather, was conditioned on the trial court granting Grandmother's petition to adopt Child. If the trial court concludes that the adoption by Grandmother is not in Child's best interests, Father's consent to the termination of his parental rights is deemed withdrawn. Finally, we appreciate the trial court's concern that it was not able to consider the same evidence in the adoption proceeding as it would be able to consider in the dependency and termination proceeding. To some extent, those concerns have been addressed by the recent adoption of Florida Family Law Rule of Procedure 12.003, which allows a court to consolidate as many issues as is practical in adoption and dependency/termination proceedings and to conduct joint hearings or trials of any issues in related family cases. See In re Amendments to the Fla. Rules of Judicial Admin., 132 So.3d 1114 (Fla.2014) (adopting rule 12.003, effective April 1, 2014). This rule, which was not in effect at the time this matter was considered initially, should alleviate many of the concerns expressed by the trial judge.
https://www.leagle.com/decision/inflco20141226045
That case basically shows that here:
1. Mark can consent to having his parental rights terminated and his brother adopt, but if the court finds his brother is not suitable placement, his consent to terminating his parental rights is deemed withdrawn.
2. The court will use the preponderance of the evidence standard to determine whether adoption by his brother should occur. That is the easiest standard to meet.
3. However, the best interest standard is what determines whether the adoption should occur - so by a preponderance of the evidence, is it in the child's best interest to be adopted by the brother?
4. The guardianship/dependency court cases can be consolidated. So while in previous adoption cases the GAL's and social services were excluded from the hearing, now they're not and any and all evidence that would come out in those other cases may be considered when deciding the adoption request.
5. The court has the power to appoint an guardian instead of allowing an adoption.
I feel pretty good about grandma's chances of keeping the kids. Hopefully her age and sick husband and finances won't be too much of an obstacle. If the kids are happy and secure and want to stay with her, I think they will.
I;m going to post this in the legal thread as well.
