Associated Press - Thursday, December 22, 1994

Circuit Judge Horace Andrews, who was not told of the parents' condition when he granted the adoption in March, said he intends to nullify the adoption "on the basis of fraud or mistake."

"It is easy to have sympathy for these adoptive parents," Andrews wrote in his decision released Tuesday, day. "The court should not be swayed by sympathy. We must keep in mind that no persons have a 'right' . . . to become adoptive parents."

A central issue was whether it would be less traumatic for the child, known as Elizabeth, to lose her parents now than to watch them die and possibly be placed up for adoption at an older age.

Andrews said he intends to formally nullify the adoption Jan. 9 unless the adoptive parents, known only as Charles and Mary, agree to give their parental rights to someone else.

After publicity surfaced this summer about the case -- the first of its kind in the state -- Florida Health and Rehabilitative Services Secretary Jim Towey asked the court to reconsider the adoption, saying it was a mistake to place her with terminally ill parents.

"The reason I intervened is that I couldn't live with myself if I didn't," Towey said Wednesday. "Looking through the eyes of Elizabeth, we did not give her a fair shake."

Towey said the judge will likely rely on a recommendation from HRS in determining where Elizabeth should live. He said several families are eager to adopt the girl. The agency also will consider Charles' parents.

According to the court file, Charles, 30, contracted HIV, the virus that causes AIDS, in 1985 and was diagnosed with full-blown AIDS in 1991. Unaware he was infected, he married Mary in 1987. She contracted the virus in 1990. Now, 28, she does not have fully developed AIDS.

The couple did not tell HRS about their health when they applied to be foster parents to abused and neglected children in 1991. They disclosed their condition to HRS the next year and presented a letter from a doctor, saying they were in good health and able to care for children.

HRS officials have described Charles and Mary as loving parents and said foster parents have preference over strangers in adoptions. With proper care, a child would not face any health risks from infected parents.

For the adoption, HRS required Charles and Mary to draw up wills and appoint a guardian willing to take charge of Elizabeth if they should die or become too ill to care for her. Charles' parents and Mary's sister volunteered.

HRS workers have said laws protecting the confidentiality of people with AIDS precluded them from disclosing the couple's condition to the judge.

Their attorney deleted the information from papers she presented to the judge, describing the couple as healthy nonsmokers.

Towey later said HRS should have informed the judge in a closed session. The HRS policy on such cases has since changed, and workers are required to disclose whether prospective adoptive parents have AIDS or any other terminal illness, Towey said.

"It's not just about AIDS," Towey stressed. "This is about a terminal illness. If these people had terminal cancer, it should be brought out. This is a case about finding the best permanent home for a child."

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