STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PAMELA CELESTINE ELLIS, )

individually and through ) her mother and next friend, ) VIOLA BELLE SINCLAIR ELLIS, )

)

Petitioner, )

)

vs. ) CASE NO. 80-1883

) STATE OF FLORIDA, DEPARTMENT OF ) HEALTH AND REHABILITATIVE )

SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, an administrative hearing was held before Diane D. Tremor, Hearing Officer with the Division of Administrative Hearings, on February 24, 1981, in Room 170 of the Dade Regional Service Center, Miami, Florida. The issue for determination at the hearing was whether the birth certificate of Pamela Celestine Ellis should be amended to reflect that Willie Frank Ellis is her father.

APPEARANCES

For Petitioner: Marcia A. Cypen

Legal Services of Greater Miami, Inc. Post Office Box 47000N

Miami, Florida 33147

For Respondent: Morton Laitner

Dade County Department of Public Health 1350 Northwest 14th Street

Miami, Florida 33125 FINDINGS OF FACT

Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found:

1. Petitioner Viola Belle Ellis was married to Willie Frank Ellis, also known as Willie Frank Clayton, in 1963.

   
   

2. On or about October 16, 1970, Petitioner Viola Belle Ellis filed with the Circuit Court of the Eleventh Judicial Circuit in and for Dade County, Florida, a Complaint for Divorce. Among the allegations of the Complaint are that Viola Belle Ellis and Willie Frank Ellis cohabited together as husband and wife until on or about January, 1966; that Willie Frank Ellis had been guilty of willful, obstinate and continued desertion of Viola Belle Ellis for more than

   one year and that two children, both seven years of age, were born to the marriage.

   
   

3. On January 8, 1971, after a default had been entered for failure of Willie Frank Ellis to answer the Complaint, a Final Judgment of Divorce was entered dissolving the marriage between Viola Belle Ellis and Willie Frank Ellis.

   
   

4. Petitioner Pamela Celestine Ellis was born at Christian Hospital, Inc. on April 10, 1971, at 2:30 A.M.

   
   

5. On or about April 10, 1971, Mrs. Ralpha Williams, the then medical records custodian of Christian Hospital talked with Viola Belle Ellis to obtain information for a form entitled "Required Information for Birth Certificate." At that time Viola Belle Ellis refused to give any information regarding the father of her newborn child. While the form appears to require completion by the mother of the child, Mrs. Williams filled out the form in this instance. Viola Belle Ellis did not sign the form in the space provided for "Informant's signature," and could not recall any conversation with Mrs. Williams. The hospital admission sheet for Viola Belle Ellis states under the space entitled "Marital" that she is "Separated." Under the space entitled "Next of kin or person to be notified," Viola Belle Ellis' grandmother is named and the space entitled "Spouse's occupation" is left blank.

   
   

6. A "Certificate of Live Birth" was recorded with the Respondent's Bureau of Vital Statistics. That form contains a section labeled "Confidential Information" and under the space entitled "Legitimate," is the word "No."

   
   

7. It was the policy of the Respondent in April of 1971 to insert on the child's birth certificate the name of the mother's husband if the child was conceived during the marriage. Pamela Celestine Ellis was conceived during the marriage between Viola Belle Ellis and Willie Frank Ellis.

   
   

8. It is the policy of the Respondent to send a copy of the child's birth certificate to the parents, thus providing them with the opportunity to correct any errors appearing thereon. During one period of time which may have included the year 1971, Respondent did not send a copy of the birth certificate to the parents of illegitimate children.

   
   

9. Petitioner Viola Belle Ellis never received a copy of the birth certificate for Pamela Celestine Ellis prior to the events leading to this proceeding. When Pamela Celestine Ellis entered public school, a birth certificate was required. Viola Belle Ellis went to the Vital Records Unit of the Dade County Department of Public Health and was given the option of receiving either a copy of Pamela Celestine Ellis' birth certificate or a wallet-size birth registration card. She chose the birth registration card, thinking it would be more convenient to retain. This card contains no information regarding the parents of the child.

   
   

10. Willie Frank Ellis died in 1979. Upon being advised that Pamela Celestine Ellis was eligible for workmen's compensation benefits in the State of New York, Viola Belle Ellis requested a copy of her birth certificate to establish that Willie Frank Ellis was the father of Pamela Celestine Ellis. It was when she received the birth certificate that Viola Belle Ellis first became aware that the certificate did not list Willie Frank Ellis as the father of the child Pamela Celestine Ellis.

11. Viola Belle Ellis requested respondent's Bureau of Vital Statistics to amend Pamela Celestine Ellis' birth certificate to add the name of Willie Frank Ellis as her father. This request was denied on the grounds that Willie Frank Ellis was now deceased and that satisfactory proof was not provided to the respondent that Willie Frank Ellis was the father of Pamela Celestine Ellis.

    
    

12. Prior to the birth of Pamela Celestine Ellis and during the year 1970, Viola Belle Ellis was ill. Although they were separated, Willie Frank Ellis came to the residence of Viola Belle Ellis often during 1970 to help with the children. Viola Belle Ellis and Willie Frank Ellis engaged in sexual intercourse during the 9 month period prior to the birth of Pamela Celestine Ellis, and Viola Belle Ellis did not engage in sexual intercourse with other men during the year 1970. After the birth of Pamela Celestine Ellis, Willie Frank Ellis sent money for her support and included her when money was sent for other children at Christmas.

    
    

    CONCLUSIONS OF LAW

    
    

13. A person may request the respondent to correct any misstatement or error occurring in a birth record upon presentation of proof satisfactory to the respondent. Section 382.21(5), Florida Statutes. In this case, the evidence conclusively demonstrates that Viola Belle Ellis and Willie Frank Ellis were married at the time of conception of Pamela Celestine Ellis. It was the established policy of respondent in 1971, and it is now required by statute (Florida Statutes, Section 382.16(5)(a)), that the name of the mother's husband be entered on the birth certificate as the father of the child if the mother was married at the time of conception. Thus, an error was committed at the time the birth certificate for Pamela Celestine Ellis was completed and recorded.

    
    

14. Nevertheless, respondent urges that petitioners must submit satisfactory proof that Willie Frank Ellis is the father of Pamela Celestine Ellis in order to have the birth certificate amended. Respondent's bases for denial of the amendment request include the facts that Viola Belle Ellis waited some 9 years to seek a correction, that Willie Frank Ellis is now deceased, that no information as to the child's father was given to Christian Hospital at the time of birth and that the Complaint for Divorce and Final Judgment of Divorce are inconsistent with petitioners claim that Willie Frank Ellis is the father of Pamela Celestine Ellis.

    
    

15. One of the strongest presumptions known to the law is the presumption in favor of legitimacy when a child is either born or conceived in wedlock. Eldridge vs. Eldridge, 16 So.2d 162 (Fla. 1944). Children conceived during the marriage are not rendered illegitimate by the subsequent dissolution of the marriage before the birth of the child. Sanders vs. Yancey, 122 So.2d 202 (Fla. 2nd DCA, 1960).

    
    

16. Viola Belle Ellis and Willie Frank Ellis were married from 1963 to January 8, 1971. Pamela Celestine Ellis was born on April 10, 1971, some 92 days after the divorce. A child is conceived during marriage when it is born "within a competent time afterwards," generally taken as 280 days. Smith vs. Wise, 234 So.2d 145, 147 (Fla. 3rd DCA,1970). Thus, the presumption that Willie Frank Ellis is the father of Pamela Celestine Ellis is created.

    
    

17. In order to remove the rebuttable presumption created by the conception having occurred within the time that Viola Belle Ellis was married to Willie Frank Ellis, the evidence must be sufficiently strong to clearly remove

    the presumption of legitimacy. Eldridge vs. Eldridge, supra. Aspersions or suspicions concerning the paternity of the child are not sufficient.

    
    

18. The mere fact that 9 years lapsed between the birth of the child and the request for correction is not evidence that Willie Frank Ellis is not the father of the child. Further, the evidence indicates that Viola Belle Ellis, without fault on her part, was not aware that Willie Frank Ellis was not listed as the father on the child's birth certificate during that 9-year period, and that she did request an amendment as soon as she became aware of that fact.

    
    

19. The form entitled "Required Information for Birth Certificate" does not constitute evidence as to the paternity of Pamela Celestine Ellis. That form was neither completed nor signed by Viola Belle Ellis. It does not state that Willie Frank Ellis is not the father; it simply states that "mother refused to give info regarding the father."

    
    

20. The birth certificate itself cannot supply the evidence sufficient to rebut the presumption of legitimacy since, by established policy and now by statute, respondent erred in not listing Willie Frank Ellis as the child's father.

    
    

21. Finally, neither the Complaint for Divorce nor the the divorce decree can supply the sufficiently strong proof required to rebut the presumption that Willie Frank Ellis is the father of Pamela Celestine Ellis. It should be remembered that, in 1970 and 1971, Florida was a "fault" divorce state and that fault-type allegations were required in order to obtain a divorce. The complaint and final judgment make reference to two children born to the parties, and makes no reference at all to the then unborn child Pamela Celestine Ellis. This, in itself, cannot supply the strong evidence required to rebut the presumption, especially in light of the testimony presented by Viola Belle Ellis and her children as to the relationship which existed between Willie Frank Ellis and Viola Belle Ellis during the period in which Pamela Celestine Ellis would have been conceived and as to Willie Frank Ellis' subsequent actions with respect to Pamela.

    
    

22. In summary, it is concluded that the evidence in this case establishes that Willie Frank Ellis is presumed, under law, to be the father of Pamela Celestine Ellis, and that respondent has failed to adduce evidence sufficiently strong to rebut that presumption. Indeed, failure to originally list Willie Frank Ellis as the father and to label the child as illegitimate was contrary to and in violation of the respondent's own established policy and presently controlling law.

RECOMMENDATION

Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that the petitioners' request to amend the birth certificate of Pamela Celestine Ellis to add Willie Frank Ellis as the listed father be GRANTED.

Respectfully submitted and entered this 23rd day of March, 1981, in Tallahassee, Florida.

DIANE D. TREMOR

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 23rd day of March, 1981.

COPIES FURNISHED:

Marcia A. Cypen

Legal Services of Greater Miami, Inc.

Post Office Box 47000N Miami, Florida 33147

Morton Laitner

Dade County Department of Health

1350 NW 14th Street Miami, Florida 33125

Honorable Alvin Taylor Secretary, Department of HRS 1323 Winewood Boulevard

Tallahassee, Florida 32301

Docket for Case No: 80-001883

Orders for Case No: 80-001883