00-004825 Thomas And Tamara Harrington vs. Department Of Children And Family Services Status: Closed Recommended Order on Friday, March 30, 2001.

Summary: Evidence showed that Petitioners were qualified to become adoptive parents. Department`s reliance on 11-year-old double hearsay statements in abuse report in which Petitioner was not the subject of the report is insufficient.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

THOMAS AND TAMARA HARRINGTON, )

)

Petitioners, )

)

vs. ) Case No. 00-4825

)

DEPARTMENT OF CHILDREN AND )

FAMILY SERVICES, )

)

Respondent. )

___________________________________)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case

on February 8, 2001, in Jacksonville, Florida, before the

Division of Administrative Hearings, by its designated

Administrative Law Judge, Diane Cleavinger.

APPEARANCES

For Petitioner : Keith G. Andrews, Esquire

337 East Bay Street

Jacksonville, Florida 32202

For Respondent : Robin Whipple-Hunter, Esquire

Department of Children and

Family Services

Post O ffice Box 2417

Jacksonville, Florida 32231

STATEMENT OF THE ISSUE

The issue in this case is whether Petitioners' application

to become adoptive parents should be granted.

PRELIMINARY STATEMENT

By letter dated October 20, 2000, Respondent inform ed

Petitioners that, based on the eligibility criteria contained in

Rules 65C-16.005(11)(a)(2) and 65c-16.007(1)(c), Florida

Administrative Code, Respondent had denied Petitioners'

application to become adoptive parents. The letter gave as its

reason for the denial 1989 statements attributed to

Ms. Harrington contained in an agency abuse report which only

collaterally involved Ms. Harrington.

By Request for Administrative Hearing filed November 20,

2000, Petitioners demanded a formal hearing. The case was

forwarded to the Division of Administrative Hearings.

At the hearing, Petitioners testified in their own behalf

and called one witness. Petitioners also introduced three

exhibits into evidence. Respondent called one witness and

offered into evidence three exhibits.

After the hearing Petitioners filed Proposed Recommended

Orders on February 16, 2001. Respondent did not file a proposed

recommended order.

FINDINGS OF FACT

1. In the early part of the year 2000, Petitioners filed

an application to become adoptive parents. On March 20, 2000,

Respondent denied Petitioners' application.

2. The decision to deny Petitioners' application was based

entirely on an abuse investigation from 1989. The subject of

the abuse report was Michael Jones who is the ex-husband of

Tamara Harrington. The incident occurred while Mr. Jones'

mother, a responsible person, was watching Ms. Harrington's son

and daughter while Ms. Harrington was at work. The alleged

abuse consisted of fondling by Mr. Jones of Ms. Harrington's

daughter who was then 12 years old.

3. The abuse allegation was confirmed against Michael

Jones. The report was not confirmed against Tamara Harrington.

She had not been the subject of the abuse report. She had not

been present when the alleged abuse occurred and was not

responsible for its occurrence. She had no prior knowledge that

Mr. Jones might behave in such a manner. In fact, the only

reason her name was in the report was that she was the mother of

the victim of the report. She never saw the report and did not

know what was in it. Because Ms. Harrington was not the subject

of the abuse report she never had an opportunity to refute the

statements. After the 1989 incident, neither Ms. Harrington or

her children saw Mr. Jones again.

4. Th e Department made its decision based upon the 12 year

old hearsay statements reported by the daughter to have been

allegedly made by Tamara Harrington after the abuse incident

occurred. Specifically, what allegedly occurred when she was

made aware of the incident by her daughter was that she said,

"It's okay, he just wanted to see how big you were getting."

These statements were unknown to Ms. Harrington. Ms. Harrington

denies making any statement like the one contained in the

report.

5. Indeed the rep ort is incorrect that these alleged

statements were made to the daughter. According to the

daughter, who is now in her twenties, the statements were

reported to her by her step-mother as being said to her father

at a time when Ms. Harrington had come to check on her daughter.

The daughter did not believe that her mother would ever say

anything like what she reported. She testified that, at the

time of the abuse, she had told her mother the touching was an

accident and only involved her thigh. The report indicates

Mr. Jones fondled the daughter's bust and buttocks. The

daughter also reported, in 1989, that her mother was uncaring.

The daughter made these statements because she was very angry

with her mother for divorcing her father. None of the

statements were true. In fact, the daughter testified that her

mother was a very loving and caring individual, who was an

excellent parent to both her and her brother. She also

testified that Ms. Harrington would make an excellent parent for

an adoptive child.

6. In all other respects, the Petitioners appear to be

ideal candidates for adoptive parents. The home study approved

both the Petitioners as potential adoptive parents.

Ms. Harrington has already been approved for a license to

provide home day care. In fact, the evidence did not

demonstrate any credible basis for denying their application for

adoption. Therefore, Petitioners' application to become

adoptive parents should be approved.

CONCLUSIONS OF LAW

7. The Division of Administrative Hearings h as

jurisdiction over the subject matter of and the parties to this

proceeding. Section 120.57(1), Florida Statutes.

8. Rule 65C-16, Florida Administrative Code, states that

the aim of Respondent is to select families who will be able to

meet the ongoing and dynamic physical, emotional, social, and

financial needs of a child placed in their home in order to

safeguard the child from further loss and separation of primary

caretakers. Additionally, the Respondent's goal is to select

people who are stable, have common sense, are mature, loving and

employ good child rearing practices.

9. The burden of proof is on Petitioners as the

applicants. Department of Transportation v. J. W. C. Company,

Inc. , 396 So. 2d 778 (Fla. 1st DCA 1981).

10. In this case, P etitioners have met that burden and are

entitled to approval of their application to become adoptive

parents.

RECOMMENDATION

Based upon the findings of fact and conclusions of law, it

is

RECOMMENDED:

That the Department of Children and Family Services enter a

final order granting and approving Petitioners' application to

become adoptive parents.

DONE AND ENTERED this 2nd day of April, 2001, in

Tallahassee, Leon County, Florida.

___________________________________

DIANE CLEAVINGER

Adm inistrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488- 9675 SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 2nd day of April , 2001.

COPIES FURNISHED:

Keith G. Andrews, Esquire

337 East Bay Street

Jacksonville, Florida 32202

Robin Whipple-Hunter, Esquire

Department of Children and

Family Service

Post Office Box 2417

Jacksonville, Florida 32231

Virginia A. Daire, Agency Clerk

Department of Children and

Family Services

Building 2, Room 204B

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

Josie Tomayo, General Counsel

Department of Children and

Family Services

Building 2, Room 204

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.