Ramey v. Thomas
| Decision Date | 12 March 1980 |
| Docket Number | No. KK-465,KK-465 |
| Citation | 382 So.2d 78 |
| Parties | Alva RAMEY and Wanda L. Ramey, Appellants, v. Peter B. THOMAS and Alice M. Thomas, his wife, Appellees. /T1-4. |
| Court | Florida District Court of Appeals |
Donald C. Jacobson, Daytona Beach, for appellants.
Isham W. Adams, Daytona Beach, for appellees.
The appellants appeal from an order denying their Motion to Vacate a Final Judgment of adoption of Hope Thomas. For the reasons stated in this opinion, the order is vacated and reversed, and this matter is remanded to the lower court with directions to conduct a full hearing concerning the adoption of this child, require formal notice to the appellants, and the consolidation of all of the various proceedings and reports concerning her.
This case is a classic example of parties warring over a child to such an extent that the primary issue the welfare and best interest of the child got lost in the gunsmoke. In May of 1974, Hope Thomas lost her parents in an airplane crash. She was then only two years old and had been left in the care of her maternal grandparents, who often took care of her when her parents were traveling. An aunt, Marjorie Miller, and an uncle, Michael Thomas, the daughter and son respectively of the appellees, the paternal grandparents, picked Hope up for a visit with her paternal relatives at the time of the funeral. The paternal grandparents then refused to return the child to the maternal grandparents and denied them visitation with the child. The paternal grandfather filed a Petition for Appointment of himself as guardian of Hope Thomas, on May 13, 1974. The maternal grandparents seized the child and took her back to their home; and filed a counter-petition to be appointed her guardian. The paternal grandparents assured the maternal grandparents that both families would be able to spend an equal amount of time with their granddaughter, and all agreed to a court order appointing the paternal grandfather as guardian.
The battle escalated when the paternal grandparents failed to allow the maternal grandparents visitation with Hope and the paternal aunt, Marjorie Miller, petitioned to adopt her. The maternal grandparents counter-petitioned to adopt the child and sought visitation rights. The Division of Family Services did an investigative study and recommended against the adoption because the child needed and deserved a continuing, good relationship with both sets of grandparents. It also recommended that custody be given to the maternal grandparents because they had more capacity to promote meaningful and consistent relationships between the child and her other relatives than did the paternal grandparents. The lower court awarded custody of Hope to the paternal grandparents, but did order visitation for the maternal grandparents every other weekend; and it denied the petition to adopt. As a part of the judgment the court stated:
. . . it would appear reasonable that, prior to the initiation of any future adoption proceedings, that these parties confer and comprehensively discuss the best interests of the minor child unencumbered by the pendency or imminence of adversarial litigation. (Emphasis supplied).
The court's hope that the parties would concern themselves with Hope's "best interest" was dashed by the paternal grandparents' stingy observance of and denial of the court ordered visitation with Hope for appellants and by the appellants' equally wrongful flight in 1975 to another state with Hope. The maternal grandparents were arrested on July 3, 1977 and the child was returned to Florida, in the custody of the appellees. The state attorney did not prosecute the appellants and they also returned to live in Florida.
The final act in this sad drama began September 9, 1977 when the paternal grandparents filed a petition to adopt Hope Thomas. The proceeding was assigned to a different trial judge, and was given a different case number. The pleadings indicate no mention was made to the judge about the prior adoption proceedings, the existence of the maternal grandparents, or the prior Home Study Report filed by the Division of Family Services. No notice was given nor mention made to the maternal grandparents about the adoption proceeding. The Final Judgment of Adoption was entered on October 28, 1977. Upon learning of the adoption, the maternal grandparents filed motions to vacate the final judgment, and to consolidate the various cases and proceedings concerning Hope Thomas. Still another trial judge heard these motions and denied the relief requested. This appeal was then taken to this Court.
In an adoption proceeding, as well as any other kind of proceeding regarding the custody of a child, the primary issue is the best-interest and welfare of the child. Harden v. Thomas, 329 So.2d 389 (Fla. 1st DCA 1976); In re Adoption By Cooper, 242 So.2d 196 (Fla. 1st DCA 1970); In re Vincent's Adoption, 219 So.2d 454 (Fla. 1st DCA 1969). Section 63.022 of the Florida Statutes (1979) provides:
(1) It is the intent of the legislature to protect and promote the well-being of persons being adopted . . .
(2) The basic safeguards intended to be provided by this act are that:
. . . (c) The required social studies are completed and the court considers the reports of these studies prior to judgment on adoption petitions . . .
At the time the appellees filed their petition for the adoption of Hope Thomas, they and their attorney were well aware of the prior adoption proceedings, the Division of Family Services Report which recommended against any adoption of this child, and the trial court's order stating that all of the prior parties to the prior adoption proceeding should be consulted before any other proceedings were filed. As guardian of Hope Thomas, the paternal grandfather owed a fiduciary duty to reveal to the court all matters which might have a bearing on whether the adoption was in the child's best interest. The failure to disclose such material facts was tantamount to fraud. 1 See Reaves v. Hembree, 330 So.2d 747 (Fla. 1st DCA 1976); Harrell v. Branson, 344 So.2d 604 (Fla. 1st DCA 1977) cert. den 353 So.2d 675 (Fla.1977).
We regret the necessity to observe that the attorney for the appellees was less than frank with the court in allowing the adoption to be handled essentially ex parte. He represented the child's interests as well as the appellee's, because the grandfather was Hope's legal guardian as well as adopting parent. An attorney is first an officer of the court, bound to serve the ends of justice with openness, candor, and fairness to all. This duty must be served even when it appears in conflict with a client's interests. 2 However, no compromise of the appellee's legal rights would have resulted from the attorney's candor and openness in this case. Rather, its absence created the necessity for more litigation and the continued disruption of Hope's life.
Had the trial court been informed about the prior adoption proceedings, the report of the Division of Family Services, and the interest and relationship of the maternal grandparents, it may well have taken various steps to insure that Hope's best interest and welfare were served: appoint a guardian ad litem to represent her, since the appellee-grandfather had assumed the role of a litigant; 3 require that notice of the adoption proceedings be given to the maternal grandparents, 4 pursuant to the court's prior judgment which entitled them to temporary custody of the child and consultation prior to the filing of a new adoption proceeding; and order a new report from the Department of Health and Rehabilitative Services, 5 in view of the prior adverse one. Here the lower court was deprived of essential information necessary to enable it to determine whether the proposed adoption was in the child's best interest.
The appellees...
To continue reading
Request your trial
-
YH v. FLH
... ... 1st DCA 1988) ... She makes no allegation of fraud or deception of the kind discussed in Ramey v. Thomas, 382 So.2d 78, 81-82 (Fla. 5th DCA 1980), where the maternal grandparents also apparently had court-ordered visitation rights, at least ... ...
-
Adoption of a Minor Child, In re
... ... such that they were entitled to notice and a meaningful opportunity to be heard in adoption proceedings by the child's maternal grandparents); Ramey v. Thomas, 382 So.2d 78, 81-82 (Fla. 5th DCA) (holding that grandparents with court-ordered visitation rights have standing to attack an adoption ... ...
-
Mooney's Estate, In re
...by the natural parents but, upon their death, notice or consent is not required of the next of kin. See Ramey v. Thomas, 382 So.2d 78 (Fla. 5th DCA 1980) (Upchurch, F., J., concurring). I question whether the requirements of due process are met when an orphan is adopted and is thereby depri......
-
M.L.B. v. Department of Health and Rehabilitative Services, 89-235
... ... (1987). The state's paramount concern is the best interest of the child. 2 In re Adoption of ... H.Y.T., 458 So.2d 1127 (Fla.1984); Ramey v. Thomas, 382 So.2d 78 (Fla. 5th DCA), review denied, 389 So.2d 1116 (Fla.1980). For that reason, the state, in an effort to provide finality in ... ...
-
"Criminal lawyers" or "lawyer criminals"? Ethics of criminal defense bar under attack.
...serve the ends of justice . . . . This duty must be served even when it appears in conflict with a client's interest." Ramey v. Thomas, 382 So. 2d 78,81 (Fla. 5th DCA Balancing Lawyerly and Ethical Obligations If history is a guide, members of the legal profession are as susceptible to comm......