The Florida Bar v. Dove

• Decision Date: 12 June 2008
• Docket Number: No. SC05-302.,No. SC05-1157.,SC05-302.,SC05-1157.
• Citation: 985 So.2d 1001
• Parties: THE FLORIDA BAR, Complainant, v. Joyce Sibson DOVE, Respondent.
• Court: Florida Supreme Court

985 So.2d 1001

THE FLORIDA BAR, Complainant, v. Joyce Sibson DOVE, Respondent.

No. SC05-302.

No. SC05-1157.

Supreme Court of Florida.

June 12, 2008.

John F. Harkness, Jr., Executive Director, Kenneth Lawrence Marvin, Director of Lawyer Regulation, and Kristin A. Godwin, Bar Counsel, The Florida Bar, Tallahassee, FL, for Complainant.

Joyce Sibson Dove, pro se, Tallahassee, FL, for Respondent.

PER CURIAM.

We have for review a referee's report recommending that Joyce Sibson Dove be found guilty of professional misconduct for her actions in an adoption case. The referee recommended that Dove be disciplined by public reprimand, receive two years of probation, and forfeit fees of $8,388.84 to The Florida Bar Foundation. We have jurisdiction. See art. V, § 15, Fla. Const. We disapprove the referee's recommended sanction of a public reprimand. We also disapprove the Bar's request for a one-year suspension. We find that the violations of the Rules of Professional Conduct in this case were extremely serious and warrant a sanction of a three-year suspension. In light of our decision to impose a lengthy suspension and the Bar's concerns regarding the proposed conditions of probation, we disapprove the referee's recommendation of probation. On Dove's cross-appeal, we agree with Dove that the referee's recommendation of disgorgement of fees should be disapproved but reject her other claims.

FACTS AND PROCEDURAL HISTORY

In February 2005, The Florida Bar filed a two-count complaint alleging that Dove engaged in misconduct. In June 2005, the Bar filed a second complaint against Dove. A referee was appointed. During a hearing on the complaints, the referee dismissed count II of the initial complaint and the second complaint. After hearing the evidence and the argument of counsel, the referee made the following findings and recommendations relating to the remaining count.

Dove was a shareholder and director of the law firm known as Joyce Dove, P.A. Dove was also the President of Foundation for Children, Inc. (Corporation), which operated an adoption agency known as Foundation for Children Adoption Agency (Agency). Dove was a director and also legal counsel for the Corporation and the Agency.

The Agency was retained by prospective adoptive parents¹ to assist them in finding a child for adoption. In July 2002, a birth mother decided to place her child, born on November 26, 2001, for adoption. Her boyfriend called an "adoption hotline" to place the child for adoption. The call was referred to the Agency. Dove arranged for a contracted social worker to meet the birth mother and obtain her signature on documents to enable Dove to proceed with the termination of parental rights and subsequent adoption proceedings.

On July 17, 2002, the social worker met with the birth mother at the condominium where the birth mother lived. During this meeting, the birth mother signed a "Mother's Interview Affidavit." In the affidavit, the birth mother stated that during the prior twelve months, she had resided at a specific address in Oviedo, Florida. She did not state in the affidavit whether she had resided with anyone at that address or for what portion of the twelve-month period she resided there. Before the referee, the birth mother testified that the Oviedo, Florida, address was that of her parents and that both she and the child had resided in her parents' home from the child's birth, November 26, 2001, until at least July 6, 2002. The birth mother further testified that the child did not move with her when she moved into the condominium in July 2002 but, rather, remained living with the maternal grandparents in their home.² Also during the initial meeting, the birth mother advised the social worker that the man with whom she was living in July 2002 was not the biological father of her child, and she provided the social worker with the name of the child's biological father. The boyfriend executed an affidavit of nonpaternity.

On July 19, 2002, in the Second Judicial Circuit Court in Leon County, Dove filed a petition for custody of the minor child and other documents regarding the termination of parental rights in and the adoption of the birth mother's child. Notably, the petition for custody stated: "The legal father has surrendered his parental rights by affidavit." (Emphasis added.) The referee rejected Dove's argument that the birth mother's boyfriend was a "legal father."

On July 21, 2002, Dove sent her paralegal and the social worker to the birth mother's condominium to pick up the child. When they arrived, the child was at the maternal grandparents' home. The birth mother drove to the grandparents' home to retrieve the child. It was at that time that the birth mother told her parents that she was placing the child for adoption. The grandfather followed the birth mother and the child to the birth mother's condominium and there made known to the birth mother, the paralegal, and the social worker his objection to placing the child for adoption at that time. Dove's paralegal then brought the child to Tallahassee, Florida, to be placed with the adoptive family.

On July 23, 2002, Dove filed a petition for the court to accept the intended adoption placement for the minor child. This petition stated, "The minor child is currently residing with [the] birth mother for the purpose of adoption" and again asserted that the "legal father" had surrendered his rights to this child, pursuant to chapter 63 of the Florida Statutes. The referee found that Dove did not file an affidavit from either the biological father or the purported "legal father" that would allow a termination of parental rights as required by section 63.087(6)(e), Florida Statutes (2002). On July 26, 2002, Dove filed a notice of petition and hearing to terminate parental rights pending the adoption, purportedly providing notice to the biological parents of the hearing scheduled for August 21, 2002. No corresponding petition to terminate parental rights pending adoption was found in the court file or in Dove's files. The referee found that although Dove claimed to have prepared a petition to terminate parental rights, she did not file the petition with the trial court as required by section 63.087(6), Florida Statutes (2002). Finally, the referee found that Dove did not provide a copy of the notice to the biological parents.

On August 21, 2002, notwithstanding the absence of any contact with the named biological father, Dove appeared ex parte before a circuit court judge and obtained a signed order terminating parental rights. The referee found that the proposed order drafted by Dove contained false factual assertions. Dove repeated the untrue assertion that there was a "legal father" involved in the termination of parental rights pending adoption proceeding, falsely stated that the biological father was unknown, and falsely stated that the affidavits presented to the circuit court were legally sufficient for termination of parental rights under Florida Law.³ Dove misrepresented facts known to her relating the birth father and the sufficiency of the documents presented to the trial court. The referee found that had Dove accurately represented these material facts, she would not have obtained a signed order terminating parental rights. See §§ 63.087; 63.088, Fla. Stat. (2002). Dove violated the Rules of Professional Conduct by making false statements of material fact or law to a tribunal and by failing to inform the tribunal in an ex-parte proceeding of all material facts known to the lawyer, whether or not adverse, that would enable the tribunal to make an informed decision.

Meanwhile, commencing the same day that Dove's paralegal and the social worker took custody of the child, the maternal grandparents began communicating with Dove's office. The grandparents indicated that they objected to the adoption and wanted to assert grandparental rights.⁴ Dove was aware of the grandparents' objections. Several lawyers contacted Dove on behalf of the grandparents, though no lawyer formally appeared on the grandparents' behalf while the adoption proceeding was pending. Because the grandparents indicated that they were represented by a lawyer, Dove instructed her employees that they were not to communicate directly with the grandparents and that they should only take messages when the grandparents called. Before the referee, Dove acknowledged receiving a letter postmarked August 24, 2002, in which the grandparents specifically asserted their priority to adopt pursuant to section 63.0425, Florida Statutes (2002), because the child had resided with them for six months. The grandparents also wrote letters to two circuit court judges in the Second Judicial Circuit.

Despite having reason to believe that the grandparents were entitled to notice pursuant to section 63.0425, Dove did not follow the statute. She did not notify the maternal grandparents of the adoption proceeding prior to filing a petition for adoption.

On October 17, 2002, notwithstanding the known defects in the termination of parental rights proceeding and her failure to notify the grandparents, Dove filed a petition for adoption on behalf of her clients, the prospective adoptive parents. The petition falsely asserted that both the biological mother and the biological father had surrendered their parental rights. Dove attended a hearing on the petition and had the circuit judge sign the order for final adoption without informing the circuit judge of the material facts known to her. Dove did not inform the court or the adoptive parents about any of the factual or legal deficiencies about which she had the responsibility to know and in material instances did know.

Subsequent to the adoption, the grandparents and the birth mother began litigation seeking the return of the child. The parties reached a settlement, agreeing to an open adoption which allowed the grandparents and the birth mother visitation rights with...