Opinion
NO. 2014 CJ 1539
04-22-2015
IN RE: R.P.D. APPLYING FOR INTRAFAMILY ADOPTION OF W.A.M.
Craig P. Hart Tammy Karas Griggs Covington, LA Attorneys for Plaintiff-Appellees, R.D. and B.D. Davidson Stockston Ehle, III Gretna, LA Tracey T. Powell Slidell, LA Attorneys for Defendant-Appellant, T.E. Jessica Karr Covington, LA Attorney for the Child W.A.M.
NOT DESIGNATED FOR PUBLICATION On Appeal from the 22nd Judicial District Court In and for the Parish of St. Tammany State of Louisiana
Trial Court No. 2013-40066
Honorable Dawn Amacker, Judge Presiding Craig P. Hart
Tammy Karas Griggs
Covington, LA
Attorneys for Plaintiff-Appellees,
R.D. and B.D.
Davidson Stockston Ehle, III
Gretna, LA
Tracey T. Powell
Slidell, LA
Attorneys for Defendant-Appellant,
T.E.
Jessica Karr
Covington, LA
Attorney for the Child
W.A.M.
BEFORE: WHIPPLE, C.J., McCLENDON, AND HIGGINBOTHAM, JJ. HIGGINBOTHAM, J.
On appeal, T.E., the biological father of the minor child, W.A.M., challenges a judgment of the district court granting an intrafamily adoption in favor of R.D., the minor child's stepfather, and terminating T.E.'s parental rights. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
In 2007, T.E. and B.D., W.A.M.'s mother, were involved in an intimate relationship. As a result of that relationship, W.A.M. was born on March 13, 2008. T.E. and B.D. resided together for about seven months after the birth of their son. After seven months, B.D. left with the child and moved in with her mother. Subsequently, T.E. and B.D. were involved in a custody dispute in the 22nd Judicial District Court regarding W.A.M. The last pleading in that suit was an interim order signed on September 8, 2009, awarding custody of W.A.M. to B.D. and awarding visitation to T.E. every Saturday for four hours, and every Wednesday evening for two hours. The judgment also required the parties to submit to a custody evaluation.
After the interim custody order was signed, T.E., while on probation for a felony conviction, had his probation revoked and was incarcerated in December 2009. He remained incarcerated until September 2013.
In December 2012, after living together since the summer of 2011, B.D. married R.D. On June 26, 2013, R.D. filed a Petition for Intrafamily Adoption seeking to adopt W.A.M. In the petition, it is alleged that R.D. is the step-father of W.A.M. and is currently married to W.A.M.'s mother. He later amended his petition for adoption to include B.D. as a petitioner.
Subsequent to being served with the petition for adoption, T.E. filed an exception raising the objection of no cause of action contending that because custody and visitation issues were still pending, R.D. had no cause of action to file for adoption. The district court denied the exception and the matter proceeded to trial.
After a two-day trial held on November 15, 2013 and February 14, 2014, the district court signed a judgment, which granted the intrafamily adoption of W A.M. in favor of R.D. and terminated the parental rights of T.E. It is from this judgment that T.E. appeals, assigning error to the district court's: (1) denial of his exception of no cause of action; (2) grant of the adoption and finding that the father was without just cause for not having contact with W.A.M. for 6 months; (3) finding that the adoption was in the child's best interest; and (4) termination of his parental rights.
LAW AND ANALYSIS
Assignment of Error No. 1 , No Cause of Action
T.E. contends that the trial court erred in denying his peremptory exception raising the objection of no cause of action because issues of custody were still pending between him and B.D. In favor of his position, T.E. refers to the third circuit case of C.D.J. v. B.C.A., 2011-378 (La. App. 3d Cir. 10/5/11), 74 So.3d 300, and this court's acknowledgement of that case's holding in In re D.C.M., 2013-0085 (La. App. 1st Cir. 6/11/13), ___ So.3d ___, ___, writ denied, 2013-1669 (La. 7/17/13), 118 So.3d 1102.
In C.D.J., a stepfather and mother filed a petition for intrafamily adoption pursuant to La. Ch. Code art. 1245, because the father failed to pay support for a period of at least six months. The father objected to the adoption, arguing that no custody order was in effect. The district court sustained the father's objection of no cause of action and dismissed the petition for intrafamily adoption, and on that same date, the district court signed a stipulated judgment awarding the mother and father joint custody. The court of appeal affirmed the decision of the district court stating, "that it was not the intent of the law for the provisions of this article [La. Ch. Code art. 1245] to apply to the case where there is on-going litigation relating to custody." C.D.J., 74 So.3d at 302.
In In re D.C.M., this court determined that the district court correctly sustained an exception of lack of subject matter jurisdiction when custody proceedings were pending in another state and the petition for intrafamily adoption was filed a mere sixteen days after a custody order was rendered by a Mississippi court in ongoing custody litigation. The court noted that the UCCJEA does not allow one state to permit an intrafamily adoption while another state has continuing, exclusive jurisdiction over pending custody proceedings. In re D.C.M., ___ So.3d at ___.
The facts in this case are certainly distinguishable. Here, the last judgment regarding custody of W.A.M. was the September 2009 interim order awarding custody to B.D. and ordering the parties to submit to a custody evaluation. Following the interim order, there was a hearing officer conference that took place on October 26, 2009. The hearing officer conference form in the record before us is not signed by the judge. According to the record and the testimony of the witnesses, this was the last item filed in the custody suit. We acknowledge, as pointed out by T.E., that the judgment was an interim order pending a final determination, but at the time of the adoption hearing it had been nearly four years since anything had been considered or filed in the custody proceeding.
T.E. argues that issues of custody and visitation are always subject to review and any custody judgment is subject to change if a material change in circumstances can be proven. While we agree with his assertion that custody is always subject to change, there would have to be a pleading or some sort of action filed to do so. As there has been nothing filed or heard in the custody case for over four years, and because T.E. has not exercised any custody or visitation with W.A.M. in over four years, we find that T.E. and B.D. are not involved in "on-going" custody litigation that would prevent R.D. from filing for intrafamily adoption. For these reasons, we find no error in the district court judgment denying T.E.'s peremptory exception raising the objection of no cause of action.
Assignment of Error No. 2, Just Cause
In his petition, R.D. contends that T.E. has not had contact with W.A.M. for at least six months and therefore, his consent is not required for the adoption pursuant to La. Ch. Code art. 1245. During her testimony, B.D. stated that T.E. has not had contact with W.A.M. since November 2009.
T.E. acknowledges that he has not had contact with W.A.M., but argues that there was "just cause" for his failure to communicate with the minor child. Specifically, T.E. testified that he was in prison from December 2009 until September 2013 and that B.D. interfered with his efforts to communicate with W.A.M. Further, he noted that the petition for adoption was filed while he was still in prison.
Generally, a parent's consent is required for an intrafamily adoption. La. Ch. Code art. 1193. However, pursuant to La. Ch. Code art. 1245, consent of a parent is not necessary if the petitioner proves that the parent has forfeited his right to consent, as follows:
A. The consent of the parent as required by Article 1193 may be dispensed with upon proof of the required elements of either Paragraph B, C, or D of this Article.
B. When a petitioner authorized by Article 1243 has been granted custody of the child by a court of competent jurisdiction and any one of the following condition exists:
(1) The parent has refused or failed to comply with a court order of support without just cause for a period of at least six months.
(2) The parent has refused or failed to visit, communicate, or attempt to communicate with the child without just cause for a period of at least six months.
C. When the spouse of a stepparent petitioner has been granted sole or joint custody of the child by a court of competent jurisdiction or is otherwise exercising lawful custody of the child and any one of the following conditions exists:
(1) The other parent has refused or failed to comply with a court order of support without just cause for a period of at least six months.
(2) The other parent has refused or failed to visit, communicate, or attempt to communicate with the child without just cause for a period of at least six months. [Emphasis added.]
The party petitioning the court for adoption carries the burden of proving a parent's consent is not required under the law. In re Fleming, 2001-1405 (La. App. 5th Cir. 4/30/02), 817 So.2d 371, 376. To constitute "just cause," a parent's failure to support, visit, or communicate with his children must be due to factors beyond his control. See In re RMK, 499 So.2d 190, 192-93 (La. App. 2d Cir. 1986).
Initially, we note that a parent's incarceration alone is not "just cause" for failing to communicate with a child. In re Fleming, 817 So.2d at 376. There can be no set rule that will resolve the question of whether incarceration is justification for failure to communicate; each case must be decided under its own particular facts. See In re Brannon, 340 So.2d 654 (La. App. 2d Cir. 1976).
During trial, T.E. testified that he tried to send W.A.M. letters during the first three months of his incarceration but was not getting anything in return so he stopped. He stated that he did not know where W.A.M. was living and was advised by his lawyer to not contact B.D. because of the charge against him for stalking her. B.D. testified that she never received any letters from T.E. to W.A.M., and he made no effort to communicate with W.A.M. while he was incarcerated. T.E. did not send support or presents for W.A.M. Further, T.E. did not try to contact W.A.M. after his release from prison.
A court of appeal may not set aside a district court's finding of fact in the absence of manifest error or unless it is clearly wrong. To reverse a factfinder's determination, the appellate court must find from the record that a reasonable factual basis does not exist for the finding of the trial court, and that the record establishes that the finding is clearly wrong. Stobart v. State through Dept. of Transp. and Development, 617 So.2d 880, 882 (La. 1993). When factual findings are based on determinations regarding the credibility of witnesses, the manifest error-clearly wrong standard of review demands great deference to the trier of fact's findings, because only the trier of fact can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener's understanding and belief in what is said. Rosell v. ESCO, 549 So.2d 840, 844 (La. 1989).
In its oral reasons for judgment, the district court determined that T.E.'s consent to R.D.'s request for adoption of W.A.M., pursuant to La. Ch. Code art. 1245(C), was not necessary as T.E., without just cause, had failed to communicate with the child for a period of at least six months. The district court noted that even if it were to believe that he felt he could not contact the child because of some injunction or protective order "[t]here is absolutely no reason for no communication through cards, through letters to the child, through sending gifts or child support." The district court also pointed out that it was "convinced" that T.E. had the means to locate the child. We find no manifest error in the district court's determination that T.E. was without just cause in his failure to communicate with W.A.M. Assignment of Error No. 3 , Best Interest
T.E. contends that the district court erred in finding that the adoption of W.A.M. by R.D. was in the child's best interest. Louisiana Children's Code Art. 1255(B) states:
B. The court, after hearing and after taking into consideration information from all sources concerning the intrafamily adoption, may enter a final decree of adoption, or it may deny the adoption. The basic consideration shall be the best interests of the child. [Emphasis added.]
T.E. has been twice convicted for felonies, once for marijuana and once for five counts of theft. He was placed on probation, but his probation was revoked. He has not had any contact with W.A.M. for over four years and was accused of domestic violence.
The district court thoroughly discussed its reasons for finding that the adoption was in the best interest of W.A.M. The court's reasons included T.E.'s pattern of criminal activity, pattern of extensive allegations of domestic violence, and lack of credibility. The district court pointed out that T.E. does not accept responsibility with regard to his criminal activity and lacks remorse. Also, the court noted the impact that T.E.'s absence from W.A.M.'s life for five years would have on the child.
R.D. has been the only father that W.A.M. has known for the last five years. W.A.M. has lived with him for three years. R.D. testified about his extensive involvement in W.A.M.'s life, including taking him to sporting events, to church, to family gatherings, and on vacations. R.D. is the band director for Mandeville High School and has supported W.A.M. financially. R.D.'s parents and B.D. testified about what a good father he has been to W.A.M. The attorney appointed to represent the child also discussed her observation of the relationship between W.A.M. and R.D. and interviewed T.E. In her testimony, she unequivocally stated that the adoption would be in the best interest of W.A.M. The district court recognized R.D. as a "provider and protector" and concluded that it was in the best interest of W.A.M. for R.D. to adopt him. We find no manifest error in the trial court's determination that R.D.'s adoption of W.A.M. is in the best interest of W.A.M. Assignment of Error No. 4 , Termination of Parental Rights
T.E. contends that the district court erred in terminating his parental rights. Louisiana Children's Code art. 1247(B) provides:
If the adoption petition names an alleged or adjudicated father and his parental rights have not been terminated by a court of competent jurisdiction, he shall be served with notice of the filing of the petition in accordance with Articles 1133, 1134, and 1136 and thereafter, his rights shall be determined in accordance with the provisions of Articles 1137 through 1143.
Article 1138 provides for an adversarial hearing in the opposition to the adoption and a determination of the establishment of parental rights. That article provides as follows:
A. At the hearing of the opposition, the alleged or adjudicated father must establish his parental rights by acknowledging that he is the father of the child and by proving that he has manifested a substantial commitment to his parental responsibilities and that he is a fit parent of his child."Fit parent" is defined by Ch. Code art. 1103(5), which states in pertinent part:
B. Proof of the father's substantial commitment to his parental responsibilities requires a showing, in accordance with his means and knowledge of the mother's pregnancy or the child's birth, that he either:
(1) Provided financial support, including but not limited to the payment of consistent support to the mother during her pregnancy, contributions to the payment of the medical expenses of pregnancy and birth, or contributions of consistent support of the child after birth; that he frequently and consistently visited the child after birth; and that he is now willing and able to assume legal and physical care of the child.
(2) Was willing to provide such support and to visit the child and that he made reasonable attempts to manifest such a parental commitment, but was thwarted in his efforts by the mother or her agents, and that he is now willing and able to assume legal and physical care of the child.
C. The child, the mother of the child, and the legal custodian may offer rebuttal evidence limited to the issues enumerated in Paragraphs A and B of this Article. However, the primary consideration shall be, and the court shall accept evidence concerning, the best interests of the child.
D. If the court finds that the alleged or adjudicated father has failed to establish his parental rights, it shall decree that his rights are terminated.
"Parental fitness" means:
* * *
(b) That a parent has consistently offered to provide reasonably necessary food, clothing, appropriate shelter, or treatment for the child. For purposes of this Subparagraph, treatment means medical care or other health services provided in accordance with the tenets of a well-recognized religious method of healing with a reasonable, proven record of success.
* * *
(d) Viewed in its entirety, the parent's past or present conduct, including his criminal convictions, would not pose a risk of
substantial harm to the physical, mental, or emotional health of the child.
Given the extensive oral reasons for judgment, based on findings of fact supported by the record, we can find neither manifest error nor clear error. The district court found that T.E. did not send cards, letters or other correspondence to W.A.M. during his imprisonment. T.E. failed to financially support W.A.M., and T.E. also has a criminal history and a history of domestic abuse allegations.
Because we find the finding of facts are supported by the record, the legal analysis is correct and the facts are correctly applied to the law, we affirm the district court's termination of T.E.'s parental rights and finding that the adoption of W.A.M. by R.D. is in the best interest of the child.
CONCLUSION
After a thorough review of the record, we find no manifest error in the district court's findings of fact. Although this court might disagree with the conclusions and the relative weight accorded some factors by the district court, we simply cannot conclude that its ultimate decision constitutes a clear abuse of discretion. For these reasons, we affirm the district court's denial of T.E.'s exception of no cause of action and the judgment granting the adoption of W.A.M. by R.D. All costs of this proceeding are assessed to T.E.
AFFIRMED.