Opinion
NO. 15-CA-84.
05-26-2016
The STATE of Louisiana IN the INTEREST OF K.C.C.
TILTON R. HUNTER , 3330 Lake Villa Drive, Suite 202, Metairie, Louisiana 70002, COUNSEL FOR APPELLEES, E.C. and K.C. BENNY COUNCIL , The Council Law Firm, LLC, 419 South Salcedo Street, Suite 2, New Orleans, Louisiana 70119, COUNSEL FOR APPELLANT, M.M. VIRGINIA L. BAKER , 1403 West Esplanade Avenue, Suite C, Kenner, Louisiana 70065, COUNSEL FOR APPELLANT, T.T. MELISSA W. BERNIARD , 7513 Hampson Street, New Orleans, Louisiana 70118, COUNSEL FOR MINOR, K.C.C. RAMONA G. FERNANDEZ , SUPERVISING ATTORNEY, JANEY LAMAR , SAMANTHA ALEXANDER , STUDENT PRACTITIONERS , Loyola University New Orleans College of Law, Stuart H. Smith Law Clinic and Center for Social Justice, 7214 St. Charles Avenue, Campus Box 902, New Orleans, Louisiana 70118, AMICUS COUNSEL FOR MINOR, K.C.C. Panel composed of Judges Susan M. Chehardy, Fredericka Homberg Wicker, Marc E. Johnson, Robert M. Murphy, and Stephen J. Windhorst.
TILTON R. HUNTER , 3330 Lake Villa Drive, Suite 202, Metairie, Louisiana 70002, COUNSEL FOR APPELLEES, E.C. and K.C.
BENNY COUNCIL , The Council Law Firm, LLC, 419 South Salcedo Street, Suite 2, New Orleans, Louisiana 70119, COUNSEL FOR APPELLANT, M.M.
VIRGINIA L. BAKER , 1403 West Esplanade Avenue, Suite C, Kenner, Louisiana 70065, COUNSEL FOR APPELLANT, T.T.
MELISSA W. BERNIARD , 7513 Hampson Street, New Orleans, Louisiana 70118, COUNSEL FOR MINOR, K.C.C.
RAMONA G. FERNANDEZ , SUPERVISING ATTORNEY, JANEY LAMAR , SAMANTHA ALEXANDER , STUDENT PRACTITIONERS , Loyola University New Orleans College of Law, Stuart H. Smith Law Clinic and Center for Social Justice, 7214 St. Charles Avenue, Campus Box 902, New Orleans, Louisiana 70118, AMICUS COUNSEL FOR MINOR, K.C.C.
Panel composed of Judges Susan M. Chehardy, Fredericka Homberg Wicker, Marc E. Johnson, Robert M. Murphy, and Stephen J. Windhorst.
SUSAN M. CHEHARDY, CHIEF JUDGE.
This matter comes to this Court on remand from the Louisiana Supreme Court. For the reasons that follow, we affirm the May 28, 2014 judgment of the juvenile court.
BACKGROUND
Our task here on remand does not warrant a full recitation of the underlying factual and procedural history of this case—that we incorporate by reference to our original opinion. See State ex. rel. K.C.C., 15-84 (La. App. 5 Cir. 5/28/15), 171 So.3d 390. Here we begin with the May 28, 2014 judgment of the Jefferson Parish Juvenile Court, in which the court terminated the parental rights of T.T., the biological mother, and M.M., the biological father, with respect to their minor child, K.C.C. The court also released K.C.C. for adoption and granted custody of K.C.C. to appellees, E.C. and K.C. Both T.T. and M.M. appealed this judgment. T.T. raised five assignments of error; M.M. raised four. We found no merit to T.T.'s and M.M.'s first assignments of error, but the majority found merit to T.T.'s second assignment of error. See K.C.C., supra at 398-404. On that basis, we reversed in part the juvenile court, and remanded the matter, pretermitting discussion of the remaining assigned errors. See id. at 404. On certiorari, the supreme court reversed and remanded the matter for us to consider the previously pretermitted assigned errors. See State ex rel. K.C.C., 15-1429 (La. 1/27/16), 188 So.3d 144. Because the supreme court's ruling resolved the issues raised in M.M.'s second and third assignments of error, on remand we consider only T.T.'s third, fourth, and fifth assignments of error, as well as M.M.'s fourth assignment of error.
K.C.C.'s date of birth is March 1, 2013.
T.T. raised the following assignments of error: (1) the juvenile court lacked jurisdiction to terminate parental rights at the request of a party subject to an interim custody order rendered by the 24th Judicial District Court; (2) the juvenile court erred in overruling the exception of no right of action; (3) the juvenile court erred in finding that appellees met their burden of proof by clear and convincing evidence that T.T. intentionally abandoned K.C.C. pursuant to La. Ch.C. art. 1015(4)(b)(c); (4) the juvenile court erred in finding that T.T. intended to give K.C.C. up for adoption; and (5) the juvenile court erred in denying the request to incorporate the intra-family adoption record into the instant record.
M.M. raised the following assignments of error: (1) the juvenile court lacked jurisdiction to terminate parental rights at the request of a party subject to an interim custody order rendered by the 24th Judicial District Court; (2) the juvenile court erred in granting appellees' trial counsel leave of court to file a petition to terminate parental rights pursuant to La. Ch.C. art. 1004(A); (3) the juvenile court erred in allowing appellees' trial counsel to act as special counsel under La. Ch.C. art. 1004(F); and (4) the juvenile court erred in finding that M.M. intentionally abandoned K.C.C. pursuant to La. Ch.C. art. 1015(4)(b)(c).
DISCUSSION
T.T.'s Assignment of Error No. Three & M.M.'s Assignment of Error No. Four
In their respective third and fourth assignments of error, T.T. and M.M. argue that the juvenile court erred in terminating their parental rights on the basis that T.T. and M.M. had intentionally abandoned K.C.C. pursuant to La. Ch.C. art. 1015(4)(b) and (c).
La. Ch.C. art. 1015 provides the statutory grounds by which a court may involuntarily terminate the rights and privileges of a parent. State ex rel. J.J.S., 14-1574 (La. App. 1 Cir. 7/7/15), 180 So.3d 319, 322. In order for parental rights to be terminated, the elements of at least one statutory ground for termination must be established by clear and convincing evidence and the court must find that the termination is in the best interest of the child. See La. Ch.C. art. 1035(A); La. Ch.C. art. 1037(B); Id. at 322-23. Thus, a two-pronged inquiry is posed in parental termination proceedings. See State ex rel. L.B. v. G.B.B., 02-1715 (La. 12/4/02), 831 So.2d 918, 922. First, the party seeking termination must establish, by clear and convincing evidence, at least one ground for termination under La. Ch.C. art. 1015. Id. And second, only after a finding that at least one of the enumerated grounds set forth in La. Ch.C. art. 1015 has been established, the court must determine whether the termination is in the child's best interest. Id.
A trial court's findings on whether the termination of parental rights is warranted under La. Ch.C. art. 1015 are findings of fact that will not be disturbed in the absence of manifest error. See State ex rel. J.R., 11-351 (La. App. 5 Cir. 12/13/11), 84 So.3d 623, 628; State ex rel. B.J., 00-1434 (La. App. 1 Cir. 7/27/00), 767 So.2d 869, 872; State ex rel. D.R.B., 00-1321 (La. App. 3 Cir. 12/6/00), 777 So.2d 508, 511. Under this standard of review, to reverse a trial court's factual findings, the appellate court must: (1) find from the record that a reasonable factual basis does not exist for the finding of the trial court, and (2) determine that the record establishes the finding is clearly wrong or manifestly erroneous. Neathamer v. Singleton, 15-411 (La. App. 5 Cir. 12/23/15), 182 So.3d 406, 410, writ denied, 16-239 (La. 4/4/16), 190 So.3d 1206. Thus, an appellate court's task is not to determine whether the factfinder was right or wrong, but whether the factfinder's conclusion was reasonable. See id. If the conclusion is reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even if convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Id. Indeed, even where an appellate court may feel its own evaluations and inferences are more reasonable than the factfinder's, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review where conflict exists in the testimony. Id.
Our inquiry here on appeal is two-fold. First, we must determine whether the juvenile court manifestly erred in finding at least one ground for the termination of T.T.'s and M.M.'s parental rights under La. Ch.C. art. 1015 was proven by clear and convincing evidence. And second, we must determine whether the juvenile court manifestly erred in concluding that the termination of T.T.'s and M.M.'s parental rights was in the best interest of K.C.C.
Turning to the first prong of our inquiry, we note that the juvenile court terminated appellants' parental rights on grounds of abandonment pursuant to La. Ch.C. art. 1015(4). Under this provision, a child is abandoned...
... by placing him in the physical custody of a nonparent, or the department, or by otherwise leaving him under circumstances demonstrating an intention to permanently avoid parental responsibility by any of the following:
(a) For a period of at least four months as of the time of the hearing, despite a diligent search, the whereabouts of the child's parent continue to be unknown.
(b) As of the time the petition is filed, the parent has failed to provide significant contributions to the child's care and support for any period of six consecutive months.
(c) As of the time the petition is filed, the parent has failed to maintain significant contact with the child by visiting him or communicating with him for any period of six consecutive months.
Specifically, the court found appellants had abandoned K.C.C. under both La. Ch.C. art. 1015(4)(b) and (c). We consider each in turn.
Abandonment under La. Ch.C. art. 1015(4)(b) is demonstrated by a parent's failure to provide significant contributions to the child's care and support for a period of six consecutive months. In the case of M.M., he argues that the evidence does not demonstrate he intended to abandon K.C.C. under this subsection for six consecutive months because he did not acknowledge his paternity of K.C.C. until December 5, 2013. He contends that the six-month period can only be calculated from that date forward, and therefore, a period of six consecutive months cannot be established in his case. In support of his contention, M.M. relies on State ex rel. D.H.L., 08-39 (La. App. 3 Cir. 4/30/08), 981 So.2d 906, 910, in which the Third Circuit found the trial court committed legal error by concluding that the minor had been abandoned by his father based upon a six-month calculation that included periods of time prior to the father's "paternity being established."
On December 5, 2013, M.M. filed a written statement into the record of the intra-family adoption proceedings acknowledging his paternity of K.C.C. This statement is dated November 27, 2013. For purposes of our analysis, we consider November 27, 2013 as the first time M.M. officially acknowledged his paternity of K.C.C.
The Third Circuit's calculation method is not binding in this circuit; and for the following reasons, we decline to apply it in this case.
As soon as T.T. learned she was pregnant with K.C.C. in August or September of 2012, she informed M.M. that he was the father. He initially believed her, but allegedly began to doubt his paternity when T.T.'s roommate told him he was not the father. T.T. surmised that her roommate did this as an act of retaliation because their relationship had recently soured and T.T. had kicked her roommate out of the house. M.M. testified to this same sequence of events, confirming that he was aware of the circumstances suggesting the probable falsity of the roommate's claim. Nonetheless, M.M. stated that he began harboring doubts about his paternity while still acknowledging the "possibility" that K.C.C. was his son because, as he explained at trial, he and T.T. were "involved and having sex" at the time. Indeed, he had fathered T.T.'s other son, who was two-years-old at the time of trial in May 2014.
Here on appeal, M.M. claims that his doubts about his paternity persisted from before K.C.C.'s birth until the child was about eight months old in November 2013. The evidence and testimony of several witnesses, however, suggest that any doubts M.M. may have had were resolved long before November. First, T.T. testified that she told M.M. he was the father as soon as she learned she was pregnant and that he believed her. Second, M.M. is listed as K.C.C.'s father in the hospital's discharge planning form, dated March 1, 2013. Third, E.C. testified that during discussions soon after K.C.C.'s birth, both T.T. and M.M. told him that M.M. was the father. Fourth, S.S., who spoke with M.M. on the day of K.C.C.'s birth, testified that M.M. did not express any doubts about his paternity to her. In fact, it was just the opposite: on the day of the birth, S.S. received a phone call from M.M. telling her that "he had just had a baby." Fifth, G.J., who also spoke with M.M. on March 1, 2013, offered similar testimony, explaining that M.M. told her "that somebody just had a baby for him." Sixth, E.C.'s mother, who is acquainted with M.M. prior to and independently of this case, testified that she learned M.M. was the father soon after her son and daughter-in-law visited the child in the hospital. Seventh, M.M.'s mother testified that she knew her son was the father as soon as she saw a picture of the child at two-months old. And lastly, T.T.'s mother similarly testified that she knew M.M. was the father as soon as she saw the child. She explained that K.C.C. looked like the twin of his older brother, T.T.'s and M.M.'s first child. She added: "I didn't even have a doubt when [T.T.] was pregnant who the baby was for. There was never a doubt in my mind... [she] has never been with anyone else."
So it seemed everybody except M.M. knew he was K.C.C.'s father well before November. Yet, it was not until November 27, 2013 that M.M.'s alleged doubts seem to have dissipated. On this date, M.M. authored a written statement in which he professed:
M.M.'s paternity was conclusively established on January 17, 2014, when the DNA test confirmed the probability of his paternity was 99.99%.
I believe [K.C.C.] is my son. I did know [T.T.] was pregnant but we never really talked about who the father was until a month or two after he was born.... I am writing this letter to inform the court I am 98% sure I am the biological father of [K.C.C.] ... I truly believe [K.C.C.] is my son.
At trial, however, M.M. explained that he still doubted his paternity at the time he authored this statement, but did so at his lawyer's instruction in connection with his effort to obtain custody of K.C.C. after appellees instituted intra-family adoption proceedings in October 2013.
Now, M.M. argues that the period during which he allegedly doubted his paternity, i.e., prior to November 27, 2013, should be excluded from the calculation of the six-month period under La. Ch.C. art. 1015(4)(b) and (c). In essence, M.M. asks us to give him the benefit of his doubts. We are troubled by this argument given the questionable veracity of those doubts. In consideration of the evidence that M.M. had numerous reasons to believe he was K.C.C.'s father long before November 2013, his abrupt decision to officially acknowledge paternity after months of claimed doubt suggests that in doubting his paternity, M.M. was at least unreasonable, if not deliberately ignorant or downright disingenuous. To employ the Third Circuit's calculation method under these circumstances would essentially reward M.M. for unreasonably doubting his paternity while taking no initiative to conclusively determine his paternity despite many reasons to believe he was in fact K.C.C.'s father. Thus, in similar scenarios, a putative father, by merely claiming to doubt his paternity—even if those doubts are patently unreasonable—could shirk parental responsibilities while insulating himself from charges of abandonment under La. Ch.C. art. 1015(4)(b) and (c). We decline to adopt an approach that could yield such results. The juvenile court did not err by including the period during which M.M. claimed to doubt his paternity in its calculation of the six-month period for purposes of La. Ch.C. art. 1015(4)(b) and (c).
Accordingly, we find M.M.'s undisputed testimony that he contributed nothing to K.C.C.'s care and support between March 3, 2013 and May 5, 2014 supports the juvenile court's determination that, as of the time the petition was filed, M.M. had failed to provide significant contributions to K.C.C.'s care and support for six consecutive months.
Appellees' petition for the termination of parental rights was filed on March 3, 2014.
As for T.T., the record established that her contributions consisted of two months (March and April 2013) of access to government health benefits and some hand-me-down baby items. Other than that, the record demonstrates T.T. contributed nothing to K.C.C.'s care and support. Indeed, K.C. explained that other than the two months of government assistance, neither T.T. nor M.M. helped with K.C.C. in any way. She added that she and her husband have supported the child entirely on their own.
In addition, T.T.'s intention to permanently avoid parental responsibility is evidenced by the power of attorney she executed on April 9, 2013, when K.C.C. was a little over a month old. In this document, T.T. granted to appellees "all of [her] powers regarding the care and custody of [K.C.C.]," including the powers to:
Provide total care and custody for the child, including full parental rights[;] Provide for the child's food, clothing, housing, recreation and travel[;] Obtain medical, dental, and mental health treatment and make health care decision on behalf of the child[;] Make decisions regarding the child's education, including enrolling in school and in any extracurricular activities.
Notably, this document further provided that "[t]he rights, power and authority hereby granted shall remain in full force" until K.C.C.'s eighteenth birthday. Although T.T. later revoked this power of attorney on May 21, 2013, she never informed appellees of this revocation and took no further action to contribute to K.C.C.'s care and support.
The juvenile court determined that T.T.'s only contributions—two months of access to government assistance and a few hand-me-down items—did not qualify as significant contributions. The court stated: "federal and state government services do not constitute `support' by a parent." The court thus concluded that both T.T. and M.M. had failed to provide significant contributions to K.C.C.'s care and support for a period of six consecutive months. Upon review of the record, we find that the court did not manifestly err in this conclusion.
The court additionally found T.T. and M.M. abandoned K.C.C. pursuant to La. Ch.C. art. 1015(4)(c). Abandonment under this subsection is demonstrated by a parent's failure to maintain significant contact with the child by visiting him or communicating with him for a period of six consecutive months. Here again, M.M. argues that this six-month period should not include any period of time before December 5, 2013. For the reasons assigned above, we reject this argument. Therefore, M.M.'s undisputed testimony that he had no contact with his son between March 3, 2013 and November 27, 2013 supports the juvenile court's determination that M.M. failed to maintain significant contact with K.C.C. for six consecutive months.
With regard to T.T., the record reflects that T.T. visited K.C.C. on April 16, 2013, and did not come into contact with him again until October 21, 2013, when she showed up unannounced at appellees' home with the intention of taking the child from them. Although T.T. and M.M. offered reasons for their lack of contact —e.g., not having appellees' telephone numbers or home address—the court rejected these excuses as unbelievable and unconvincing. The court therefore concluded that both T.T. and M.M. failed to maintain significant contact with K.C.C. by visiting him or communicating with him for a period of six consecutive months. Upon review of the record, we find that the court did not manifestly err in this conclusion.
Having found that the juvenile court did not manifestly err in concluding that two grounds for termination under La. Ch.C. art. 1015 had been established by clear and convincing evidence, we now turn to the second prong of our inquiry. Here, we must determine whether the juvenile court manifestly erred in its conclusion that the termination of T.T.'s and M.M.'s parental rights was in the best interest of K.C.C. In making this determination, "the `best interests of the child' must be cautiously weighed against the rights of the parent." In re Custody of Reed, 497 So.2d 1084, 1086 (La. App. 4 Cir. 1986). "It may certainly be in the best interest of many children if they were reared in homes other than that of their parents, but that test, standing alone cannot be used to deprive a mother of the custody of her child." Id.
With respect to M.M., he has seven children with four women and earns an income by cutting hair and sporadically remodeling houses with his brother. He has felony convictions for possession of crack-cocaine, attempted possession of a firearm by a felon, and domestic abuse/battery. As summarized by the juvenile court: "It was evident from M.M.'s testimony, his disruptive demeanor in court, his criminal history, and his complete lack of support or concern for K.C.C. that it is in K.C.C.'s best interest that M.M.'s parental rights be terminated."
Regarding T.T., the court made the following observations: T.T. was "evasive, argumentative, and crass"; "T.T. clearly lacks a basic understanding of child development"; "T.T. could not even refrain from using illegal substances during the pendency of these proceedings"; and "T.T. only saw her newborn child twice after his release from the hospital and then she failed to visit with her infant child for six consecutive months and failed to convince this Court that she was thwarted in her efforts to visit her son."
Both T.T. and M.M. tested positive for marijuana pursuant to a court-ordered drug screening.
In contrast to T.T. and M.M., the court noted that appellees' love and affection for K.C.C. was supported by "abundant testimony" and that they are "a stable couple with stable employment and stable housing." The court thus concluded that the termination of T.T.'s and M.M.'s parental rights was in the best interest of K.C.C.
We are mindful of what is at stake here. We scrupulously heed the admonition that "courts must proceed with care and caution as the permanent termination of the legal relationship existing between natural parents and the child is one of the most drastic actions the State can take against its citizens." In re J.A., 99-2905 (La. 1/12/00), 752 So.2d 806, 811.
We are also mindful of our role in the resolution of this admittedly difficult matter. As an appellate court, we must always keep in mind that if the trial court or jury's findings are reasonable in light of the record reviewed in its entirety, we may not reverse, even if convinced that had we been sitting as the trier of fact, we would have weighed the evidence differently. See Neathamer, supra. The reason for this well-settled principle of review is based not only upon the trial court's better capacity to evaluate live witnesses (as compared with the appellate court's access only to a cold record), but also upon the proper allocation of trial and appellate functions between the respective courts. Id.
In her briefs to this Court, T.T. repeatedly argues that appellees circumvented the adoption laws through acts of fraud and that the juvenile court erred in failing to take notice of this. The juvenile court, however, sitting as the trier of fact, saw the evidence very differently. Upon our independent review of the record, we cannot say that the court was wrong in this assessment. Both the record and the juvenile court's extensive reasons for judgment lead us to find that the court did not manifestly err in its conclusion that the termination of T.T.'s and M.M.'s parental rights was in the best interest of K.C.C.
Having found that the juvenile court did not manifestly err under either prong of the parental termination inquiry, we therefore conclude that the juvenile court did not err in terminating T.T.'s and M.M.'s parental rights to K.C.C. This assignment of error is without merit.
T.T.'s Assignment of Error No. Four
In T.T.'s fourth assignment of error, she argues that the juvenile court erred in finding that she intended to give K.C.C. up for adoption. In its reasons for judgment, the juvenile court stated: "This Court has absolutely no doubt, based on testimony and credibility of witnesses, that T.T. intended all along to place K.C.C. [up] for adoption." This finding, T.T. contends, was erroneous.
This factual finding, on its own, carries no legal significance in this case where the issue is the termination of parental rights due to abandonment. The juvenile court's task was to determine whether clear and convincing evidence established T.T.'s abandonment of K.C.C. under La. Ch.C. art. 1015(4). While T.T.'s intent to place K.C.C. up for adoption may have been one fact among many considered by the court in making this determination, even if the juvenile court erred in this factual finding, this is of no consequence when the record otherwise contains ample evidence to support the court's conlusion that T.T. abandoned K.C.C. by neither providing significant contributions to K.C.C.'s care nor maintaining significant contact with K.C.C. for six consecutive months. This assignment of error is without merit.
T.T.'s Assignment of Error No. Five
In T.T.'s fifth assignment of error, she argues that the juvenile court erred in denying her request to incorporate the intra-family adoption record into the instant record. At a pre-trial hearing on May 1, 2014, counsel for T.T. orally moved to make the record of the intra-family adoption proceedings a part of the record in the termination proceedings. The Court ruled: "... in the course of your case presentation if you want to refer to something in that record, you know I'll deal with it as you do so. It is what it is ... I know what's in it. I've ruled on it, so I don't really have a big problem with it." Counsel for T.T. responded: "Okay, thank you Your Honor."
As this makes clear, counsel for T.T. did not object to this ruling, but in fact agreed to it. As a result, this issue has not been preserved for appellate review. See La. C.C.P. art. 1635; Lantier v. Aetna Cas. & Sur. Co., 614 So.2d 1346, 1351 (La. App. 3 Cir. 1993) (holding that a party cannot complain on appeal of an alleged defect in the trial proceedings to which it acquiesced).
DECREE
For the foregoing reasons, the May 28, 2014 judgment of the juvenile court is affirmed.