Louisiana Case Law
Unpublished
IN RE: A.M.B., 2006 CJ 1114 (La.App. 1 Cir. 12-28-2006) IN
RE: A.M.B., APPLYING FOR INTRAFAMILY ADOPTION OF A.M.A. AND
J.H.A. No. 2006 CJ 1114. Court of Appeal of Louisiana,
First Circuit. December 28, 2006. NOT DESIGNATED FOR
PUBLICATION.
[EDITOR’S NOTE: This case is unpublished as indicated by the
issuing court.] On Appeal from the 22nd Judicial District
Court In and For the Parish of St. Tammany, State of
Louisiana Trial Court No. 2005-40050, Division “A”
Honorable Raymond Childress, Judge Presiding.
Kasi Brannan, Covington, LA Counsel for Plaintiff/Appellee
A.M.B.
Michelle R. Demarest, Candice L. Jenkins, Covington, LA
Counsel for Defendant/Appellant J.B.A.
BEFORE: PETTIGREW, DOWNING, AND HUGHES, JJ.
HUGHES, J.
This is an appeal from a judgment granting the stepparent
adoption of the minor children, A.M.A. and J.H.A., by their
stepfather, A.M.B. The biological father of the children
opposed the adoption and files this appeal. For the reasons
stated herein, we affirm.
FACTS AND PROCEDURAL HISTORY
A.M.A. and J.H.A. were bom on March 26, 1996 and November
11, 2001, respectively, to their biological parents,
J.L.H.B. and J.B.A. J.L.H.B. and J.B.A. were divorced on
July 25, 2002, and awarded joint custody of the children,
with J.L.H.B., the mother having physical custody. The
father, J.B.A., has allegedly had no contact with the
children for several years. On September 27, 2003 J.L.H.B.
married the petitioner, A.M.B.
A.M.B. filed the “Petition for Intrafamily Adoption” at
issue herein on June 14, 2005. In conjunction with the
petition, J.L.H.B. filed an “Authentic Act of Consent to
Adoption.” The matter was heard by the trial court on
December 1, 2005, and December 5, 2005. Thereafter, the
trial court granted judgment in favor of plaintiff,
decreeing adoption in his favor of A.M.A. and J.H.A., and
ordering the names of the children changed to A.M.B. and
J.H.B.
J.B.A. has appealed the judgment of adoption, and asserts
the trial court erred: (1) in finding that J.B.A. failed or
refused to comply with the court-ordered award of support
without just cause for a period of at least six months; (2)
in finding that J.B.A. refused or failed to visit,
communicate, or attempt to communicate with his children
without just cause for a period of at least six months; and
(3) in finding that the intrafamily adoption by A.M.B. was
in the best interest of the children.
LAW AND ANALYSIS
The intrafamily adoption of a child by a stepparent is
authorized by LSA-Ch.C. art. 1243, which provides:
A. A stepparent, stepgrandparent, great-grandparent,
grandparent, aunt, great aunt, uncle, great uncle,
sibling, or first cousin may petition to adopt a child if
all of the following elements are met:
(1) The petitioner is related to the child by blood,
adoption, or affinity through a parent recognized as
having parental rights.
(2) The petitioner is a single person over the age of
eighteen or a married person whose spouse is a joint
petitioner.
(3) The petitioner has had legal or physical custody of
the child for at least six months prior to filing the
petition for adoption.
B. When the spouse of the stepparent or one joint
petitioner dies after the petition has been filed, the
adoption proceedings may continue as though the survivor
was a single original petitioner.
C. For purposes of this Chapter “parent recognized as
having parental rights” includes not only an individual
enumerated in Article 1193,[[fn1] but also:
(1) A father who has formally acknowledged the child with
the written concurrence of the child`s mother.
(2) A father whose name or signature appears on the
child`s birth certificate as the child`s father.
(3) A father, if a court of competent jurisdiction has
rendered a judgment establishing his paternity of the
child.
Unless parental rights have been terminated in accordance
with Title X or XI, consent to the adoption of a child or
relinquishment of parental rights is required of the mother
of the child and the father of the child. LSA-Ch.C. art.
1193. However, as provided in LSA-Ch.C. art. 1245, parental
consent is unnecessary under certain circumstances:
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 or C 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 conditions
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.
Thus, where a parent has either failed to comply with a
court order of support without just cause for a period of
six months, or the parent has refused or failed to visit,
communicate, or attempt to communicate with the child
without just cause for a period of six months, that
parent`s consent to adoption is unnecessary. See In re
J.A.B., 2004-1160, p. 5 (La.App. 1 Cir. 9/17/04), 884
So.2d 678, 681, writ denied, 888 So.2d 848, 2004-2963 (La.
12/14/04).
The party petitioning the court for adoption carries the
burden of proving a parent`s consent is not required under
the law. To constitute “just cause,” a parent`s failure to
support, visit, or communicate with his children must be
due to factors beyond his control. In re J.A.B., 2004-1160
at p. 5, 884 So.2d at 681. See also In re T.A.S.,
2004-1612, p. 6 (La.App. 1 Cir. 10/29/04), 897 So.2d 136,
140. Although the initial burden of proving that a parent`s
consent to an adoption is not required lies with the party
seeking the adoption, once a prima facie case is proven,
the burden shifts to the nonconsenting parent to show that
his or her failure was due to factors beyond his or her
control. In re T.A.S., 2004-1612 at pp. 5-6, 897 So.2d at
140.
However, even where the other parent`s consent is obviated
by failure to visit, the court must also consider what is
in the best interest of the child in determining whether
the adoption should proceed. In fact, the primary
consideration in adoption proceedings is whether the
adoption is in the best interest of the child. In re T.A.S.,
2004-1612 at pp. 6-7, 897 So.2d at 140; In re J.A.B.,
2004-1160 at p. 8, 884 So.2d at 683; In re Miller, 95-1051,
p. 6 (La.App. 1 Cir. 12/15/95), 665 So.2d 774, 777, writ
denied, 96-0166 (La. 2/9/96), 667 So.2d 541. See also
LSA-Ch.C. art. 1255.
Whether an adoption is in a child`s best interests must be
decided on the unique facts of each case, and the trial
judge is vested with vast discretion in making that
determination. Because the trial judge is in a better
position to make the best interests determination, an
appellate court will ordinarily not second-guess such
sensitive decisions. However, the trial judge`s discretion
is not absolute, as the court`s decision is subject to
reversal if found to be manifestly erroneous or clearly
wrong. In re Morris, 39,523, p. 8 (La.App. 2 Cir. 1/26/05),
892 So.2d 739, 744.
The trial court determined that the provisions of LSA-Ch.C.
art. 1245 had been satisfied with respect to J.B.A., and
that consequently his consent to adoption was not required.
The court issued the following oral reasons for judgment on
this issue:
In the adoption matter which we have been taking evidence
on relative to the applicability of Children`s Code
Article 1245, which to be applicable, in which parental
consent would be unnecessary, the moving party must prove
by clear and convincing evidence any one factor listed in
1245 (B) or (C): the refusal or failure to comply without
just cause of [a] court order of support for at least six
months; or refusal or failure to visit, communicate, or
attempt to communicate without just cause for at least six
months. Then the Court is instructed that to find the
evidence to be clear and convincing means to demonstrate
the existence of a disputed fact as highly probable, that
is much more probable than its non-existence.
With those parameters taken into consideration in the
instant case, by [J.B.A.j`s own testimony he`s had no
contact with the children since 2002. And he has paid no
child support since 2002. Although, he fosters some
reasons for his failures to have contact with the children
and to pay child support, the Court is not impressed
with his reasons.
Therefore, the Court finds that his failure to pay child
support and his failure to have contact with the children
in without just cause.
Therefore, the Court determines that Children`s Code
Article 1245 is applicable and parental consent of
[J.B.A.] is not necessary.
With respect to the best interests of the children, the
trial court gave the following oral reasons:
We are here today to complete the hearing on the adoption
of these two children, [A.M.A.] and [J.H.A.]. I previously
had ruled on this past Thursday regarding the natural
father`s failure to maintain support for the children and
attempts to communicate with the child[ren] and such. We
are here today dealing with the best interest aspect of
the equation that I am to wrestle with in making a
determination as to whether or not these children can be
adopted by [A.M.B.].
Best interest evaluations, such as this, I will
absolutely say are not easy. I have to look at all the
factors and really weigh things out to make a
determination as to what I think is truly in the best
interest of these children. I have to look at a few things
that have been exhibited over the years and the situation
that I`m faced with here and now.
I realize [J.B.A.] is ready to re-establish a
relationship with his children that has laid dormant for
at least three years. I think one of the telling questions
that was posed to [J.B.A.J`s mother — I think it
was his mother who indicated that she felt that he had
become a lot more mature — was the fact that that
supposed maturity was not exhibited through positive
actions, like paying child support arrearages when he had
the money available to him to do that or maintaining a
relationship when he had ample opportunity to do that.
I think that there`s certainly issues that have been
rightfully asked as to what do you tell these children if,
in fact, they are adopted? I`m sure that [A.M.A.] already
recognizes that [A.M.B.] is not her biological father
because she has had in the past — the distant past
— some relationship with [J.B.A.], whereas
[J.H.A.] apparently does not even know who his biological
father is. Certainly, if I approve this adoption, at some
point in time that`s going to be an issue that will have
to be dealt with. But that, in and of itself, is not the
one thing for me to look at to make a determination as to
what is in the best interests of these children here, now,
and into the future. Even though [A.M.A.] has had a prior
relationship, or certainly knows who her biological
father is, I`m sure she would acknowledge that [A.M.B.]
has been filling the role of her father for the last
several years. And I`m sure [J.H.A.] would have the same
response if he was asked who his father is.
I wrestle with issues such as this because these children
have now had the opportunity to bond with [A.M.B.];
[J.B.A.] has been out of their life for a long time, by
his own doing, no one to blame but himself. I feel for his
mother and his sister who have wanted to maintain their
own relationship with these children. Although there was
really not a whole lot of evidence, I never heard anybody,
whether it was his aunt or his mother or his sister, say
that they continued to try to maintain these contacts for
his behalf. I don`t know what transpired between [J.B.A.]
and his family, but apparently they`ve all mended any
fences that needed mending. But the truth of the matter
is, they were the ones trying to maintain their own
relationship with these children. I haven`t heard anything
that would indicate to me that [J.B.A.] was doing much of
anything in that regard.
So it`s a shame that their relationship to these
children, in essence, flows through [J.B.A.], who, for
apparently quite some time, for whatever reason, could
have cared less. So his failure to maintain this
relationship with his children has taken a lot away from
them, namely, his family. But I don`t think his family
alone, in their desire to maintain a relationship with
these children, is in fact the only thing that I`m to look
at in trying [to] make a determination as to what is in
their best interest.
I considered the fact that these children have, in
essence, been raised by their mother and their
step-father, and for all intents and purposes from
everything that I`ve heard, it sounds as though they are
doing quite well. It sounds as though the situation that
they are in right now has been very beneficial to them.
And it sounds as though what [J.B.A.] proposes of just
being involved in their life on his own terms —
I`ll fly them out to California every now and then; I`ll
fly back in and visit them when I can — I don`t
know that that, in essence, would be in their best
interest. I think their best interest would be best served
by allowing [A.M.B.] to adopt these children and then he
can officially be their father.
During the testimony of the biological father, J.B.A., he
admitted that he was ordered by the court in 2002 to pay
child support in the amount of approximately $800.00 per
month,[fn2] which he did not pay, and that there was an
arrearage in excess of $40,000.00. J.B.A. further admitted
that in the summer of 2004, he “received” in excess of
$500,000.00. He also admitted that he spent some
$350,000.00 of those funds on remodeling his house,
“miscellaneous things, loans, and gifts,” which included an
expensive wardrobe for himself from Saks Fifth Avenue.
J.B.A. stated that although he would have had $150,000.00
remaining out of which he could have paid his child support
arrearage, the C.P.A. firm managing his finances embezzled
these funds, leaving him with no means to pay the
arrearage.
J.B.A. testified that when he first received the funds, he
directed his C.P.A. firm to send $10,000.00 to J.L.H.B.
toward payment of the amount of child support owed.
Although J.B.A. seemed to be aware that the payment was
never received by J.L.H.B., he admitted that he failed to
tender any further sums because he was waiting for his
attorneys to calculate the amount of the arrearage.
With respect to his failure to visit his children, J.B.A.
indicated there was a period of time when he did not know
where J.L.H.B. lived; however, he admitted that he never
looked in the phone book to attempt to locate her. J.B.A.
also admitted that he knew where J.L.H.B.`s mother lived
and how to contact her.
J.B.A. acknowledged that he had not seen his children since
2002. J.B.A. testified that he did send several letters to
J.L.H.B. in 2003, and left the occasional note or gift on
her doorstep. However, J.B.A. indicated that he made no
concerted effort to re-establish his relationship with his
children until 2005.
J.B.A. offered as justification for his neglect that he had
been in a car accident in July of 2002, underwent a surgery
in 2003, and five surgeries in 2004. J.B.A. further
testified that he was unemployed during this time, on pain
medication, undergoing rehabilitation, and suffering from
depression.[fn3] He testified, “I did let a lot of time
lapse and, once again, it`s nobody`s fault but my own.”
J.B.A. further admitted that J.L.H.B. had in no way
prevented him from seeing the children.
J.B.A. also testified that he hired an attorney in August
of 2004 to help him regain visitation with his children,
but the rule he filed with the court to implement
visitation with the children was not filed until May of
2005. Prior to that time, J.B.A. admitted that he did not
seek legal assistance to obtain visitation with the
children even though his sister is an attorney and despite
having been employed by an attorney.
J.B.A. also admitted that during a 2002 custody proceeding
he was ordered to submit to a drug screening program, that
he subsequently tested positive for cocaine, and that he
was removed from the program for non-compliance.[fn4]
J.B.A. indicated that thereafter he submitted proof of
compliance to his attorneys. J.B.A. also admitted that when
he had been allowed unsupervised visitation with A.M.A., he
took her to work with him “[occasionally” at George`s, a
restaurant and bar in Baton Rouge. J.B.A. admitted that on
such occasions he left A.M.A. in the care of a man named
“Chuck” who he knew “pretty well” and who was a “good guy.”
J.B.A. testified that he currently lives in California
where he works for an insurance adjusting company and goes
to school. He testified that he moved to California to
“change the situation” (he stated he wanted to get away
from bad influences in Baton Rouge), and that he enjoys
living in California more than in Baton Rouge. J.B.A.
testified that he would like to have the children visit him
there eventually.
J.B.A.`s sister testified concerning her relationship with
the children, but admitted that she had not seen the
children since Christmas of 2003, and that her phone calls
to J.L.H.B. had gone unanswered since that time. She stated
that she nevertheless continued to send them cards and
gifts. However, J.B.A.`s sister gave no testimony regarding
any efforts that J.B.A. made to maintain his relationship
with the children, other than to state that he sent cards
to them at times that she did not specify. J.B.A.`s sister
testified that J.B.A. had a good relationship with her own
children and that it would be in A.M.A. and J.H.A.`s best
interest to have J.B.A.`s influence in their lives.
J.B.A.`s mother testified that although she lives in Texas,
she made attempts to visit the children, and sent them
gifts on birthdays and holidays. She last saw them at
Christmas in 2003, when she said she brought them gifts
from her as well as J.B.A. J.B.A.`s mother also testified
that she believed it was in the children`s best interest to
maintain a relationship with their father.
J.B.A.`s aunt also testified that although she had not seen
the children in four years, she had witnessed what a good
relationship A.M.A. had previously had with her father, and
that she believed it to be important for the children to
have J.B.A. in their lives.
The children`s mother, J.L.H.B., testified that in 2002,
the court ordered that J.B.A.`s visitation with the
children be supervised at the home of her mother. She
testified that J.B.A. last saw the children in October of
2002 for forty-five minutes. J.L.H.B. testified that her
phone number was at all times listed in the telephone
directory, and that her mother`s address and phone number
did not change. J.L.H.B. admitted receiving letters from
J.B.A. in October of 2003 and in March of 2005. J.L.H.B.
stated that she was unable to contact J.B.A. because his
phone either was unanswered and/or was disconnected.
J.L.H.B. further testified that J.B.A.`s mother and sister
visited the children in 2003 and brought with them gifts,
which they indicated were from J.B.A. She also stated that
J.B.A. sent a birthday card to A.M.A. in March of 2005
containing $500.00, and that at Easter in 2005, he dropped
off gifts for the children at her mother`s house. J.L.H.B.
also testified that J.B.A.`s mother sent gifts to the
children from time to time.
J.L.H.B. testified that when J.B.A. had previously
exercised visitation with A.M.A., there were problems with
his drug abuse and that he frequently left the child with
various people, which led her to seek supervised
visitation. She indicated that after supervised visitation
was imposed, J.B.A. stopped visiting the children, and the
last time she saw him was before J.H.A.`s first birthday.
J.L.H.B. testified that A.M.A. no longer asks about her
father, and that J.H.A. does not know him.
J.L.H.B. testified that she has a great marriage with
A.M.B. and that they have extensive and supportive family
in St. Tammany Parish, where they live. J.L.H.B. also
testified that A.M.B. is a “daddy” to the children.
J.L.H.B. also testified to the numerous family activities
she and A.M.B. engage in with the children.
The children`s stepfather, A.M.B., testified that he has no
children of his own, but that he loves A.M.A. and J.H.A.
“with all [his] heart and soul.” A.M.B. testified that the
family engages in many activities together and with their
extended family. A.M.B. testified that they spend holidays
and birthdays together and “do everything pretty big.”
A.M.B. stated that he rides bikes with the children, takes
them to the park, participates in sports, cooks, shops, and
does household chores with them. He also testified that he
takes them to school, doctor`s appointments, and other
activities. A.M.B. was able to recite to the court the
children`s favorite foods and activities, as well as
details about their school work. In conjunction with his
testimony, A.M.B. identified family photographs of
activities, birthdays, and holidays with the children,
which were submitted into evidence. A.M.B. declared his
commitment to be a parent to the children, even if his
marriage to J.L.H.B. were to end. A.M.B. testified that the
children consider him their “dad” and have never mentioned
their biological father to him.
J.L.H.B.`s mother and a family friend were called to
testify. Both of these witnesses confirmed the testimony of
A.M.B. and J.L.H.B. as to their closeness as a family, and
the loving relationship between A.M.B. and the children.
After a thorough review of the record presented in this
appeal, we are unable to say the trial court manifestly
erred in granting the stepparent adoption in this case.
Although we recognize that the permanent termination of the
legal relationship existing between a natural parent and a
child is one of the most drastic actions that can be taken,
the primary concern in such matters is to determine and
insure the best interest of the child, which may include
termination of parental rights if justifiable statutory
grounds exist and are proven. See State ex rel. J.M., 837
So.2d 1247, 1254 (La. 2003).
In this matter, a prima facie case was proven that J.B.A.
failed to support his children for a period in excess of
six months, and that he further failed to visit,
communicate, or attempt to communicate with the children
without just cause for a period exceeding six months. The
burden of proof was thereby shifted to J.B.A. to establish
that his failure was due to factors beyond his control.
J.B.A. failed to meet this burden of proof.
Furthermore, it was proven to the satisfaction of the trial
court that the adoption of A.M. A. and J.H.A. by their
stepfather was in their best interests. The children were
shown to have a close and loving relationship with A.M.B.
In contrast, no significant or meaningful relationship was
shown to exist between the children and J.B.A. Under the
facts and circumstances of this case, we find no error in
the trial court judgment.
CONCLUSION
For the reasons assigned herein, we affirm the judgment of
the trial court granting the petition for adoption of
A.M.B. All costs of this appeal are assigned to J.B.A.
AFFIRMED.
[fn1] Article 1193 provides:
Unless rights have been tenninated in accordance with
Title X or XI, consent to the adoption of a child or
relinquishment of parental rights shall be required of the
following:
(1) The mother of the child.
(2) The father of the child, regardless of the child`s
actual paternity, if any of the following apply:
(a) The child is a child born of the marriage in
accordance with the Louisiana Civil Code or its legal
equivalent in another state.
(b) The father is presumed to be the father of the child
in accordance with the Louisiana Civil Code or its legal
equivalent in another state.
(3) The alleged father of the child who has established
his parental rights in accordance with Chapter 10 of Title
XL
(4) The biological father of the child whose paternity
has been deteirnined by a judgment of filiation and who
has established his parental rights in accordance with
Chapter 10 of Title XL
(5) The custodial agency which has placed the child for
adoption, except that the court may grant the adoption
without the consent of the agency if the adoption is in
the best interest of the child and there is a finding that
the agency has unreasonably withheld its consent.
[fn2] ” The record of the divorce/custody proceeding between
J.B.A. and J.L.H.B. was introduced into evidence. J.B.A.`s
child support obligation was fixed by an April 12, 2002
judgment as follows: from June 14, 2001 through October 31,
2001 in the amount of $554.00 per month; from November 1,
2001 through February 6, 2002 in the amount of $862.00 per
month; and, from February 7, 2002 and thereafter in the
amount of $826.40 per month. The judgment recognized that
J.B.A. was in arrears in the amount of $2,913.00 on that
date.
[fn3] J.B.A. submitted no medical evidence into the record
to substantiate Ms alleged disability.
[fn4] June and July 2002 orders issued in the
divorce/custody proceeding ordered supervised visitation by
J.B.A. with A.M.A., and visitation with J.H.A. only in the
home of the child`s mother or maternal grandmother. (The
July order restricted visitation with A.M.A. to J.L.H.B.`s
home as well.) J.B.A. was also ordered to refrain from
consuming alcohol or illegal substances during visitations,
and ordered to immediately begin random drug screening in
East Baton Rouge Parish, as well as to provide J.L.H.B.
with mformation concerning that screening. Testing at any
other facility was prohibited. J.B.A. was further found in
contempt of court for failure to pay child support.