32,021 La.App. 2 Cir. 3/31/99, Leitch, In re
| Decision Date | 31 March 1999 |
| Citation | 732 So.2d 632 |
| Parties | 32,021 La.App. 2 Cir |
| Court | Court of Appeal of Louisiana — District of US |
William G. Nader, Shreveport, Counsel for Appellant.
Charles A. Smith, Minden, Counsel for Appellee.
Before NORRIS, GASKINS, CARAWAY, PEATROSS and KOSTELKA, JJ.
[32,021 La.App. 2 Cir. 1] NORRIS, Chief Judge.
The juvenile court granted the adoption of two minor children, VAL, Jr. and AML, to their stepmother, CML. TLQ, the children's natural mother, appeals the judge's determination that the stepparent adoption is in the children's best interest. We reverse and remand.
Facts
VAL and TLQ were married on October 22, 1989, and together had two children, VAL, Jr., born 11/5/89, and AML, born 7/16/91. VAL and TLQ subsequently divorced and pursuant to a consent decree on May 28, 1992, they were granted joint custody of the children with VAL as the domiciliary parent. In July 1994, VAL filed a Rule to Change Custody and Child Support; in September 1994, an interim order was rendered which maintained the joint custody arrangement, with VAL still the domiciliary parent and ordered TLQ to pay child support of $25.00 per week. The court also directed the parties to hold another hearing in 60-90 days, but VAL did not attempt to have the hearing set. Instead, in April 1996, he filed a rule to obtain sole custody. On May 30, 1996, the court granted this rule, gave VAL sole custody of the children, and awarded TLQ restricted and limited visitation; the judgment was silent as to child support. TLQ was not present at the hearing, but was represented by a curator ad hoc.
VAL married CML on May 29, 1994. The two children, along with CML's children, have lived with the couple since they married. According to VAL's and CML's testimony, CML takes care of the children's needs on a daily basis. CML testified that she wants to adopt the children because she has been the one raising them and if something happens to VAL she has no legal right to them.
After divorcing VAL, TLQ, a resident of Texas, remarried, divorced her second husband in January 1997, and within the month married her current [32,021 La.App. 2 Cir. 2] husband. According to TLQ's own testimony, she stopped paying child support in October 1995 because VAL and CML were denying her access to the children and she had discovered that VAL's brother-in-law had been accused of molesting AML. 1 TLQ also testified that she has a full-time job, and is paying her attorney and paying back a loan. TLQ further testified that VAL and CML would not allow her to visit the children and would not allow the extended maternal family to give her the children's unlisted phone number so that she could call them. TLQ testified that she has sent gifts to the children through her grandmother, mother, sister, and the babysitter. Notably, TLQ's elderly grandmother could not recall receiving gifts but testified that gifts had been sent to the children's babysitter, TLQ's mother has not seen the children since November of 1995, and TLQ's sister testified that she has picked up gifts from Austin, Texas and delivered them to the babysitter. The babysitter did not testify, but CML confirmed that she received a box of toys from the babysitter for the children, but thought the toys were from TLQ's sister. TLQ even brought to court a bag of gifts, videos of her and the children, and poems which she had written for the children, all of which she had been collecting for the children. TLQ stated that she had not mailed anything to the children because she was afraid the things would get lost in the mail, or CML would not give the letters and items to the children.
TLQ testified that she was not aware that VAL had filed for sole custody of the children. She did admit to finding out about the judgment the day it was rendered and stated that she tried unsuccessfully to contact Legal Aid. TLQ stated that she has not seen the children since May 30, 1996, when she saw AML at the babysitter's and talked to VAL, Jr. over the phone. Before that date, TLQ had not [32,021 La.App. 2 Cir. 3] seen the children since November of 1995, when she saw them at her mother's house for VAL, Jr.'s birthday.
CML and VAL testified that they were amenable to allowing some members of TLQ's family to continue having access to the children, but not TLQ. TLQ's sister and grandmother testified that they see the children on a somewhat regular, though limited basis. TLQ's sister stated that she and TLQ's grandmother are invited to CML's and VAL's home for birthday parties, and other gatherings. TLQ's mother has not seen the children since November 1995, but testified that she has not requested visitation. She attributes this to the fact that she works on weekends and CML will not let her see the children during the week. She further testified that CML and VAL conditioned visits on her not talking about TLQ to the children, a request which she would refuse to honor. TLQ's grandmother testified that she had the same condition placed on her visits.
The trial court found that TLQ's consent in the adoption was not necessary because she was a non-resident who failed to support the children for a period of one year. The court granted the adoption, finding that it was in the best interest of the children. TLQ has appealed that decision.
Applicable Law
Unless rights have been terminated, the mother and the father must consent to the adoption of a child. La. Ch.C. art. 1193. 2 This consent may be dispensed with when a parent is married to a stepparent petitioner and the following two conditions are met: (1) the parent married to the stepparent petitioner has been granted sole or joint custody of the child by a court of competent jurisdiction, and (2) the noncustodial parent is a nonresident of this state and has failed to support [32,021 La.App. 2 Cir. 4] the child for a period of one year after the judgment awarding custody. La. Ch.C. art. 1245. 3
Even though a parent may have lost her right for consent to be required for the adoption, the adoption should only be granted if it is in the best interest of the child; the best interest of the children is the paramount consideration. La. Ch. C. art. 1255; Adoption of Latiolais, 384 So.2d 377 (La.1980); In re Glass Applying for Adoption, 424 So.2d 383 (La.App. 2d Cir.1982); In re Bas Applying for Adoption, 424 So.2d 405 (La.App. 2d Cir.1982); In re MDA, 427 So.2d 1334 (La.App. 2d Cir.1983); In re EWB, 441 So.2d 478 (La.App. 2d Cir.1983); In re D.W.H., 457 So.2d 137 (La.App. 2d Cir.1984); JGG v. JLF, 556 So.2d 236 (La.App. 2d Cir.1990); In re Farrar, 93-1347 (La.App. 3d Cir.4/6/94), 635 So.2d 674. In determining the best interest, the court needs to take into consideration that the legal consequences of adoption are abrupt, severe, and irrevocable: the relationship between the child and natural parent is severed. In re Glass Applying for Adoption, supra; In re D.W.H., supra; JGG v. JLF, supra. In making the determination, it is not enough to look at the love and home environment provided by the stepparent. Id.; In re EWB, supra. The court should also consider the depth and closeness of the child's ties with the non-custodial, natural parent and the effect the loss of this relationship would have on the child. Id. Children have a right to know and love their parents, and should not be denied this right except when the parent has proven himself unworthy of their love. In re Glass Applying for Adoption, supra. While the natural parent's failure to support the child is a factor to be considered, it is not a controlling factor. Id; In re EWB, supra.
[32,021 La.App. 2 Cir. 5] Generally, the adoptive parents bear the burden of proving that the adoption is in the best interest of the child. Knapp v. Adoption of Cotten, 577 So.2d 241 (La.App. 1st Cir.), writ denied 580 So.2d 364 (1991); In re Farrar, supra. However, when the petitioning stepparent is married to the child's parent and the court has granted that parent sole custody of the child, there is a rebuttable presumption that the adoption is in the best interest of the child. La. Ch. C. art. 1255; In re C.B., Applying for Adoption, 94-0755 (La.10/17/94), 643 So.2d 1251. 4 This presumption merely provides the fact-finder with a conclusion in the absence of proof to the contrary. Turner v. Turner, 455 So.2d 1374 (La.1984). Presumptions are indulged to supply the place of facts; they are never allowed against ascertained and established facts. Id. When facts are presented into evidence, presumptions disappear. Id.
The trial judge is vested with great discretion in determining whether or not to grant the adoption. In re Bas Applying for Adoption, supra; In re MDA, supra; In re EWB, supra; In re D.W.H., supra; JGG v. JLF, supra. This discretion is not absolute and the decision is subject to reversal if the record reveals manifest error. In re EWB, supra; JGG v. JLF, supra. Furthermore, when severing the natural bond between the parent and the child, the court's judgment must reflect a careful balancing of the importance of all interests, including the importance of the bond between the natural parent and the child. In re D.W.H., supra.
Notably, when the children are adopted by their stepparent, the non-custodial natural parent's rights and responsibilities are terminated. La. Ch.C. art. [32,021 La.App. 2 Cir. 6] 1256. In Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982), the Court held that constitutional due process requires application of at least a clear and convincing evidence standard before the fundamental rights of a parent can be extinguished. See also, State in the Interest of A.C., 93-1125 (La.10/17/94), 643 So.2d 743 (on rehearing). Additionally, for the state or a private individual to terminate parental rights, they must establish each element of a ground for termination by clear and convincing evidence. La. Ch.C. art. 1035; In the...
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