94-531 La.App. 3 Cir. 11/2/94, CLS, In Interest of

• Decision Date: 02 November 1994
• Citation: 649 So.2d 532
• Parties: 94-531 La.App. 3 Cir
• Court: Court of Appeal of Louisiana — District of US

Page 532

649 So.2d 532

94-531 La.App. 3 Cir. 11/2/94

In the Interest of CLS Waylon and Lawanda STANLEY, Plaintiffs-Appellants, v. Gregory and Kimberly STROTHER, Defendants-Appellees.

No. 94-531.

Court of Appeal of Louisiana Third Circuit.

Nov. 2, 1994.

Harold Alan Murry, Patricia Elaine Evans, Alexandria, for Patricia Evans et al.

Ralph W. Kennedy, Alexandria, for Gregory Strother et vir.

Before GUIDRY, C.J., and KNOLL and WOODARD, JJ.

[94-531 La.App. 3 Cir. 1] KNOLL, Judge.

The natural parents of a minor child appeal the judgment of the Pineville City Court, acting in its capacity as a juvenile court, terminating their parental rights and awarding permanent custody of their daughter to the appellees, Gregory and Kimberly Strother. The issues presented on appeal are (1) whether the juvenile court erred as a matter of law in terminating the natural parents' parental rights, and (2) whether the juvenile court correctly awarded custody of the young child to the appellees. We reverse in part, affirm in part, and remand.

FACTS

The record shows the following facts. On September 24, 1991, the Louisiana Department of Social Services received an anonymous report of child abuse involving CLS, a child approximately 2 1/2 months old, born on July 30, 1991. The abuse concerned U-shaped bruises located on her wrists. Social Services Specialist Ginger Mallette investigated the allegation. During the investigation, the child's natural parents, Waylon and LaWanda Stanley, admitted that the bruises may have been inflicted when they lifted CLS up to play with her. Ginger Mallette [94-531 La.App. 3 Cir. 2] also noted that the parents' home was "filthy with dirty dishes, clothes and food [were] scattered everywhere."

Prompted by Waylon Stanley's hapless childhood experiences with foster care placement and LaWanda Stanley's previous contact with the Louisiana Department of Social Services, ¹ the natural parents and Ginger Mallette discussed the possibility of avoiding formal child in need of care proceedings and foster care placement of CLS. As an alternative, the natural parents requested that CLS be placed in custody of a relative. The Louisiana Department of Social Services approved.

On October 1, 1991, Waylon and LaWanda Stanley voluntarily transferred custody of CLS to Lovie Sue Stanley, Waylon Stanley's aunt, via a notarized affidavit. Judgment authorizing the transfer was signed the same day. Other than approving transfer of custody to Lovie Sue Stanley and generally monitoring CLS's whereabouts, the Louisiana Department of Social Services did not offer the natural parents any counseling or plan to improve their parenting skills.

While CLS stayed with her great aunt, Lovie Sue Stanley, the natural parents frequently visited her. Lovie Sue Stanley testified that Waylon and LaWanda visited CLS "five or six times a day." However, soon growing weary of this habitual visitation, Lovie Sue Stanley obtained a restraining order prohibiting Waylon and LaWanda Stanley from further visitation with their daughter. The record does not disclose the conditions or length of the restraining order.

After having custody of CLS for approximately six months, Lovie Sue Stanley's marital relationship deteriorated, forcing her to return CLS to the natural parents. After only two weeks, Ginger Mallette removed CLS from her natural parents and placed her with Bruce and Georgia Stanley, CLS's paternal grandparents. Complaining that they were unable to care for the child, the grandparents threatened to place CLS in foster care. Shortly thereafter, on April 3, 1992, Waylon and LaWanda learned about a childless couple, Gregory and Kimberly Strother, who desired to care for a child. The Strothers testified that they were looking for a child to adopt.

[94-531 La.App. 3 Cir. 3] Waylon and LaWanda testified that they arranged a meeting with the Strothers because they were afraid that CLS would be placed in foster care. The Department of Social Services had already removed CLS from them, none of their relatives were able to help, and they were experiencing marital and financial discord. LaWanda Stanley testified that they initiated contact with the Strothers so that CLS "wouldn't have want for anything." Waylon Stanley testified that they were in a "financial bind" and "couldn't do nothing for the baby." Waylon Stanley also said that he believed that the Strothers could give his daughter "something that I couldn't give her."

The natural parents, accompanied by Lovie Sue Stanley and other relatives, had two meetings with the Strothers. At the meetings, Waylon and LaWanda Stanley discussed their situation with the Strothers, and the Strothers agreed to take care of CLS. The Strothers also agreed that the Stanleys would not have to provide anything for CLS while CLS was in their care. The subject of adoption was discussed but never resolved. At trial, LaWanda Stanley testified that the custody transfer to the Strothers was intended to be strictly temporary and only until she "got everything back in order." However, the Strothers testified that the Stanleys knew that the Strothers would not have agreed to take care of CLS unless they could adopt her.

As discussed and planned at the two meetings by the parties, a petition for transfer of guardianship was signed by Lovie Sue Stanley on April 9, 1992, transferring guardianship of CLS to the Strothers. Judgment allowing transfer of guardianship and custody of CLS to the Strothers was granted on April 10, 1992. At the time of transfer, the Strothers promised the natural parents that they could visit CLS at any time and would provide pictures and information about her.

On April 27, 1992, shortly after the child was placed with the Strothers, the Strothers filed ex parte adoption papers in Allen Parish seeking CLS's adoption. Waylon and LaWanda Stanley were not served and they did not participate in this proceeding or provide any written consent for the adoption.

After CLS's transfer to the Strothers, Waylon and LaWanda Stanley testified that they visited CLS infrequently so that she would adjust to the Strothers. Testimony from both sides indicates that Waylon and LaWanda saw CLS at least four times: in April of 1992, on July 30, 1992 (CLS's birthday), in September of 1992, and in December of 1992 (Christmas). Waylon and LaWanda Stanley testified that they attempted to see their daughter on other occasions, but were [94-531 La.App. 3 Cir. 4] prevented from doing so because the Strothers were often away from home and at times intentionally avoided them.

In December of 1992, the Stanleys' relationship with the Strothers soured when the Stanleys brought CLS a Christmas gift. During the Christmas visit, in the presence of the natural parents, Kimberly Strother often referred to herself as CLS's mother. Upon hearing Kimberly Strother refer to herself as CLS's mother, LaWanda Stanley testified that she suffered an emotional outburst which shortened the visit to fifteen minutes.

After their Christmas visit, on February 25, 1993, Waylon and LaWanda Stanley hired an attorney to regain custody of their daughter. The Stanleys testified that their attorney advised them to have no further contact with their daughter until the matter was resolved by the courts. The attorney filed a petition for custody on March 2, 1993, and the hearing was set for April 1, 1993. However, on April 12, 1993, the Stanleys' attorney withdrew from the case without explanation. The custody hearing was then rescheduled to June 24, 1993, and rescheduled again to July 22, 1993. On July 20, 1993, Legal Services enrolled as counsel. The hearing was reset for July 29, 1993. Responding to Waylon and LaWanda Stanley's petition for custody, the Strothers filed a petition for termination of parental rights and custody which was authorized by court order on March 30, 1993. ²

The custody hearing began on July 29, 1993, and concluded on October 5, 1993, after being continued four times. Judgment in this matter was further delayed until Dr. Daniel Lonowski, a child psychologist, furnished his report on November 12, 1993. Thereafter, trial memorandums were filed in January of 1994. The juvenile court issued reasons for judgment on February 24, 1994, and signed a final judgment on March 3, 1994.

The juvenile court terminated Waylon and LaWanda Stanley's parental rights, finding that Waylon and LaWanda had abandoned CLS. In its reasons for judgment, the juvenile court cited no case law and referred generally to Louisiana Children's Code Article 1015 without reference to any of its particular provisions. The juvenile court also awarded permanent custody of CLS to the Strothers, finding that it was in her best interest. The Stanleys bring this appeal.

[94-531 La.App. 3 Cir. 5] TERMINATION OF PARENTAL RIGHTS

Ties between biological parents and their children are recognized as the closest and strongest within the human family. A parent has a natural right to his biological child and that child likewise has a right to his parent. In re Adoption of B.G.S., 556 So.2d 545 (La.1990). As Justice Tate so eloquently stated in his concurring opinion to State v. Peniston, 235 La. 579, 105 So.2d 228 (1958):

The right of a parent to his child existed before governments or other social institutions of mankind. This natural right proceeds from our Creator and exists independently of the state; the state ... does not in my humble opinion possess the power to take away in favor of a stranger the God-given right of a parent to his child, in the absence of the parent's forfeiture or abandonment of such right or of positive detriment to the child.

Id. 105 So.2d at 232 (citations omitted).

Louisiana courts have historically been reluctant to sever the parent-child relationship and derogate from the natural rights inherent therein, since the jurisprudence recognizes the fundamental belief that a child has a right to know and love his parents, and such rights...