Glass Applying for Adoption, In re

• Decision Date: 29 November 1982
• Docket Number: No. 15080-CAJ,15080-CAJ
• Citation: 424 So.2d 383
• Parties: In re GLASS APPLYING FOR ADOPTION.
• Court: Court of Appeal of Louisiana — District of US

Page 383

424 So.2d 383

In re GLASS APPLYING FOR ADOPTION.

No. 15080-CAJ.

Court of Appeal of Louisiana, Second Circuit.

Nov. 29, 1982.

Wilson & Veatch by Thomas A. Wilson, Jr., Shreveport, for appellant.

Weinstein, Moak & Hiller by Nelson A. Moak, Benton, for appellee.

Before PRICE, JASPER E. JONES and SEXTON, JJ.

SEXTON, Judge.

The instant appeal is brought by appellant CDS to challenge the adoption decree which severed his legal ties to his two natural children. The names of the parties involved have been omitted in the title and in this opinion in accordance with LSA-R.S. 9:437. The decree conferred CDS's parental rights with respect to the two children upon the children's stepfather, SDG, who is now married to the children's natural mother. The trial court found, in granting the adoption decree, that CDS had forfeited his legal right to oppose the adoption of his natural children, and that the adoption was in the children's best interest. We reverse.

Although the record is unclear as to the date, it appears CDS married KS(G) in the late nineteen-sixties or early seventies. The couple's matrimonial domicile was Houston, Texas. The marriage produced a son and a daughter, Se and Si, now aged eleven and eight years, who are the subject of these proceedings. This marriage ended in divorce on December 5, 1978, with KS(G) receiving custody of the two children.

On December 29, 1978, KS(G) [hereinafter referred to by her current initials KG] married her current husband, SDG. Since that time, she has resided with her children in SDG's Shreveport home. SDG, as the stepfather of KG's two children and the husband of their natural mother, has petitioned the juvenile court to adopt the children and be declared their father for all legal purposes. His wife, KG, the children's mother, has formally consented to his petition for adoption.

The children's father CDS married his present wife, PS, on October 17, 1979. Since that time they have lived in the Houston home he formerly shared with his ex-wife KG.

The record unequivocally indicates that petitioner SDG and his wife KG have labored diligently--and with admirable results--to provide a good home for the children. It is particularly noteworthy that SDG has two sons and two daughters from a former marriage, as well as a two year old son who is the issue of his current marriage to KG. Despite providing a home for--and guidance to--the children from three different marriages, SDG has treated all the children equally and impartially. He has designated Monday night as a family night, in which family members are expected to be present, and all--even the youngest of the children--are allowed to voice their opinions and complaints.

SDG has painstakingly taught the children lessons of self discipline, hard work, and responsibility, and has inculcated them with religious instruction. He assists Se in learning the skills required for cub scouts and provides supervision and transportation in the summer when Se mows lawns to earn spending money and learn the lessons of thrift and labor. SDG has set up guidelines whereby the children put a specific portion of their earnings into savings and contribute another portion to the church. In accordance with their parents' Mormon faith, the children do not use caffeinated drinks. SDG disciplines the children with patience and reason, and as family friend, MW relates:

"[SDG] is a very thorough and he is very fair and when he tells [Se] to do something or [Si] to do something, he gives them a reason why. He explains why he should be doing it and how to do it and if they disagree with him, he talks to them until they understand."

As the foregoing demonstrates, the petitioner SDG and his wife have a very profound love and concern for the two children. However, the evidence demonstrates with equal clarity, a close and loving relationship between CDS and his natural children.

The children are generally guests at the Houston home of CDS and his current wife PS four times a year--at Christmas, Thanksgiving and Easter holidays, and during the summer. The duration of these stays ordinarily ranges between three and seven days, with the average stay lasting approximately five or six days. The CDSs plan a number of activities with the children well in advance of the children's arrival. Christmas and Thanksgiving holidays generally include holiday dinners at the home of the children's grandmother in which the children's uncles, aunts and cousins on their father's side are included. According to PS, she and her husband "always wait to have Christmas until we pick up the children," and plan such that their vacation time corresponds with the children's Christmas visitations. In summary, the children's visits to Houston are characterized by the CDSs attempts "to do as much as we can cram into one week ...."

When the children are at their home in Shreveport, CDS and PS periodically converse with them over the telephone. They buy both Christmas and birthday gifts for the children, including bicycles, phonographs and clothing, and provide them with spending money for their visits to Houston.

CDS's past behavior has not been flawless. The record indicates he has had some difficulties with alcoholic beverages. However, the testimony unequivocally indicates that he is a diligent worker, his reputation in the community being that "he is a very upstanding, respectful, hard working man." In order to avoid endangering his visitation privileges with the children, CDS has totally abstained from alcohol since Labor Day of 1980 and takes his children to church on the Sundays that they visit. The trial assessment of clinical psychologist Donald Gucker was that CDS did not manifest any emotional pathology upon evaluation and "looked very acceptable."

The uncontroverted testimony adduced at trial was that CDS and PS enjoy a stable and loving marital relationship, unmarred by physical separations. As five witnesses fully attested, PS herself enjoys a very loving relationship with the children. According to family friend JB:

"[H]is present wife, [PS], she is a very loving person and uh, [the children], they will come down, you know, and I know that she loves on them quite a bit and [Si] will crawl up in her lap and tell her or call her mother or mommie and tell her how much she loves her and [PS], she returns the love and, you know, it is always a constant, you know, an arm around one of the children, you know, or I sure do love you or something of this effect and she also does her own children the same way, plus my children."

PS has two children from a former marriage, furthermore, and it appears from the record that they treat Se and Si--affectionately--as their brother and sister.

In the Texas divorce decree of December 5, 1978, which dissolved the marriage of CDS and KG, CDS was ordered by the court to make total child support payments of $200 per month. CDS did not make any support payments from January 1, 1979 until January 1, 1980. After a year of non-payment, CDS made four payments for January, February, March and April of 1980. Following these four successive payments, there was a fifteen month lapse from May of 1980 until August 1, 1981 in which no payments were made. Payments were then made for August, September, October, November and December of 1981; a payment was made also in January of 1982, shortly before the trial from which this appeal was perfected. Additionally, the CDSs in June of 1981 sent a cashier's check for $1,000--payable to KG--to the Department of Health and Human Resources caseworker assigned to this adoption case. At the rate of $200 per month, a total support obligation of $7,200 had accrued in the 36 months spanning the original due date in January of 1979 and the time of trial in January of 1982. CDS has discharged $3,000 of this obligation, leaving an unpaid arrearage, as of the trial date, of $4,200.

CDS attempted to establish, at trial, that his failure to make support payments was justified. CDS was a self-employed building contractor. His business virtually stopped and he suffered substantial losses when construction slowed in the Houston area prior to his divorce. At the urging of a friend, he started his own backhoe business as an independent contractor. This business venture, after a significant investment, also failed. He subsequently made an unsuccessful attempt to return to the contracting business, then worked for Design Fabricators at an hourly wage for eight and a half months. CDS ultimately returned to the contracting business. Although his employees were paid weekly he himself often went without pay for up to a month. There were intervals, during this succession of jobs, when he was without work for several weeks.

LSA-R.S. 9:432(B) provides the ultimate criteria for determining whether, in a given instance, an adoption should be granted. This statute provides, in pertinent part, that:

"The court, after hearing and after taking into consideration information from all sources concerning the adoption, may enter a final decree of adoption; or it may deny the adoption. The basic consideration for this decree ... shall be the best interest of the child." (emphasis added).

It is a well settled jurisprudential rule, moreover, that an adoption may not be granted absent the consent of both natural parents. In re Plaisance, 394 So.2d 776 (La.App. 4th Cir.1981); In re Genin, 240 So.2d 46 (La.App. 4th Cir.1970). The exceptions to this fundamental rule are provided by LSA-R.S. 9:422.1. This statute stipulates that the consent of the non-custodial parent is not essential where the petitioner is a step-parent married to the custodial spouse, and one of the following conditions is met:

"(1) The other legitimate parent has refused or failed to comply with a court order of support for a period of one year.

(2) The other legitimate parent is a non-resident of this state and has failed to support the child for a period of...