In re AJF
| Decision Date | 30 June 2000 |
| Docket Number | No. 2000-CJ-0948.,2000-CJ-0948. |
| Citation | 764 So.2d 47 |
| Parties | In re A.J.F. Applying for Private Adoption. |
| Court | Louisiana Supreme Court |
Edith Henderson Morris, Deborah Margaret Henson, Wolff & Morris, New Orleans; David Jude Maraldo, Noel E. Vargas, II, Metairie, Counsel for Respondent.
Catherine Louise LaFleur, New Orleans, Terri McDonough Miles, Metairie, Counsel for Applicant.
This case concerns the opposition of a biological father to the private adoption of his newborn child. The issue of notice invokes a due process question with regard to the father's opposition to the adoption, the resolution of which highlights the tension between the notice provisions of the Louisiana Children's Code and the Legislature's desire for prompt adoptions so that adopted children might have a permanent and stable home as early as possible. We are additionally called upon to determine whether the appellate court incorrectly applied the manifest error rule in its reversal of the juvenile court. For the following reasons, we reverse the judgment of the appellate court and reinstate the juvenile court judgment.
In November of 1998, A.S.2 began dating A.E., and soon began living with him at A.E.'s parents' home in Rosharon, Texas. Although the date was not firmly established in the record, A.S. learned in January of 1999 that she was pregnant and that the baby's due date was October 21, 1999. A.S. and A.E. had differing stories about his knowledge and acceptance of paternity. A.S. asserted that A.E. denied paternity when confronted with the pregnancy; to the contrary, A.E., his mother, and A.S.'s mother all testified that A.S. informed everyone that A.E. was the baby's father and that he looked forward to raising the child. Notwithstanding this dispute, the record establishes that A.S. continued to live with A.E. until April of 1999 and that he supported her. Shortly thereafter, A.S. left A.E.'s household and did not say where she was going. However, the facts show that a short time later, A.E. was arrested for breaking down the front door of A.S.'s father's trailer in an attempt to see her. He stated that his actions were taken in an attempt to speak with A.S. and were prompted by A.S.'s desire for an abortion. The record shows that even after A.S. left, A.E. thought that he would be raising the child after the birth. Under that assumption A.E. continued to purchase child care items and baby furnishings which he set up in his room at home.
When A.S. left, she rekindled a relationship with F.H., III. Earlier she and F.H. had lived together and a child was born of that relationship. Despite this reunion, the record shows that for a brief time in either late June or early July 1999, A.S. returned to live with A.E. because F.H. had struck her in the face. During this time, A.E. bought A.S. clothes and continued to provide her with food and shelter. Without telling A.E. where she was going, A.S. then left again and returned to live with F.H. in Gretna, Louisiana.
On October 7, 1999, almost three weeks earlier than anticipated, A.S. gave birth to a male child, M.S., at Meadowcrest Hospital in Jefferson Parish. A.S. listed F.H. as the baby's father on the birth certificate. Two days later, on October 9, 1999, F.H. executed a voluntary act of surrender in which he informally acknowledged paternity of the infant child and surrendered the child to Noel E. Vargas, an attorney who represented the prospective adoptive parent, A.J.F., and accepted the child's surrender on her behalf. On October 12, 1999, five days after the child's birth, A.S. also executed an act of surrender in which she attested that F.H. was the child's natural father, and then surrendered the child to Vargas, who accepted the surrender on behalf of the prospective adoptive parent. F.H. and A.S.'s acts of surrender, the supporting affidavits from the attorneys for the surrendering parties and the mental health counselor who counseled the parties together with the parties' genetic histories, as required by LA. CHILD. CODE arts. 1120-1121; 1124-1127, were recorded in Jefferson Parish on October 12, 1999. On the day that A.S. executed the act of surrender, the record shows that Vargas gave a $4,000 check to either F.H. or A.S. The record is unclear about who actually received it; nevertheless, it is undisputed that the check was made out to A.S. The record further shows that F.H. and A.S. used these proceeds to purchase an automobile, pay a past due telephone bill, and pay for F.H.'s traffic-related fines. This payment was in addition to other payments that A.J.F. made now and then during A.S.'s pregnancy.
Approximately one week after M.S.'s birth, A.S.'s grandmother told A.E. of the birth and the acts of surrender that A.S. and F.H. executed. A.E. then consulted an attorney in Texas for information about his rights. After being referred to a Louisiana attorney, on November 15, 1999, A.E., a resident of Texas, executed and filed an authentic act for public record in Jefferson Parish wherein he acknowledged paternity of M.S. In addition, he filed the act of acknowledgment in the Putative Father's Registry on November 16, 1999.
On November 22, 1999, Terri Miles, A.E.'s attorney, enrolled as counsel of record in Jefferson Parish Juvenile Court and requested notice pursuant to LA.CODE CIV. PROC. art. 1913 (), 1914 (notice of rendition of interlocutory order), and 1572 (written request for notice of trial). Pursuant to that request, the trial testimony reflects that on December 7, 1999, representative service of the notice of surrender was purportedly made by a process server leaving the notice with the receptionist for A.E.'s attorney at the law office.3 Although this notice is not a matter of record, co-counsel for the prospective adoptive mother quoted the notice language during argument before the juvenile court judge. According to that transcription the notice stated:
To Mr. A.E., through his attorney of record, you may oppose the adoption of this child only by filing a written objection with this court in fifteen days after you receive this notice. If you file a written objection timely, the court will set a hearing within twenty days of filing the opposition. If you fail to file a written Motion of Opposition, the court will order the termination of any and all parental rights you may have and the child may be subject to adoption. (emphasis supplied by record).
The record preponderates that the first time A.E.'s attorney saw this notice was on January 26, 2000, when she received a faxed copy from the juvenile court. As the trial court noted, no opposition was filed within the fifteen (15) days immediately following the purported service of the notice in December.
At some point shortly after A.E. entered the picture, all of the parties' attorneys agreed that their clients would submit to DNA testing and that no pleadings requesting a hearing on the adoption or an opposition to the adoption would be forthcoming until the results of the DNA testing were received. ReliaGene Technologies, Inc. conducted DNA parentage testing on December 10, 1999 (A.E.), December 24, 1999 (M.S.), and December 27, 1999 (A.S. and F.H.). On January 26, 2000, the test results were released which showed conclusively that A.E., not F.H., was M.S.'s father.4 Immediately thereafter, on January 28, 2000, A.E. filed a petition for habeas corpus and an opposition to the private adoption, naming A.S., F.H., and A.J.F. as defendants. In the pleading, A.E. alleged that contrary to the process server's return of service, neither he nor his attorney or her secretary was served with the notice of surrender. A.E. further alleged that the parties had agreed to wait on the DNA testing results before filing further proceedings.5 Because of the discrepancy in the service of the notice, the juvenile court issued a rule to show cause why the petition for habeas corpus and an opposition to the private adoption should not be dismissed. A.J.F., the prospective adoptive mother, filed a peremptory exception of prescription on February 4, 2000. In response to A.J.F.'s peremptory exception, A.E. responded with a declinatory exception of improper service of the notice of surrender.6
The juvenile court consolidated all of the procedural issues and took evidence on February 7, 2000. At the beginning of the hearing, the attorneys for A.E., A.S., and A.J.F. stipulated that they agreed in December that no one would file pleadings or set the matter for hearing until the paternity issue was settled by DNA evidence. In addition, the juvenile court heard testimony from various office personnel and attorneys at the suite of offices occupied by A.E.'s attorney, as well as Charles Trapani, the process server for the juvenile court who purportedly affected representative service on A.E.'s attorney's secretary. The juvenile court judge granted A.E.'s declinatory exception, finding that service was neither properly made on A.E.'s attorney nor her designated secretary as required by LA.CODE CIV. PROC. art. 1235.7 She then also denied the peremptory exception of prescription. In conformity with LA. CHILD. CODE art. 1137(B), the juvenile court appointed an attorney to represent the interests of the minor child in this matter and set A.E.'s opposition for a hearing on the merits.
After conducting a hearing on February 14 and 15, 2000, the juvenile court issued extensive written reasons in which she granted A.E.'s opposition to the adoption and awarded custody of the minor child to him. The juvenile court found that A.E. established his parental rights by executing and publicly recording an authentic act of acknowledgment, by acknowledging his paternity in open court, and by showing through DNA testing that he was M.S.'s father. The juvenile court then found that A.E. proved that he had "manifested a substantial commitment to his parental responsibilities" as required in...
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