In re W.P.H. ex rel. A.A.B.

• Decision Date: 12 October 2022
• Docket Number: 22-141
• Parties: W.P.H. Applying FOR ADOPTION OF A.A.B., E.J.B. and G.K.B.
• Court: Court of Appeal of Louisiana — District of US

349 So.3d 1120

W.P.H. Applying FOR ADOPTION OF A.A.B., E.J.B. and G.K.B.

22-141

Court of Appeal of Louisiana, Third Circuit.

October 12, 2022

Jack Derrick Miller, Attorney at Law, P. O. Box 1650, Crowley, LA 70527, (337) 788-0768, COUNSEL FOR APPELLEE: W.P.H.

Dylan T. Heard, Vincent Law Offices, APLC, P. O. Box 450, Crowley, LA 70527-0450, (337) 783-7777, COUNSEL FOR APPELLANT: N.B.

Alexander J. Guinn, Heinen & Guinn Law Firm & Consulting, LLC, 407 N. Church Street, Jennings, LA 70546, (337) 246-7220, COUNSEL FOR: A.A.B., E.J.B., G.K.B.

Court composed of Shannon J. Gremillion, D. Kent Savoie, and Sharon Darville Wilson, Judges.

GREMILLION, Judge.

The biological father, N.B., appeals the trial court's judgment terminating his parental rights and allowing his three children to be adopted by their step-father, W.P.H. For the following reasons, we reverse and render.

FACTUAL AND PROCEDURAL BACKGROUND

W.P.H. filed a petition for adoption of A.A.B., E.J.B., and G.K.B. (the children), the biological children of his wife, J.H., on October 28, 2019, asserting that N.B. had failed to visit his children for more than six months and failed to pay child support for more than six months. At that time, A.A.B. was ten years old (DOB: 3/16/2010), E.J.B. was eight years old (DOB: 9/24/2011), and G.K.B. was six years old (DOB: 9/23/2013). N.B. and J.H. were married in 2005 and divorced in April 2016. J.H. had been the domiciliary parent since February 2015. She and W.P.H. married in November 2016, and the children have resided in W.P.H. and J.H.’s marital home since then. N.B. was ordered to pay child support of $750.00 per month retroactive to May 15, 2015.

On October 28, 2019, the trial court signed an order directing the Jefferson Davis Parish Sheriff's Office to conduct a criminal records search on W.P.H. and provide a certificate to the trial court indicating all information discovered or that no such information had been found.

The petition for adoption was mailed to N.B. at an address in North Carolina. N.B. filed a declinatory exception of insufficiency of service of process urging that the North Carolina address was not his domicile, dwelling house, or usual place of abode in accordance with La.Ch.Code art. 1248. The trial court overruled the exception, and N.B. filed writs with this court. On January 10, 2020, N.B. accepted service of the petition.

On January 27, 2020, N.B. filed an Opposition to Intrafamily Adoption. On February 21, 2020, N.B. filed a motion and order to reset the adoption hearing, urging that an attorney had not been appointed to represent the children in accordance with La.Ch.Code art. 122.1(B). On June 1, 2020, N.B. filed a motion for a mental health evaluation of the parties. On June 3, 2020, N.B. filed a motion to dismiss the petition for intrafamily adoption pursuant to La.Ch.Code art. 1253, which requires a hearing within ninety days of the petition being filed, arguing that the hearing was scheduled seventy days too late, even considering a sixty-day "good cause" extension allowed by law.

Following a hearing, the trial court, in a "Post-trial Memorandum" filed on June 18, 2020, found that it was undisputed that N.B. had failed to pay child support from August 2017 through the filing of the petition in October 2019 without just cause, that N.B. had abandoned the children to the sole care of J.H. and W.P.H., that texts and the occasional phone call did not qualify as significant contact, and that it was in the best interest of the children to allow W.P.H. to adopt the children. The trial court found W.P.H. "checked off all of the boxes, particularly when speaking of the spiritual guidance he exhibits with his family." It further found that W.P.H. was morally fit and would raise the children "in a wholesome, Catholic environment." In its "Reasons for Ruling," the trial court found that N.B. had only paid child support twice in the five years since his divorce, without just cause, and that he had essentially abandoned the children.

On July 14, 2020, N.B. filed a motion to recuse Judge Gunnell and remove Kevin Millican, who was an assistant district attorney who announced his candidacy for district attorney, which was denied. N.B. filed a supervisory writ with this court. We denied the writ. A final decree of adoption was filed on August 24, 2020. On September 1, 2020, N.B. filed a motion for new trial, which was denied. N.B. then appealed.

On March 10, 2021, a panel of this court, in an unpublished opinion, vacated the judgment granting adoption and remanded to the trial court because the requirements of La.Ch.Code art. 1243.2 and 1253(B)(4) were not strictly complied with since a criminal record report or report regarding complaints of child abuse or neglect was not submitted as evidence at the hearing In re: W.H. Applying for Intrafamily Adoption of A.A.B., E.J.B., & G.K.B., 20-515 (La.App. 3 Cir. 3/10/21) (unpublished opinion).

On June 15, 2021, N.B. filed a motion to dismiss intrafamily adoption arguing that our judgment vacating the judgment required a retrial with service anew and that time delays had expired. The trial court denied the motion on June 16, 2021, and N.B. filed a supervisory writ with this court. A June 24, 2021 motion and order to stay trial proceedings was filed by N.B. Attached to it was the May 27, 2021 judgment by the Fifteenth Judicial District Court in a separate proceeding that found J.H. in contempt of court for her "willful refusal to allow contact with the minor children and custodial time to N.B. and her failure to comply with the joint custody plan and to provide him with information regarding the minor children." This ruling followed a May 12, 2021 hearing on a rule for contempt filed by N.B. on January 16, 2020. The Fifteenth Judicial District court found J.H.’s:

actions in joining her husband's attempt to adopt N.B.’s children is the ultimate attempt by a parent to erase another parent from a child's life and thwart N.B.’s efforts to see his children. The adoption proceeding shows J.H.’s willful, intentional, purposeful violation of the joint custody plan. The Rule for Contempt was filed January 16, 2020, and is just being heard. J.H. was aware that N.B. was proceeding with his Rule and his attempts to see his children. N.B. did not see his children in all of 2020. J.H. is guilty of a willful violation of the court order which is not supported by justifiable excuse.

On July 19, 2021, after the remand, the trial court found that the requirements of La.Ch.Code art. 1243.2 had been met, terminated N.B.’s parental rights, and granted W.P.H.’s petition for intrafamily adoption. On July 30, 2021, N.B. filed a motion to strike reasons for ruling and reset the matter for hearing to allow him the opportunity to be heard, which the trial court denied.

Following a Zoom hearing on September 29, 2021, the trial court rendered judgment on October 26, 2021, terminating N.B.’s parental rights, granting the adoption by W.P.H., and ordering new birth certificates and social security cards for the children. N.B. filed a motion for new trial which was denied. N.B. now appeals.

ASSIGNMENTS OF ERROR

N.B. assigns as error:

1. The Court erred in granting the adoption without considering the best interest of the child factors, the relationship between the children and their father, or the effect on the children of severing that relationship.

2. The Court erred in finding that it was in the children's best interest to terminate their father's parental rights.

3. The Court erred in finding that N.B. had failed to pay an order of support for a period greater than six months.

4. The Court erred in finding that N.B. did not have just cause for his failure to pay support for a period of greater than six months.

5. The Court erred in denying N.B.’s motion to dismiss the adoption on the basis that the hearing was not being held within the allowable time.

6. The Court erred in denying N.B.’s motion for mental health evaluations of the children and the parties.

7. The trial court erred in denying appellant's motion for directed verdict at the June 4, 2019 hearing.

8. The trial court erred in failing to issue the orders requiring criminal background checks and checks for complaints of child abuse and/or neglect immediately upon remand as required by La. Child. Code Ann. Art. 1243.2 and specifically ordered by this Court.

9. The trial court erred in admitting the November 8, 2019, background check that W.P.H. failed to admit in the original proceedings.

10. The trial court erred in admitting the May 18, 2021, background check that W.P.H. failed to admit in the original proceedings.

11. The trial court erred in admitting the November 13, 2019, background check that W.P.H. failed to admit in the original proceedings.

12. The trial court erred in excluding the testimony of Walter Camos, LPC at the September 29, 2021 hearing.

13. The trial court erred in excluding the Judgment and Reasons for Ruling issued by the trial court exercising jurisdiction over the custody proceedings of the children in this matter.

14. The trial court erred in failing to find that the intrafamily adoption statutes violate the equal protection clause of the United State[s] Constitution and are therefore unconstitutional.

DISCUSSION

The permanent elimination of a parent's rights and obligations by judicial order requires consent of both parents unless "consent has been dispensed with by law." In re K.L.H. , 99-1995, pp. 2-3 (La.App. 3 Cir. 9/20/00), 771 So.2d 706, 708. A stepparent can petition to adopt the children of the mother. La.Ch.Code art. 1243(A). When a petition for intrafamily adoption is filed, the court "shall immediately issue both of the following orders:"

(1) That the local sheriff or the office of state police, Louisiana Bureau of Criminal Identification and Information, conduct a records check for all federal arrests and convictions and all state arrests and convictions for each of the prospective adoptive parents. Prospective adoptive

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