In re Adoption of B.A.D.

720 So. 2d 402, 98 La.App. 4 Cir. 2103, 1998 La. App. LEXIS 2942, 1998 WL 722615
CourtLouisiana Court of Appeal
DecidedOctober 14, 1998
DocketNo. 98-C-2103
StatusPublished

This text of 720 So. 2d 402 (In re Adoption of B.A.D.) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Adoption of B.A.D., 720 So. 2d 402, 98 La.App. 4 Cir. 2103, 1998 La. App. LEXIS 2942, 1998 WL 722615 (La. Ct. App. 1998).

Opinion

hWALTZER, Judge.

STATEMENT OF THE CASE

Relator, D.W., filed a petition for adoption of his sixteen year old stepson, B.A.D. Relator, J.W., is the child’s mother. The adoption is being opposed by respondent, the child’s biological father, who lives in Panama City Beach, Florida.

The record contains a copy of the amended final judgment rendered in Florida on 21 May 1993 terminating the biological parents’ marriage, finding that shared parental responsibility is in the best interest of the child and granting residential custody to the respondent subject to the mother’s liberal right of visitation. At that time the minor child had been living with the biological father since late 1991. The judgment provides that the respondent shall primarily support the child while the mother pursues her education as a full-time student at Loyola Law School, and finds the wife not in need of alimony. Over the years, the Florida courts have handled numerous custody disputes involving the child.

On 15 June 1996, the child’s Florida guardian ad litem, appointed on 4 March 1996 to represent the child’s interests, submitted a report to the Florida court. The guardian concluded that the child exhibited negative and potentially harmful behaviors and needed counselling. The respondent’s home was described as more than appropriate, the child was found to be comfortable and settled there with friends at home and at school, and both parents were found morally fit. The [403]*403guardian found that the child was negatively effected by the hostility and friction between his parents, and his therapist noted that every time he' returned from a visit with the mother he was filled with hate for respondent and was in, or got into a crisis. The child expressed a preference for living with his mother because at her house, they “play games, skateboard, go to movies and attend the New Orleans Athletic Club.” The guardian described the mother’s home as “a family vacation,” with plentiful entertainment and not many rules. The guardian also found that the child is very intelligent and has learned how to manipulate the family situation to get what he wants.

The events leading up to the current dispute began in March of 1998 when the minor child traveled to New Orleans to visit with his mother in accordance with a Florida court visitation order. On 6 April 1998, the respondent executed a Florida stepparent adoption ^consent and waiver form. On 21 April 1998, D.W. filed in Juvenile Court for the Parish of Orleans a petition for adoption, attaching to the petition a form signed by the mother on 20 April 1998 consenting to the adoption, respondent’s consent and waiver form, and an information sheet averring that the minor child entered the W. home on 27 March 1998.

A hearing on the petition was set for 5 June 1998. Prior to the hearing, the respondent filed a motion to withdraw D.W.’s petition for adoption, alleging that he had signed the consent form under duress.

On 5 June 1998, the trial court declined to exercise jurisdiction, based upon the Uniform Child Custody Jurisdiction Act, La.R.S. 13:1702, 1706 and 1707. The judgment includes the court’s conclusion that the respondent did not fully comprehend the nature of the surrender, as evidenced by his belief that he retained custody, and that the mother is using these adoption proceedings in an effort to circumvent the many decisions of the Florida courts regarding custody of the child and ancillary matters.

The judgment was signed on 19 June 1998. The court noted the objection of counsel to the judgment and counsel’s announced intention to appeal the judgment. In the judgment the trial judge instructed counsel to file a written notice of appeal. On 26 June 1998, the Ws. filed a motion for a new trial and/or rehearing. The respondent filed a pro se response to relator’s motion for a new trial. On 10 July 1998, the trial court held a hearing on the motion for a new trial and/or rehearing. At the hearing the court stated that it was maintaining the judgment declining jurisdiction because, contrary to what the relator alleged, the court believed the matter was a custody fight disguised as an adoption. The court concluded that the jurisdiction for the custody determination remained in Florida and questioned whether the surrender was valid. At the end of the 10 July 1998 hearing the trial court denied the motion for new trial. The judgment was reduced to writing on 27 July 1998. The relator’s writ application was timely filed in this court on 26 August 1998. On 14 September 1998, respondent filed an opposition to the relator’s emergency writ application.

Relator complains that the trial court erred in declining jurisdiction to hear the adoption matter. The judgment declining jurisdiction places an end to the litigation in the Juvenile | gCourt for the Parish of Orleans and is a final, appealable judgment. La. C.C.P. art. 1841; La. C.C.P. art. 2083. Petitioner requests expedited consideration “due to the detrimental impact of the lower court’s denial of jurisdiction upon the minor child in the form of instability and vulnerability to continued harassment and threats from the [respondent].” To date no testimony has been taken from the respondent. Although the petitioner has attached numerous documents to his writ application, no legal determination has been made that the respondent has in fact harassed or threatened the child. Further, based on the exhibits attached to the respondent’s opposition brief, it appears the mother is now attempting to obtain custody of the child in Florida.1 Respondent [404]*404also offered copies of report of telephone threats on 19 April 1998, judgment of the Florida court entered 9 December 1996, holding the mother in contempt of court and ordering her incarcerated until she delivers the child to respondent and revoking her visitation rights, and Florida judgment entered 5 September 1995 referring to the charges and counter-charges between the child’s biological parents and noting that none of the charges against the respondent have been verified. According to the respondent, another hearing is scheduled before the Florida Court on 19 October 1998.

Because the record is complete and because of the obvious psychological needs of the sixteen year old child, we grant the writ application to consider this matter on an expedited basis.

FACTS OF RECORD

At the hearing, relators submitted a notarized act signed by the respondent on 6 April 1998 before a Florida notary public and two witnesses. In the act, respondent unequivocally relinquished all custodial rights to the child and consented to the adoption, averring that his consent was voluntary and not the result of fraud or duress.

The respondent filed a pro se motion to withdraw petition for adoption, alleging that Uthe act was signed under extreme duress, that the Florida courts have consistently found him to be an appropriate custodial parent despite what the court found to be constant unverified allegations against the respondent by the mother, that the mother has retained the child in her custody in defiance of orders of the Florida court and that all of the child’s counselors, guardian ad li-tem, and Florida courts believe it is in the child’s best interests to remain primarily with the respondent. He also objected to the jurisdiction of the juvenile court and noted that he had not been served with a copy of the petition as required by La.Ch.C. art. 1249.

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720 So. 2d 402, 98 La.App. 4 Cir. 2103, 1998 La. App. LEXIS 2942, 1998 WL 722615, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-adoption-of-bad-lactapp-1998.