In Re: Adoption of E.F.F. by J.L.B.

• Court: Louisiana Court of Appeal
• Decided: March 7, 2012
• Docket: CA-0011-1383
• Status: Unknown

Opinion

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

11-1383

IN RE:

ADOPTION OF E.F.F.

BY J.L.B.

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APPEAL FROM THE FOURTEENTH JUDICIAL DISTRICT COURT PARISH OF CALCASIEU, NO. 6577 HONORABLE RONALD F. WARE, DISTRICT JUDGE

OSWALD A. DECUIR JUDGE

Court composed of John D. Saunders, Oswald A. Decuir, and Marc T. Amy, Judges.

AFFIRMED.

Nicholas Pizzolatto, Jr. Department of Social Services, OCS 2771 Paul White Road Lake Charles, LA 70611 (337) 475-3037 COUNSEL FOR APPELLANTS: J. L. B. A. F. B. Brad Guillory Loftin, Cain & LeBlanc, LLC 113 Dr. Michael Debakey Drive Lake Charles, LA 70601 (337) 310-4300 COUNSEL FOR APPELLEE: P. L. F. DECUIR, Judge.

J.L.B., husband of A.F.B., petitioned the court to adopt E.F.F., the minor

child of A.F.B. and her former husband, P.L.F. P.L.F. objected to the adoption and

sought joint custody and visitation rights with his son. The trial court denied the

petition for adoption, finding the evidence did not support the termination of

P.L.F.’s parental rights. The trial court specifically found P.L.F.’s consent was

necessary for the adoption under the circumstances of this case. We affirm.

A.F.B. and P.L.F. were married in 2004 and divorced in 2009. The evidence

in the record reveals that P.L.F. had a drinking problem and became abusive

toward his wife when he was drunk. Therefore, she divorced him and was granted

sole custody of their child, who was then four years old. P.L.F. paid approximately

one-third of his child support obligation. P.L.F. also exercised visitation rights

until he was incarcerated for several months as a result of offenses committed

against A.F.B. P.L.F. pled guilty to two counts of domestic abuse battery and three

counts of violation of a restraining order. In 2010, A.F.B. married J.L.B., her third

husband, who initiated this adoption proceeding one month after the wedding.

The evidence shows that P.L.F. was an active and engaged father from the

time of E.F.F.’s birth until he was incarcerated. While he was undeniably abusive

toward his wife, the evidence was unequivocal that he did not abuse or mistreat his

son. In fact, A.F.B. and her mother testified that P.L.F. from the beginning

changed diapers and handled feedings, then later took E.F.F. on outings such as

fishing and camping trips or visits to the zoo. After the couple separated, P.L.F.

exercised visitation, paid some child support, though not all that was ordered, and

attempted to maintain a relationship with his son through phone calls and cards

from prison. The testimony also revealed that P.L.F., at the time of trial, had quit

drinking, attended Alcoholics Anonymous meetings, and took anger management classes. He was also making full child support payments and was trying to catch

up on arrearages.

The trial court characterized this as a “tough” case but ultimately concluded

that the facts did not warrant the termination of P.L.F.’s parental rights so that

E.F.F. would be free for adoption by J.L.B. The court based its decision on several

factors. First, the court noted that in this case, P.L.F.’s consent to the adoption

would be necessary. Second, the court acknowledged the good character of J.L.B.

but commented that his marriage to A.F.B. is less than a year old, as of the time of

trial. Finally, the court emphasized that the fundamental parent/child relationship

deserves protection, respect, and deference. Contrary to that principle, however,

the social worker who testified in favor of adoption was unable to assess the

father/son relationship at issue. She was initially contacted to evaluate E.F.F. for

behavior issues; she was not asked to perform an adoption study and was not given

an opportunity to interview P.L.F. or perform a psychological evaluation. The trial

court attributed P.L.F.’s lack of contact with his son in the year prior to trial to his

incarceration and the length of time it took to get the case to trial.

Ties between parent and child, being the closest and strongest within the human family, courts sever them with extreme reluctance. The natural rights flowing from this relationship form the basis for the legislative requirement in former statutes and jurisprudence that both parents must consent before a child can be adopted under the proceedings authorized by our law-making body. It was not until the passage of R.S. 9:422.1 by Act 501 of 1958 that the consent of both parents was dispensed with under the limited circumstances there set out; and it was not until Act 268 of 1960, amending R.S. 9:422.1, that this rule was extended to include grandparents. These statutes, being in derogation of the natural right of the parents to the child, and the right of the child to its parents, have consistently been strictly construed in the jurisprudence in favor of the parents. Green v. Paul, [31 So.2d 819 (La.1947)]; In re Ackenhausen, [154 So.2d 380 (La.1963)]; In re Lafitte, 247 La. 856, 174 So.2d 804 [(La.1965)]; and In re Hughes, [176 So.2d 158 (La.1965)].

Roy v. Speer, 192 So.2d 554, 556-557 (La.1966).

2 In German v. Galley, 98-197 (La.App. 3 Cir. 5/20/98), 712 So.2d 1034, writ

denied, 98-2189 (La. 11/13/98), 731 So.2d 259, this court reversed a judgment

granting an adoption based on the non-consenting father’s significant support of

the child, with significant support being defined as 20% to 30% of the child

support obligation. The German court described the petitioner’s burden of proof in

an adoption case as follows:

In interpreting La.Ch.Code art. 1245(D)(1), previously codified in La.R.S. 9:422.1, the Louisiana Supreme Court in Haynes v. Mangham, 375 So.2d 103 (La.1979) took a “common sense” interpretation of the statute in stating: “If a parent under court order to support a child has not made a significant support payment within a year prior to filing of the petition for adoption, that parent loses the right to prevent the adoption by withholding consent.” (Emphasis added).

. . . However, “significant support has been defined as being something only in the range of twenty to thirty percent of the alimentary obligation.” In re Adoption of Broussard, 469 So.2d 454, 456 (La.App. 3 Cir.), writ denied, 474 So.2d 1303 (La.1985), citing In re May, 441 So.2d 500 (La.App. 2 Cir.1983).

In addition to establishing the failure to provide support, petitioners also have the burden of showing:

“1) that the failure to pay child support must have been without just cause, In re Bas, Applying for Adoption, 424 So.2d 405 (La.App. 2nd Cir.1982), and 2) that the adoption must be in the best interest of the child, Adoption of Latiolais, 384 So.2d 377 (La.1980).”

Wyatt v. Dept. of Public Welfare, 442 So.2d 1369, 1373, citing In re MDA, Applying for Adoption, 427 So.2d 1334 (La.App. 2 Cir.1983).

Id.

In the present case, P.L.F. provided significant support for his son, and

there has been no showing that the proposed adoption would be in the best interest

of E.F.F., who the trial court found will benefit from having both P.L.F. and J.L.B.

in his life. We agree.

3 For the foregoing reasons, the judgment of the trial court is affirmed, at

Appellants’ cost.