In Re Bourg

501 So. 2d 862
CourtLouisiana Court of Appeal
DecidedJanuary 12, 1987
Docket86-CA-458
StatusPublished
Cited by7 cases

This text of 501 So. 2d 862 (In Re Bourg) 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 Bourg, 501 So. 2d 862 (La. Ct. App. 1987).

Opinion

501 So.2d 862 (1987)

In re Verina Kraemer, Wife of and Terry P. BOURG, Applying for Adoption of Jacqueline Chantel Keller.

No. 86-CA-458.

Court of Appeal of Louisiana, Fifth Circuit.

January 12, 1987.

Raymond C. Burkart, Jr., New Orleans, for appellant Vanessa Keller Cavalier.

Leon C. Vial, III, Julie Burke, Hahnville, Richard Ducote, New Orleans, for plaintiffs-appellees.

Before CHEHARDY, KLIEBERT and BOWES, JJ.

BOWES, Judge.

Appellants Vanessa Keller, wife of/and Morris Cavalier, appeal a judgment of the trial court awarding permanent custody of the minor child Jacqueline Keller to Mr. and Mrs. Terry Bourg. We affirm.

Jacqueline Keller was born on September 26, 1980, to Vanessa Keller, then unmarried. Within a short period of time following the child's birth, Ms. Keller began to leave Jacqueline in the care of her uncle and aunt, Mr. and Mrs. Terry Bourg. In the beginning, it was Ms. Keller's employment *863 which necessitated that she find adequate care for her child during working hours. Through the next months, Ms. Keller left Jacqueline at the Bourgs' home for gradually increasing periods of time. By the age of eighteen months, Jacqueline resided with the Bourgs on a full-time basis, at the Bourgs' suggestion and with the full agreement of the child's mother.

In January, 1982, a document entitled "Appointment Of Tutor By Parent And Assigning Of Temporary Custody By Vanessa Claire Keller For Jacqueline Chantel Keller" was executed purportedly assigning custody of Jacqueline to the Bourgs, as well as appointing the Bourgs as Jacqueline's tutors. This document was allegedly signed in order to permit the Bourgs to obtain medical treatment for Jacqueline should it become necessary. However, the Bourgs contend it was intended to have more permanent meaning.

After Jacqueline became established in the Bourg household, Ms. Keller visited frequently at the Bourg home. Mr. Bourg stated that following these visits, and visits by Jacqueline's maternal grandmother, Jacqueline became upset and difficult to manage. Consequently, the Bourgs arranged with Ms. Keller to schedule visits in order to allow them to prepare the child in advance. Visitation then became less frequent.

In 1984, Ms. Keller married Morris Cavalier and moved to New Orleans. The Cavaliers attempted to arrange visitation with Jacqueline on alternate weekends to coincide with visitation of Mr. Cavalier's children from a previous marriage. However, the Bourgs and the Cavaliers could not reach an agreement as to visitation because of Jackie's erratic behavior following visits. Mrs. Cavalier then executed a revocation of the earlier temporary custody agreement. The Bourgs countered with a petition for adoption of Jacqueline and for enforcement of the earlier custody agreement.

Pursuant to this petition, Mrs. Cavalier filed a petition for a writ of habeas corpus in January, 1986, which was denied by the trial court. The merits were taken up on February 20 at which time the court took the matter under advisement pending an evaluation of all parties and report from Dr. Alan Klein, a psychologist. On March 21, the hearing was completed and, on April 23, judgment was rendered granting permanent custody of Jacqueline to the Bourgs; Mrs. Cavalier was granted visitation and ordered, along with the Bourgs, to undergo mental health counseling. It is from this judgment that the Cavaliers appeal, assigning as error that the trial court erred in its award of permanent custody to nonparents and in failing to establish a set time frame within which a gradual transition of custody to the mother would take place.

La.Civil Code Article 146(B) is applicable to the present situation:

Before the court makes any order awarding custody to a person or persons other than a parent without the consent of the parents, it shall make a finding that an award of custody to a parent would be detrimental to the child and the award to a nonparent is required to serve the best interest of the child. Allegations that parental custody would be detrimental to the child, other than a statement of that ultimate fact, shall not appear in the pleadings.

In the case before us, the trial judge expressly determined that an award of custody to Jacqueline's mother would be detrimental and an award of custody to the Bourgs would serve in the best interest of the child. This finding was based on Dr. Klein's report. The report, to which both parties stipulated, stated:

The evaluation of Jackie reflected an unusually high level of anxiety which appears to be developing into an enduring characteristic of her personality. The early separation experiences of Jackie from her biological mother quite likely is the cause of her insecurity at this time.
The Bourgs provided me with progress notes completed by her teacher at Hahnville Elementary School. These reports also noted an unusually high level of anxiety and insecurity in this child and *864 further suggest a Separation Anxiety Disorder. The primary feature in such disorders is a clinical picture in which the predominant disturbance is excessive anxiety on separation from major attachment figures. Where separation occurs, there can be anxiety to the point of panic. Young children with this disorder often show clinging behavior and fear of going to sleep at nighttime. Jackie has demonstrated both of these behaviors in school and at home (by report).
Jackie has developed a mother-child, father-child attachment and both parents are obviously very bonded to Jackie. She is a psychologically wanted child and after four plus years in the Bourg home, she has become firmly fixed in the family structure. In my opinion, were Jackie to be separated from her psychological parents, her condition would become exacerbated. Separation disorders, in their severe form, can be incapacitating in that such children may be unable to attend school or function independently in many areas of their life. Separation disorders, even in their mild form, often persist for a number of years.
Based upon the data I have available, I am recommending that Jackie be allowed to continue living in the Bourg home. There needs to be a sense of permanency for her, however this may be achieved legally. Were there to be an adoption, this would ideally be an open adoption. Given the relationship between the biological mother and the Bourgs, I do not see how an adoption could be done otherwise. As noted above, the Bourgs have indicated that they are willing to have the Cavaliers to have visits with Jackie.

We find support for the trial judge's conclusions elsewhere in the record besides Dr. Klein's report. Dr. Ellen McKenzie, Jacqueline's treating psychiatrist, agreed with Dr. Klein's assessment via a report to the court. Moreover, Mrs. Cavalier's conduct (as distinguished from her early difficult circumstances) appears to have contributed substantially to the present difficulties. As an unmarried young mother, she obviously needed to support herself and her child, and so began to work. However, Mr. Bourg testified when the child was somewhat over a year old, he and his wife had a talk: "and we decided that if Vanessa was ever going to have a chance with Jacqueline for a mother-daughter relationship, that they would have to do it then, so we told her we couldn't keep Jacqueline any more." Jacqueline spent the next three weeks with her mother in a mobile home in Paradis. Then, Mr. Bourg stated, he learned that the toddler was playing outdoors alone and unattended, and Mr. Bourg went to see for himself.

He testified as follows:

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Bluebook (online)
501 So. 2d 862, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-bourg-lactapp-1987.