In re Bourgeois

902 So. 2d 1104, 4 La.App. 5 Cir. 1466, 2005 La. App. LEXIS 1064, 2005 WL 955021
CourtLouisiana Court of Appeal
DecidedApril 26, 2005
DocketNo. 04-CA-1466
StatusPublished
Cited by5 cases

This text of 902 So. 2d 1104 (In re Bourgeois) 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 Bourgeois, 902 So. 2d 1104, 4 La.App. 5 Cir. 1466, 2005 La. App. LEXIS 1064, 2005 WL 955021 (La. Ct. App. 2005).

Opinion

1 .MARION F. EDWARDS, Judge.

Appellant Yvette Guerin Bourgeois, wife of Chad J. Bourgeois, appeals the denial by the trial court of her petition for the intrafamily adoption of the child L.J.B. Chad Bourgeois was formerly married to Evelyn Benoit, and of that marriage L.J.B. was born, on November 21, 1999. When Chad and Evelyn were divorced, Chad obtained sole custody of L.J.B. Chad and Yvette married on May 31, 2003, and L.J.B. has, resided with them since that time. The Petition For Stepparent Adoption, filed in October 2003, alleged that Evelyn has failed to support, visit, communicate or attempt to communicate with, the child for a period in excess of six months. Chad consented to the adoption. Therefore, under La. Ch. C. art. 1245, Evelyn’s consent was unnecessary.

Following a hearing on the matter, the trial court determined that Evelyn’s consent was necessary and the adoption was denied.

At the hearing on January 7, 2004, Chad testified that since the divorce from Evelyn, he has been the sole custodian of L.J.B., and that she has lived with him the entire time. No one has contributed to the child’s support. Chad testified that Evelyn had substance abuse problems throughout the marriage. She was arrested for theft on September 1, 2002, and in September, 2003, she was sentenced to five years in prison at St. Gabriel. In 2002, shortly after she was incarcerated, Evelyn’s ^parents requested that Chad allow [1106]*1106the child to visit her mother at jail, but Chad did not allow this. In early October of 2002, Evelyn wrote a letter stating, she was going to work on her problems, but Chad did not believe that she requested a visit at that time. Evelyn did not attempt to telephone or communicate in any way until November 2003, when she sent a card for L.J.B.’s birthday.

Yvette testified that she acts as a full-time mother to L.J.B. During the time she has been married to Chad, Evelyn did not attempt to contact the-child until she sent the birthday card. When she and Chad moved in together, prior to their marriage, all of Chad’s mail was forwarded, yet Yvette was not aware of any packages or mail sent to L.J.B. by Evelyn. Yvette has known Chad for several years, and they discussed everything, so she would know if there had been any communication. Yvette is acquainted with Evelyn’s mother, who visited with the child every three to six months with L.J.B.’s half-brothers from Evelyn’s previous marriage. Chad would not allow the grandmother to take L.J.B. to visit Evelyn in prison. Yvette did not know the last time Evelyn spoke with the child.

Evelyn testified that she would be on a work-release program in April of 2004, and eligible for parole in 12 months from the date of trial. She testified that at the time she and Chad were divorced, they had joint custody, until the time she was incarcerated. She last saw her child about two weeks before she was arrested, in mid-August of 2002. During that two week period, she was not in good shape and thought it was best for her daughter to be with Chad. From the time she was arrested in 2002, she has been in jail and not allowed to see L.J.B. Evelyn tried to telephone, but could not make collect calls to Chad’s phone, because there is an MCI telecom block. Evelyn did not know if the block originated from prison, and she could not make a three-way call. She spoke with L.J.B. on Valentine’s Day of |42003, when the child was at her sister’s house, where there was no call block. In June, the child was again at her sister’s, but the telephone lines at jail were down.

Evelyn has begged her mother to bring the child, but Chad would not allow it. She made a purse for L.J.B. and sent it through her mother, but her mother has not been able to visit with the child. After her sentencing, Chad did not allow Evelyn’s mother to see L.J.B. at all, because he was afraid she would bring the child to see her in prison. Evelyn has sent cards for Christmas, Valentine’s Day, Easter, and birthdays to the address where Chad had lived, and did not know that he had moved. She did not know his address until he married Yvette. Evelyn mailed things to her mother because she felt L.J.B. was not getting them. She has done everything in her power to see her daughter.

In late 2002 and early 2003, Evelyn inquired about filing for visitation rights, but at that time, she believed she would be on a work-release program. After she was sentenced to jail, in October 2003 she filed a rule for visitation in Ascension Parish where the original divorce and custody decree were granted. The rule included grandparent visitation, and was heard three weeks before the current trial. Two visitation dates were set up with Evelyn’s parents, but on both occasions, there was a schedule conflict.

Linda Benoit, Evelyn’s mother, testified that Chad refused to let her take L.J.B. to visit Evelyn in prison. He allowed Mrs. Benoit to take L.J.B. when she promised she would not visit with Evelyn. Every time Mrs. Benoit would see the child, she asked Chad if he had changed his mind about Evelyn, and he did not. She saw [1107]*1107L.J.B. at Christmas of 2002, then at Valentine’s Day, and in the spring. On Valentine’s Day, L.J.B. spoke with Evelyn on the telephone. In August 2003, after Evelyn was sentenced, Chad refused to let Mrs. Benoit have L.J.B. because he feared she would take the child to visit her mother. In July, 2003, Evelyn sent a |spurse for her daughter, with a card, but Mrs. Benoit has been unable to see the child since that time. Chad had told Mrs. Be-noit that he wanted Evelyn “off the face of this Earth,” but did not tell her that L.J.B. could not speak with Evelyn or could not send cards.

Mrs. Benoit produced letters sent by Evelyn in which she discusses L.J.B. remembering her as her mother. The letters also express concern that Evelyn could not visit with L.J.B., and Evelyn’s interest in filing for visitation rights. Evelyn calls her several times a week to inquire about her children. Mrs. Benoit did not discuss the letters with Chad.

Mr. James Benoit is Evelyn’s father. He testified that every time he talked with Evelyn, she asked to see her daughter, but that Chad had requested no visitation. Since she has been in jail, Evelyn’s sons have been able to visit her every three months. Evelyn asked Mrs. Benoit to purchase cards on several occasions, and to send them to L.J.B. on her behalf.

When the hearing was completed, the trial court made the following findings of fact. Sometime in September of 2002, Evelyn and her parents contacted Chad, but he refused their requests for visitation, and he continued to do so. The court also found that Evelyn attempted to phone Chad in an effort to speak with her daughter, and could not do so because the line was blocked. From September, 2002, until June, 2003, Evelyn sent cards to her daughter. After June 2003, Evelyn sent cards to her mother to be given to L.J.B. On October 14, 2003, Evelyn filed a rule for visitation in the 23rd Judicial District Court, and that she had visited with her sons on multiple occasions.

Applying these findings of fact, the- court determined that Yvette had the burden of proving that Evelyn failed to communicate or attempt to communicate with L.J.B. for at least six months without just cause, and that she did not meet her | ^burden of proof. The court held that Evelyn had attempted to communicate with her daughter through the telephone calls to Chad’s home, through cards mailed, and through her parents, and that Evelyn had made an effort to facilitate visitation. The court specifically made a credibility call in favor of ,'Evelyn: “Mrs.

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Related

In re K.S.S.
253 So. 3d 1311 (Louisiana Court of Appeal, 2018)
In re Adoption of B.C.F.
145 So. 3d 509 (Louisiana Court of Appeal, 2014)
In re Puckett
137 So. 3d 1264 (Louisiana Court of Appeal, 2014)
In re B.E.M.
961 So. 2d 498 (Louisiana Court of Appeal, 2007)
In Re Intra Family Adoption of AGT
956 So. 2d 641 (Louisiana Court of Appeal, 2007)

Cite This Page — Counsel Stack

Bluebook (online)
902 So. 2d 1104, 4 La.App. 5 Cir. 1466, 2005 La. App. LEXIS 1064, 2005 WL 955021, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-bourgeois-lactapp-2005.