In Re: Bryant Joseph Gros, Jr. Applying for Intrafamily Adoption of Annabelle Marie Beck and Amelia Rose Beck .

• Court: Louisiana Court of Appeal
• Decided: November 9, 2022
• Docket: 2022-CA-0665
• Status: Published

Opinion

IN RE: BRYANT JOSEPH * NO. 2022-CA-0665 GROS, JR. APPLYING FOR INTRAFAMILY ADOPTION * OF ANNABELLE MARIE COURT OF APPEAL BECK AND AMELIA ROSE * BECK FOURTH CIRCUIT * STATE OF LOUISIANA *******

APPEAL FROM ST. BERNARD 34TH JUDICIAL DISTRICT COURT NO. 1478-J, DIVISION “A” Honorable William M McGoey, Judge ****** JUDGE SANDRA CABRINA JENKINS ****** (Court composed of Chief Judge Terri F. Love, Judge Joy Cossich Lobrano, Judge Sandra Cabrina Jenkins)

Stephen H. Shapiro ATTORNEY AT LAW 700 Camp Street New Orleans, LA 70130

COUNSEL FOR APPELLANT

Karla Marie Baker BAKER LAW FIRM LLC 2955 Ridgelake Drive Suite 114 Metairie, LA 70002

COUNSEL FOR APPELLEE

APPEAL DISMISSED

NOVEMBER 9, 2022 SCJ TFL JCL

This appeal arises from the district court’s June 20, 2022 judgment granting

a petition for intrafamily adoption in favor of Bryant Joseph Gros, Jr., decreeing

him as the legal parent of the two children, A.M.B. and A.R.B. The children’s

biological father, James Beck, filed a motion for appeal of the district court’s

judgment on August 18, 2022. Pursuant to La. Ch. C. art 1259, which requires an

appeal of a judgment of adoption to be filed within thirty days after the rendition of

judgment, we find the appeal untimely and dismiss the appeal.

FACTS AND PROCEDURAL BACKGROUND

On March 17, 2022, Mr. Gros filed a petition for intrafamily adoption of

A.M.B. and A.R.B., the legitimate children of petitioner’s wife, Rachel Fernandez,

from her former marriage to the biological father, Mr. Beck. After her divorce

from Mr. Beck in 2018, Ms. Fernandez was awarded sole custody of the two

children. Subsequently, in 2021, Ms. Fernandez married Mr. Gros.

1 In his petition, Mr. Gros alleged that Ms. Fernandez consented to the

adoption of the two children. Mr. Gros further alleged that Mr. Beck had refused

or failed to comply with a court order of child support without just cause for a

period of at least six months, and that he had failed to communicate or attempt to

communicate with the children without just cause for at least six months. Based on

those allegations, pursuant to La. Ch. C. art. 1245, Mr. Gros asserted that the

conditions had been met to dispense with the parental consent of Mr. Beck to the

adoption.1 Mr. Gros finally alleged that the adoption was in the best interest of the

children.

On April 22, 2022, Mr. Beck filed an answer to the petition, opposing the

adoption. On May 25, 2022, the district court held a hearing on the petition. At

the hearing, the district court heard testimony from Ms. Fernandez, Mr. Gros, Mr.

Beck, and Mr. Beck’s mother. At the conclusion of the hearing, the district court

1 La. Ch. C. art. 1245 provides, in pertinent part, as follows:

A. The consent of the parent as required by Article 1193 may be dispensed with upon proof by clear and convincing evidence of the required elements of either Paragraph B or C of this Article at the hearing on the opposition and petition. * * * C. When the spouse of a stepparent petitioner has been granted sole or joint custody of the child by a court of competent jurisdiction or is otherwise exercising lawful custody of the child and any one of the following conditions exists: 1. The other parent has refused or failed to comply with a court order of support without just cause for a period of at least six months. 2. The other parent has refused or failed to visit, communicate, or attempt to communicate with the child without just cause for a period of at least six months.

La. Ch. C. art. 1193 provides, in pertinent part, as follows:

Unless rights have been terminated in accordance with Title X or XI, consent to the adoption of a child or relinquishment of parental rights shall be required of the following: * * * 2. The father of the child, …

2 stated oral reasons for finding that petitioner had met his burden of showing that

(1) Mr. Beck’s parental consent to the adoption was not necessary pursuant to La.

Ch. C. art. 1245; and (2) the adoption was in the best interest of the children.

Accordingly, the district court granted the petition for intrafamily adoption.

On June 20, 2022, the district court rendered its judgment granting the

petition for intrafamily adoption in favor of Mr. Gros, decreeing him to be the legal

parent of the two children. Mr. Beck filed his motion to appeal the district court’s

judgment on August 18, 2022.

TIMELINESS OF THE APPEAL

This appeal was lodged with this Court on October 7, 2022. On October 24,

2022, this Court ordered the parties to show cause in writing, within ten days, why

the appeal should not be dismissed as untimely pursuant to La. Ch. C. art. 1259.

See State ex rel. A.S.K., 00-0636, p. 3 (La. App. 4 Cir. 12/6/00), 775 So.2d 1101,

1103 (“An appellate court may, on its own motion, recognize its lack of authority

to entertain an untimely appeal and dismiss it.”) Mr. Beck filed his response to this

Court’s order on November 3, 2022. Mr. Gros did not file a response.

The time limitation for an appeal of judgment of adoption is governed by La.

Ch. C. art. 1259, which provides:

A. Any party to the proceedings or any other party in interest shall have the right to appeal a judgment granting or refusing to grant an interlocutory or final decree regarding any type of adoption within thirty days after the rendition of a judgment or decree.

B. If no appeal is perfected within thirty days after a judgment is rendered, the judgment shall be final.

3 Thus, in this case, Mr. Beck had thirty days from the district court’s June 20, 2022

judgment to file his motion for appeal. As stated above, Mr. Beck filed his motion

for appeal on August 18, 2022.

In response to this Court’s show cause order, Mr. Beck’s counsel

acknowledged that the motion for appeal was not filed within the thirty-day time

limitation pursuant to La. Ch. C. art. 1259. Counsel argued that he acted in good

faith in opting, mistakenly, to take a devolutive appeal, and counsel asked this

Court to exercise discretion in accepting the appeal.

This Court has no discretion to accept this untimely appeal. “[T]he defect of

not taking an appeal timely is jurisdictional, and neither counsel, the trial court, nor

the appellant [sic] court has the authority to extend this delay.” State ex rel. E.A.,

02-996, p. 3 (La. App. 3 Cir. 10/2/02), 827 So.2d 594, 596 (citing Hawkins v.

Shropshire, 275 So.2d 821 (La. App. 4 Cir. 1973). “Absent a timely motion for

appeal, the appellate court lacks jurisdiction over the appeal.” Tennebaum v.

LeCompte, 15-0008, p. 2 (La. App. 4 Cir. 8/12/15), 173 So.3d 1185 (quoting

Falkins v. Jefferson Parish Sch. Bd., 97-26, p. 2 (La. App. 5 Cir. 5/9/97), 695

So.2d 1005, 1006).

CONCLUSION

For the foregoing reasons, we dismiss this appeal as untimely.