In re D.B.C. Applying for the Adoption of D.M.B.

808 So. 2d 449, 2000 La.App. 1 Cir. 2427, 2001 La. App. LEXIS 423, 2001 WL 133207
CourtLouisiana Court of Appeal
DecidedFebruary 16, 2001
DocketNo. 2000 CJ 2427
StatusPublished
Cited by1 cases

This text of 808 So. 2d 449 (In re D.B.C. Applying for the Adoption of D.M.B.) 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 D.B.C. Applying for the Adoption of D.M.B., 808 So. 2d 449, 2000 La.App. 1 Cir. 2427, 2001 La. App. LEXIS 423, 2001 WL 133207 (La. Ct. App. 2001).

Opinion

| ¡PETTIGREW, Judge.

In this case, D.B.C. and C.B.C. (hereinafter collectively referred to as “appellants”) appeal the dismissal of their petition for an intrafamily adoption of the minor child, D.M.B. For the reasons that follow, we affirm in part, reverse in part, and remand.

FACTS AND PROCEDURAL HISTORY

C.B.C. and T.O. began dating in 1994, and a child, D.M.B., was conceived during their relationship. Shortly after becoming pregnant, C.B.C. left the residence she and T.O. had shared and eventually moved back to her parents’ home in Port Allen, Louisiana. C.B.C. was living with her par[451]*451ents when D.M.B. was born on April 1, 1995.

The reason for the breakup of the relationship between C.B.C. and T.O. is in dispute. C.B.C. claims that T.O. told her to go because he did not love her or trust her enough to marry her. C.B.C. maintains that she never told T.O. that he was not the father of D.M.B. T.O. alleges that C.B.C. wanted to leave and in fact told him that the child she was carrying was not his. Nonetheless, it is clear that after C.B.C. left T.O., the two had no further contact until they saw each other at a New Year’s Eve party in 1995, nine months after D.M.B. was born. C.B.C. and T.O. agree that D.M.B.’s paternity was not discussed at that time. There was apparently one other instance when T.O. attempted to phone C.B.C. However, no contact was actually made because T.O. left a message with C.B.C.’s mother, and C.B.C. did not return the call.

Appellants met in the summer of 1996 and were married approximately one year later. Of that marriage, two children were born. In the fall of 1998, appellants decided to pursue an intrafamily adoption with regard to D.M.B., who was then three and one-half years old. They requested that T.O. sign a Voluntary Act of Surrender for the adoption. T.O. refused to sign anything until such time as the paternity of D.M.B. was confirmed by DNA testing. While the DNA test results were pending, appellants filed a petition for intrafamily adoption, naming T.O. as the “alleged natural father” of D.M.B. Shortly thereafter, the parties were notified that the DNA testing had established a 99.999 percent probability that T.O. was the biological father of D.M.B.

|aT.O. subsequently filed an answer objecting to the adoption, and the matter was scheduled for a termination of parental rights hearing.1 After several continuances, the hearing was ultimately conducted on April 6, 2000. Prior to submitting evidence at the hearing, counsel for appellants indicated that if T.O.’s parental rights were not terminated, he would then go forward with a hearing pursuant to La. Ch.Code art. 1245 to show that T.O.’s consent to the adoption was not necessary.

After hearing the evidence, the trial court decided not to terminate T.O.’s parental rights finding that T.O. did not know that D.M.B. was his child until he was notified that appellants wanted him to surrender his parental rights for the intra-family adoption of D.M.B. The trial court concluded:

She [C.B.C.] was as much at fault for not contacting him . [T.O.] about his daughter as he was about not maybe contacting her to pursue it but I find her omissions more egregious than his because she knew, at least she said she knew, that it was his child all along. But I believe he did not know and that’s the ruling of the Court on that issue.

Once the court made its decision not to terminate T.O.’s parental rights, counsel for appellants called their expert, Dr. William C. Calkins, to testify relative to the best interests of D.M.B. After Dr. Calkins finished his testimony, the hearing was stopped because of the lateness of the hour and scheduled to continue on May 11, 2000.

At the hearing on May 11, 2000, counsel for T.O. orally moved for dismissal of the petition on the grounds that since T.O.’s [452]*452parental rights had not been terminated and he had not consented to the adoption, the adoption could not go forward.2 Counsel for appellants argued that he should be allowed to submit evidence pursuant to Article 1245 to prove that T.O.’s consent was not necessary for the adoption to be finalized. Counsel acknowledged, however, that even if the court were to conclude that T.O.’s consent could be dispensed with, the court would still have to determine whether the intrafamily ¡¿adoption was in D.M.B.’s best interest. After hearing argument from the parties and considering the statutes and jurisprudence, the trial court concluded that the intrafamily adoption could not go forward without T.O.’s consent. The court ended the hearing, which had begun with the testimony of Dr. Calkins on April 6, 2000, expressing concern that the parties might “rehash the same stuff’ if the hearing were to continue. On May 16, 2000, the court signed a judgment ordering (1) that T.O.’s parental rights not be terminated, and (2) that the intrafamily petition of adoption filed by appellants be dismissed “as the biological father’s consent would be necessary to grant said adoption and this consent has been withheld.” The instant appeal followed.

TERMINATION OF PARENTAL RIGHTS

The first issue raised for our review is whether the trial court erred in not terminating T.O.’s parental rights. In brief, appellants argue that T.O. was required to prove that he had manifested a substantial commitment to his parental responsibilities and that he would be fit to parent D.M.B. Appellants assert that any action or inaction on the part of C.B.C. did not rise to the level of “thwarting” under La. Ch.C. art. 1138(B)(2) and that T.O. failed to prove his substantial commitment to his parental responsibilities as is required by Article 1138.

Article 1138 sets forth the burden of proof and evidentiary requirements for a hearing of an alleged or adjudicated father’s opposition to the adoption of his child. The article requires the court to decide if the father has established or forfeited his parental rights. The court is mandated to consider the father’s fitness and his commitment to parental responsibilities, including his attempts to establish or maintain a relationship with the child. Article 1138 provides as follows:

A. At the hearing of the opposition, the alleged or adjudicated father must establish his parental rights by acknowledging that he is the father of the child and by proving that he has manifested a substantial commitment to his parental responsibilities and that he is a fit parent of his child.
B. Proof of the father’s substantial commitment to his parental responsibilities requires a showing, in accordance with his means and knowledge of the mother’s pregnancy or the child’s birth, that he either:
(1) Provided financial support, including but not limited to the payment of consistent support to the mother during her pregnancy, | .¡contributions to the payment of the medical expenses of pregnancy and birth, or contributions of consistent support of the child after birth; that he frequently and consistently visited the child after birth; and that [453]*453he is now willing and able to assume legal and physical care of the child.
(2) Was willing to provide such support and to visit the child and that he made reasonable attempts to manifest such a parental commitment, but was thwarted in his efforts by the mother or her agents, and that he is now willing and able to assume legal and physical care of the child.

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54 So. 3d 186 (Louisiana Court of Appeal, 2010)

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Bluebook (online)
808 So. 2d 449, 2000 La.App. 1 Cir. 2427, 2001 La. App. LEXIS 423, 2001 WL 133207, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-dbc-applying-for-the-adoption-of-dmb-lactapp-2001.