In Re Farrar

635 So. 2d 674, 1994 WL 113616
CourtLouisiana Court of Appeal
DecidedApril 6, 1994
Docket93-1347
StatusPublished
Cited by11 cases

This text of 635 So. 2d 674 (In Re Farrar) 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 Farrar, 635 So. 2d 674, 1994 WL 113616 (La. Ct. App. 1994).

Opinion

635 So.2d 674 (1994)

In re: Todd FARRAR Applying for Intrafamily Adoption of Brian Robert McNeal, Plaintiff-Appellee.

No. 93-1347.

Court of Appeal of Louisiana, Third Circuit.

April 6, 1994.

Allan Dale Smith, Ball, for Todd Farrar.

Kathy Fontenot Deshotel, Ville Platte, for Robert G. McNeal.

Before YELVERTON, SAUNDERS and DECUIR, JJ.

SAUNDERS, Judge.

Defendant-appellant, Robert G. McNeal, appeals from the trial court's ruling granting the plaintiff-appellee's, Todd Farrar, petition for the adoption of his stepson, Brian Robert McNeal. The trial court ruled that the biological father's consent was not needed because of his inexcusable failure to pay child support for a period of one year and that the adoption was in the best interest of the child.

*675 For the reasons which follow, we reverse the trial court's judgment.

FACTS

Brian Robert McNeal (hereinafter BRIAN) was born on June 25, 1984, from the marriage of Robert Grimes McNeal (hereinafter ROBERT) and Johnette McNeal Farrar (hereinafter JOHNETTE). The biological parents of BRIAN experienced marital difficulties and received a judgment of separation on January 13, 1987, at which time ROBERT was ordered to pay one hundred seventy-five dollars ($175.00) per month in child support. BRIAN'S biological parents received a final divorce judgment on January 29, 1988. In the final divorce judgment, the court ordered joint custody of BRIAN to be shared by his natural parents, ROBERT and JOHNETTE. JOHNETTE was designated as domiciliary parent and ROBERT was given reasonable visitation rights.

Approximately one year after the divorce, JOHNETTE dated and then ultimately married the petitioner in this case, Todd L. Farrar (hereinafter TODD or stepfather). Since they were married, JOHNETTE and TODD, as stepfather, have raised BRIAN together.

ROBERT remarried and had two children with his second wife, SHEILA COCO McNEAL (hereinafter SHEILA). Their two children, the half-brother and half-sister of BRIAN, are named Zachary and Brooke McNeal.

From February 1992 until the filing of the stepfather's petition for adoption, ROBERT failed to comply with the trial court's child support order. On May 5, 1993, approximately one (1) year and three (3) months following the last child support payment made by ROBERT, the stepfather filed this petition for adoption. Shortly after learning that the stepfather was going to file the petition for adoption, ROBERT delivered to JOHNETTE a money order covering all arrears and payments of child support up to June of 1993. In addition, ROBERT gave notice to the trial court of his opposition to the adoption.

Pursuant to Louisiana Children's Code Articles 1193 and 1245, the stepfather alleged that the natural father's consent was not required because he refused or failed to comply with a court order of support for a period of one year. ROBERT contested the adoption and after a hearing on the matter, the trial court granted the stepfather's petition for adoption of BRIAN finding that the child's adoption by his stepfather was in the child's best interest.

The biological father, ROBERT, appeals the trial court's judgment granting the adoption of BRIAN by his stepfather.

I. Issues Presented

1) Whether the trial court erred when it failed to find that an agreement existed between SHEILA and JOHNETTE regarding the abatement of child support payments for the minor child, BRIAN. 2) Whether the trial court erred when it failed to find that ROBERT'S non-payment of child support was justified. 3) Whether the trial court erred when it found that the adoption of BRIAN by his stepfather was in the child's best interest.

This court pretermits the first two issues raised by appellant because we find that the adoption is not in the best interest of the child.

II. Law and Argument

Although a parent may lose the right for his consent to be required to the adoption of his child under LSA-Ch.C. articles 1193 and 1245(D)(1)[1] or (2), the adoption should only be granted when it is in the best interest of the child. See, Adoption of Latiolais, 384 So.2d 377 (La.1980). The party petitioning the court for adoption carries the burden of proving a parent's consent is not *676 required under the law and that the adoption is in the best interest of the child. In re JMP, 528 So.2d 1002 (La.1988); Wyatt v. Dept. of Public Welfare, 442 So.2d 1369 (La. App. 3d Cir.1983); In re H, 437 So.2d 895 (La.App. 2d Cir.1983).

"Whether an adoption is in the best interest of the child must be decided on the facts of each case and the trial judge is vested with great discretion in making that determination." In re EWB, 441 So.2d 478 (La.App. 2d Cir.1983); In re Hinton, 390 So.2d 972 (La. App. 2d Cir.1980), writ not considered, 396 So.2d 1350 (La.1981). "This discretion is not absolute and the trial judge's determination of best interest is subject to reversal if the record reveals manifest error in his determination." EWB, supra (citing Latiolais, 384 So.2d 377 and In re Glass Applying for Adoption, 424 So.2d 383 (La.App. 2d Cir. 1982)).

In reviewing the law in the area of adoption, we note that there is no clear definition or absolute outline of factors that should be used in determining what is in the best interest of a child. Louisiana courts have cited several factors including the ability of the stepparent to serve as parent, the ability of the stepparent to provide for the child's physical needs, the stepparent's ability to fulfill the psychological needs of the child, and lastly, whether the aforementioned considerations outweigh the existent natural parent-child relationship. In re Billeaud, 600 So.2d 863, 865 (La.App. 3d Cir.1992). More specifically, where a stepparent is married to the natural parent having custody and seeks to adopt that child, Louisiana courts have held:

"The most important factors are the child's relationship with h[is] stepfather and h[is] natural father. It is not enough to examine the love and home environment provided by the petitioner/stepparent. It is necessary as well to examine the depth of closeness of the child's ties with the non-custodial natural parent, and the effect which the loss of this relationship would have on the child. In Re JGG v. JLF, 556 So.2d 236 (La.App. 2d Cir.1990). The court must also consider the seriousness and finality of the severing of the relationship between the parent and child, as well as the importance and benefit to the child of a continued relationship with the parent. Id."

Knapp v. Adoption of Cotten, 577 So.2d 241, 246 (La.App. 1st Cir.), writ denied, 580 So.2d 364 (La.1991). Consequently, a court, for example, cannot automatically grant a stepparent's petition for adoption even where the relationship between a stepfather and his stepson is closer and more affectionate than the relationship between the son and his natural father. The law requires that the court also evaluate the relationship between the child and the natural parent and the effect on the child of severing the natural parent-child relationship.

This court has previously addressed the importance of the natural parent-child relationship. In Latiolais, which was affirmed by the Louisiana Supreme Court, we pointed out that an adoption terminates any right of visitation between the child subject to the adoption and the non-custodial natural parent. Adoption of Latiolais, 376 So.2d 555, 560 (La.App. 3d Cir.), affirmed 384 So.2d 377 (La.1980).

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Cite This Page — Counsel Stack

Bluebook (online)
635 So. 2d 674, 1994 WL 113616, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-farrar-lactapp-1994.