In re G.E.T.

529 So. 2d 524, 1988 La. App. LEXIS 1689
Louisiana Court of Appeal·Decided July 15, 1988·No. No. CA 88 1083·Published·Cited by 10 cases

Opinion

LeBLANC, Judge.

The issue presented in this adoption proceeding is whether plaintiffs, Mr. and Mrs. GET, sustained their burden of proving it was in the best interest of the child they sought to adopt to permit the adoption.1 The trial court concluded they did not do so and dismissed their petition for adoption. Plaintiffs now appeal this judgment.

EJG, the child sought to be adopted, was born on March 1, 1985, of the legal union between Richard and Dana G., the child’s natural father and mother, respectively. On February 17, 1987, Richard and Dana consented to the adoption of EJG by plaintiffs, the child’s maternal grandparents. Subsequently, plaintiffs filed a petition for the adoption of EJG and on May 12, 1987, obtained a final decree of adoption. However, on June 2, 1987, Richard filed a petition for nullity of the adoption decree based on the withdrawal of his consent to the adoption, the fact that he was not served with notice of the filing of the petition for adoption and fraud and ill practic[526] es. After a hearing, judgment was ultimately rendered on December 15, 1987, in favor of Richard nullifying the final adoption decree and ordering a hearing on plaintiffs’ petition for adoption. This judgment was not appealed and is now final.

Following a “best interest” hearing, the trial court rendered judgment dismissing plaintiffs’ petition for adoption. Plaintiffs have appealed, alleging that trial court erred in concluding it was not in EJG’s best interest to grant the adoption.

After the lodging of this appeal, Richard filed an exception of no right of action in this court. An exception of no right of action raises the issue of whether the plaintiff belongs to the particular class for which the law grants a remedy for a particular grievance or whether the plaintiff has an interest in judicially enforcing the right asserted. In Re Norton, 471 So.2d 1053 (La.App. 1st Cir.1985); Smith v. Livingston Parish Police Jury, 423 So.2d 5 (La.App. 1st Cir.1982). This exception does not raise the question of the plaintiffs’ ability to prevail on the merits and may not be utilized on the basis that the defendant may have a valid defense to the proceedings. Id.

In this case, Richard asserts that the plaintiffs’ right to apply for the adoption of EJG was dependent upon valid consent to the adoption being given by him. He further alleges that the consent he gave for the adoption was not valid for several reasons it is not necessary to discuss herein. We find, however, that Richard’s argument raises a defense to the adoption, which goes to the merits of these proceedings.2 The issue raised by this defense has absolutely no bearing upon whether plaintiffs are within the class of individuals permitted by law to petition for adoption. La. R.S. 9:422 provides, in part, that “[a] single person eighteen years or older, or a married couple jointly, may petition to adopt a child.” An examination of the petition clearly reveals that plaintiffs fall within this class of individuals. This exception is not well-founded and is accordingly overruled.

Turning to the merits of the present appeal, we observe that whether adoption is in the best interest of a child must be decided on the particular facts of each case. In Re EWB, 441 So.2d 478 (La.App. 2d Cir.1983). The adoptive parents bear the burden of proving the adoption is in the child’s best interest. In Mr. & Mrs. J.M.P., Applying for Adoption, 528 So.2d 1002 (La.1988)3, the Supreme Court delineated the following guidelines for determining whether adoption is in a child’s “best interest”.

Among modern legal and child psychological authorities, the consensus is that, of the multifarious considerations relevant to the best interests of a child in resolving a private custody dispute between the natural parent and the proposed adoptive parents, the most important factors are: (1) Whether each person seeking custody is fit to be the child’s parent; (2) Whether either of the adoptive parents has a psychological relationship with the child; and (3) The natural parent’s biological relationship with the child, (at p. 1013)

The trial court’s determination of a child’s best interest is entitled to great weight and will not be disturbed on appeal absent manifest error. In Re Adoption of JSB, 505 So.2d 796 (La.App. 2d Cir.), writ denied, 508 So.2d 819 (1987); In Re Adoption of Broussard, 469 So.2d 454 (La.App. 3d Cir.), writ denied, 474 So.2d 1303 (1985).

[527] In reaching its conclusion in this case that adoption was not in EJG’s best interest the trial court gave the following reasons for judgment:4

What is in the best interest of this child is a factual determination.
Mrs. GET, the maternal grandmother, testified that initially she and her husband wanted to adopt this child, their granddaughter, in order to provide financial security and obtain hospitalization insurance benefits through the grandfather’s employer. Shortly after the adoption decree was signed and which was later nullified, Richard and Dana [the natural parents], physically separated and Richard withdrew his consent to the adoption.
After Richard withdrew his consent to the adoption, Mrs. GET states that she became aware of other character flaws in her son-in-law and which consist of, or allude to certain acts of sexuality, involvement with recreational use of drugs, disregard of the child’s personal safety and welfare, and abusive acts toward the child. These deficiencies in her son-in-law were in addition to his inability to stay employed for any length of time and his difficulty in managing his financial affairs.
Richard denied his involvement in the sexuality issue, neglectful or abusive acts, and also testified that he was employed at the time of the hearing on February 9, 1988, and that he was in fact holding down two jobs at the time.
Dana [the natural mother] generally substantiated her mother’s testimony even though she and her husband had reconciled in October, 1987, after a period of their separation and were in fact living in the same home when the best interest hearing was held on February 9, 1988.

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In re G.E.T., 529 So. 2d 524, 1988 La. App. LEXIS 1689 (La. Ct. App. 1988).

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