IN RE: NELITA THOMPSON APPLYING FOR NO. 24-CA-47 INTRAFAMILY ADOPTION, OF CHILDREN UNDER THE AGE OF EIGHTEEN FIFTH CIRCUIT
COURT OF APPEAL
STATE OF LOUISIANA
ON APPEAL FROM THE JEFFERSON PARISH JUVENILE COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 2022-AD-56, DIVISION "C" HONORABLE BARRON C. BURMASTER, JUDGE PRESIDING
May 29, 2024
MARC E. JOHNSON JUDGE
Panel composed of Judges Marc E. Johnson, Stephen J. Windhorst, and Scott U. Schlegel
AFFIRMED MEJ SJW SUS COUNSEL FOR DEFENDANT/APPELLANT, GERALD CONAWAY Erin A. Fisher
COUNSEL FOR PLAINTIFF/APPELLEE, NELITA THOMPSON Mitchell A. Palmer JOHNSON, J.
Appellant, Gerald Conaway, Jr., appeals the intrafamily adoption of his minor
children by their grandmother and temporary legal custodian, Nelita Thompson,
which was rendered in the Juvenile Court of Jefferson Parish, Division “C”. He also
appeals the determination that his consent was not required for the intrafamily
adoption. For the following reasons, we affirm the juvenile court’s rulings.
FACTS AND PROCEDURAL HISTORY
This is the second appeal involving the intrafamily adoption of N.E.C. and
G.T.C., III1 by Ms. Thompson. The underlying facts of this matter, as recited in In
re Thompson, 23-320 (La. App. 5 Cir. 10/23/23), 375 So.3d 533, 534-35, are as
follows:
On September 1, 2022, Nelita Thompson filed a Petition for Intrafamily Adoption of the minor children, G.T.C.[,] III and N.E.C.[2] Her petition averred that she was the children’s maternal grandmother and had been granted legal custody of the children by a judgment of the Juvenile Court signed on July 21, 2015, which was attached to the petition.3 The petition alleged that Mr. Conaway had an extensive criminal record and that Ms. Thompson’s daughter, Dillia N. Hackler, the children’s mother, died in 2017. In her petition, Ms. Thompson alleged that it was in the best interest of the children that she be allowed to adopt them, as she had provided the primary care for them before and since the custody judgment, and continued to do so. She alleged that Mr. Conaway had either refused or failed to visit, communicate with, or attempt to communicate with the children for a period of at least six months. She further alleged that he failed to provide significant contributions to the children’s care and support for a period in excess of six consecutive months. Among other exhibits, the children’s birth certificates and the “Revocation of Custody” judgment in State in the Interest of C.M., N.H., and G.C. III, docket No. 2015-CC-62 in the Juvenile Court for the Parish of Jefferson, were attached to the Petition.
On November 9, 2022, Mr. Conaway filed into the record of this proceeding a handwritten letter wherein he stated his opposition to the intrafamily adoption. He alleged that Ms. Thompson had lied to the court and concealed the exact whereabouts of the children from him,
1 In accordance with Uniform Rules—Courts of Appeal, Rules 5-1 and 5-2, we will use initials throughout the opinion in reference to the minor children in this adoption case. 2 N.E.C. was born in 2013, and G.T.C., III was born in 2015. 3 The order of custody was granted in Docket No. 2015-CC-62, a child in need of care proceeding in Juvenile Court to which the parties refer in the appellate record and in briefs. The record of this child in need of care proceeding is not part of the appellate record in this proceeding.
24-CA-47 1 and that they were currently with another relative, not Ms. Thompson, who had legal custody. He also alleged that he was not able to afford an attorney to represent him.
Counsel was appointed to represent the minor children. A hearing was held to determine whether due process required the appointment of counsel for Mr. Conaway. Following the hearing, counsel was appointed for Mr. Conaway on November 29, 2022.4
At the April 11, 2023 hearing on the opposition to the adoption and the final decree of the adoption, Mr. Conaway’s opposition to the adoption was heard. At issue were the allegations in Ms. Thompson’s petition that Mr. Conaway had failed to contact the children for a period in excess of six months and had also failed to provide significant support to the children for a period in excess of six months.[] Following testimony from Mr. Conaway, the trial court ruled from the bench that he had not borne his burden of proof that he had made the required communication with his children or provided the required support.[5] The [Juvenile Court] found that as a result, Mr. Conaway had lost the right to oppose the adoption; i.e., his consent to the adoption was not required. Counsel for Mr. Conaway objected to the ruling.
The trial court did not proceed with the final decree of adoption at that time, however, finding that the record was missing a required affidavit. Mr. Conaway filed a Notice of Intent to File Appeal of the April 11, 2023 judgment on April 21, 2023, which was granted that same day. On May 22, 2023, the final decree on the petition for adoption was taken up; however, as evidenced by a minute entry in the appellate record, the final decree of adoption was continued pending the outcome of this appeal.
(Footnotes in original text and two footnotes added).
Upon appellate review, this Court found that, since the juvenile court
specifically continued the final decree of adoption until such time as this Court ruled
on the appeal, the April 11, 2023 judgment was not final for appellate purposes.
Because this Court lacked appellate jurisdiction, the appeal was dismissed without
prejudice. Id. at 537.
4 The record indicates that the Petition for Adoption was set [for] hearing on December 19, 2022; however, a minute entry from that day states that the matter was continued to coincide with the hearing of the “opposition to adoption.” A hearing on Mr. Conaway’s opposition to the adoption and the final decree of adoption was held on January 30, 2023, but was continued to allow counsel for Mr. Conaway to review all discovery and the previous child in need of care proceeding, Docket No. 2015-CC-62. The next hearing was set for March 17, 2023. At that hearing, the court found that further discovery was necessary. The hearing on the opposition to the adoption and the final decree of the adoption was then reset for April 11, 2023. 5 The juvenile court found that Mr. Conaway did not make any child support payments from December 2020 through November 2021, and that was a ground for the finding that he did not have the right to oppose the adoption. The court further found there was no just cause for Mr. Conaway to not contact the children while he was incarcerated from 2015-2017, and that lack of contact was a possible second ground for loss of Mr. Conaway’s right to oppose the adoption.
24-CA-47 2 On remand, the juvenile court held a subsequent hearing on the final decree
on the petition for adoption on November 27, 2023. During the hearing, Ms.
Thompson testified as to the current living, educational, and health statuses of
N.E.C. and G.T.C., III. At the conclusion of the hearing, the juvenile court judge
found that the intrafamily adoption of N.E.C. and G.T.C., III by Ms. Thompson was
in the children’s best interest. On the same date, the juvenile court rendered a final
decree and judgment of adoption, determining N.E.C. and G.T.C., III to be the
children of Ms. Thompson to the same extent as if the children were born unto her.
Mr. Conaway’s parental rights as the natural father of N.E.C. and G.T.C., III were
terminated. The instant appeal followed.
ASSIGNMENTS OF ERROR
On appeal, Mr. Conaway alleges that the trial court erred by: 1) finding that
he did not have the right to oppose the petition for intrafamily adoption; 2) finding
that he did not have to consent to the adoption based on the grounds of no contract
or support for a period in excess of six months; 3) finding by clear and convincing
evidence that he failed to support or visit his children for a period in excess of six
months; 4) failing to hold the intrafamily adoption hearing within 90 days of the
filing of the petition for intrafamily adoption, pursuant to La. Ch.C. art. 1253; and
5) granting Nelita Thompson’s petition for intrafamily adoption of G.T.C., III and
N.E.C.
LAW AND ANALYSIS
Mr. Conaway’s Consent to Intrafamily Adoption6
Mr. Conaway alleges the juvenile court erred in finding that he did not have
the right to contest the intrafamily adoption of his children, N.E.C. and G.T.C., III,
by Ms. Thompson. He argues that the allegations in the petition are false and are
contradicted by Ms. Thompson’s own statements throughout the case, as well as the
6 Assignments of error numbers one through three are interrelated and will be jointly discussed.
24-CA-47 3 testimony and evidence presented at trial. He contends that he had frequent contact
with N.E.C. throughout the years. He further contends that his inability to contact
G.T.C., III for a portion of time during his incarceration period was strictly due to
intentional concealment by the person or persons who had physical custody of
G.T.C., III, and that constituted just cause as it relates to his failure to communicate
with his son.
In regard to the child support, Mr. Conaway avers that he introduced evidence
showing he provided financial support for his children in 2017, 2021, and 2022, in
addition to clothing, dinners, toys, family outings, and other items purchased directly
by him. He argues that that failure to pay child support alone is insufficient to
terminate a biological parent’s rights, especially if the termination of parental rights
is not in the children’s best interest. Mr. Conaway asserts that the termination of his
paramount right to custody of his children is unsubstantiated because the record does
not contain clear and convincing evidence that he ever abandoned his children,
refused to communicate with them, or refused to support them; and, the children
have a right to see and know their only surviving parent.
Ms. Thompson maintains that she presented valid grounds for the intrafamily
adoption of N.E.C. and G.T.C., III. She argues that Mr. Conaway did not pay any
of the court ordered child support from the time of his December 2020 release from
prison through November 2021, a period in excess of six months, and the juvenile
court’s finding that lunches, dinner and other purchases made by Mr. Conaway were
not considered as child support was correct. She further argues that Mr. Conaway
presented no evidence, other than his own self-serving testimony, as to his contact
with one or both of his children. Ms. Thompson avers that Mr. Conaway cannot
meet his burden of proving that the juvenile court’s ruling is manifestly erroneous
or clearly wrong.
Intrafamily adoptions, the adoption of a child by a grandparent or certain other
24-CA-47 4 relatives, are authorized by La. Ch.C. arts. 1170 and 1243. In re J.W.R., 21-691 (La.
App. 5 Cir. 3/3/22), 340 So.3d 1242, 1246. Unless the parental rights have been
terminated in accordance with law, consent to an adoption of a child or
relinquishment of parental rights shall be required. In re Adoption of B.C.F., 14-108
(La. App. 5 Cir. 6/24/14), 145 So.3d 509, 512, writ denied, 14-1502 (La. 7/21/14),
147 So.3d 681. When a petitioner authorized by La. Ch.C. art. 1243 has been granted
custody of the child by a court of competent jurisdiction, the consent of the parent
for an intrafamily adoption, as required by La. Ch.C. art. 1193, may be dispensed
with upon proof by clear and convincing evidence that: (1) the parent has refused or
failed to comply with a court order of support without just cause for a period of, at
least, six months, or (2) the 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. 1245. An intrafamily adoption terminates parental rights of
the biological parent who has failed to contact and/or support the child without just
cause. In re D.L.D., 53,758 (La. App. 2 Cir. 1/13/21), 310 So.3d 314, 320, citing
La. Ch.C. art. 1256.
The party petitioning for adoption has the initial burden of proving that a
biological parent’s consent is not required due to the parent’s nonsupport of or lack
of communication with the child by clear and convincing evidence. In re J.W.R.,
supra. “To prove a matter by clear and convincing evidence means to demonstrate
that the existence of a disputed fact is highly probable; that is much more probable
than its nonexistence.” In re Adoption of B.C.F., 145 So.3d at 513, quoting In re
Intra Family Adoption of A.G.T., 06-805 (La. App. 5 Cir. 3/13/07), 956 So.2d 641,
648. The court is to hear and take into consideration information from all sources
concerning the intrafamily adoption. Id., citing In re C.E.M., III, 09-787 (La. App.
5 Cir. 1/26/10), 31 So.3d 1138, 1143-44. Once a prima facie case is proven, the
opposing parent then has the burden of proving that his failure to provide support or
24-CA-47 5 communicate with his child was with “just cause” or due to factors beyond his
control. In re J.W.R., 340 So.3d at 1246-47. The trial court must thereafter consider
whether the adoption is in the best interest of the child. Id. at 1247. When factual
findings are based on determinations regarding the credibility of witnesses, the
manifest error-clearly wrong standard of review demands great deference to the trier
of fact’s findings, because only the trier of fact can be aware of the variations in
demeanor and tone of voice that bear so heavily on the listener’s understanding and
belief in what is said. In re Adoption of B.C.F., supra.
In the matter before us, Ms. Thompson, the children’s maternal grandmother,
filed a petition to adopt N.E.C. and G.T.C., III through an intrafamily adoption. At
the time of filing, Ms. Thompson had been the legal custodian of the children since
2015. In her petition, Ms. Thompson alleged that Mr. Conaway, the children’s
natural father, refused or failed to visit, communicate with, or attempt to
communicate with the children without just cause for a period of, at least, six months.
She further alleged that Mr. Conaway failed to provide significant contributions to
the care and support of the children for a period in excess of six months. In response,
Mr. Conaway filed a letter, notifying the juvenile court of his desire to retain his
parental rights and to have the children returned to him. The court then set a hearing
on Mr. Conaway’s opposition to the adoption.
At the April 11, 2023 hearing on opposition to the intrafamily adoption, Mr.
Conaway testified as to his interactions over the years with G.T.C., III and N.E.C.
He explained that he was incarcerated from April of 2015 through November of
2017 for possession with the intent to distribute pain pills and heroin. During that
time, he testified that he did not provide any child support payments; but, he arranged
one time for clothing to be brought to N.E.C. by his sister. He stated that he did not
have any written contact with the children during that time because they were very
young, and they were not brought to the jail for visits. However, he had occasional
24-CA-47 6 phone communications with the children’s mother prior to her passing in 2017.
After being released from incarceration in November 2017, Mr. Conaway
testified that he was arrested 30 days later and convicted of second degree battery.
He was then incarcerated from December of 2017 to December of 2020. He made
no child support payments for the short period of time he was released or during his
incarceration. Mr. Conaway attended a school event with N.E.C. in November 2017.
The children did not visit with Mr. Conaway while he was incarcerated, and he did
not send any written communication to them. Mr. Conway stated that he was able
to frequently video chat with N.E.C.; however, he was only allowed to video chat
with G.T.C., III a few times from August 2020 to January 4, 2021. Other than those
few times, he claimed that he was not allowed to see or communicate with G.T.C.,
III.
When he was released from incarceration in December 2020, Mr. Conaway
testified that he frequently communicated with N.E.C. through video chats. He also
had visits with N.E.C. in 2022, when he would take her to lunch or dinner and buy
her toys. He testified that he sent money to Ms. Thompson through Cash App
payments. Mr. Conaway presented screenshots of his Cash App payment account
showing payments to Ms. Thompson for $20 and $150 in November 2021 and $400
and $20 in January 2022.7 He claimed that he would also send cash to N.E.C., but
he would give it to Ms. Thompson’s oldest son. Mr. Conaway insisted throughout
his testimony that he had not aware of being ordered to pay child support for G.T.C.,
III and N.E.C.; however, he acknowledged the support order when he was presented
with written proof of the July 21, 2015 court order requiring him to pay $25 per
month for the children at issue.8
At the conclusion of the hearing, the juvenile court judge found that Mr.
7 Mr. Conaway also presented proof of a payment of $100 to Ms. Thompson; however, there was no date associated with that payment. He testified that it was made between January and June of 2022. 8 The court order was suspended during Mr. Conaway’s incarceration.
24-CA-47 7 Conaway did not make any child support payments from December 2020 to
November 2021—an 11-month period. On that ground, the judge stated that he did
not believe that Mr. Conaway had the right to oppose the adoption. The trial court
did not consider the money Mr. Conaway spent on N.E.C. during his visits as child
support. In reference to contact with N.E.C. and G.T.C., III, the judge found there
was no just cause for Mr. Conaway’s lack of contact with the children from 2015 to
2017, and that lack of contact was a possible second ground for Mr. Conaway’s loss
of his right to oppose the adoption. The judge opined that Mr. Conaway did not put
forth enough effort to contact his children. The judge then decided to proceed with
the intrafamily adoption.
Upon review of the record and the applicable law, we cannot find that the
juvenile court was manifestly erroneous or clearly wrong in its determination that
Mr. Conaway’s consent was not required for the intrafamily adoption. The evidence
presented to the juvenile court supports the finding that Mr. Conaway failed to
comply with a court order of support without just cause for a period of, at least, six
months—December 2020 through November 2021. Pursuant to La. Ch.C. art. 1245,
that ground alone was sufficient to dispense of the need for Mr. Conaway’s consent
for this intrafamily adoption. Therefore, we find that the juvenile court properly
determined that Mr. Conaway no longer had the right to oppose the adoption of
G.T.C., III and N.E.C. by Ms. Thompson.
Granting of Intrafamily Adoption9
Mr. Conaway also alleges the juvenile court erred in granting Ms.
Thompson’s petition for intrafamily adoption. Although Mr. Conaway forfeited his
right to oppose the adoption, we have reviewed whether the adoption was properly
granted. Even upon a finding that a parent has lost his/her right to consent to the
adoption, the adoption should only be granted when it is also found to be in the best
9 Assignments of error four and five are interrelated and will be jointly addressed.
24-CA-47 8 interest of the child. In re Adoption of B.C.F., 145 So.3d at 515. The determination
of whether an adoption is in the best interest of the child must be decided in each
case on its own facts and is not absolute, and a determination of best interest is
subject to reversal, if the record reveals manifest error in the determination. Id.
Based on our review of the entire record, we cannot find the trial court was
manifestly erroneous in its determination that adoption is in the best interest of the
G.T.C., III and N.E.C., and granting the intrafamily adoption.
DECREE
For the foregoing reasons, we affirm the juvenile court’s finding that Mr.
Conaway did not have the right to oppose the intrafamily adoption of N.E.C. and
G.T.C., III by Ms. Thompson. Each party is bear their own costs of the appeal.
AFFIRMED
24-CA-47 9 SUSAN M. CHEHARDY CURTIS B. PURSELL
CHIEF JUDGE CLERK OF COURT
SUSAN S. BUCHHOLZ FREDERICKA H. WICKER CHIEF DEPUTY CLERK JUDE G. GRAVOIS MARC E. JOHNSON STEPHEN J. WINDHORST LINDA M. WISEMAN JOHN J. MOLAISON, JR. FIRST DEPUTY CLERK SCOTT U. SCHLEGEL TIMOTHY S. MARCEL FIFTH CIRCUIT MELISSA C. LEDET JUDGES 101 DERBIGNY STREET (70053) DIRECTOR OF CENTRAL STAFF POST OFFICE BOX 489 GRETNA, LOUISIANA 70054 (504) 376-1400
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24-CA-47 E-NOTIFIED JUVENILE COURT (CLERK) HON. BARRON C. BURMASTER (DISTRICT JUDGE) ERIN A. FISHER (APPELLANT) RAMONA G. FERNANDEZ (APPELLANT) MITCHELL A. PALMER (APPELLEE)
MAILED ROY M. BOWES (APPELLEE) JUDITH A. DEFRAITES (APPELLEE) ATTORNEY AT LAW ATTORNEY AT LAW 2550 BELLE CHASSE HIGHWAY 700 CAMP ST SUITE 200 NEW ORLEANS, LA 70130 GRETNA, LA 70053