NOT DESIGNATED FOR PUBLICATION
STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
20-515
IN RE: W.H. APPLYING FOR INTRAFAMILY ADOPTION OF A.A.B., E.J.B., & G.K.B.
**********
APPEAL FROM THE THIRTY-FIRST JUDICIAL DISTRICT COURT PARISH OF JEFFERSON DAVIS, NO. A-13-19 HONORABLE CRAIG STEVE GUNNELL, DISTRICT JUDGE
CANDYCE G. PERRET JUDGE
Court composed of Billy Howard Ezell, John E. Conery, and Candyce G. Perret, Judges.
JUDGMENT VACATED AND REMANDED. Dylan T. Heard Vincent Law Offices, APLC Post Office Box 450 Crowley, LA 70527-0450 (337) 783-7777 COUNSEL FOR APPELLANT: N. A. B.
Jamie C. Gary 422 E. College Street Lake Charles, LA 70605 (337) 439-3138 COUNSEL FOR APPELLEE: W. P. H.
Alexander J. Guinn Heinen & Guinn Law Firm & Consulting, LLC Post Office Box 1451 Jennings, LA 70546 (337) 246-7220 COUNSEL FOR MINOR CHILDREN: A. A. B. E. J. B. G. K. B. PERRET, Judge.
In this intrafamily adoption proceeding, N.B.,1 the biological father of the
three minor children, appeals from the district court’s judgment terminating his
parental rights and granting the stepfather’s, W.H., petition for intrafamily
adoption of the children. On appeal, we vacate the trial court’s judgment and
remand the matter for further proceedings in accordance with this opinion.
FACTS AND PROCEDURAL HISTORY:
N.B. and the biological mother of the children, J.H., were previously married
in 2005. Three children were born of the marriage, A.A.B. (born 3/16/10), E.J.B.
(born 9/24/11), and G.K.B (born 9/23/13). N.B. and J.H. filed for divorce and joint
custody of the children was granted, with J.H. named as the domiciliary parent on
February 25, 2015, in the Fifteenth Judicial District Court, Parish of Lafayette.2
N.B. and J.H. were subsequently divorced on April 20, 2016.
W.H. and J.H. were married on November 25, 2016. The couple have been
married and living with the children, as well as W.H.’s two children from a prior
marriage, and two additional children born from the couple’s marriage.
On October 28, 2019, W.H. filed a Petition for Adoption of A.A.B., E.J.B.,
and G.K.B. according to La.Ch.Code arts. 1193 and 1245, attaching J.H.’s written
consent to the adoption. Pursuant to La.Ch.Code art. 1245, W.H. asserted in the
petition that N.B. had not exercised his visitation rights pursuant to the custody
arrangement for more than six months, nor had N.B. paid child support according
to the support judgment for more than six months prior to the filing of the adoption
1 Pursuant to Rule 5-2 of the Uniform Rules—Courts of Appeal, initials will be used to ensure the confidentiality of the minors that are involved in this proceeding. 2 The parties signed a Consent Judgment on Rule, which incorporated the Hearing Officer Conference Recommendations for custody and visitation, signed on January 29, 2015. petition. A copy of the Hearing Officer Recommendations, Consent Judgment on
Rule, and the support judgment were attached as exhibits. W.H. requested long
arm service on N.B. at an address in North Carolina, where N.B. was believed to
reside.
N.B. filed a Memorandum in Support of Exception of Insufficient Service of
Process on December 16, 2019, arguing that long arm service was improper as he
was a Louisiana resident and has always remained domiciled in Louisiana.
According to the court minutes, N.B.’s exception was denied on December 17,
2019. Trial on the adoption was set for January 10, 2020. On that date, N.B.
stipulated to an acceptance of service of the petition effective November 8, 2019,
and the matter was reset for February 21, 2020, permitting time for N.B. to file an
opposition.
In his Opposition to Intrafamily Adoption, N.B. argued that his consent to
the adoption was necessary because he had just cause for any failure on his part to
exercise visitation or pay support. He asserted that J.H. has alienated the children
from him since October 28, 2018, and has blocked all means of communication.
N.B. also asserted that he has paid all due child support on January 13, 2020, and
could not previously pay due to the loss of his job and severe depression. He also
asserted the adoption was not in the best interests of the children.
On February 21, 2020, the court again refixed the matter to appoint an
attorney for the minor children due to N.B.’s opposition to the adoption.
Additionally, the court specifically noted: “Due to exceptions filed in this matter,
the case has gone longer than required. The Court finds the delay is reasonable.
This matter is refixed for 04/08/2020 at 9:00 A.M. The parties wave [sic] time
limitations in this matter.” Subsequently, the matter was again continued due to
2 Proclamations by the Governor and the Louisiana Supreme Court in response to
COVID-19.
Trial on this matter was held on June 4, 2020. Also addressed at this time
was N.B.’s Motion for Mental Health Evaluation filed on June 1, 2020, and a
Motion to Dismiss Petition for Intrafamily Adoption on June 3, 2020. The trial
court denied both of N.B.’s motions but took the matter of the adoption under
advisement and permitted all parties to submit post-trial briefs and reply briefs. On
August 24, 2020, the trial court issued a Final Decree of Adoption and provided
Reasons for Ruling granting the adoption, finding that N.B. failed to pay child
support for a period of six months without just cause, and that it was in the best
interest of the minor children to be adopted.
N.B. now appeals the final judgment, alleging six assignments of error and
six issues, which can be summarized as follows: (1) The trial court erred in finding
that it was in the children’s best interests to terminate N.B.’s parental rights and
grant the adoption without considering the best interest of the child factors, the
relationship between the children and their father, or the effect on the children of
severing that relationship; (2) The trial court erred in finding that N.B. had failed to
pay an order of support for a period greater than six months and, alternatively, that
N.B. did not have just cause for his failure to pay support; (3) The trial court erred
in denying N.B.’s motion to dismiss the adoption on the basis that the hearing was
not being held within the allowable time set forth in La.Ch.Code art. 1253; (4) The
trial court erred in denying N.B.’s motion for mental health evaluations of the
children and the parties, (5) The trial court erred in failing to order a records check
pursuant to La.Ch.Code art. 1243.2(A)(1), which requires a reversal of the
3 adoption; and (6) The trial court failed to serve N.B. with proper notice, as required
by La.Ch.Code art. 1247, which requires a reversal of the adoption.
We first address the criminal background check issue raised by N.B. as this
issue results in the adoption being vacated and remanded for further proceedings.
DISCUSSION:
N.B. argues that the adoption must be reversed because the record does not
contain the Louisiana Bureau of Criminal Identification and Information records
check as required by La.Ch.Code art. 1243.2(A)(1). In opposition, W.H. asserts
that the Jefferson Davis Parish Sheriff’s Office did conduct and submit the record
check of W.H. to the trial court, thus dispensing with the Article 1243.2
requirement. While N.B. concedes this record check was conducted, he argues that
there is no evidence that W.H.
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NOT DESIGNATED FOR PUBLICATION
STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
20-515
IN RE: W.H. APPLYING FOR INTRAFAMILY ADOPTION OF A.A.B., E.J.B., & G.K.B.
**********
APPEAL FROM THE THIRTY-FIRST JUDICIAL DISTRICT COURT PARISH OF JEFFERSON DAVIS, NO. A-13-19 HONORABLE CRAIG STEVE GUNNELL, DISTRICT JUDGE
CANDYCE G. PERRET JUDGE
Court composed of Billy Howard Ezell, John E. Conery, and Candyce G. Perret, Judges.
JUDGMENT VACATED AND REMANDED. Dylan T. Heard Vincent Law Offices, APLC Post Office Box 450 Crowley, LA 70527-0450 (337) 783-7777 COUNSEL FOR APPELLANT: N. A. B.
Jamie C. Gary 422 E. College Street Lake Charles, LA 70605 (337) 439-3138 COUNSEL FOR APPELLEE: W. P. H.
Alexander J. Guinn Heinen & Guinn Law Firm & Consulting, LLC Post Office Box 1451 Jennings, LA 70546 (337) 246-7220 COUNSEL FOR MINOR CHILDREN: A. A. B. E. J. B. G. K. B. PERRET, Judge.
In this intrafamily adoption proceeding, N.B.,1 the biological father of the
three minor children, appeals from the district court’s judgment terminating his
parental rights and granting the stepfather’s, W.H., petition for intrafamily
adoption of the children. On appeal, we vacate the trial court’s judgment and
remand the matter for further proceedings in accordance with this opinion.
FACTS AND PROCEDURAL HISTORY:
N.B. and the biological mother of the children, J.H., were previously married
in 2005. Three children were born of the marriage, A.A.B. (born 3/16/10), E.J.B.
(born 9/24/11), and G.K.B (born 9/23/13). N.B. and J.H. filed for divorce and joint
custody of the children was granted, with J.H. named as the domiciliary parent on
February 25, 2015, in the Fifteenth Judicial District Court, Parish of Lafayette.2
N.B. and J.H. were subsequently divorced on April 20, 2016.
W.H. and J.H. were married on November 25, 2016. The couple have been
married and living with the children, as well as W.H.’s two children from a prior
marriage, and two additional children born from the couple’s marriage.
On October 28, 2019, W.H. filed a Petition for Adoption of A.A.B., E.J.B.,
and G.K.B. according to La.Ch.Code arts. 1193 and 1245, attaching J.H.’s written
consent to the adoption. Pursuant to La.Ch.Code art. 1245, W.H. asserted in the
petition that N.B. had not exercised his visitation rights pursuant to the custody
arrangement for more than six months, nor had N.B. paid child support according
to the support judgment for more than six months prior to the filing of the adoption
1 Pursuant to Rule 5-2 of the Uniform Rules—Courts of Appeal, initials will be used to ensure the confidentiality of the minors that are involved in this proceeding. 2 The parties signed a Consent Judgment on Rule, which incorporated the Hearing Officer Conference Recommendations for custody and visitation, signed on January 29, 2015. petition. A copy of the Hearing Officer Recommendations, Consent Judgment on
Rule, and the support judgment were attached as exhibits. W.H. requested long
arm service on N.B. at an address in North Carolina, where N.B. was believed to
reside.
N.B. filed a Memorandum in Support of Exception of Insufficient Service of
Process on December 16, 2019, arguing that long arm service was improper as he
was a Louisiana resident and has always remained domiciled in Louisiana.
According to the court minutes, N.B.’s exception was denied on December 17,
2019. Trial on the adoption was set for January 10, 2020. On that date, N.B.
stipulated to an acceptance of service of the petition effective November 8, 2019,
and the matter was reset for February 21, 2020, permitting time for N.B. to file an
opposition.
In his Opposition to Intrafamily Adoption, N.B. argued that his consent to
the adoption was necessary because he had just cause for any failure on his part to
exercise visitation or pay support. He asserted that J.H. has alienated the children
from him since October 28, 2018, and has blocked all means of communication.
N.B. also asserted that he has paid all due child support on January 13, 2020, and
could not previously pay due to the loss of his job and severe depression. He also
asserted the adoption was not in the best interests of the children.
On February 21, 2020, the court again refixed the matter to appoint an
attorney for the minor children due to N.B.’s opposition to the adoption.
Additionally, the court specifically noted: “Due to exceptions filed in this matter,
the case has gone longer than required. The Court finds the delay is reasonable.
This matter is refixed for 04/08/2020 at 9:00 A.M. The parties wave [sic] time
limitations in this matter.” Subsequently, the matter was again continued due to
2 Proclamations by the Governor and the Louisiana Supreme Court in response to
COVID-19.
Trial on this matter was held on June 4, 2020. Also addressed at this time
was N.B.’s Motion for Mental Health Evaluation filed on June 1, 2020, and a
Motion to Dismiss Petition for Intrafamily Adoption on June 3, 2020. The trial
court denied both of N.B.’s motions but took the matter of the adoption under
advisement and permitted all parties to submit post-trial briefs and reply briefs. On
August 24, 2020, the trial court issued a Final Decree of Adoption and provided
Reasons for Ruling granting the adoption, finding that N.B. failed to pay child
support for a period of six months without just cause, and that it was in the best
interest of the minor children to be adopted.
N.B. now appeals the final judgment, alleging six assignments of error and
six issues, which can be summarized as follows: (1) The trial court erred in finding
that it was in the children’s best interests to terminate N.B.’s parental rights and
grant the adoption without considering the best interest of the child factors, the
relationship between the children and their father, or the effect on the children of
severing that relationship; (2) The trial court erred in finding that N.B. had failed to
pay an order of support for a period greater than six months and, alternatively, that
N.B. did not have just cause for his failure to pay support; (3) The trial court erred
in denying N.B.’s motion to dismiss the adoption on the basis that the hearing was
not being held within the allowable time set forth in La.Ch.Code art. 1253; (4) The
trial court erred in denying N.B.’s motion for mental health evaluations of the
children and the parties, (5) The trial court erred in failing to order a records check
pursuant to La.Ch.Code art. 1243.2(A)(1), which requires a reversal of the
3 adoption; and (6) The trial court failed to serve N.B. with proper notice, as required
by La.Ch.Code art. 1247, which requires a reversal of the adoption.
We first address the criminal background check issue raised by N.B. as this
issue results in the adoption being vacated and remanded for further proceedings.
DISCUSSION:
N.B. argues that the adoption must be reversed because the record does not
contain the Louisiana Bureau of Criminal Identification and Information records
check as required by La.Ch.Code art. 1243.2(A)(1). In opposition, W.H. asserts
that the Jefferson Davis Parish Sheriff’s Office did conduct and submit the record
check of W.H. to the trial court, thus dispensing with the Article 1243.2
requirement. While N.B. concedes this record check was conducted, he argues that
there is no evidence that W.H. was fingerprinted, and the record was not offered
into evidence at trial and must not be considered.
Adoption statutes are strictly construed as they “are in derogation of the
natural rights of the parent.” In re B.J.C., 49,852, p. 7 (La.App. 2 Cir. 4/15/15),
163 So.3d 905, 910. Those “specific and clear procedural steps” for intrafamily
adoptions are found in La.Ch.Code arts. 1243-1257. Id. at 907. Specifically,
La.Ch.Code art. 1243.2 (emphasis added) provides, in pertinent part, actions that
the trial court must take upon the filing of a petition for intrafamily adoption:
A. Upon the filing of a petition, the court shall immediately issue both of the following orders:
(1) That the local sheriff or the office of state police, Louisiana Bureau of Criminal Identification and Information, conduct a records check for all federal arrests and convictions and all state arrests and convictions for each of the prospective adoptive parents. Prospective adoptive parents shall submit a set of fingerprints to the sheriff or the office of state police.
4 (2) That the department conduct a records check for validated complaints of child abuse or neglect in this or any other state in which either of the prospective adoptive parents has been domiciled since becoming a major, involving either prospective adoptive parent.
B. Each order shall state the full name, date of birth, social security number, and former and current state of domicile since becoming a major of each prospective adoptive parent.
Thereafter, La.Ch.Code art. 1243.2(C) mandates a certificate be provided by the
“sheriff or the office of state police, Louisiana Bureau of Criminal Identification
and Information . . . indicating all information discovered, or that no information
has been found.” Louisiana Children’s Code Article 1253(B)(4) and (5) then
requires that the trial court consider these records at the hearing on the petition for
adoption.
In In re Warner, 18-279 (La.App. 3 Cir. 9/26/18), 256 So.3d 342, this court
held that an adoption must be vacated and remanded where the appellate record did
not contain the certificate required by La.Ch.Code art. 1243.2. This court did order
a supplemental record to determine whether these records were introduced into
evidence, but the district clerk of court’s search returned empty handed. The clerk
of court’s affidavit stated, “[a]fter a diligent search, there are no exhibits or
background checks that were introduced into evidence, therefore; the
supplemental record is being forwarded . . . absent of these pleadings.” Id. at 344
(emphasis added). Thus, this court did not consider the merits of the four
assignments of error on appeal due to this deficiency and concluded “the adoption
must be nullified, and the case remanded.” Id.
In an Order dated December 17, 2019, the Jefferson Davis Parish Sheriff’s
Office in this case was ordered to “conduct a criminal records search on [W.H.]
(DOB: . . . )(SSN: . . . ), and provide a certificate to the Court indicating all
5 information discovered or that no such information has been found.” The Order
did not require W.H. to submit a set of fingerprints to the Sheriff’s Office or state
police, nor did it require the department to “conduct a records check for validated
complaints of child abuse or neglect in this or any other state[.]” La.Ch.Code art.
1243.2(A)(2). Additionally, the Order did not provide W.H.’s “former and current
state of domicile since becoming a major[.]” La.Ch.Code art. 1243.2(B).
Therefore, the procedural requirements of La.Ch.Code art. 1243.2 were not met.
As to the results of the criminal records search that was ordered, W.H.
asserts in brief that “contained in the original record submitted to this Court, the
Jefferson Davis Parish Sheriff’s Office conducted and submitted the record check
of [W.H.] to the trial court[.]” N.B. also concedes that the Sheriff “did conduct a
background search on petitioner and further provided a certificate to the trial court
regarding the results of that search.” We note that such record check and
certificate do not appear in our appellate record. Regardless, neither were
introduced into evidence at the adoption hearing for the consideration of the trial
court.
Accordingly, because the December 17, 2019 Order does not contain all
requirements of La.Ch.Code art. 1243.2 and because the certificate or report of any
criminal records and a report of any validated complaints of child abuse or neglect
were not submitted as evidence at the adoption hearing, the procedural
requirements for adoption were not met. The failure to comply with La.Ch.Code
arts. 1243.2 and 1253(B)(4) requires the adoption be nullified, and the case
remanded. In re Warner, 256 So.3d 342.
6 DECREE:
After a review of the record, the trial court’s judgment granting W.H.’s
petition for intrafamily adoption is vacated. This matter is remanded to the trial
court for proceedings consistent with the Children’s Code and this opinion.
Appellee, W.H., is cast with all costs of this appeal.
JUDGMENT VACATED AND REMANDED.
This opinion is NOT DESIGNATED FOR PUBLICATION. Uniform Rules—Courts of Appeal, Rule 2-16.3.