Radke v. Fontenot

637 So. 2d 684, 93 La.App. 3 Cir. 1419, 1994 La. App. LEXIS 1513, 1994 WL 192134
CourtLouisiana Court of Appeal
DecidedMay 18, 1994
DocketNo. 93-1419
StatusPublished
Cited by1 cases

This text of 637 So. 2d 684 (Radke v. Fontenot) 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
Radke v. Fontenot, 637 So. 2d 684, 93 La.App. 3 Cir. 1419, 1994 La. App. LEXIS 1513, 1994 WL 192134 (La. Ct. App. 1994).

Opinions

DOUCET, Judge.

This case concerns an appeal from a judgment rendered in an adoption proceeding. Lawrence Joseph Fontenot (Lawrence), the natural father of the child at issue, appeals from a judgment granting the petitioners, Carroll Eldon Raymond Radke (Carroll) and Georgia Mae Barbee Radke (Georgia), the adoption of AJF.

Lawrence Joseph Fontenot and Linda Gayle Bonin Fontenot (Linda) were married on June 20, 1981. Their child, AJF, was born on December 28, 1982. On October 4, 1985, Lawrence and Linda divorced and the mother, Linda, was awarded custody of AJF. The record shows Linda subsequently executed an Act of Surrender granting custody of AJF to her mother, Georgia, and her stepfather, Carroll. By reference, the record further shows Georgia and Carroll were awarded custody of AJF by judgment hdated January 14, 1986. The father, Lawrence, was a defendant in the matter and the minutes reflect he was present and made no objection in that proceeding. On June 24, 1993, Georgia and Carroll filed suit seeking to adopt the child. A trial was held in the matter on August 18, 1983, and judgment granting the adoption in favor of the petitioners was signed on August 23,1993. The trial court found the evidence showed the natural father’s consent to the adoption was not required because of his lack of communication and visitation with AJF for over a two year period prior to the adoption proceedings and that the adoption was in the best interest of the child.

Lawrence appeals alleging that the trial court erred in allowing the hearing to proceed. Lawrence argues that the trial court was aware that he desired, but was unable to afford, legal counsel and that he was refused the assistance of an attorney through the Legal Service Organization.

Appellant cites no authority to support his contention. After reviewing the provisions contained in Title XII of the Louisiana Children’s Code, we are unable to find any provisions which require the trial court in such circumstances either to delay the proceedings, or to appoint an attorney. Thus, we find the trial court did not err in this regard.

Appellant essentially contends the trial court also erred in finding his consent to the adoption was not necessary because he failed to communicate or visit with the child for a two year period. Specifically, appellant argues the trial court erred in finding that the contacts which appellant had with the child in the two year period were not significant contacts.

At trial, Linda testified that her child has lived with the petitioners since he was six months old. AJF is now eleven years old. She stated that Lawrence was living in Alex[687]*687andria in 1990 and that he visited with the child in Jennings during the Christmas holidays of 1990. She explained that since [¡¡December of 1990, Lawrence returned to Jennings and resided with his mother on Fourth Street, only a few blocks from petitioners’ residence. Linda believed that Lawrence did not visit or attempt to visit with AJF for the next year and one-half even though he knew where the child lived. To her knowledge, Lawrence did not see AJF again until he attended AJF’s baseball tournament in June of 1992. She explained that after the summer of 1992, Lawrence was incarcerated. She indicated that there were no other contacts with the child other than a letter since that time. She stated that Lawrence was released from prison several months before trial, and since his release, he went to the petitioners’ residence on one occasion to see the child.

Carroll testified that he married the child’s maternal grandmother in 1975 and that the child has been residing with them for the past ten and one-half years. Carroll’s testimony tracked that of the mother’s in regard to the lack of contact between Lawrence and the child. Carroll confirmed that Lawrence did not have any communication with the child from December 1990 until the summer of 1992. He confirmed that Lawrence made no attempts to contact the child during this time period. Carroll stated that Lawrence saw the child on approximately four occasions at the ballpark during the summer of 1992. He confirmed that Lawrence did not call or visit with the child or take the child to his home during that summer. Carroll also stated that, other than a letter, Lawrence made no attempts to communicate with AJF prior to his incarceration. Carroll was not aware of any attempts by Lawrence to communicate with the child during his incarceration. After his release from prison in April 1993, according to Carroll, Lawrence visited the child on one occasion at their residence. However, he also stated this visit took place after the petition for adoption was filed.

Georgia is a housewife. She testified that Lawrence had not phoned the child or visited with him at their residence since December 1990. She testified that, other than the letter [4and his attendance at the ballgames, Lawrence had not seen or contacted the child in two years.

Lawrence testified at the hearing and denied there had ever been a two year period where he had not seen or talked to AJF. He stated that he had visited with the child, taking him to the park and MacDonald’s restaurant, after December of 1990. Lawrence admitted he did not attempt to write or call the child during his incarceration. Since his release on April 20, 1993, Lawrence stated he called the child once and visited him on one occasion before the petition for adoption was filed.

Adoption provisions are a derogation of the natural rights of the legitimate parent and must be strictly construed in favor of the natural parent. Wyatt v. Department of Public Welfare, 442 So.2d 1369 (La.App. 3 Cir.1983); Ross v. Miles, 430 So.2d 763 (La.App. 5 Cir.1983).

Ch.C. Art. 12451 is controlling in cases involving adoption by a grandparent who has been granted custody, and sets forth the conditions for dispensing with parental consent. It provides in pertinent part:

A. The consent of a parent as required by Article 1193 may be dispensed with upon proof of the required elements of either Paragraph B, C, or D.
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B. When a grandparent has been granted custody of the child by a court of competent jurisdiction and any one of the following conditions exist:
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(3) A parent has refused or failed to visit, communicate, or attempt to communicate with the child without just cause for a period of two years.
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[688]*688|sA petitioner has the burden of showing at trial that the non-consenting parent refused or failed to visit, communicate, or attempt to communicate with the child without just cause for a period of two years. Matter of Harrell, 413 So.2d 1346 (La.App. 1 Cir.1982). The trial court found that petitioners met their burden of proof. Thus, on appeal, we must determine whether the record evidence furnished a reasonable factual basis for the trial court’s factual finding. If we find such a factual basis and cannot say that the finding was clearly wrong, we may not disturb it. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

Lawrence’s testimony in regard to his contact with the child after December 1990 directly conflicts with that of the petitioners and Linda. The trial court apparently found the testimony of the petitioners and Linda more credible on this point.

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Bluebook (online)
637 So. 2d 684, 93 La.App. 3 Cir. 1419, 1994 La. App. LEXIS 1513, 1994 WL 192134, Counsel Stack Legal Research, https://law.counselstack.com/opinion/radke-v-fontenot-lactapp-1994.