State ex rel. K.C.C.

188 So. 3d 144, 2016 La. LEXIS 123, 2016 WL 314771
CourtSupreme Court of Louisiana
DecidedJanuary 27, 2016
DocketNo. 2015-CJ-1429
StatusPublished
Cited by8 cases

This text of 188 So. 3d 144 (State ex rel. K.C.C.) is published on Counsel Stack Legal Research, covering Supreme Court of Louisiana primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State ex rel. K.C.C., 188 So. 3d 144, 2016 La. LEXIS 123, 2016 WL 314771 (La. 2016).

Opinion

GUIDRY, J.

|,In this termination of parental rights case, the court of appeal overruled the judgment of the juvenile court and sustained the biological parents’ peremptory exception of no right of action, on the basis the couple having custody of the child did not possess a private right of action to petition for termination of parental rights under La. Ch.Code art. 1004. For the reasons set forth below, we find the appellate court erred in concluding the petition was improperly brought by private counsel for the custodians upon approval of the juvenile court.

FACTS

The child, K.C.C., was born at 3:03 a.m. on March 1, 2013, to his biological mother, [145]*145T.T. The biological father, M.M., T.T.’s former boyfriend and the father of her then one-year-old child, M., had expressed doubts about the paternity of K.C.C. According to the nurse’s notes made at 5:30 a.m., T.T. had communicated her interest in an open adoption. At some point thereafter, an adoption agency became involved, according to the hospital’s discharge planning form. M.M. arrived at the hospital around 8:00 a.m. to pick up M,’ but remained of the belief that he was not the child’s father. He called S.S., a former girlfriend, to ask if she or anyone she knew could take care of the child temporarily, because if the child were his, he wanted to maintain access to the child at some future date. S.S. called her cousin, G.J., who eventually spoke with both T.T. and M.M., and learned they |2both wanted to give the child up for adoption. G.J. then conveyed this information to her brother, E.C., who along with his wife, K.C., had been wanting a child. E.C. and K.C., the Cs, agreed to adopt the child, and proceeded to the hospital. Before doing so, E.C. spoke with M.M., who informed him that T.T. did not intend to keep the child. At the hospital, according to E.C., T.T. assured them she wanted to give the child to them. M.M. returned to the hospital at some point that afternoon, around 3 or 4 p.m. After discussing names for the child, E.C. executed the “father” portion of the birth certificate, while T.T. executed the “mother” portion; The nurse’s notes made at 4:06 p.m. indicated that T.T. had changed her mind about adoption, and the baby would go with the father.

Two days later, on March 3, 2013,- T.T. and KC.C. were discharged from the hospital. K.C.C. went home with the Cs that day, after the Cs took T.T. to her sister’s home. Whether T.T. intended a permanent or temporary transfer of E.C.C.’s custody has been disputed, but is ultimately not relevant to our resolution of the procedural issue in this case. However, on April 9, 2013, T.T. executed a power of attorney drafted by K.C., which granted to the Cs all of her powers and parental rights regarding the care and custody of K.C.O. 'and provided that the rights, powers, and authority granted would remain in full force until the child’s 18th birthday. The document was signed by T.T., E.C., and K.C., and notarized. Approximately one month later, after T.T.’s relationship with the Cs had soured, T.T. executed a notarized document revoking the power of attorney, although she never informed the Cs of the revocation. • '

Several months later, in October of 2013, the Cs instituted adoption proceedings, filing a petition for intra-family adoption in the Jefferson Parish Juvenile Court, based on E.C. being listed as the child’s father on the birth | ^certificate. However, in January 2014, a.DNA test revealed that M.M. could not be excluded as the father of K.C.C. Thus, on February 3, 2014, the petition for intra-family adoption was dismissed. The next day, the Cs filed a “Petition for Custody and Request for Permission to Petition for Termination of Parental Rights” in the 24th J.D.C.

On March 3, 2014, . the Cs filed a “Petition for Termination .of Parental Rights” in the juvenile court. That petition sought termination of parental rights under La. Child. Code art. 1015(4) for abandonment, and alleged that T.T. and M.M. had made no attempt to establish a relationship with K.C.C., nor had they provided any support for the child. The petition acknowledged that a blood test had verified that M.M. was K.C.C;’s biological father. On March 7th, T.T. filed exceptions of no right of action and no cause of action in juvenile court, asserting inter alia that the Children’s Code did not confer upon non-parents such as the Cs a right of action to [146]*146terminate, parental rights, especially where the non-parents are the cause of the separation between parent and child. ■ On March 12th, counsel for .the Cs, Tilton Hunter, Jr., filed a “Motion for Leave of Court to- File a Petition for Terminate, [sic] of Parental Rights.” The juvenile court on March 13th “ordered that Tilton R. Hunter, Jr., .is hereby granted leave of court to file a Petition for Termination of Parental Rights pursuant to Children’s Code Article 1004(A).” On the- same date, the juvenile court overruled the biological parents’ exceptions of no cause of action and no right of action. Thereafter, the juvenile court appointed an attorney, Melissa Bernard, to represent K.C.C. in the proceeding. The matter proceeded to trial on the “Petition for Termination of Parental Rights,” after which the juvenile court found the child had been abandoned under La. Child: Code art. 1015(4), terminated the parental rights of T.T. and M.M. and certified K.C.C. as available for adoption.

| ¿The court of appeal reversed, the juvenile court’s ruling on the exception of no right of action and remanded the matter to the juvenile court for further proceedings. State in the Interest of K.C.C., 15-84 (La.App. 5 Cir. 5/28/15), 171 So.3d 890. The court of appeal reasoned that La. Ch'.Code art. 1004(A) is limited to action taken on the court’s own motion and does not allow the parties to seek léave to petition under this section. Further, the court of appeal, although it acknowledged the Cs could have filed their petition pursuant to La. Ch.Code art. 1004(F), nevertheless found that they had filed their petition- under La. Ch.Code art. 1004(A). The court of appeal majority also cited policy reasons for disallowing private parties to seek leave of court to bring termination of parental rights actions, noting the balancing of the important rights of parents and the best interest of the child. The Cs and the attorney for K.C.C. jointly sought-writs of review in this court. We granted the writ application to review the correctness of the court of appeal’s judgment. State in the Interest of K.C.C., 15-1429 (La.9/11/15), 176 So.3d 408.

LAW AND ANALYSIS'

The issue presented is, whether the Petition to Terminate Parental Rights was properly brought by Mr. Hunter, private counsel for the prospective adoptive parents, with leave of the juvenile court. Because resolution of this issue involves the applicability and interpretation of La. Ch. Code art. 1004, this case presents us with a question of law, which requires de novo review. Holly & Smith Architects, Inc. v. St. Helena Congregate Facility, Inc., 06-0582, p. 9 (La.11/29/06), 943 So.2d 1037, 1045. Applying this standard of review to the instant matter, we find the court of appeal erred in reversing the juvenile court’s ruling on the exception of no right of action.

| ¿Except as otherwise provided by law, an action can be brought only by a person having a real and actual interest, which he asserts. La.Code Civ. Proc. art. 681. See also Reese v. State Department of Public Safety and Corrections, 03-1615 (La.2/20/04), 866 So.2d 244, 246.

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Cite This Page — Counsel Stack

Bluebook (online)
188 So. 3d 144, 2016 La. LEXIS 123, 2016 WL 314771, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-kcc-la-2016.