State in the Interest of P. T.

CourtLouisiana Court of Appeal
DecidedMarch 4, 2015
DocketJAC-0014-1160
StatusUnknown

This text of State in the Interest of P. T. (State in the Interest of P. T.) 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
State in the Interest of P. T., (La. Ct. App. 2015).

Opinion

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

14-1160

STATE IN THE INTEREST OF P.T.

************

APPEAL FROM THE FOURTEENTH JUDICIAL DISTRICT COURT PARISH OF CALCASIEU, NO. 24444 “A” HONORABLE D. KENT SAVOIE, DISTRICT JUDGE

JAMES T. GENOVESE JUDGE

Court composed of Jimmie C. Peters, Billy Howard Ezell, and James T. Genovese, Judges.

Ezell, J., dissents and assigns written reasons.

AFFIRMED IN PART; REVERSED IN PART; AND RENDERED.

Frank Granger A Professional Law Corporation 1135 Lakeshore Drive, 6th Floor Lake Charles, Louisiana 70601 (337) 439-2732 COUNSEL FOR INTERVENORS/APPELLANTS: R.T. and G.T. Jonathan L. Johnson Johnson & Vercher, L.L.C. 910 Ford Street Post Office Box 849 Lake Charles, Louisiana 70601 (337) 433-1414 COUNSEL FOR INTERVENOR/APPELLEE: S.R.

Amy E. McGray MHAS/ Child Advocacy Program 1 Lakeshore Drive, Suite 1585 Lake Charles, Louisiana 70601 (337) 491-2461 COUNSEL FOR THE MINOR CHILD: P.T.

Stephen A. Berniard, Jr. Raggio, Cappel, Chozen & Berniard Post Office Box 820 Lake Charles, Louisiana 70601 COUNSEL FOR APPELLEE/STATE OF LOUISIANA GENOVESE, Judge.

In this juvenile proceeding, the maternal grandparents, R.T.1 and G.T.,

appeal the trial court’s judgment: (1) denying their petition for adoption of the

minor child, P.T.; (2) awarding joint custody of P.T. to R.T. and G.T. along with

the paternal grandmother, S.R.; (3) granting co-domiciliary status to the parties;

and, (4) terminating the jurisdiction of the Department of Children and Family

Services (DCFS). For the reasons that follow, we affirm in part, reverse in part,

and render.

FACTS AND PROCEDURAL HISTORY

P.T., the child of J.S. and S.T, was born May 27, 2009. On October 16,

2011, the DCFS filed a petition to have P.T. adjudicated a child in need of care.

Thereafter, the trial court issued an instanter order placing P.T. into the custody of

the DCFS. Following a continued custody hearing, P.T. was placed in the

temporary custody of the DCFS. On November 17, 2011, the trial court found P.T.

to be a child in need of care. The trial court held a dispositional hearing on

December 8, 2011, and maintained custody of P.T. with the DCFS.

S.R. filed a Petition for Intervention on December 12, 2011, seeking custody

of P.T. or, alternatively, visitation. On January 11, 2012, R.T. and G.T. filed a

Petition for Intervention and Custody whereby they also sought the sole care,

custody and control of P.T. Following a hearing on February 29, 2012, P.T. was

placed with R.T. and G.T., and S.R. was given specified visitation.

Several case review hearings occurred thereafter. In 2012, the trial court

approved the DCFS’s recommendation that the case plan goal be changed from

1 Pursuant to Uniform Rules—Courts of Appeal, Rules 5–1 and 5–2, the initials of the parties will be used to protect and maintain the privacy of the minor child involved in this proceeding. that of reunification to adoption. On March 28, 2013, the trial court considered a

Petition for Certification and Termination of Parental Rights. Subsequent thereto,

the trial court terminated the parental rights of J.S and S.T., and P.T. was freed for

adoption.

The trial court held a case review hearing on May 28, 2013, at which time it

found that adoption would not be in P.T.’s best interest. The trial court reached

this conclusion based upon the equal sharing of custody of P.T. between R.T. and

G.T. and S.R. at that time.

On November 12, 2013, the trial court considered the matter of the adoption

of P.T., S.R.’s Petition for Custody,2 and the answer and reconventional demand of

R.T. and G.T., wherein they also sought custody of P.T. in the event the trial court

denied their Petition for Adoption. Following a hearing on these matters, the trial

court denied R.T. and G.T.’s Petition for Adoption, awarded R.T. and G.T. joint

custody of P.T. along with S.R., and it granted co-domiciliary status to the parties.

Additionally, the trial court terminated the jurisdiction of the DCFS. On June 19,

2014, the trial court signed a judgment in accordance therewith, which included a

Joint Custody Plan. R.T. and G.T. appeal.

ASSIGNMENTS OF ERROR

R.T. and G.T. present the following for our review:

1. The trial court erred in denying the Petition for Adoption of P.T. by Appellants, R.T. and G.T.[]

2. The trial court erred in not applying the presumption in favor of adoption by R.T. and G.T. in the proceeding and ruling that

2 S.R.’s appellate brief states that S.R. also filed a Petition for Adoption, a copy of which is attached as an exhibit thereto; however, she notes that this pleading “does not appear in the record but is discussed in the transcript[.]” We agree with S.R. that although the record is void of this pleading, it is apparent that her petition was considered. However, given that S.R. has not appealed nor answered the appeal, the propriety of any action, vel non, by the trial court relative to her petition is not before this court.

2 they failed to meet their burden of proof that the adoption of P.T. was in her best interest[.]

3. Appellee, S.R., failed to prove the adoption is not in the best interest of P.T. Further, she had no legal standing to adopt but could only challenge the adoption as not in P.T.’s best interest[.]

4. The trial court erred in awarding joint custody of P.T. to R.T. and G.T and S.R.[]

5. The trial court erred in making R.T. and G.T. and S.R. co-domiciliary parents of P.T. []

6. The trial court erred in terminating the jurisdiction of DCFS when it denied the adoption in violation of [La.Ch.Code arts.] 1037 and 1042.

LAW AND DISCUSSION

We note at the outset that the parties dispute the proper standard of review to

be applied by this court on appeal. R.T. and G.T. contend that due to legal errors

of the trial court, it is incumbent upon this court to conduct a de novo review of the

record. We disagree.

As stated, R.T. and G.T.’s second assignment of error raises an issue that

they contend constitutes a legal error by the trial court in failing to apply a

rebuttable presumption that adoption is in the best interest of the child.3 They

conclude that the presumption “shifts the burden on the natural parent, or in this

case, the intervening maternal grandmother, S.R., to prove that the adoption is not

in the child’s best interest.” We find no merit to this contention.

This is not an intra-family adoption governed by La.Ch.Code art. 1255.

Because this case involves an agency adoption, the authority relied upon by R.T.

and G.T. is inapplicable. The presumption contained in La.Ch.Code art. 1255 did

not apply in this agency adoption case. Therefore, the trial court did not legally err 3 Louisiana Children’s Code Article 1255(C) provides that “[w]hen a court has granted custody to either the child’s grandparents or his parent married to the stepparent petitioner, there shall be a rebuttable presumption that this adoption is in the best interests of the child.”

3 in failing to apply a presumption in favor of adoption by R.T. and G.T.

The trial court’s denial of R.T. and G.T.’s Petition for Adoption was made

upon his finding that the adoption “would be detrimental to [P.T.’s] best interest.”

Such a determination is fact intensive; thus, the trial court’s findings are entitled to

great weight and will not be disturbed on appeal unless it is manifestly erroneous

or clearly wrong. In re M.J.C., 09-1355 (La.App. 3 Cir. 3/10/10), 33 So.3d 397.

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