Woods v. Collins

274 So. 2d 466, 1973 La. App. LEXIS 6512
CourtLouisiana Court of Appeal
DecidedFebruary 28, 1973
DocketNo. 9218
StatusPublished
Cited by1 cases

This text of 274 So. 2d 466 (Woods v. Collins) 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
Woods v. Collins, 274 So. 2d 466, 1973 La. App. LEXIS 6512 (La. Ct. App. 1973).

Opinion

WATSON, Judge.

This is an appeal by Dorothy Woods from a judgment denying her petition for Writ of Habeas Corpus and granting Loretta Bruce Collins a period of six months within which to petition for a final decree of adoption. Dorothy Woods, now wife of Jimmy LeMaire, is the natural mother of the child, Crystal Ann Vincent, whose adoption and custody is in dispute. The child was born June IS, 1962, and is now 10 years old.

A chronology of pertinent events is necessary to an understanding of the issues presented by the appeal. The mother, plaintiff here, left her husband, Julius Vincent, and five children on an indeterminate date prior to 1966. She left, apparently, because she and Vincent could not get along and she believed Vincent could better provide for the children. In August, 1966, one of the five children, Crystal Ann Vincent, also known as “Cookie”, came into the physical custody of Loretta Bruce Collins and her former husband, John Pierre [467]*467Collins. An adoption proceeding was instituted in November 1966, and an interlocutory decree of adoption was granted on March 17, 1967. Both the plaintiff and Julius Vincent gave their consent to the interlocutory decree. Vincent obtained a Mississippi divorce from Dorothy Woods in 1968, the decree purporting to grant him custody of all five children born of the marriage. Loretta Bruce Collins and her husband began to have matrimonial difficulties — separated, reconciled, separated again and were finally divorced on October 24, 1969. Some months later, on April 16, 1970, Julius Vincent, the natural father of Crystal, was killed in an offshore accident. Recovery was made in other litigation on behalf of Crystal, on behalf of three brothers who have been in the custody of their natural mother since June 1, 1970, and on behalf of a retarded brother who is institutionalized in Shreveport.

Loretta Bruce Collins has never instituted proceedings to obtain a final decree of adoption, although Crystal has been continuously in her physical custody six years and the interlocutory adoption decree was obtained more than five years ago.

A petition for a Writ of Habeas Corpus was filed on June 20, 1972, by Dorothy Woods contending that no application for a final decree of adoption has been made within the two year statutory time period provided by LSA-R.'S. 9:431, and that the interlocutory decree is now null and void. She asked for Crystal’s return to her.

The defendant answered, contending that (1) a petition for final adoption was never filed because it was hoped that defendant and her husband would reconcile their matrimonial discord and petition jointly; and that (2) it later developed that the child had a cause of action for the death of her natural father and it was believed on advice of legal counsel that if defendant went forward and completed the adoption procedure with the wrongful death claim pending, the claim of the child would be prejudiced. For these two considerations, defendant contended that good cause existed why the adoption proceeding was not completed and that an extension should be granted under the pertinent statute.

Witnesses were presented in the trial court on behalf of the respective parties and the facts were established without serious dispute. This court is convinced from the record that both parties are sincere in their interest in the child and that both would do their best to give her a good home.

After trial, the district court concluded that good cause had been shown for failure to apply for a final adoption, that in the best interest of the child she should remain with the defendant and that a six months’ extension should be granted to apply for the final adoption decree.

To be construed on this appeal is the second paragraph of LSA-R.S. 9:431, which reads as follows:

“At any time before the entry of the final decree of adoption the court for good cause, other than mere withdrawal of consent by legitimate parent or parents, by the mother or by the father who has acknowledged the child by notarial act as provided by Article 203 of the Civil Code, may revoke its interlocutory decree either on its own motion or on the motion of the department or on motion of the petitioner or any person interested in the child. However all parties upon whom the petition was originally served shall be notified at least ten days prior to the signing of the order of revocation and shall be given an opportunity to be heard upon their written request.
“If no petition for a final decree is filed within two years after the granting of an interlocutory decree the latter shall becqme null and void unless good cause is shown why an extension should be granted. As Amended Acts 1960, No. 268, § 3.”

[468]*468The plaintiff, through her able and resourceful counsel, argues that upon the expiration of two years from the date of the interlocutory decree, the adopting parent is foreclosed from applying for a final decree. Under the plain and unambiguous language of the statute, however, an extension may be granted if good cause be shown. The question for resolution of the appeal then becomes: was the trial court correct in holding that “good cause” was shown for an extension of time in which to apply for the final decree ?

In passing on the trial court’s decision concerning good cause, we note that adoption is not a creature of the civil law and that there are no articles regulating adoption in our Civil Code. The history of adoption in Louisiana has been summarized by Chief Justice Fournet in Roy v. Speer, 249 La. 1034, 192 So.2d 554 (1966) as follows :

“Although adoption prevailed among Biblical ancients and other civilizations of antiquity; had reached a high level of development by Justinian times, to whose institutes our civil law is traceable; and was known early in Louisiana under Spanish law, it was never considered an inherent right here and, after Louisiana became a state, it was specifically abolished by the civil codes of 1808 and 1825. Adoption was not permitted in this state, therefore, until, following specific authorization in the Constitution of 1864, Act 48 of 1865 was passed, any adoption prior thereto being only on an individual basis and effected through a specific legislative act.
“Under Act 48 of 1865, the first statute governing adoptions in Louisiana, judicial authorization was required for a valid adoption, and although Act 31 of 1872 dispensed with this, providing adoption could be effected by the simple procedure of the execution of a notarial act signed by the adoptive and natural parents (survivor, or legal tutor), subsequent legislation eliminated the notarial requirement, and, since the enactment of Act 42 of 1932, as amended, particularly by Act 428 of 1938, the adoption of children in this state has been under court supervision and authorization.” 192 So. 554 at 556.

There is no dispute that the requirements of the law must be met, for as stated by Justice McCaleb (later Chief Justice) in Green v. Paul, 212 La. 337, 31 So. 2d 819 (1947):

“It has been firmly settled by this court that adoption is a creature of statute; that, this being so, it is only what the law makes it and that, to establish the relation, the statutory requirements must be strictly carried out, otherwise, the adoption is an absolute nullity.” 31 So. 2d 819 at 821.

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444 So. 2d 1362 (Louisiana Court of Appeal, 1984)

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Bluebook (online)
274 So. 2d 466, 1973 La. App. LEXIS 6512, Counsel Stack Legal Research, https://law.counselstack.com/opinion/woods-v-collins-lactapp-1973.