State of Louisiana In The Interest of B. S., C. S., III, M. S., T. S. and S. S.

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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2007 CJ 1742 STATE OF LOUISIANA IN THE INTEREST OF C S III B S M S T S AND S S Judgment December 21 2007 rendered City Court of Hammond Parish of Tangipahoa State of Louisiana On Appeal from the Individual 22012 The Honorable Grace B Case 21472 Gasaway Judge Presiding Jeffery T Oglesbee Albany LA Counsel for Appellant Brett K Duncan Counsel for Minor Child Office of the Public Defender C S III Father C D S Amite LA Hammond LA Counsel for Appellees S W A W and T S Theresa A Beckler Counsel for the Duncan S Kemp Jt rDtV CuE J 1f VVV Department of Social Services LA Covington Ktt III J BEFORE crYl 1 l4 P ARRO KUHN AND DOWNING JJ DOWNING J l CD S appeals parental rights that terminated to our own so A W notice that S W of Accordingly we private petition a vacate to our had Office of Social Services 2003 August and on the Department returned its case in his For was are By May III to his mother asselied City Court Department had the 2005 s between Department care August On III to his mother T S S six weeks in January and February 24 2005 and closed regard to stay with his father C D S but C D S did disputed we petition for grounds custody of C approximately allowed to Of History Community Services returned C S provisionally the art s custody of the Louisiana Department of 2005 early 3 927B the judgment and remand to the had been in the III terminate C D S right of action no had La C C P Pertinent Facts And Procedural C S to T S III rights parental s prospective adopt the child C S authority under and T S C D S termination file that S W and A W could motion pursuant The of his children one together with the birth mother and A W permission court parental rights to W adoptive parents S received judgment entered by the City Court of Hammond2 a return C S The facts 2006 C S surrounding the III return III to his mother at the end of this period In A W I April The 2006 City T S Court signed approved a voluntary the placement Pursuant to Rule 5 2 of the Uniform Rules CoUlts of Appeal matter will be used instead oftheir names to 2 The 3 T S City Comt ofHammond had already was protect act the privacy of surrender in favor of of C S III with S W and the initials of the exercising juvenile jurisdiction in this signed a voluntary matter act ofsunender in favor ofS W and A W 2 parties involved in this ofthe minor children See La Ch C rut 302 4 A W in May 2006 Notice of notifying him that his date for hearing a placement and a A W and S W filed The court then petition TS Parental Rights the an added appointed petition is that C petition The D S other things s a order then filed alleged only s only ground not a terms He C S III have the City The and The court the to file this to Tenninate not a fit parent were for termination stated in this amended fit parent to Court entered of raise the child said 4 0 judgment decreeing TS CD S judgment also decreed a parental S W and A W parental rights termination rendered was s adoptive parents attorney then in LSA Ch C article 1015 3 City to Motion a that C D S leave the s s among parental rights parental rights that C S III separate judgment the same was and and free for day denying motion for visitation with his children assignments of error The a adoptive pre for tennination of C D S Only the first judgment is being appealed I approving seeking motion the termination of the mother responsibilities CD S an adoptive parents attorney terminate bench trial the responsibilities adoption to was grounds being contained a the biological mother petitioners After petition On the court amended as to in which she raise the child filed C D S siblings appoint private counsel rights to City Court signed modify disposition seeking visitation with to Subsequently Court on opposition to the termination of his parental rights an motion of his two served III with S W and A W C D S filed also filed was parental rights could be terminated and giving him The ofC S filing of the surrender ofthis sub paragraph are set out in the text within 3 CD S raises three DISCUSSION Termination of actions the State 0625 5 p La Louisiana parental rights 1 Cir 19 9 has requirements that must Id s against legislature parental rights parent take can App a 07 So 2d imposed strict At any time on its own As A A G a result a s Code 1004 art provides the authorization 5 Only La including hearing in a child in need of care proceeding the court filing of a petition on any growld authorized by Article in any motion may order the appointed for the child pursuant to Aliicle 607 may petition for the tennination of parental rights of the parent ofthe child if the petition alleges a ground 5 authorized by Aliicle 1015 4 or 6 and although eighteen months have elapsed since the date of the child s adjudication as a child in need of care no petition has been filed by the district attorney or the department C The district on attol11ey any petition for the termination by Article 015 may ofparental department may petition for the termination of parental child when any ofthe following apply rights D The 2 The due has been and parents parental rights to neglect or abuse to one or and more of the child to s termination is siblings have been terminated parent have been 10 l5 3 k 3 The child has been abandoned and termination is authorized placed in the custody returned to the rehabilitate the prior attempts by AI1icle unsuccessful and termination is authorized 4 The child has been of the parent of of the parent of the subjected to abuse or neglect after the child is custody while under department supervision and by Article 1015 3 0 1 The child parents care authorized rights authorized ground by Aliicle 0 15 4 ofthe state and termination is authorized by Aliicle 1015 5 5 The child is in foster authorized by care because the parent is cerate incmd and tennination IS Article 1015 6 by Article 1015 other than on the grounds specified by Paragraph by special appointment the distTict attol11ey may counsel for the department as a special assistant authorized to act in his stead in designate all such termination actions or in a particular case E When tel111ination is authorized D of this Article By special appointment for a pmticular case the court or the district attorney may designate private counsel authorized to petition for the termination of parental rights of the parent ofthe child on the ground ofabandonment authorized by Article 1015 4 F G Foster parental adoption parents who intend to adopt the child may s foster parent failed to petition for the termination of rights parents when in accordance with Article 702 D is the permanent plan for the child the child has been in state custody under the s care for seventeen ofthe last twenty two months and the department has of the foster child petition for such termination 4 for Ch C art 1004F Counsel the child the Citation omitted 1015 B 07 judgment terminating follows as A v procedural and evidentiary filing petitions for termination of parental rights This miicle provides of the most drastic of its citizens S J G one be met before the issuance of Louisiana Children 5 IS one allows a court to tennination of if the rights only added State So 2d 857 to rei D M file petition a petition a may be private counsel 00 0451 3 p designated for termination of La parental Emphasis 4 Cir 3 14 01 App for 785 859 Here the petitioners filed solely on the grounds that C art counsel to file for termination is abandonment ground ex private And parental rights Article 1004 F to pursuant and authorize designate 1015 3 petition a D S rights to La Ch C unfit parent was an This paragraph provides U for termination of parental according follows as 3 Misconduct of the parent toward this child or any other child of the parent or any other child in his household which constitutes abuse extreme grossly negligent cruel and inhuman behavior below a treatment or reasonable standard of human decency including but not limited to the conviction commission aiding or abetting attempting conspiring or soliciting to commit any of the following neglect after the child is returned to the parent s care and custody while under department supervision when the child had previously been removed for his safety from the parent pursuant to a disposition judgment in a child in need of care proceeding Abuse U This is petition terminate Id grounds a a In D M father s which the See rights Ch C art 1015 3 785 So 2d at 858 59 parental rights DM ofthe La as 00 0451 at p Ch C the to file art a 3 a 5 to but she court and to recognized petition Paragraph A no is tiled to C or E of written request to file such action is made to the district attorney by interested person and no petition is filed within sixty days by the district attorney any that person may tile suit to terminate the parental rights ofthe surviving parent this Article after 785 petition 1004F to grounds for termination The D M by Article 10 15 I or 2 surviving parent pursuant appointed may be petitioner sought permission When termination is authorized terminate the private counsel parental rights under rape under La 00 0451 at p 3 H on for termination of parental So 2d at 859 alleged not or on its own motion in accordance with La C C P right of action to terminate the father s art 927 that the parental rights on had petitioner no the grounds stated 6 We observe that at the trial of the matter the court did admit evidence relating of the T S to abandonment grounds on however La C CP amendment pleadings 7 But 228 242 1983 La v with the failure to 02 2325 See also Barker the at p parental rights There Inc Agency an to ground to allow to the amendment Barham pleadings 432 So 2d 975 and enlarge the 1 Cir 3 12 04 App La 874 So 2d 1 Cir App Mitchell 380 So 2d 108 v to the not assert petitioner are no for termination of petition had no only grounds right of action because 109 D M 00 045 at pp 2 3 ofanother parent Here the mother is one ofthe petitioners surrender on her status voluntary 1154 When issues not raised of the parties pleading Such they shall which she private parental rights was the no provides as right of mother ofthe child at as a parent Due to the proper disposition petitioner here follows by the pleadings be tTeated in all are respects tried as if by express or implied consent they had been raised by the to cause them to may be necessary motion of any party confonn to the evidence and to raise these issues may be made upon at any time even after judgment but failure to so amend does not affect the result ofthe f evidence is objected to at the trial on the ground that it is not trial of these issues amendment of the pleadings as pleadings the court may allow the pleadings to be amended presentation ofthe merits ofthe action will be subserved freely and the objecting party fails to satisfy the court that the admission of such thereby evidence would prejudice him in maintaining his action or defense on the merits The cOUli may grant a continuance to enable the objecting paJiy to meet such evidence within the issues made and shall do so by we may file a petition to terminate See also SJ G 07 0625 785 So 2d at 858 circumstances under which one Louisiana Code ofCivil Procedure art on A W and T S had W So 2d at not determine the effect of her 7 the by discretion attempt for move La recognize of our own motion that S The court ruled 5 17 Loxco Ins do pleadings The D M comi also found the issue p an A W 1 Cir 1979 counsel may be authorized 6 v to to was one to assert this liberal court not raised issue an Kozak Since the must trial S W judgment pleadings timely objection and Gar Real Estate App the gives a coupled Arceneaux to amend the sought 1154 pleadings is fatal objection and abandonment s which the trial court entered never art CD S over the when the 6 we need action to file the court noticed petition its on In S J G procedures contravene d were the 07 0625 at p 6 motion that the it vacated Accordingly proper own s a So 2d petitioners had no this at right of action judgment terminating parental rights because followed not strict noting that the procedure employed procedural requirements proceedings implemented by the legislature to of termination safeguard parental rights Id Therefore we vacate the of the judgment City Court dismiss the proceeding however pursuant to La C C P the matter to the proper petitioner 4 5 pp 785 as Court allowed 1 to allow by La Ch C So 2d at 859 60 appropriate and the City to if feasible and 2 art C D S we remand the substitution of see DM a 00 0451 at counsel if to designate private to petition for the termination of authorize such counsel parental rights of 1004 art 934 Rather than the father of C S III on the ground of abandonment DECREE For the foregoing reasons we We remand this matter for further Costs of this with instructions VACATED 8 motion cause This mtic1e ofaction appellate COUlt or a of its right own provides or the judgment of the proceedings consistent appeal are assessed to S W City Comi with this opinion A W and T S REMANDED WITH INSTRUCTIONS Louisiana Code of Civil Procedme art own vacate in 9278 allows pertinent pmt plaintiff to interest in the us The recognize the lack of a right of action on our to disclose a ailme nonjoinder of a party or the t to institute the suit may be noticed by either the trial motion 7 or

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