A. M. B. APPLYING FOR INTRAFAMILY ADOPTION OF A.M.A. AND J.H.A. VS

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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2006 CJ 1114 IN RE AM B APPLYING FOR INTRAFAMIL Y ADOPTION OF A M A AND J H A @ Judgment Rendered December 28 2006 0 Appeal from the 22nd Judicial District Court In and For the Parish of St Tammany State of Louisiana On Trial Court No 2005 40050 Division Honorable Kasi Brannan Covington LA A Raymond Childress Judge Presiding Counsel for Plaintiff Appellee AM B Michelle R Demarest Counsel for Defendant Candice L Jenkins JB A Covington Appellant LA BEFORE PETTIGREW DOWNING AND HUGHES JJ HUGHES J This is an appeal from the minor children A M A a judgment granting and J H A the their by stepparent adoption of A MB stepfather The biological father of the children opposed the adoption and files this appeal F or the stated herein reasons we affirm FACTS AND PROCEDURAL HISTORY A MA 2001 and J H A respectively and J B A children JB A were divorced allegedly A MB July contact 1 The Adoption to 2005 granted judgment and December 5 in favor of and J H A matter and ordering the The father On heard on Authentic an by the trial Thereafter names issue herein J L H B filed was 2005 at court the trial on court in his favor of of the children changed to and J H B court elTed 1 in finding that comi ordered award of support without 2 to in appealed the judgment of adoption and finding that JB A failed just J B A refused or or refused cause was and 3 in for a to asserts the trial comply with the pe110d of at least six failed to visit communicate communicate with his children without least six months A MB joint custody of the plaintiff decreeing adoption has at JL H B with the children for several years JB A attempt and J B A having physical custody conjunction with the petition In Act of Consent months J LH B 25 2002 and awarded the mother no 1996 and November 11 filed the Petition for Intrafamily Adoption June 14 2005 December March 26 biological parents on had on 2003 J L H B malTied the petitioner A M B September 27 A MB their with J L H B has AMA to bOln were just cause for a or period of finding that the intrafamily adoption by in the best interest of the children 2 LAW AND ANALYSIS The intrafamily adoption of child a by a stepparent is authorized by LSA Ch C art 1243 which provides A stepparent stepgrandparent great grandparent great aunt uncle great uncle sibling or first A aunt grandparent cousin may petition elements are met 1 to adopt is related following by blood parent recognized as having petitioner The child if all of the a the child to adoption or affinity through a parental rights 2 The petitioner is a single person over the age of eighteen or a married person whose spouse is a joint petitioner 3 The petitioner has had legal or physical custody of the child for at least six months p110r to filing the petition for adoption B When the spouse of the stepparent or one joint dies after the petitioner petition proceedings may continue original petitioner C A father who has 1 with the written 2 s birth certificate I a consent to A1iicle 1193 if judgment parental rights the as adoption was a single parent recognized only not as individual an but also formally acknowledged the child of the child name the child or s s mother signature appears on the father of competent jurisdiction has establishing his paternity of the child A father rendered XI conCUlTence A father whose 3 Unless CJ the survivor Chapter includes rights enumerated in Article 1193 child though as For purposes of this having parental has been filed the a court have been terminated in accordance with Title X adoption of a child or relinquishment of parental rights is provides Unless consent to the required ofthe rights have been tenninated in accordance with Title X or XI adoption of a child or relinquislnnent of parental lights shall be following 1 The mother ofthe child 2 The father of the child regardless any ofthe following apply a The child is a child born of the Louisiana Civil Code b or its The father is legal equivalent presumed with the Louisiana Civil Code 3 The alleged in accordance with 4 detenmned or its to of the child marriage s actual if in accordance with the in another state be the father of the child in accordance legal equivalent in another state father of the child who has established his Chapter paternity parental rights 10 ofTitle XI biological father of the child whose paternity has been by judgment of filiation and who has established his parental rights The a in accordance with Chapter 10 of Title XI 5 The custodial agency which has placed the child for adoption except that the comi may grant the adoption without the consent of the agency if the adoption is in the best interest ofthe child has unreasonably withheld its consent 3 and there is a finding or that the agency required of the mother of the child and the art 1193 However in LSA Ch C art provided as father of the child 1245 LSA Ch C parental consent is unnecessary under certain circumstances required by Aliicle 1193 proof of the required elements of A The consent of the parent as may be dispensed with upon either Paragraph B or C of this Article petitioner authorized by Article 1243 has been granted custody of the child by a comi of competent jurisdiction and anyone of the following conditions exists 1 The parent has refused or failed to comply with a court order of support without just cause for a pe110d of at least B When a six months communicate just parent has refused or failed to visit attempt to communicate with the child without The 2 for cause or a of at least six months period When the spouse of a stepparent petitioner has been granted sole or joint custody of the child by a court of competent jurisdiction or is otherwise exercising lawful custody C of the child and anyone of the following conditions exists 1 The other parent has refused or failed to comply with order of support without least six months a comi just for cause a of period at other parent has refused or failed to visit communicate or attempt to communicate with the child without 2 The for just cause Thus where a a suppOli without just refused failed or child without adoption is 17 9 14 l2 04 to just for cause period a visit communicate cause for a comply with of six months or attempt to period of six months See In 884 So 2d 678 to 681 re J A B or a court order of the parent has communicate with the that parent s 2004 1160 p 5 La consent to App 1 Cir writ denied 888 So 2d 848 2004 2963 La 04 proving must parent has either failed unnecessary The party cause of at least six months period a a parent parent be due 884 So 2d to petitioning the s s consent failure to factors at 681 is not court for required under the support visit beyond his control See also In adoption calTies re T A S 4 or law the burden of To constitute just communicate with his children In re JA B 2004 1612 p 2004 1160 at p 6 La App 5 1 Cir 10 29 04 parent 897 So 2d 136 consent to s adoption once a an is prima facie not In is proven case re lies with the party required show that his to her control or Although the initial burden of proving that adoption nonconsenting parent beyond his 140 T A S or seeking the the burden shifts her failure was 2004 1612 at pp the to to factors due 5 6 a 897 So 2d at 140 However even where the other parent visit the in determining whether consideration in 6 re J AB La App In re 2004 1160 1 Cir 15 12 Whether an T A S at p 2004 1612 8 884 So 2d ordinarily judge s not each case not absolute manifestly p 8 2 Cir 126 05 a child as the elToneous or was for judgment on not in the best at 140 required to J B The must on vast Because the trial judge is in a better court an s court comi appellate In subject re will the trial However decision is to reversal Morris 39 523 744 provisions A 5 La be decided judge is vested with clearly wrong this issue p 1255 best interests 892 So 2d 739 had been satisfied with respect adoption s art and the trial The trial court determined that the to primary Miller 95 1051 re second guess such sensitive decisions if found to be App In the best interests determination discretion is La the 6 7 897 So 2d at pp at 683 See also LSA Ch C discretion in making that determination to make by failure 665 So 2d 774 777 writ denied 96 0166 adoption is in unique facts of position In fact adoption should proceed 95 667 So 2d 541 2 9 96 the the adoption proceedings is whether the adoption is interest of the child In is obviated also consider what is in the best interest of the child to court must consent s and that of LSA Ch C 1245 his consent following oral reasons consequently issued the art In evidence the relative on Aliicle 1245 which which matter adoption taking have been we the applicability of Children Code applicable in which parental consent the moving party must prove by clear to s to be would be unnecessary and convincing evidence anyone factor listed in 1245 B the refusal or failure to comply without just cause of C or a order of support for at least six months or refusal or failure to visit communicate or attempt to communicate court Then the Court is without just cause for at least six months instlucted that to find the evidence to be clear and convincing to means probable demonstrate the existence of a disputed fact as highly that is much more probable than its non existence With those parameters taken into consideration in the instant case by J B A s own testimony he s had no contact with the children since 2002 And he has paid no child support since 2002 Although he fosters to have contact Court is not with the children and impressed with his Therefore for his failures pay child support the some reasons to reasons the Comi finds that his failure suppOli and his failure to have with the children in contact without just cause Therefore the Comi determines that Children Article 1245 is applicable and parental child to pay consent s Code of J B A is not necessary With the respect to the best interests of the children the trial court gave following oral reasons We are here today complete the hearing to on the adoption of these two children A M A and J H A I previously had ruled on this past Thursday regarding the natural maintain support for the children and attempts We are here to communicate with the child ren and such today dealing with the best interest aspect of the equation that I father am failure s to making a determination children can be adopted by A M B wrestle with in to not these Best interest evaluations say are such as this as to whether I will or absolutely really I have to look at all the factors and not easy weigh things out to make a detennination as to what I think is truly in the best interest of these children I have to look at a few things that have been exhibited over the years and the situation that Im faced with here and I realize J B A is ready to now re establish with his children that has laid dormant for think one of the telling questions that I think it mother that he had become supposed maturity like paying available he had relationship least three years at was a posed to J B A I s his mother who indicated that she felt was the fact that that lot more mature was a was not exhibited through positive actions child support alTearages when he had the money to him to do that ample oppOliunity to or maintaining do that 6 a relationship when I think that asked rightfully they are there what do you tell these children if in fact Im sure that A M A already recognizes to as adopted that A M B biological father because she has had in some relationship with JB A the past the distant past whereas J H A apparently does not even know who his biological father is Celiainly if I approve this adoption at some point in time that s going to be an issue that will have to be dealt with But that in and of itself is not the one thing for look to me is celiainly issues that have been s not at to her make a determination interests of these children here AMA though knows who has had her A M B acknowledge that what is in the best and into the future now prior relationship a father biological to as Im is has been filling certainly or she sure Even would the role of her father for the last several years And Im sure J H A would have the same response ifhe was asked who his father is I wrestle with issues such have now has been one to had the opportunity out of their life for children to bond with A M B long time by his maintain their Although this because these children own JB A doing no I feel for his mother and his sister blame but himself who have wanted a to as there was relationship own really not a with these whole lot of anybody whether it was his aunt or his mother or his sister say that they continued to try to maintain these contacts for his behalf I don t know what transpired between J B A and his family but apparently they ve all mended any fences that needed mending But the tluth of the matter is they were the ones trying to maintain their own relationship with these children I haven t heard anything that would indicate to me that J B A was doing much of anything in that regard So it s a shame that their relationship to these children in essence flows through J B A who for apparently quite some evidence I never heard time for whatever reason could have cared less So his failure relationship with his children has taken a lot But I don t think his away from them namely his family family alone in their desire to maintain a relationship with these children is in fact the only thing that Im to look at in trying to make a determination as to what is in their best to maintain this interest I considered the fact that these children have in been raised by their mother and their intents and purposes from essence and for all heard it sounds step father everything that Ive though they are doing quite well It sounds as though the situation that they are in right now has been very beneficial to them And it sounds as though what J B A proposes of just Ill fly them out being involved in their life on his own terms to California evelY now and then Ill fly back in and visit them as when I can I don t know that that their best interest in essence would be in I think their best interest would be best by allowing A M B to adopt he can officially be their father served 7 these children and then the During he was ordered by the an in alTem age excess of 2004 he summer that he z month miscellaneous of to pay lB A of excess loans and he would have had child suppOli remaining 150 000 00 the alTearage embezzled these funds on an his house expensive stated that although of which he could have firm paid managing his finances no means to pay the alTearage toward payment of the amount of 10 000 00 to J L H B child suppOli owed Although J B A seemed to be fuliher remodeling JB A send to received was never was testified that when he first received the funds he directed his J B A C P A firm of He also admitted 500 000 00 out CP A leaving him with and that there which included gifts amount fuliher admitted that in the wardrobe for himself from Saks Fifth Avenue his not pay 350 000 00 of those funds things he admitted that child suppOli in the which he did 40 000 00 received in some spent in 2002 court 800 00 per approximately JB A testimony of the biological father by was that the payment he admitted that he failed J LH B because he sums aware waiting for his attOlneys to tender any to calculate the amount of the alTearage With respect was a period to his failure to visit his children J B A indicated there of time when he did not know where J L H B he admitted that he never looked in the phone book to attempt J B A also admitted that he knew where J L H B contact 2 acknowledged that he had not seen testified that he did send several letters The record of the divorce evidence JB A from June 14 November 1 Febmary s to locate her mother lived and how to her JB A JB A lived however s was in in 2003 and left custody proceeding between J BA and J LH B was introduced into obligation was fixed by an April 12 2002 judgment as follows through October 31 through Febmary 2001 in the amount of 6 2002 in the amount of 7 2002 and thereafter in the amount of that J B A to J L H B child support 2001 2001 his children since 2002 an ears in the amount of 2 913 00 8 40 826 on 554 00 per month 862 00 per month and per month that date The from from judgment recognized the occasional he made note or gift on concerted effort no her to re However J B A doorstep establish his indicated that relationship with his children until 2005 J B A offered accident in 2004 justification for his neglect that he had been in as July of 2002 JB A underwent and five surgery in 2003 a fuliher testified that he was a car surgeries unemployed during this time in on pain medication undergoing rehabilitation and suffering from depression He testified but my I did let him court to 2005 to also testified that he hired regain visitation with Prior to been submit to compliance 4 4 July no by maternal way s fault prevented well facility as was indicated grandmother was was a 2002 was not filed until seek not legal an May of assistance attorney and custody proceeding he program that he that thereafter JB A he submitted July provide J prohibited A MA he took her to work with him custody proceeding only disability ordered supervised in the home of the child s alcohol consmmng screening or illegal s substances Rouge concerning that screening Testing at any further found in contempt of comi for failure to pay random drug LH B with information was proof of order restricted visitation with AM A to J LH B immediately begin J BA non also admitted that when he had been and visitation with J H A The was subsequently tested removed from the program for also ordered to refrain from and ordered to to to but the rule he filed with the medical evidence into the record to substantiate his alleged JB A during visitations other during drug screening J B A with AM A well as no though his sister is 2002 orders issued in the divorce mother Parish even unsupervised visitation with June and as a his attorneys to visitation home to JB A J B A submitted or nobody s employed by an attorney for cocaine and that he compliance allowed again it attorney in August of 2004 that time J B A admitted that he did lB A also admitted that positive an his children obtain visitation with the children ordered once implement visitation with the children despite having 3 lapse and seeing the children J B A help lot of time J B A further admitted that J L H B had in own him from a 3 child suppOli 9 in East Baton o ccasionally admitted that Chuck George at s who he knew pretty well insurance moved to adjusting CalifOlnia and who currently lives more than in Baton J B A sister testified s but admitted that she had that her phone calls stated that made to maintain his sent cards to testified that J B A had at a He testified that he he stated he wanted to seen in the children the children since Christmas of 2003 and had gone unanswered since that time continued no to send them cards testimony regarding not and She gifts any efforts that J B A other than to state that children times that she did JB specify good relationship with her would be in A M A and J H get enjoys living relationship with her relationship with the them named eventually to J L H B s A sister gave a man J B A testified that he would like to concerning she neveliheless However J B he not of guy and that he Rouge Rouge have the children visit him there JB A Rouge in CalifOlnia where he works for change the situation to care good was a company and goes to school away from bad influences in Baton California bar in Baton such occasions he left A M A in the on J B A testified that he an restaurant and a own A s sister children and that it A influence in s A best interest to have J B s their lives JB A mother testified that s visit the children and attempts to She last saw gifts them from her believed it was as at although she lives in sent them Christmas in 2003 well as JB A in the children s JB gifts on Texas she made birthdays and holidays when she said she brought them A mother also testified that she s best interest to maintain a relationship with their father JB III A aunt also testified that s four years although she had she had witnessed what 10 a not seen good relationship the children A MA had had with her father and that she believed it previously the children to ordered that J B s telephone directOlY and that not further testified that JB children in 2003 and from J B A brought with containing gifts for the children mother sent JL H B gifts at her mother letters from stated that she unanswered was A first s were s her father and that J H A does to A M A at Easter in 2005 house he in dropped also testified that J LH B previously exercised visitation and the last time she testified that A M A not seek to supervised supervised visitation was imposed saw no him longer was JB A before asks about know him testified that she has lLH B birthday card which led her people J LH B have extensive and a problems with his dlUg abuse and that he frequently the children birthday J LH B sent were to the children from time to time She indicated that after stopped visiting they live at address and s receiving J LH B was gifts which they indicated and that 500 00 left the child with various they her mother phone either testified that when J B A had with A M A there visitation phone number s A mother and sister visited the them She also stated that J B A March of 2005 s court at the home supervised admitted because his the disconnected or was JH J LH B change unable to contact J B A J B A for the children in October of saw in October of 2003 and in March of 2005 J LH B off important testified that in 2002 lLH B testified that her fOliy five minutes phone number did and J LH B She testified that J B A last all times listed in the was mother A visitation with the children be s of her mother JB A be have J B A in their lives The children 2002 for to a great malTiage with A M B and that supportive family in St also testified that A M B 11 is a Tammany Parish where daddy to the children JL H B also testified to the numerous A MB family activities she and engage in with the children The children his but that he loves A M A and J H A own A MB testified that he has A MB stepfather s testified that the their extended family bilihdays together and do cooks was well able as A MB to recite to doctor the identified commitment to be have appointments s comi the children details about their school work family photographs with the children which were the park shops and does household chores with them takes them to school to end never a A M B were parent s and other activities In of activities even mother and a as a A MB as testimony bilihdays and holidays if his A MB declared his to J L H B malTiage dad and father to him family friend were called these witnesses confirmed the testimony of A M B closeness with his conjunction submitted into evidence biological sports He also testified that he testified that the children consider him their mentioned their J LH B in participates favorite foods and activities s to the children stated that he A MB everything pretty big to together and with they spend holidays and testified that rides bikes with the children takes them children of with all his heart and soul engages in many activities A M B family no to testify and J L H B as A MB family and the loving relationship between Both of to their and the children After a thorough review of the record presented unable to say the trial court adoption in this of the case manifestly Although we matters is to granting appeal the we are stepparent recognize that the permanent termination legal relationship existing between of the most drastic actions that elTed in in this can a natural parent and be taken the primary a child is concern one in such determine and insure the best interest of the child which may 12 include termination of parental and are proven See State In this matter a ex rights if justifiable statutory grounds exist prima facie suppOli his children for a pe110d in failed to without was visit communicate just cause for thereby shifted beyond his control a or case was excess attempt to was shown to have In contrast to communicate with the children no by their stepfather significant find no elTor close and a or The burden of was was proof due to factors in their best interests loving relationship with meaningful relationship was shown to Under the facts and circumstances of exist between the children and J B A we to proven to the satisfaction of the trial court that the The children case failed JB A failed to meet this burden of proof and lH A this La 2003 of six months and that he further establish that his failure adoption of A M A AMB 1254 proven that J B A period exceeding six months to J B A Fmihermore it were 837 So 2d 1247 reI J M in the t11al court judgment CONCLUSION F or the court are reasons assigned herein we affirm the granting the petition for adoption of A assigned to J B A AFFIRMED 13 M B judgment All costs of the trial of this appeal

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