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State ex rel. P.T.

Court of Appeal of Louisiana, Third Circuit

March 4, 2015

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.

Frank Granger, A Professional Law Corporation, Lake Charles, Louisiana, COUNSEL FOR INTERVENORS/APPELLANTS: R.T. and G.T.

Jonathan L. Johnson, Johnson & Vercher, L.L.C., Lake Charles, Louisiana, COUNSEL FOR INTERVENOR/APPELLEE: S.R.

Amy E. McGray, MHAS/ Child Advocacy Program, Lake Charles, Louisiana, COUNSEL FOR THE MINOR CHILD: P.T.

Stephen A. Berniard, Jr., Raggio, Cappel, Chozen & Berniard, Lake Charles, Louisiana, COUNSEL FOR APPELLEE/STATE OF LOUISIANA.

Court composed of Jimmie C. Peters, Billy Howard Ezell, and James T. Genovese, Judges. Ezell, J., dissents and assigns written reasons.

OPINION

Page 1185

[14-1160 La.App. 3 Cir. 1] GENOVESE, Judge.

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

Page 1186

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 [14-1160 La.App. 3 Cir. 2] 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.[]

Page 1187

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 [14-1160 La.App. 3 Cir. 3] 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 ...


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