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In re B.J.C.

Court of Appeal of Louisiana, Second Circuit

April 15, 2015

IN RE: B.J.C. APPLYING FOR INTRAFAMILY ADOPTION

Appealed from the Forty Second Judicial District Court for the Parish of Desoto, Louisiana. Trial Court No. 75573. Honorable Robert Edward Burgess, Judge.

BRYCE JEFFERSON DENNY, Counsel for Confidential Party RLP, CAP Jr.

KENNETH PATRICK HAINES, Counsel for Appellant-Defendant CAP.

CYNTHIA LEIGH CARROLL-BRIDGES, Counsel for Appellee-Plaintiff BJC.

Before WILLIAMS, LOLLEY and GARRETT, JJ.

OPINION

Page 906

[49,852 La.App. 2 Cir. 1] LOLLEY, J.

CAP (the " biological father" ) appeals a judgment by the 42nd Judicial District Court, Parish of DeSoto, State of Louisiana, which granted a final decree of adoption regarding his two biological, minor children in favor of BJC, the husband of the children's mother, BC. For the following reasons, we vacate the trial court's judgment and remand for further proceedings.

Facts

BJC is presently married to BC, the mother of two children with her previous husband, the biological father. Those two children are RLP, born on December 22, 2007, and CAP Jr., born on August 13, 2010.

On April 14, 2014, BC and BJC were married. Shortly thereafter, on May 8, 2014, BJC filed a petition for intrafamily adoption. In that petition he alleged that the biological father and BC were divorced on April 16, 2013, in the state of Texas. A copy of the judgment of divorce was made an exhibit to BJC's petition. In that judgment, a parenting plan was approved, and BC was granted sole custody. The biological father was ordered to pay child support of $950 per month for the two children effective April 19, 2013.

BJC alleges that the biological father's last full child support payment was May, 2013, and a half payment was made in September of the same year. Further, according to BJC's petition, the biological father has had little visitation or communication with the children, probably because he has been in and out of jail in Caddo and Bossier parishes for offenses including simple burglary, theft of a motor vehicle and various drug charges.[1] [49,852 La.App. 2 Cir. 2] Claiming that the biological father has forfeited his right to consent to the adoption, BJC alleged that the children had been living with him for at least six months prior to filing the petition. He also claimed it was in the best interest of the children that the adoption take place.

On May 22, 2014, BJC filed a writ of habeas corpus requesting that the biological father be transported from the Caddo Correctional Center in Shreveport, Louisiana, to defend the adoption proceeding on June 23, 2014. An order was signed by the trial court ordering that the biological father be released to the custody of the DeSoto Parish Sheriff. Ultimately the hearing was continued--according to the court minutes " due to no transportation on the defendant." The hearing was continued and refixed for October 2, 2014, and a notice for fixing case was issued on June 23, 2014. The record shows that personal service of that notice was made on the biological father at Caddo Correctional Center on June 26, 2014.

Page 907

A pro se opposition to BJC's petition was filed by the biological father on May 23, in response to the original petition. He claimed in his opposition that BC prevented him from seeing the children. He conceded that he had made " poor decisions" recently for which he has been incarcerated, but requested that the trial court give him a chance at being their father.

On October 2, 2014, the adoption hearing proceeded as scheduled. At the hearing, BJC was represented by legal counsel, as were the children. The biological father was not present, and the record does not indicate that a transportation order had been entered after the continuation of the initial [49,852 La.App. 2 Cir. 3] hearing date. The record does not contain a subsequent writ of habeas corpus requesting an order to arrange the biological father's transfer to court on the new hearing date. According to the court minutes, counsel for BJC informed the court that no opposition had been filed. Although the record contains no transcript of the hearing, the court minutes indicate that BJC and BC both testified at the hearing. Counsel for the children informed the trial court that he had spoken with the mother of the biological father, who wished the hearing be continued. The request was denied by the trial court, and the judgment of adoption was granted as prayed for. This appeal by the biological father ensued.

Discussion

The biological father brings one assignment of error, arguing that the trial court erred as a matter of law by signing a final decree of adoption without providing him, the biological father, with due process and the right to contest the adoption. We agree.

Applicable Statutory Law

The Louisiana Children's Code sets forth very specific and clear procedural steps to be followed in an intrafamily adoption. The following code articles ...


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