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State ex rel. K.C.C.

Court of Appeals of Louisiana, Fifth Circuit

May 28, 2015


Page 391



BENNY COUNCIL, The Council Law Firm, LLC, New Orleans, Louisiana, COUNSEL FOR APPELLANT, M.M.



RAMONA G. FERNANDEZ, SUPERVISING ATTORNEY, JANEY LAMAR, SAMANTHA ALEXANDER, STUDENT PRACTITIONERS, Loyola University New Orleans, College of Law, Stuart H. Smith Law Clinic and Center for Social Justice, New Orleans, Louisiana, AMICUS COUNSEL FOR MINOR, K.C.C.

Panel composed of Judges Susan M. Chehardy, Fredericka Homberg Wicker, Marc E. Johnson, Robert M. Murphy, and Stephen J. Windhorst. WINDHORST, J., DISSENTS WITH REASONS.


Page 392

[15-84 La.App. 5 Cir. 3] SUSAN M. CHEHARDY, J.

The biological mother, T.T., and the biological father, M.M., appeal the termination of their parental rights with regard to their minor child, K.C.C. For the reasons that follow, we reverse in part the juvenile court's judgment and remand the matter for further proceedings.


On April 7, 2015, this appeal was submitted to this Court for consideration by a

Page 393

three-judge panel. On April 30, 2015, pursuant to Art. V, § 8(B) of the Louisiana Constitution, the panel ordered that this case be assigned to a five-judge panel. On May 11, 2015, appellant, T.T., filed a " Motion to Rescind Order for Five Judge Panel," in which she argues that Art. V, § 8(B) does not apply to the instant case because: (1) the matter arose out of a " juvenile court," not a " district court" ; and (2) the termination of parental rights is not a " civil matter," but is criminal in nature.

This is an issue of constitutional interpretation. According to the general rule, articles of the constitution are to be construed and interpreted using the same [15-84 La.App. 5 Cir. 4] canons of interpretation applicable to statutes and written instruments . Snowton v. Sewerage & Water Bd., 08-0399 (La. 3/17/09), 6 So.3d 164, 168. Thus, under the well-established rules of statutory construction, any interpretation of constitutional provisions begins with the language of the constitution itself. Id. When the provision is clear and unambiguous and its application does not lead to absurd consequences, its language must be given effect and its provisions must be construed so as to give effect to the purpose indicated by a fair interpretation of the language used. Id. Unequivocal constitutional provisions are not subject to judicial construction and should be applied by giving words their generally understood meaning. Id. Accordingly, we are bound by the plain language of the constitutional provision to which we now turn.

Art. V, § 8(B) provides in pertinent part:

[I]n civil matters only, when a judgment of a district court or an administrative agency determination in a workers' compensation claim is to be modified or reversed and one judge dissents, the case shall be reargued before a panel of at least five judges prior to rendition of judgment, and a majority shall concur to render judgment.

We first consider appellant's argument that Art. V, § 8(B) does not apply because termination proceedings are not civil matters, but are criminal in nature. In support of this argument, appellant cites to the right to counsel guaranteed to parents and children in termination proceedings. See La. Ch.C. art. 1016. She seems to contend that because parties in termination proceedings and defendants in criminal proceedings are both guaranteed the right to counsel, it follows that both proceedings are criminal in nature. We are not persuaded by this argument. The right to counsel does not define the nature of the underlying matter; it is a right accorded parties during the adjudication of that matter. Our review of the underlying matter confirms that the termination of parental rights is indeed a civil matter.

[15-84 La.App. 5 Cir. 5] First, termination proceedings concern the termination of the parent-child relationship, which is defined by the Louisiana Civil Code as a " legal relationship" [1] and is governed by Title VII of Book 1 of the Louisiana Civil Code. Second, the burden of proof to terminate this legal relationship is " by clear and convincing evidence," not the more onerous " beyond a reasonable doubt" standard of criminal proceedings. See La. Ch.C. art. 1035. And third, when the Louisiana Children's Code is silent, termination proceedings are to be governed by the Louisiana Code of Civil Procedure. See La. Ch.C. art. 104. For these reasons, we reject appellant's argument that termination proceedings are criminal in nature and conclude that they are civil for purposes of Art. V, § 8(B).

Page 394

Next, we consider appellant's argument that a " juvenile court" is not a " district court" for purposes of Art. V, § 8(B). Given the provision's exclusive reference to judgments of district courts and administrative agency determinations in workers' compensation claims, rules of statutory interpretation necessitate the conclusion that judgments of juvenile courts, and any courts other than " district courts," are to be excluded from this provision. See Theriot v. Midland Risk Ins. Co., 95-2895 (La. 5/20/97), 694 So.2d 184, 187 (" [W]hen the legislature specifically enumerates a series of things, the legislature's omission of other items, which could have been easily included in the statute, is deemed intentional." ).

Indeed, the Louisiana Supreme Court has held that " [b]y its very terms, this provision is limited to district court judgments which are modified or reversed." Am. Deposit Ins. Co. v. Myles, 0-2457 (La. 4/ 25/01), 783 So.2d 1282, 1285 (Emphasis original). In that case, the supreme court considered a judgment originating from the First City Court of the City of New Orleans and concluded that " by implication, this provision does not apply to city court judgments." Id. [15-84 La.App. 5 Cir. 6] (Emphasis original). See also Snowton, 6 So.3d at 168-70 (holding Art. V, § 8(B) does not apply to judgments rendered by the office of workers' compensation).[2] Similarly, the Louisiana Fourth Circuit found, in dicta, that a literal reading of Art. V, § 8(B) supports the interpretation that " a juvenile court is not a district court for purposes of [Art. V, § 8(B)]." See State v. Allen, 11-0693 (La.App. 4 Cir. 1/4 /12), 83 So.3d 1160, 1164, writ granted, vacated on other grounds, 11-2843 (La. 4/13/12), 84 So.3d 1288.

We disagree with this literal interpretation in the context of juvenile matters. Interpreting the provision to apply only to " district courts," to the exclusion of " juvenile courts," yields the absurd consequence that Art. V, § 8(B) can apply to juvenile matters in every judicial district except those in Caddo, Orleans, Jefferson, and East Baton Rouge Parishes. This is because each of these four parishes has a separate " juvenile court" exercising exclusive juvenile jurisdiction within the parish.[3] In all other judicial districts, juvenile matters may be heard by the " district court." See La. Ch.C. art. 302.[4] Consequently,

Page 395

under appellant's proposed [15-84 La.App. 5 Cir. 7] interpretation, if this matter, i.e., the termination of parental rights, arises in a judicial district where no separate juvenile court exists and the " district court" hears the matter, Art. V, § 8(B) applies. Yet, because this matter arose in Jefferson Parish and was heard by the separate " juvenile court," Art. V, § 8(B) does not apply. We do not find that the legislature intended for the applicability of Art. V, § 8(B) to be determined by such arbitrary circumstances as geographic location. Therefore, we decline to adopt a legal interpretation that inhibits equal application of a state constitutional provision. Accordingly, appellant's motion to rescind the order for a five-judge panel is denied. We now turn to the merits of the appeal.


In August or September of 2012, T.T. learned that she was pregnant with K.C.C. and informed M.M. that he was the father. Although T.T. and M.M. had a two-year-old son together, M.M. doubted his paternity of K.C.C. (T.T. and M.M., collectively hereinafter, " appellants" ).

K.C.C. was born in Touro Infirmary Hospital at 3:03 a.m. on March 1, 2013. The nurse's notes at 5:50 a.m. state: " [Patient] verbalized about open adoption at this time."

M.M. arrived at the hospital around 8:00 a.m. and was still unsure if the child was his. He called S.S., a former girlfriend who he had known for fifteen years, and told her that T.T. had just delivered a baby. He explained that he was not sure if the child was his; but if it was, he wanted the child. He asked S.S. to find someone to help with the child temporarily, at least until he could confirm if he was the father.

According to S.S.'s recollection of this conversation, M.M. told her that he could not take care of the child and asked S.S. if she would, or knew of anyone who would, take the child, promising to assist financially with his care. S.S. stated [15-84 La.App. 5 Cir. 8] that she could not care for the child but would ask around. She called her cousin, G.J., who is acquainted with both T.T. and M.M. G.J. spoke with each individually that day and learned that they wished to put the child up for adoption. G.J. then relayed this information to her brother, E.C., who had been unsuccessful in his attempts to have children with his wife, K.C. (E.C. and K.C., collectively hereinafter, " appellees" ).

G.J. sent pictures of the child to E.C., who then forwarded them to his wife. They both " fell in love" with the child and agreed to meet him at the hospital that day. Prior to arriving at the hospital, E.C. spoke on the telephone with M.M., who informed him that T.T. did not intend to keep the child.

Appellees arrived at the hospital and were introduced to T.T. and K.C.C. According to E.C., T.T. assured them that she was comfortable giving the child to them. A discussion of names for the child ensued, during which T.T. permitted appellees to name him since he would be theirs. E.C. executed the " father" portion of the birth certificate; T.T. executed the " mother" portion.

The Maternal Child Discharge Planning form, completed on March 1, 2013, specified that K.C.C. was not to be released to the mother and that adoption was being

Page 396

considered. Handwritten notes of the social worker, dated March 1, 2013, 12:25 p.m., state: " Met [with] mother at bedside; infant present. Discussed adoption plan. Adoption family identified and flying in (possibly) from Washington state. No names available at this time." Then, at 4:06 p.m. on March 1, 2013, the notes state: " [Patient] changed mind about adoption. Will go with father of baby."

On March 3, 2013, T.T. and K.C.C. were discharged from the hospital. K.C.C. went home with appellees that day. Appellees brought T.T. to her sister's house since she did not have a residence of her own. When appellees dropped her [15-84 La.App. 5 Cir. 9] off, T.T. gave them a box of hand-me-downs from her older child. At this time, T.T.'s sister, L.S., met K.C.C. and appellees. L.S. recalled that appellees told her they would be caring for K.C.C. until appellants could " get on their feet."

At trial, T.T. admitted that she agreed to have appellees " watch" K.C.C., and physically relinquished him to them; but she claimed that she did not give or intend to give them custody. She maintains that she told appellees the situation was to be temporary. She explained that her plan was to have a family member care for K.C.C. for four or five months.

Approximately one month after K.C.C.'s birth, on April 9, 2013, T.T. executed a power of attorney, drafted by K.C. In this document, T.T. granted to appellees " all of [her] powers regarding the care and custody of [K.C.C.]." The document specified those powers as:

Provide total care and custody for the child, including full parental rights[; ] Provide for the child's food, clothing, housing, recreation and travel[; ] Obtain medical, dental, and mental health treatment and make health care decision on behalf of the child[; ] Make decisions regarding the child's ...

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