STATE IN THE INTEREST OF J. A.
FROM THE SIXTEENTH JUDICIAL DISTRICT COURT PARISH OF ST.
MARTIN, NO. 15-JV-17866 HONORABLE CURTIS SIGUR, DISTRICT
E. Cote Counsel for Appellee: State of Louisiana, Department
of Children & Family Services
Marie Johnson Public Defender's Office Counsel for
Appellant: D. A.
Jocelin Sias The Sias Firm, LLC 203 West Main Street, Suite
105 New Iberia, Louisiana, Counsel for Appellee: J. B.
Hill, Mental Health Advocates Lafayette, Louisiana, Counsel
for Appellee: J. A.
composed of John D. Saunders, Phyllis M. Keaty, and Candyce
G. Perret, Judges.
PHYLLIS M. KEATY, JUDGE
court lodged the appeal in this case on May 30, 2017, and, on
May 31, 2017, issued a rule for the appellant to show cause
why the appeal should not be dismissed as untimely filed.
According to the record filed in this court, on November 28,
2016, the Clerk of Court's Office for the Sixteenth
Judicial District Court issued notice of judgment informing
the parties that the trial court had signed the judgment
terminating appellant's parental rights and certifying
the minor child as eligible for adoption on November 16,
2016. Since the case falls under La.Ch.Code art. 332, the
appellant had fifteen days from the mailing of notice of
judgment to file her motion and order for appeal. The record
reflects that the motion and order for appeal were not filed
with the trial court until December 14, 2016, i.e., sixteen
days from the mailing of notice as certified by the district
court clerk's office. Therefore, this court issued the
subject rule to show cause. The appellant filed a brief in
response to this court's rule. Based on the allegations
contained in appellant's response brief, we order a
limited remand of this matter as discussed below.
brief filed in response to this court's rule to show
cause, appellant points out that in the certificate of
mailing of notice which is signed by the deputy clerk of the
district court, no physical address is given with respect to
appellant's counsel, unlike some of the others who were
sent notice of this judgment. Thus, appellant's counsel
surmises that the district court clerk's office intended
to send the notice of judgment to appellant's counsel by
means other than by mail as required by La.Code Civ.P. art.
1913. Further, appellant's counsel avers that in speaking
with the juvenile minute clerk at some time on or about
November 30 or December 2, 2016, she was informed that the
signed judgment was to be emailed to her. Appellant's
counsel then states that she informed the district court
personnel that the notice had to be mailed in order to
trigger the delays for seeking an appeal.
this court cannot consider evidence which is not of record
for purposes of deciding this matter, this case presents a
similar circumstance to that presented to it in State in
the Interest of B.R.C., 16-273 (La.App. 3 Cir. 5/25/16),
192 So.3d 897, in which this court did consider evidence not
of record for purposes of deciding whether a limited remand
for correction of the record should be ordered in the
interest of justice. Thus, the appellant in B.R.C.
asserted that a photocopy of the envelope showed that the
district court did not place the notice of judgment into the
mail on the date indicated in the certificate contained in
B.R.C., this court relied on Ventre v. Pacific
Indemnity Co., 391 So.2d 95 (La.App. 3 Cir. 1980),
wherein the appellant filed a motion to remand the appeal in
order to correct the record. Particularly poignant for this
case, this court quoted Ventre, 391 So.2d at 96,
"[a] clerk's certificate is not conclusively
presumed to be correct and may be corrected on proper
showing. Soileau v. Tri-State Mutual Insurance
Co., 206 So.2d 716 (La.App. 3 Cir.1967)." This
court then concluded in B.R.C., 192 So.3d at 899:
[T]his court cannot accept the photocopy of an envelope as
evidence to be used on a decision on the merits. However, we
can consider this photocopy for the purpose of deciding
whether justice requires a remand of this case for the
conducting of a hearing before the trial court in order to
obtain a ruling from the trial court on the question as to
the exact date on which notice of judgment was mailed. Thus,
as this court did in Ventre, we grant a limited
remand of this appeal and order that the trial court conduct
an evidentiary hearing and render a decision as to the actual
date on which notice of judgment was mailed to the
appellant's counsel of record by no later than July 25,
2016. Following this hearing and decision by the trial court,
we order the Office of the Clerk of Court for the Fifteenth
Judicial District Court, Parish of Lafayette, to supplement
the record in this appeal, in duplicate, with the transcript
of the hearing, any evidence submitted at that hearing, and
any pleadings filed and the judgment rendered subsequent to
court did in B.R.C., 192 So.3d 897, since this court
cannot rule on appellant's counsel's arguments
without the taking of evidence, we hereby order a limited
remand of this case for the trial court to hold a
contradictory hearing and enter a ruling, no later than
August 28, 2017. Additionally, we order the Office of the
Clerk of Court for the Sixteenth Judicial District Court,
Parish of St. Martin, to supplement the record in this
appeal, in duplicate, with the ...