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State ex rel. C.E.K.

Court of Appeals of Louisiana, Fourth Circuit

December 21, 2017

STATE OF LOUISIANA IN THE INTEREST OF C.E.K.

         APPEAL FROM JUVENILE COURT ORLEANS PARISH NO. 2016-284-05-TR-A, SECTION "A" Honorable Ernestine S. Gray, Judge

          Cindy H. Williams ATTORNEY AT LAW COUNSEL FOR APPELLANT

          Jeffrey M. Hoffman Robert C. Lowe LOWE, STEIN, HOFFMAN, ALLWEISS & HAUVER, LLP COUNSEL FOR APPELLEE

          Court composed of Judge Daniel L. Dysart, Judge Regina Bartholomew Woods, Judge Tiffany G. Chase

          Daniel L. Dysart, Judge

         This is an appeal of a juvenile court judgment terminating the parental rights of Jesse Kaptein ("Mr. Kaptein"), the father of C.E.K.[1] The judgment at issue in this appeal was rendered during the pendency of a separate appeal involving Mr. Kaptein and Heather Roper Kaptein ("Ms. Kaptein), his former spouse and the mother of C.E.K., which arose from a divorce and child custody proceeding.[2] In that case, Kaptein v. Kaptein, 16-1249 (La.App. 4 Cir. 6/14/17), 221 So.3d 231, 232 ("Kaptein I"), writ denied, 17-1421 (La. 10/9/17), ___ So.3d ___, 2017 WL 4546565, this Court affirmed a judgment of the Civil District Court which granted sole custody of C.E.K. to Ms. Kaptein, but reversed that part of the judgment which kept in place a prior judgment suspending Mr. Kaptein's ability to engage in FaceTime visitation with C.E.K.[3]

         In this current appeal of the judgment terminating Mr. Kaptein's parental rights, we consider two primary issues: (1) whether Ms. Kaptein, as C.E.K.'s mother, was a proper party to pursue the termination of Mr. Kaptein's parental rights, and (2) whether those rights were properly terminated by the juvenile court.[4] For the reasons that follow, we find that, under the circumstances of this case, the juvenile court erred in granting leave of court, ex parte, by which Ms. Kaptein's attorneys were permitted to seek the termination of Mr. Kaptein's parental rights; and we further find that the juvenile court erred in its determination that Mr. Kaptein's parental rights should be terminated.

         FACTS AND PROCEDURAL BACKGROUND

         This matter commenced with the October 7, 2016 filing of a Motion for Leave of Court to File Termination of Parental Rights, filed by Ms. Kaptein, which requested that the juvenile court "appoint, designate and authorize her attorneys of record, Robert C. Lowe and Jeffrey M. Hoffman, as private counsel, " to file an attached Petition for Termination of Parental Rights (hereafter, "Petition") seeking to terminate Mr. Kaptein's parental rights. The motion for leave was granted ex parte by the juvenile court on October 11, 2016.[5]

         In the Petition, Ms. Kaptein alleged that the basis for the termination of Mr. Kaptein's parental rights was his abandonment of C.E.K. In particular, Ms. Kaptein alleged the following "factual allegations which constitute grounds necessary for termination of [Mr. Kaptein's] parental rights due to abandonment":

- By judgment dated May 15, 2017, Ms. Kaptein was awarded sole interim custody of C.E.K., pending a custody evaluation; the judgment further awarded Ms. Kaptein $5, 000.00 per month in child support (however, Mr. Kaptein "had only provided . . . 8.75% of his total support obligation);
- The last time Mr. Kaptein had "visited with and/or was physically present with C.E.K." was on September 13, 2015 (or for a period greater than "six (6) consecutive months");
- By judgment dated December 9, 2015, the trial court ordered Mr. Kaptein to provide an address, phone number and email address so that he could receive and accept service of process but Mr. Kaptein failed to do so;
- A nine month custody evaluation was issued by Dr. Dahlia Bauer, Ph.D., on December 15, 2015, which concluded that C.E.K. should remain in Ms. Kaptein's sole custody (with security measures for Mr. Kaptein's visitation to prevent his removing C.E.K. from the country), that Mr. Kaptein should "participate in an assessment and treatment regarding his sexual behaviors and relationship issues, including a comprehensive sexual addiction evaluation (which Mr. Kaptein had failed to do);
- By judgment dated July 1, 2016, Ms. Kaptein was awarded sole custody of C.E.K.[6]

         Ms. Kaptein based her claim that Mr. Kaptein demonstrated an intent to permanently avoid parental responsibility under La. Ch.C. art. 1015(4)(a), (b), and (c)(we note that, as of an August 1, 2016 amendment to the article, subpart (4) was redesignated as subpart (5); See footnote 9, infra) on the following specific allegations:

- Mr. Kaptein failed to disclose his address or residence, despite being ordered by the trial court to do so;
- Mr. Kaptein failed to provide significant contributions to C.E.K.'s care and support for any period of six consecutive months, having paid "only 8.75% of his Court ordered support obligation"; refused to return to the United States to visit C.E.K. since September 15, 2015 "leaving 100% of the child care and rearing to" Ms. Kaptein;
- Mr. Kaptein failed to maintain significant contact with C.E.K., having not visited with her since September 13, 2015 (despite having no restrictions on visitation until the trial court revoked his supervised visitation on July 1, 2016) which led to the suspension of his FaceTime visitation rights.[7]

         At the time that the Petition was filed in October, 2016, Mr. Kaptein was represented in connection with Kaptein I by his counsel in the current matter, Ms. Williams and an appeal had been taken of the July 1, 2016 judgment at issue in Kaptein I. Nevertheless, counsel for Ms. Kaptein requested that a curator ad hoc be appointed to represent Mr. Kaptein in the termination proceedings in juvenile court, on the basis that his whereabouts were unknown and as such, "service on [Mr. Kaptein] cannot be made." On October 13, 2016, Catrice Johnson Reid was appointed as Mr. Kaptein's curator ad hoc.[8] The termination proceedings were scheduled for November 29, 2016.

         Ms. Williams then enrolled as counsel for Mr. Kaptein on December 7, 2016, and filed an opposition to the Petition, denying that Mr. Kaptein had abandoned C.E.K. and denying that he had exhibited an intent to permanently abandon her. Mr. Kaptein then filed several exceptions (no cause of action, no right of action, lack of subject matter jurisdiction and lis pendens) to Ms. Kaptein's Petition and sought to have the Petition dismissed. A hearing on the exceptions was held and by judgment dated February 7, 2017, the exceptions were dismissed.

         An adjudication hearing on Ms. Kaptein's Petition was held on March 8, 2017 and, by judgment dated April 3, 2017, the juvenile court granted the Petition and terminated Mr. Kaptein's parental rights.

         Mr. Kaptein timely appealed this judgment.

         DISCUSSION

         Exception of no right of action

         Before considering the merits of the juvenile court's judgment terminating the parental rights of Mr. Kaptein, we first address Mr. Kaptein's contention that the juvenile court erred in finding that Ms. Kaptein had a private right of action to pursue the termination of Mr. Kaptein's parental right and thus, improperly allowed the Petition to be filed ex parte.[9] The juvenile court, in its February 7, 2017 judgment dismissed, rather than denied, all of Mr. Kaptein's exceptions, including the exception of no right of action. We treat the "dismissal" of the exception as a denial and note that an "exception of no right of action is peremptory and can be brought up at any time, including on appeal." Kelly v. Smith, 13-0280 (La.App. 4 Cir. 2/26/14), 134 So.3d 644, 650-51, writ denied, 14-0822 (La. 6/20/14), 141 So.3d 809.

         In Zeigler, this Court reiterated the well-settled rules regarding a peremptory exception of no right of action:

. . . "[P]eremptory exceptions raising the objection of no right of action are reviewed de novo on appeal as they involve questions of law." Fortier v. Hughes, 2009-0180, p. 2 (La.App. 4 Cir. 6/17/09), 15 So.3d 1185, 1186. "The exception of no right of action tests whether the plaintiff has a real and actual interest in the action." Weber v. Metro. Cmty. Hospice Found., Inc., 2013-0182, p. 4 (La.App. 4 Cir. 12/18/13), 131 So.3d 371, 374, citing La. C.C.P. art. 927(5). The function of the exception is to determine whether the plaintiff belongs to the class of persons to whom the law grants the cause of action asserted in the lawsuit. Louisiana Paddlewheels v. Louisiana Riverboat Gaming Com'n, 94-2015, p. 4 (La.11/30/94), 646 So.2d 885, 888. "The exception of no right of action assumes that the petition states a valid cause of action for some person and questions whether the plaintiff in the particular case is a member of the class that has a legal interest in the subject matter of the litigation." Indus. Companies, Inc. v. Durbin, 02-0665, p. 12 (La. 1/28/03), 837 So.2d 1207, 1216.

Id., 15-0626, pp. 4-5, 192 So.3d at 178. An "exception of no right of action presents a question of law; thus, . . . appellate review of that exception is de novo . . . ." N. Clark, L.L.C. v. Chisesi, 16-0599, p. 6 (La.App. 4 Cir. 12/7/16), 206 ...


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