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State ex rel. L.F.B.

Court of Appeals of Louisiana, Third Circuit

December 28, 2017

STATE OF LOUISIANA IN THE INTEREST OF L.F.B.

         APPEAL FROM THE FOURTEENTH JUDICIAL DISTRICT COURT PARISH OF CALCASIEU, NO. 27496 HONORABLE LILYNN A. CUTRER, DISTRICT JUDGE

          Tara B. Hawkins Attorney at Law COUNSEL FOR APPELLANTS: G.B and Ri.B. (Maternal Grandparents)

          Thomas W. Saunders, Jr. COUNSEL FOR APPELLEE State of Louisiana, Department of Children & Family Services

          Amy E. McGray COUNSEL FOR OTHER APPELLEE: L.F.B. (child)

          John D. Saunders, John E. Conery, and D. Kent Savoie, Judges.

          JOHN E. CONERY JUDGE

         Since rendering its decision on October 18, 2017, [1] this court has been apprised, through counsel for the State of Louisiana through the Department of Children and Family Services (DCFS) and the child's attorney in their rehearing requests, that the minor child, L.F.B., has been adopted by her putative paternal aunt and the aunt's husband and this child in need of care case has now been concluded. Inasmuch as there is no longer any child in need of care case pending in the trial court in Docket No. 27496, we have no alternative but to recall our remand order and dismiss this appeal.

         We addressed and denied the jurisdictional issue raised by counsel for DCFS and counsel for the minor child in our original opinion. As we discussed in our original opinion, the grandparents had filed a petition for custody of L.F.B., which was denied by the juvenile court judge on the basis that the juvenile court had exclusive jurisdiction over the child's custody as long as the CINC case was ongoing pursuant to La.Ch.Code art. 303.[2] Without objection by the parties, the trial judge then converted the grandparents' petition for custody to a petition to intervene in the CINC proceeding, which it ultimately denied, and which is the subject of this appeal. Because that judgment was final as to the grandparents' right to participate in the CINC proceeding in any way, we rejected DCFS' jurisdictional argument and decided the case on original hearing in favor of the grandparents' right to intervene.[3] On rehearing, we again decide the case on the merits of DCFS and L.F.B.'s rehearing request, but are constrained to find that we no longer have jurisdiction in the CINC proceedings, which are now moot based on the adoption of L.F.B.

         M.W., the sister of L.F.B.'s putative father, R.Y., and M.W.'s husband, J.W., had filed a motion to intervene in the CINC proceeding on August 10, 2016. After their home had been approved by DCFS, DCFS recommended and the court then placed L.F.B. in the custody of M.W. and J.W. as prospective adoptive parents on September 15, 2016. After the grandparents' petition to intervene in this CINC proceeding was denied by the trial court, the grandparents then filed a motion for interim visitation in the CINC proceeding. While L.F.B. was still legally in the State's custody and physically living with M.W. and J.W., the prospective adoptive parents, the trial court denied the grandparents' visitation request on June 29, 2017.

         We were not made aware of this ruling on original appeal, but as a result of the rehearing, we did order a supplemental record and finally became aware of what had happened since the appeal was originally lodged.

         While the merits of the grandparents' appeal was pending before this court in the CINC proceeding, without notice to this court or the grandparents' attorney, the attorney for the adoptive parents, the putative paternal aunt, M.W. and her husband, J.W., filed a petition for final adoption of L.F.B. in a separate docket of the juvenile court. That record was also not part of this original appeal. However, pursuant to La.Ch.Code art. 303, we acknowledge that the trial court did have continuing jurisdiction over issues pertaining to the adoption of L.F.B.

         The grandparents did not seek a stay of any of the rulings of the trial court, as DCFS pointed out in its reply brief on rehearing, nor did they file a request for a writ on the denial of temporary visitation. There was nothing in the record when we decided this case on original appeal to alert our court that the adoption was being pursued by M.W. and her husband, J.W., during the appeal. In the meantime, the trial judge took up the issue of the final adoption of the child at its first and only hearing on that issue on September 6, 2017, in a separate docket number and signed an adoption decree allowing M.W. and J.W. to adopt L.F.B. that same day, while the CINC case was pending on appeal and shortly before this court decided the merits of the appeal in favor of the grandparents' right to intervene in the CINC proceeding.

         DCFS and the child's attorney now argue on rehearing that since the trial judge maintained jurisdiction during the pendency of the CINC proceeding pursuant to La.Ch.Code art. 336[4] and La.Ch.Code art. 303, the trial judge could lawfully exercise jurisdiction in the adoption case. DCFS and the child's attorney argue that the grandparents' intervention is now moot.

         Neither the attorney for DCFS, the child's attorney, nor the trial judge made this court aware that the adoption judgment had been signed allowing M.W. and J.W. to adopt L.F.B. while the merits of the grandparents' appeal in the CINC proceeding were being considered. However, the grandparents' attorney did not request or file a stay of the CINC proceedings during the appeal. The brief by the grandparents' attorney asserts that she orally requested a stay of ...


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