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In re J. L. C. K.

Court of Appeals of Louisiana, Fifth Circuit

January 16, 2018

IN RE: J. L. C. K., WIFE OF/AND J. D. K., JR. APPLYING FOR PRIVATE ADOPTION OF CHILD UNDER SEVENTEEN YEARS OF AGE KNOWN AS "B. A. B., JR."

         ON APPEAL FROM THE JEFFERSON PARISH JUVENILE COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 16-AD-15, DIVISION "B" HONORABLE JEROME J. BARBERA, III, JUDGE PRESIDING

          COUNSEL FOR PLAINTIFF/APPELLEE, J. L. C. K. AND J. D. K., JR., Albert F. Widmer, Jr.Courtney L. Schroeder

          COUNSEL FOR DEFENDANT/APPELLANT, B. A. B., Lakeisha N. Jefferson, N. Kim Nguyen

          Panel composed of Judges Susan M. Chehardy, Marc E. Johnson, and Robert A. Chaisson

          SUSAN M. CHEHARDY CHIEF JUDGE

         This is an appeal from a judgment of the Juvenile Court, Parish of Jefferson, terminating a natural father's parental rights. For the following reasons, we affirm.

         Facts and Procedural History

         The record reflects that S.R.B.[1] became pregnant in 2015 while she and B.A.B., Sr. were cohabitating in an apartment that she leased. When B.A.B., Sr. purchased a house in August of 2015, the couple moved into the house together, where B.A.B., Sr. paid the household expenses, except for food. S.R.B. testified that, as an unemployed single mother, she was eligible for food stamps and "WIC, " which she used to feed the household.

         On October 16, 2015, B.A.B., Jr. (hereinafter "the child") was born out of wedlock to S.R.B. and B.A.B., Sr., who executed an acknowledgement of paternity and is named on the child's birth certificate. Although B.A.B., Sr. was gainfully employed[2] and covered by his employer's health insurance, the costs of the child's birth were paid by Medicaid.

         After the child was born, S.R.B. and the child remained living in B.A.B., Sr.'s house for two months. However, after an argument in late December of 2015, S.R.B. took the child to stay with friends until roughly March 2016. B.A.B., Sr. did not contribute money for the child's expenses, i.e., clothing, diapers, or formula, while the child was not in B.A.B., Sr.'s house.

         In early March of 2016, S.R.B. and the child returned to B.A.B., Sr.'s house. At that time, the child was also added to B.A.B., Sr.'s health insurance, at no additional cost to B.A.B., Sr. During that time, S.R.B. continued to use her food stamps and W.I.C. vouchers to purchase groceries for the house. For several months, the couple maintained a relationship.

         On July 4, 2016, however, after a party at their house, B.A.B., Sr., who admitted to consuming about 5 or 6 beers, struck S.R.B. in the face and "broke" her nose. After B.A.B., Sr.'s arrest in the early morning hours of July 5, 2016, S.R.B.'s cousin picked up S.R.B. and the child and brought them to her home. Within days, the child returned to stay with the same family friends that he had lived with earlier in the year.

         Although S.R.B. returned to B.A.B., Sr.'s house in October of 2016, she did not bring the child. In fact, the child only returned to B.A.B., Sr.'s house to stay for one week in March of 2017. During that visit, B.A.B., Sr. had an episode of extreme alcohol intake and belligerence, which triggered S.R.B. to leave the house and remove the child. Further, that event caused S.R.B. to realize that she would not be able to raise the child alone and would not be able to count on B.A.B., Sr. as a parent so, on March 30, 2017, S.R.B. voluntarily surrendered her rights to the child to allow the child to be privately adopted by the family friends who had been keeping the child.

         The record is clear that B.A.B., Sr. did not send a gift for the child's first birthday or Christmas of 2016. Further, B.A.B., Sr. did not present evidence that he had offered to contribute money for the child's expenses from July 2016 until March 2017.[3]

         More importantly, B.A.B., Sr. admitted that he did not really know where the child was living from July 2016 until April of 2017, even while S.R.B. was living with B.A.B., Sr. at his house. He stated that he "trusted" the woman that he loved and thought that the child was living with S.R.B.'s cousin or friends. Except for a single text message, there is no evidence that he made any attempt to locate the child until April of 2017.

         On or about April 12, 2017, however, B.A.B., Sr. learned that S.R.B. had surrendered her rights to the child and that another family sought to adopt the child.[4] On April 21, 2017, B.A.B., Sr. filed an opposition to the adoption pursuant to La. Ch.C. art. 1137, which triggered the opposition hearing. After a two-day hearing, the juvenile court found that B.A.B., Sr. failed to prove that he had made a substantial commitment to his parental responsibilities and that he is a fit parent. At that hearing, the court terminated B.A.B., Sr.'s parental rights and declared the child available for adoption. This appeal follows.

         Law and Argument

         In brief to this court, B.A.B., Sr. assigns three errors: first, the trial court erred in finding that the biological father failed to carry his burden of proof to establish by a preponderance of evidence that he manifested a substantial commitment to his parental responsibilities and that he was a fit parent to the minor child; second, the trial court erred in finding that the biological father was not thwarted in his efforts to manifest a parental commitment by the biological mother and/or her agents; and third, the trial court erred in remaining in the courtroom when a proffer was made.

         Standard of Review

         It is well settled that an appellate court cannot set aside a juvenile court's findings of fact in the absence of manifest error or unless those findings are clearly wrong. In re A.J.F., 00-0948 (La. 6/30/00), 764 So.2d 47, 61; In re Adoption of A.P.C., 00-1381 (La.App. 5 Cir. 12/13/00), 776 So.2d 567, 573, writ denied, 01-0319 (La. 2/14/01), 785 So.2d 835. "Where there is conflicting testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even when the appellate court may feel that its own evaluations and inferences are as reasonable as those of the trial court." In re A.J.F., supra; Rosell v. ESCO, 549 So.2d 840 (La. 1989); Arceneaux v. Domingue, 365 So.2d 1330 (La. 1978). Where the fact finder is presented with two permissible views of the evidence, the fact finder's choice between them is not clearly wrong. Id. Substantial commitment and parental fitness are factual findings that are entitled to deference unless the trial court is clearly wrong. In re Adoption of J.L.G., 01-0269 (La.App. 1 Cir. 2/21/01), 808 So.2d 491.

         In manifest error review, it is important that the appellate court not substitute its opinion when it is the juvenile court who is in the unique position to see and hear the witnesses as they testify. The trier of fact is not disadvantaged by the review of a cold record and is in a superior position to observe the nuances of demeanor evidence not revealed in a record. In re A.J.F., 764 So.2d at 62.

         Substantiv ...


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