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In re L. D. B.

Court of Appeals of Louisiana, Fifth Circuit

October 17, 2018

IN RE: L. D. B., APPLYING FOR INTRA FAMILY ADOPTION OF E. B.

          ON APPEAL FROM THE JEFFERSON PARISH JUVENILE COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 17-AD-11, DIVISION "B" HONORABLE ANDREA PRICE JANZEN, JUDGE PRESIDING

          COUNSEL FOR PLAINTIFF/APPELLEE, L. D. B. Joaquin Shepherd

          COUNSEL FOR DEFENDANT/APPELLANT, K. L. Nisha Sandhu

          Panel composed of Judges Marc E. Johnson, Hans J. Liljeberg, and John J. Molaison, Jr.

          JOHN J. MOLAISON, JR. JUDGE

         In this intrafamily adoption case, the biological mother, K.L., appeals the judgment of the juvenile court which found that her consent was not required for the adoption of E.B. by the child's stepmother, terminated K.L.'s parental rights, and granted the petition for intrafamily adoption. For the following reasons, we affirm.

         FACTS AND PROCEDURAL HISTORY

         This matter comes before us for the second time, after we dismissed appellant's first appeal for lack of jurisdiction. In re L. D. B., 17-373 (La.App. 5 Cir. 10/04/17), 228 So.3d 296. In K.L.'s prior appeal, we detailed the relevant underlying facts and procedural history of the proceedings as follows:

Appellant, K.L., and C.B., who were never married, had a child, E.B., together on July 1, 2005. The parties parted ways in 2009, when E.B. was four years old. From 2009 until 2014, the parties shared joint custody of E.B., with K.L. as the domiciliary parent and C.B. having visitation every other weekend and holidays. In 2014, after an apparent contentious custody battle, C.B. became the domiciliary parent and K.L. had visitation.
After separating from K.L., C.B. married L.B. in September 2009. On February 24, 2017, L.B. and C.B. filed a petition for intrafamily adoption in Juvenile Court for the Parish of Jefferson, wherein L.B. sought to adopt E.B. The parties alleged that E.B.'s biological mother, K.L., who had not consented to the adoption and whose parental rights had not been terminated, had failed to visit or attempt to communicate with E.B. for a period of ten months and had failed to pay court ordered child support for more than one year. As such, the parties asserted that K.L.'s consent was not required for the adoption. The parties further averred it was in E.B.'s best interest that she be adopted by L.B.
K.L. filed an opposition to the petition for intrafamily adoption, claiming that C.B. and L.B. had denied her contact with E.B. despite her repeated attempts since August 2015. K.L. admitted that she had been in arrears for her child support obligation, but asserted that she had made payments and continues to make efforts to reduce her arrearages and meet her obligation. K.L. alleged the petition for adoption was an abuse of process in the ongoing custody dispute in the 24th Judicial District Court ("24th JDC").
The juvenile court conducted a hearing on the opposition to the adoption on May 8, 2017. At the hearing, C.B. and L.B. testified in support of their petition and introduced evidence consisting of various emails between C.B. and K.L.; a visitation calendar kept by C.B.; documentation regarding K.L.'s child support obligation and arrears; a police report showing a child custody disturbance on February 10, 2017 at which time K.L. was arrested on an outstanding attachment; a Valentine's Day card and Mother's Day card given to L.B. by E.B.; and a letter from E.B.'s court appointed attorney indicating that K.L. was not agreeable to meet to discuss school holiday visitation. Additionally, the court examined E.B. in chambers in the presence of counsel.
To oppose the petition, K.L. offered her own testimony along with the testimony of her mother, a friend, L.B.'s brother and sister-in-law, and L.B.'s ex-husband. K.L. also introduced into evidence more emails between herself and C.B., photographs showing her house and E.B.'s room at her house, as well as photographs of E.B. with K.L. and family, and a letter from Kerry Nesbit with Behavioral Health Solutions of Louisiana indicating that K.L. had been diagnosed with post-traumatic stress disorder, major depressive disorder and borderline personality disorder and had been treating at the clinic since August 6, 2016.
The juvenile court rendered judgment at the conclusion of the hearing, which was reduced to writing the same day, denying K.L.'s opposition to the petition for intrafamily adoption, specifically finding that C.B. and L.B. proved by clear and convincing evidence that K.L. had failed to support and visit her child for a period in excess of six months and that her consent was not required for the adoption to proceed. In explaining its ruling, the court stated that it had reviewed the 24th JDC child custody record, noting that it was "two large volumes and a third not-so-large volume." The court extensively referred to an evaluation that was conducted in September 2013 in the child custody case in which E.B.'s therapist reported certain concerns. In ruling from the bench, the court explicitly stated that it was in E.B.'s best interest for the adoption to go forward; however, the court did not render a final decree granting or denying the petition for adoption. Instead, the court explained:
It is my policy to wait the time limit to see if this decision will be appealed before I actually go forward with the final degree [sic] of adoption, and I am going to do that in this case. I will set a tentative date for the adoption hearings in approximately 30 days.
Thereafter, K.L. filed a motion for a suspensive appeal from the May 8, 2017 judgment "decreeing the adoption of E.J.B. in favor of [L.B.]," which the juvenile court granted.

Id. at 297-298.[1]

         The record shows that, subsequent to this Court's dismissal of the first appeal, the parties appeared in juvenile court on December 4, 2017, for a hearing on L.B.'s petition for intrafamily adoption, which the judge granted on that same date. On December 14, 2017, the court issued a final written judgment which legally recognized L.B. as the adoptive mother of E.B. and formally terminated K.L.'s parental rights. K.L. thereafter timely filed a motion for appeal, which was granted.

         LAW AND ANALYSIS

         In her two assignments of error, K.L. argues summarily that the trial court erred in granting E.B.'s adoption upon finding that K.L.'s parental consent was not necessary.

         Parental Consent

         With respect to the issue of parental consent, K.L. specifically asserts that the trial court erred in holding that a time period lasting over six-months, during which K.L. did not visit E.B. or provide financial support, was not justified by K.L.'s "severe mental condition." The significance of the time period pertains to La. Ch.C.art. 1245, which addresses the requirement of parental consent for intrafamily adoptions. That article provides, in part:

A. The consent of the parent as required by Article 1193 may be dispensed with upon proof by clear and convincing evidence of the required elements of either Paragraph B or C of this Article at the hearing on the opposition and petition.
C. When the spouse of a stepparent petitioner has been granted sole or joint custody of the child by a court of competent jurisdiction or is otherwise exercising lawful custody of the child and ...

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