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State ex rel. C. C.

Court of Appeals of Louisiana, Fifth Circuit

March 25, 2019


          Applying For Supervisory Writ From The Jefferson Parish Juvenile Court, Parish Of Jefferson, State Of Louisiana, Directed To The Honorable Barron C. Burmaster, Division ''C'', Number 16-CC-85

          Panel composed of Judges Fredericka Homberg Wicker, Jude G. Gravois, and John J. Molaison, Jr.


         In this ongoing Child in Need of Care ("CINC") proceeding for the minor child, J.B., [1] relators, J.B.'s foster parents, filed exceptions to challenge J.B.'s alleged father, D.W.'s, motion to modify the disposition, requesting custody of J.B.[2] Relators seek review of the trial court's December 11, 2018 denial of their "Exceptions of Lack of Procedural Capacity/Standing and No Right of Action," which were filed in response to D.W.'s motion.[3] For the following reasons, relators' writ is granted, and the trial court's ruling denying relators' exceptions is vacated.

         This Court's Prior Opinion

         In the prior appeal of this matter, this Court determined that the record lacked any evidence regarding D.W.'s biological connection to J.B. Our opinion noted that "a biological father has two options to establish his paternity of a child not filiated to another man: one is to acknowledge the child in an authentic act and the second is to file filiation proceedings in a court of competent jurisdiction. La. C.C. art. 196; La. C.C. art. 198; La. R.S. 9:408." We further acknowledged that the statutory law requires a putative father to file an action to establish filiation, rather than allowing DNA test results alone to establish filiation. State in the Interest of C.C., J.R., P.B., M.B., J.B., 18-440 (La.App. 5 Cir. 10/12/18), ___ So.3d ___, writ denied, 18-1766 (La. 12/3/18), ___ So.3d ___.

         Procedural History Following Appeal

         The limited application before us contains an undated and unsigned Motion To Modify Disposition, purportedly filed by D.W. In the motion, D.W. asserts that he was "named" as J.B.'s father and that DNA testing "confirmed" his paternity of J.B. As noted above, this Court opined in the prior appeal of this case that these two factors, without more, were not sufficient to legally establish a biological connection to J.B. Essentially, both exceptions filed by relators in response to D.W.'s motion rely on the same premise: that D.W. has not conclusively demonstrated that he is J.B.'s father.

         Evidence Adduced At The Hearing

         A minute entry regarding the hearing on D.W.'s motion, held December 11, 2018, indicates that a copy of a Louisiana vital records registry acknowledgement of paternity for the putative father registry, executed by D.W., was accepted by the court into evidence. The minute entry from that date further states, "COURT FINDS [D.W.] TO BE THE BIOLOGICAL FATHER OF [J.B.] AND HE HAS DONE EVERYTHING POSSIBLE TO ESTABLISH HIS PARENTAL RIGHTS." Relators' counsel represents to this Court that the actual vital records registry acknowledgement of paternity was not entered into evidence at the hearing, but instead, counsel for D.W. showed a photograph of the acknowledgement to the trial court.[4] Relators' counsel further represents to this Court that it is unknown whether the actual acknowledgement was ever presented to the trial court following the hearing.[5] While counsel for D.W. asserts in her brief that, "The act of acknowledgment was submitted to Jefferson Parish Juvenile Court and filed in the record on December 13, 2018." This occurred two days after the hearing on relators' exceptions took place and was ruled upon.

         The copy of the vital records registry acknowledgement contained in the writ application is mostly illegible. The witnesses' signatures are obscured, as is the identifying information of the notary public. Because the trial court apparently based its ruling upon this image of the original document, and our review necessitates a preliminary verification that the acknowledgement is in authentic form, the condition of this exhibit precludes us from conducting a full consideration of the issues raised in relators' application. To the extent that the trial court may have relied on the exact same image before us, with the same defects, to deny relators' exceptions, we find reversible error based upon insufficient evidence.

         Even assuming that a legible copy of the registry acknowledgement was properly introduced into evidence and considered by the trial court, we find that the court erred in denying relator's exceptions on the basis of the document alone. As correctly noted by relators, while an acknowledgement of paternity for the putative father registry can be used as evidence, La. R.S. 9:400(C) limits that use to anyone "other than the person who filed such notice." Accordingly, because the acknowledgement was executed specifically for the purposes of the Louisiana vital records registry, we find that La. R.S. 9:400(C) applies to preclude D.W. from using it as evidence of paternity in this matter.

         The Question Of Paternity

         As a matter of well settled legal principle, this Court may not provide advisory opinions.[6] However, the sum total of our rulings, including the applicable ...

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