IN RE: APPLYING FOR THE AGENCY ADOPTION OF M. L. D.
FROM THE SIXTEENTH JUDICIAL DISTRICT COURT PARISH OF IBERIA,
NO. 14-J-375 HONORABLE CURTIS SIGUR, DISTRICT JUDGE.
CHANTEL CONRAD FOR APPELLANT STATE OF LOUISIANA, DEPT. OF
CHILDREN AND FAMILY SERVICES
LYNN COOK MENTAL HEALTH ADVOCACY SERVICE FOR OTHER APPELLANT:
G. L. D.
THAILUND PORTER-GREEN MENTAL HEALTH ADVOCACY SERVICE FOR
OTHER APPELLEE: M. L. D.
A. TABB BAUDRY & TABB, LLC FOR APPELLEES: DEREK DIBOLL
composed of John D. Saunders, Van H. Kyzar, and Candyce G.
D. SAUNDERS JUDGE.
minor children came into the custody of the State when the
Agency received a report of neglect and lack of supervision.
Subsequently, the children were adjudicated Children in Need
of Care and placed in the home of Petitioners, Tracey Diboll
and Derek Diboll, as a pre-adoptive placement. The biological
siblings lived continuously in the home of Petitioners, until
one of the siblings was hospitalized for behavioral issues.
At that time, Petitioners filed a petition to adopt the
remaining sibling, M.L.D. Defendants, Department of Children
and Family Services ("DCFS"), as custodian of the
minor children, and G.L.D., the sibling removed from the
home, opposed the adoption and permanent separation of the
biological siblings. M.L.D. also opposed the adoption. After
an eight day trial, the trial court granted the adoption. It
is from this judgment that Defendants appeal.
following reasons, we affirm.
determine whether the trial court erred in granting the
adoption of M.L.D.
settled law that the denial or grant of a petition for
adoption poses a question of fact. Leger Coccaro,
98-202 (La.App. 3 Cir. 4/29/98), 714 So.2d 770, writ
denied, 98-1423 (La. 7/2/98), 724 So.2d 740. Therefore,
"[a]n appellate court may not set aside a trial
court's finding of fact in the absence of manifest error
or unless it is clearly wrong[.]" Blackman
Brookshire Grocery Co., 07-348, p. 2 (La.App. 3 Cir.
10/3/07), 966 So.2d 1185, 1187 (citing Rosell ESCO,
549 So.2d 840 (La.1989)).
AND PROCEDURAL HISTORY
24, 2014, G.L.D. and M.L.D. were removed from their
biological mother's care and placed in foster care by
Defendant, DCFS, upon allegations of neglect and lack of
supervision. In September 2014, the children were adjudicated
Children in Need of Care ("CINC").
13, 2015, allegations of physical abuse and neglect by the
foster parents led to the children's removal and
placement in the foster home of Plaintiffs, Tracey and Derek
Diboll (the "Dibolls"). On May 27, 2016, parental
rights were terminated and G.L.D. and M.L.D., (then ages
eight and six respectivley), were freed for adoption.
G.L.D. and M.L.D. lived continuously with the Dibolls from
July 2015, until January 2017, when G.L.D. was hospitalized
for the third time and held for being suicidal and a threat
to others. At that time, the Dibolls requested that DCFS
remove G.L.D. from their home.
March 9, 2017, the trial court granted the Dibolls Ex Parte
Injunction preventing DCFS from exercising its custodial
right to remove M.L.D. from their home. On June 28, 2017,
this Injunction was vacated on a Motion by DCFS. Shortly
thereafter, M.L.D. was moved into the same certified foster
home as her brother, where both children have lived
throughout the hearings on the Adoption.
January 30, 2017, the Dibolls filed a petition to adopt
M.L.D. only. On February 16, 2017, DCFS filed an
Intervention, asserting the position that it is not in
M.L.D.'s best interests to be legally and permanently
separated from her full biological sibling. On March 31,
2017, a hearing on the Intervention was held and continued to
May 23, 2017, in order to obtain an independent bonding
2017, a bonding assessment was done by Brad Sibille. On May
23, 2017, a hearing was held and continued to July 21, 2017,
as the bonding assessment that was done did not address the
areas that the court and the parties were concerned about. At
that hearing, the trial court ordered that Dr. Kenneth
Bouillion conduct a bonding assessment of all parties
involved. The July 21, 2017, hearing was continued to August
14, 2017, due to Dr. Bouillion's report being incomplete.
On August 7, 2017, the attorneys for the parties and the
trial court received a copy of Dr. Bouillion's report. On
August 14, 2017, the testimony of Dr. Gary Mallon, an
independent expert for DCFS, was taken in chambers.
August 14, 2017, during the pre-trial conference, the Dibolls
presented an amended Petition for Adoption of Child in
Custody of Agency requesting that the Petition to Adopt be
amended to include G.L.D. The trial court denied the Amended
Petition, and the Petition to Adopt M.L.D. only commenced.
That same date, M.L.D. testified in chambers on her own
behalf. On that same date, and again on September 12, 2017,
the Dibolls presented evidence and witnesses on their behalf.
At the conclusion of the Dibolls' case-in-chief, DCFS
made an oral motion to have the case dismissed for failure of
the Dibolls to prove their case. M.L.D. joined in this
Motion. The trial court denied the motion.
trial was held over eight days: August 14, September 12,
October 17, 20, 25, 31, November 27, and December 12, all in
2017. DCFS presented witnesses and evidence on September 12,
2017, October 17, 2017, October 25, 2017, October 31, 2017,
and November 27, 2017. On December 12, 2017, G.L.D. presented
witnesses and evidence on his behalf, and the Dibolls
presented their rebuttal case.
trial court's request, post-trial memos were submitted in
lieu of closing arguments. On or about December 20, 2017, the
Dibolls presented an original post-trial memo. On or about
December 27, 2017, DCFS submitted a post-trial memo. On or
about January 2, 2018, M.L.D. submitted a post-trial memo. On
or about January 3, 2018, the Dibolls submitted a reubuttal
February 28, 2018, the trial court rendered judgment with
reasons, granting the adoption of M.L.D. by the Dibolls. On
or about March 5, 2018, prior to the signing of a formal
judgment, DCFS filed a Motion and Order for Appeal. On March
14, 2018, the Dibolls filed an objection to DCFS's Motion
and Order for Appeal. That same date, DCFS filed an Exception
of Lack of Jurisdiction and Response to the Objection. On
March 15, 2018, the Dibolls filed a response to DCFS's
exception. On March 22, 2018, G.L.D. filed a Response to
Objection to DCFS's Motion and Order for Appeal and
Subsequent Response by Counsel. On March 27, 2018, a hearing
was held on the Dibolls Objection . . . and the responses,
following which the trial court signed a judgment granting
the adoption of M.L.D. by the Dibolls.
from this judgment that DCFS appealed suspensively on March
8, 2018, alleging seven assignments of error. G.L.D. filed a
separate Motion to Appeal suspensively on March 27, 2018,
alleging three assignments of error. M.L.D. also filed a
brief on appeal, incorrectly labeled as an appellee brief,
and joined in those arguments and prayers for relief stated
by DCFS and G.L.D.
ASSIGNMENTS OF ERROR
1. The Trial Court erred in denying DCFS's Motion for
Involuntary Dismissal of the Petition.
2. The Trial Court erred in finding that it was in
M.L.D.'s best interest to be adopted by
Tracey Diboll and Derek
3. The Trial Court erred in basing the best interest finding
on a preponderance of the evidence.
4. The Trial Court erred in basing the best interest finding
solely on speculation.
5. The Trial Court erred in granting the adoption of
M.L.D. to Tracey Diboll and
Derek Diboll without the consent of DCFS,
the custodian of the child.
6. The Trial Court erred in granting the adoption of
M.L.D. to Tracey Diboll and
Derek Diboll without a finding that DCFS was
being unreasonable in withholding consent to the adoption.
7. The Trial Court erred in casting the costs of the
proceedings and the court ordered evaluation ...