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In re Applying for Agency

Court of Appeals of Louisiana, Third Circuit

April 17, 2019

IN RE: APPLYING FOR THE AGENCY ADOPTION OF M. L. D.

          APPEAL 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

          KATHY 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.

          JOSEPH A. TABB BAUDRY & TABB, LLC FOR APPELLEES: DEREK DIBOLL TRACEY DIBOLL

          Court composed of John D. Saunders, Van H. Kyzar, and Candyce G. Perret, Judges.

          JOHN D. SAUNDERS JUDGE.

         Two 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.

         For the following reasons, we affirm.

         I.

         ISSUE

         We must determine whether the trial court erred in granting the adoption of M.L.D.

         II.

         STANDARD OF REVIEW

         It is 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)).

         III.

         FACTS AND PROCEDURAL HISTORY

         On July 24, 2014, G.L.D. and M.L.D.[1] 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").

         On July 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.

         Both 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.

         On 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.

         On 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 assessment.

         In May 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.

         On 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.

         The 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.

         At the 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 post-trial memo.

         On 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.

         It is 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.

         IV.

         DCFS'S 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 Diboll.
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 ...

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