IN RE: RICHARD TODD BUTTONE AND WIFE TONYA LYNN BUTTONE APPLYING FOR THE INTRAFAMILY ADOPTION OF J. B. G.
APPEAL FROM THE JEFFERSON PARISH JUVENILE COURT PARISH OF
JEFFERSON, STATE OF LOUISIANA NO. 2018-AD-47, DIVISION
"A" HONORABLE ANN MURRY KELLER, JUDGE PRESIDING
COUNSEL FOR DEFENDANT/APPELLANT, JOSHUA J. GILL Stephen T.
composed of Judges Fredericka Homberg Wicker, Marc E.
Johnson, and Robert A. Chaisson
FREDERICKA HOMBERG WICKER, JUDGE.
Gill, the biological father of J.B.G., appeals the trial
court's judgment terminating his parental rights and
granting the child's stepfather, Richard Buttone's
petition for intrafamily adoption. We affirm the judgment
granting the adoption.
J.B.G. was born on January 24,
2008, to Tonya Buttone (then Tonya Snyder Gill) and Joshua
Gill, appellant. On July 29, 2010, Mrs. Buttone divorced Mr.
Gill. Mrs. Buttone and J.B.G. moved to the residence of Mr.
Buttone, whom Mrs. Buttone was dating, in April of 2011. In
January of 2012, a court in St. Bernard Parish gave sole
custody of J.B.G. to Mrs. Buttone and ordered Mr. Gill to pay
$150 in monthly child support. At some point, this amount was
lowered to $75 per month.
to Mr. Gill, the last time he saw J.B.G. was October 28,
2012. Thereafter, sometime in 2013, Mr. Gill was arrested and
convicted for "indecent behavior with a juvenile."
Because of inconsistencies in Mr. Gill's testimony, and
because no documentary evidence was introduced to establish
his dates of incarcerations, it is not clear from the record
the exact dates of Mr. Gill's incarceration. However, in
August of 2014, while he was out of prison, Mr. Gill
attempted to visit J.B.G. at Mrs. Buttone's residence on
Kent Avenue. Mrs. Buttone answered the door holding her and
Mr. Buttone's newborn son. Mr. Gill claims that Mrs.
Buttone told him to leave and that he would "never
see" J.B.G. again. After Mr. Gill left, Mrs. Buttone
filed a police report regarding his visit. Shortly after that
visit, Mrs. Buttone and J.B.G. moved to a new house and Mr.
Gill was re-incarcerated.
November 16, 2016, Tonya and Richard Buttone were married. In
October of 2017, Mr. Gill placed $1500 on deposit with the
Clerk of Court for St. Bernard Parish for child support
payments. The Buttones were unaware of this payment until
they hired an attorney to begin adoption proceedings. On
April 26, 2018, Tonya Buttone signed an authentic act
consenting to the adoption of J.B.G. by Mr. Buttone.
24, 2018, Mr. Buttone filed a petition for intrafamily
adoption of his minor stepdaughter, J.B.G., pursuant to the
provisions of La. Ch. C. arts. 1243, et seq. Mr.
Buttone's petition alleged that the child's
biological father was incarcerated at that time and had not
had significant visitation and/or contact with his child in
over six months, thereby obviating his consent to the
adoption under La. Ch. C. art. 1245(C). On December 20, 2018,
the Louisiana Department of Children and Family Services
transmitted a confidential report to the court finding that
J.B.G. "has not established a relationship or bond with
her biological father. . .[and that] she loves her
step-father and she would love to carry his last
Notice of Filing of the petition was served on Mr. Gill in
prison on January 15, 2019. On January 28, 2019 Mr. Gill
filed a written answer opposing the adoption. He filed a
motion to continue the March 11, 2019 hearing until after his
parole hearing on May 17, 2019. A contested hearing was held on
March 25, 2019, in which Mr. Gill, Mrs. Buttone, and Mr.
Buttone all testified. The district court judge terminated
Mr. Gill's parental rights and granted Mr. Buttone's
petition for adoption with no written reasons for judgment.
Mr. Gill filed a timely appeal of the trial court's
adoptions, the adoption of a child by a stepparent or certain
other relatives, are authorized by the Louisiana
Children's Code. La. Ch. C. arts. 1170, 1243. Under La.
Ch. C. art. 1245(C), the consent of a biological parent is
not required for adoption by a stepparent petitioner married
to the parent with lawful custody when either (1) the other
parent has refused or failed to comply with a court order of
support, without just cause, for a period of at least six
months, or (2) the other parent has refused or failed to
visit, communicate, or attempt to communicate with the child,
without just cause, for a period of at least six months.
party petitioning for adoption has the initial burden of
proving that a biological parent's consent is not
required due to the parent's nonsupport of or lack of
communication with the child. In re Orgeron, 94-458
(La.App. 5 Cir. 11/16/94), 646 So.2d 1137. Once a prima facie
case is proven, the opposing parent then has the burden of
proving that his failure to provide support or communicate
with his child was with "just cause," or due to
factors beyond his control. In re C.B., 94-0755 (La.
10/17/94), 643 So.2d 1251, 1253; In re D.D.D.,
06-2274 (La.App. 1st Cir. 5/4/07), 961 So.2d 1216,
rehearing denied, writ denied, 07-1669 (La.
8/31/07), 962 So.2d 436, certiorari denied 128 S.Ct.
1243, 552 U.S. 1195, 170 L.Ed.2d 85. The trial court must
thereafter consider whether the adoption is in the best
interest of the child. In re Orgeron, supra. There
is a rebuttable presumption ...