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In re Buttone

Court of Appeals of Louisiana, Fifth Circuit

December 18, 2019

IN RE: RICHARD TODD BUTTONE AND WIFE TONYA LYNN BUTTONE APPLYING FOR THE INTRAFAMILY ADOPTION OF J. B. G.

          ON 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. Hoover

          Panel composed of Judges Fredericka Homberg Wicker, Marc E. Johnson, and Robert A. Chaisson

          FREDERICKA HOMBERG WICKER, JUDGE.

         Joshua 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.

         Factual Background

         J.B.G.[1] 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.

         According 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.[2]

         On 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.

         Procedural History

         On July 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 name."[3]

         The Notice of Filing of the petition was served on Mr. Gill in prison on January 15, 2019.[4] 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.[5] 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 judgment.

         Analysis

         Intrafamily 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.

         The 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 ...


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