In Re_ Termination of Parental Rights to the Minor Child L.H

IN RE: TERMINATION OF PARENTAL RIGHTS
TO THE MINOR CHILD L.H.

Judgment Rendered: DEC 17 2025

On Appeal from the
Juvenile Court
In and for the Parish of East Baton Rouge
State of Louisiana
Juvenile Court No. 11373

The Honorable Adam J. Haney, Judge Presiding

Heidi M. Vessel Attorney for Appellant,
Zachary, Louisiana L.H.

Mark D. Plaisance Attorneys for Appellee,
Marcus J. Plaisance St. Elizabeth Foundation
Prairieville, Louisiana

Dean M. Esposito
Baton Rouge, Louisiana

BEFORE: MILLER, EDWARDS, AND FIELDS, JJ.

MILLER, J.

Petitioner/Appellant, L.H., appeals from a judgment of the juvenile court,

which sustained an exception of prescription ( based on peremption) in favor of

Respondent/ Appellee, St. Elizabeth Foundation, and dismissed L.H.' s petition to

annul the agency adoption with prejudice. For the following reasons, the judgment

of the juvenile court is affirmed, and the answer to appeal is denied.

FACTS AND PROCEDURAL HISTORY

L.H.1 (" biological mother") gave birth to a child, L.H. (" child"), on June 17,

2021. About a year after the child was born, on July 21, 2022, the biological mother

signed a voluntary act of surrender for adoption, surrendering the child to St.

Elizabeth Foundation.' The voluntary act of surrender was filed on July 26, 2022,

and the juvenile court entered an order approving the surrender on August 1, 2022.

Afterward, on October 5, 2022, the biological father' s parental rights were

terminated.

The child was placed in the adoptive parents' home on July 22, 2022, and they

filed a " Petition for Agency Adoption" on September 11, 2023. The juvenile court

signed a judgment on October 20, 2023, declaring the child to be the child of the

adoptive parents.

On May 20, 2024, the biological mother filed a " Petition to Annul Agency

Adoption and Writ of Habeus Corpus." The biological mother alleged that she

contacted St. Elizabeth Foundation for financial assistance but was " coerced into

surrendering the [ child.]" She further alleged that St. Elizabeth Foundation told her

she would be able to contact the child after the adoption but rescinded the verbal

I The initials of the minor child and biological mother are used in this opinion to protect
the privacy of the parties involved. See Uniform Rules - Courts of Appeal, Rules 5- 1 and 5- 2.
Further, both the biological mother' s initials and the child' s initials are L.H. Throughout this
opinion, " L.H." and " biological mother" are used to .refer to the biological mother, and " child" is
used to refer to the child.

2 St. Elizabeth Foundation is an adoption agency located in Baton Rouge, Louisiana.

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agreement after she surrendered her rights; the biological father' s rights were never

terminated nor was the father served; she did not participate in at least two

counseling sessions as required; she lacked the requisite mental capacity and sought

to reverse her decision to surrender her rights; she was not able to hire an attorney

to assist her due to financial constraints; and she was not able to consent to the

voluntary act of surrender due to mental impairments. Thus, the biological mother

sought " to have the adoption revoked, rescinded[,] and/ or annulled."

On June 4, 2024, St. Elizabeth Foundation filed an exception of prescription,

characterizing the suit as an action to annul the act of surrender and arguing that the

biological mother' s action was not timely filed pursuant to Louisiana Children' s

Code article 1148. 3 Thereafter, on August 20, 2024, the biological mother filed an

opposition to St. Elizabeth Foundation' s exception. She asserted that the act of

surrender was an absolute nullity, but she emphasized that her action was best

characterized as an attack on the adoption itself.

A hearing was held on September b, 2024, and at the conclusion of the

hearing, the juvenile court sustained St. Elizabeth Foundation' s exception of

prescription. Thereafter, on September 25, 2024, the court signed a judgment

sustaining the exception and dismissing the biological mother' s petition to annul the

agency adoption. The biological mother appealed, contending that the juvenile court

erred in sustaining St. Elizabeth Foundation' s exception. St. Elizabeth Foundation

answered the appeal, contending that it should be awarded attorney fees and costs

because the biological mother has no legal basis for an appeal.

DISCUSSION

In her sole assignment of error, the biological mother alleges that the juvenile

court erred in sustaining St. Elizabeth Foundation' s exception. Initially, we note,

3 St. Elizabeth Foundation also filed an exception of no cause of action and a motion for
sanctions, which are not at issue in this appeal.

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although captioned as an exception of prescription, the pleading raises the issue of

peremption based on Louisiana Children' s Code article 1148.4 Louisiana is a fact -

pleading state that values substance over form and requires courts to look beyond

the caption of the pleadings in order to ascertain their substance and do substantial

justice to the parties. Matter of Cole, 2019- 0938 ( La. App. 1St Cir. 12/ 27/ 19), 293

So. 3d 1163, 1169, writ denied, 2020- 00184 ( La. 3/ 9/ 20), 307 So. 3d 1029.

Therefore, we consider St. Elizabeth Foundation' s exception to be a peremptory

exception of peremption. See Nixon v. Dixon, 2020- 0694 ( La. App. 1St Cir.

12/ 30/ 20), 319 So. 3d 315, 317 n.2.

Peremption is a period of time fixed by law for the existence of a right. The

right is extinguished upon the expiration of the peremptive period. La. C. C. art.

3458. When the peremptive period has run, the cause of action itself is extinguished

unless timely exercised. Myers v. Houston Specialty Insurance Company, 2022-

0773 ( La. App. 1St Cir. 4/ 14/ 23), 366 So. 3d 616, 620- 621. Peremption may not be

renounced, interrupted, or suspended, except as otherwise provided by law. La. C.C.

art. 3 46 1. The objection of peremption is properly raised by a peremptory exception.

See La. C. C.P. art. 927. While the exceptor ordinarily bears the burden of proof at

the trial of the peremptory exception, if peremption is evident on the face of the

pleadings, the burden shifts to the plaintiff to show the action is not perempted.

Mme, 366 So. 3d at 621.

At the hearing on the exception of peremption, evidence may be introduced

to support or controvert the exception. See La. C. C. P. art. 931. If evidence is

introduced at the hearing, the trial court' s findings of fact are reviewed under the

manifest error -clearly wrong standard of review. Satterfield & Pontikes

Construction, Inc. v. Breazeale Sachse & Wilson LLP, 2015- 1355 ( La. App. 1st Cir.

Peremption has been likened to the objection of prescription and the rules governing the
burden ofproof as to prescription also apply to peremption. See La. C. C. art. 3459; Nixon v. Nixon,
2020- 0694 ( La. App. Pt Cir. 12/ 30/ 20), 319 So. 3d 315, 318.

0

1/ 10/ 17), 212 So. 3d 554, 558, writ denied, 2017- 0268 ( La. 3/ 31/ 17), 217 So. 3d

363. However, in the absence of evidence, as is the case here, an exception of

peremption must be decided based upon the facts alleged in the petition with all of

1St
the allegations accepted as true. Regions Bank v. Erymard, 2021- 0926 ( La. App.

Cir. 5/ 23/ 22), 342 So. 3d 908, 915, writ denied, 2022- 00977 ( La. 10/ 18/ 22), 348 So.

3d 731. When no evidence is introduced to support or controvert the exception, the

appellate court' s role is to determine whether the trial court' s ruling was legally

correct. Breen v. Landry, 2022- 1132 ( La. App. 1St Cir. 4/ 14/ 23), 366 So. 3d 577,

580, writ denied, 2023- 00873 ( La. 10/ 10/ 23), 371 So. 3d 455.

Initially, we note that both in her petition and her appellate brief, the biological

mother argues that she attempted to reverse or revoke her voluntary act of surrender

on the day it was executed, alleging St. Elizabeth Foundation " refused to adhere to

her relinquishment." Louisiana Children' s Code article 1123( A) provides that an act

of surrender is generally irrevocable upon execution. For an agency adoption, as

here, the only reason an act of surrender may be revoked by a birth mother or father

is if it was executed earlier than three days following the birth of the child. See La.

Ch.C. arts. 1123( A) and 1130( E). Here, the child was one year old when the

biological mother executed the voluntary act of surrender, so it was irrevocable.

However, the fact that the act of surrender is irrevocable does not speak to whether

or not it may be annulled.

Next, the biological mother asserts that the time period applicable to her action

is found in Louisiana Children' s Code article 1263( A), not Article 1148, because

she seeks to have the adoption annulled, not just her voluntary act of surrender.

Louisiana Children' s Code article 1263( A)5 provides:

An action to annul a final decree of adoption based upon a claim of
fraud or duress perpetrated by anyone other than the adoptive parent

5 The time limitations established in Article 1263 are peremptive in nature, and therefore
are not subject to suspension. See La. C. C. art. 3458 and COMMENTS --1991, Comment ( a) to
La. Ch.C. art. 1263.

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must be brought within six months from discovery of the fraud or
duress and in no event later than one year from the date of the signing
of the final decree or mailing of the judgment when required.

The biological mother makes no claim of fraud or duress by the adoptive parents.

However, actions to annul an adoption, which are specifically based upon claims

that the act of surrender was obtained by fraud or duress, are governed by the special

time limitations contained in Louisiana Children' s Code article 1148.

CONIMENTS-- 1991, Comment ( b) to La. Ch.C. art. 1263. While the biological

mother titled her petition as an action to annul an agency adoption, all of her claims

alleging fraud or duress involve her voluntary act of surrender.6 Therefore, we find

Article 1148 is applicable to the action before us, and thus we turn to Article 1148

to determine whether the biological mother' s claims are perempted.

Louisiana Children' s Code article 1148 provides, " No action to annul a

surrender shall be brought for any reason after ninety days from its execution or after

a decree of adoption has been entered, whichever is earlier." La. Ch.C. art. 1148.

The time limitation established by Article 1148 is peremptive in nature, and

therefore not subject to suspension. See State in Interest of Taylor, 637 So. 2d 512,

514 ( La. App. 1St Cir. 1993); see also State, Department of Social Services ex rel.

J. O. v. L. O., 2002- 0587 ( La. App. 3rd Cir. 10/ 2/ 02), 829 So. 2d 616, 618 ( stating

We find no fault with the First Circuit' s analysis and their ultimate determination

that [ A]rticle 1148' s time limitation is [ peremptive]."). This court has held that with

respect to the time limitation established by Article 1148, a surrendering parent loses

the right to petition for the nullity of a surrender of parental rights after the passage

of ninety days from the execution of the surrender or the entering of an adoption

6 We note that the biological mother did assert other claims in her petition that did not
include fraud or duress. In her petition, the biological mother alleged that the biological father' s
rights were never terminated nor was the biological father served. However, in her appellate brief,
the biological mother concedes that the biological father' s rights were terminated on October 5,
2022. She further indicated that she was not aware that the biological father' s rights were
terminated until she filed this appeal..

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decree, whichever is earlier, and that the running of this ninety -day time period may

not be renounced, interrupted, or suspended. State in Interest of Taylor, 637 So. 2d

at 514.

The peremptive period for the biological mother to bring an action to annul

her surrender expired on October 19, 2022, which was ninety days from its

execution. However, she did not file her petition to annul until May 20, 2024.7 Thus,

the biological mother did not bring her action within ninety days of the execution of

her voluntary act of surrender, so her action is perempted. Accordingly, we find the

juvenile court was legally correct in sustaining St. Elizabeth Foundation' s exception.

This assignment of error is without merit.

ANSWER TO APPEAL

St. Elizabeth Foundation filed an answer to the instant appeal, requesting an

award of attorney fees and costs for frivolous appeal. It alleges that the biological

mother' s appeal is frivolous because her petition was filed significantly after the

peremptive period expired. Louisiana Code of Civil Procedure article 2164 provides:

The appellate court shall render any judgment which is just, legal, and
proper upon the record on appeal. The court may award damages,
including attorney fees, for frivolous appeal ... and may tax the costs
of the lower or appellate court, or any part thereof, against any party to
the suit, as in its judgment may be considered equitable.

Further, Rule 2- 19 of the Uniform Rules of Courts of Appeal states that the court

may award damages for a frivolous appeal in civil cases as provided by law.

Damages for frivolous appeal are only allowed when it is obvious that the appeal

was taken solely for delay or that counsel is not sincere in the view of the law he

advocates even though the court is of the opinion that such view is not meritorious.

In re Fogg, 2019- 0719 ( La. App. 1St Cir. 2/ 21/ 20), 298 So. 3d 291, 296, writ denied,

7 We note that the biological mother executed a voluntary act of surrender on July 21, 2022,
and ninety days from the execution was October 19, 2022. A year later, the decree of adoption was
entered on October 20, 2023. Therefore, under Article 1148, no action to annul the biological
mother' s surrender could be brought for any reason after October 19, 2022, since that date is earlier
than October 20, 2023. See La. Ch.C. art. 1148.

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2020- 00819 ( La. 10/ 14/ 20), 302 So. 3d 1124. While we find that the biological

mother' s assignment of error lacks merit, we do not find her appeal to be frivolous.

Therefore, we find that attorney fees and costs for frivolous appeal are not warranted,

and we deny St. Elizabeth Foundation' s answer to the appeal.

CONCLUSION

Based on the foregoing reasons, the September 25, 2024 judgment sustaining

St. Elizabeth Foundation' s exception of prescription ( based on peremption) in favor

of St. Elizabeth Foundation and against L.H. and dismissing L.H.' s petition is

affirmed. St. Elizabeth Foundation' s answer to the appeal is denied. Costs of this

appeal are assessed one- half to St. Elizabeth Foundation and one- half to the L.H.

AFFIRMED; ANSWER TO APPEAL DENIED.

M

STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT

2025 CJ 0625

IN RE: TERMINATION OF PARENTAL RIGHTS
TO THE MINOR CHILD L.H.

FIELDS, J., concurs in the result.

I write separately to note that I find the circumstances under which this

voluntary" surrender of the minor child was accomplished troubling. In this private

surrender/adoption scenario, the law entitled the surrendering mother to two pre -

surrender counseling sessions as well as representation by legal counsel unaffiliated

with either the adoption agency or the adoptive parents. See La. Ch. Code arts. 1120

1121( A). However, it is alleged that neither of these requirements, which are

intended to safeguard a parent when making the decision of whether to surrender a

child, were adhered to when the mother of L.H., who allegedly suffered from

clinically -diagnosed post -partum depression and bipolar syndrome disorder, and

who was only looking for financial assistance to care for her child, ultimately

executed a voluntary act of surrender.

Nevertheless, I am constrained to agree with the result of the majority as the

time limit within which a surrendering parent may re- claim her child, for limited

reasons (
i.e. duress, fraud, or incompetency of the surrendering parent), is a fixed

peremptive period, after which the surrendering parent' s right is extinguished. See

La. Ch. Code arts. 1147 & 11489 see also State in Interest of Taylor, 637 So.2d

512 (La. App. 1 st Cir. 1993). Because the surrendering mother' s action to annul was

initiated after the ninety -day peremptive period provided by law, I agree that the

lower court correctly sustained St. Elizabeth Foundation' s peremptory exception

raising the objection of prescription (preemption).

STATE OF LOUISIANA

COURT OF APPEAL

FIRST CIRCUIT

2025 CJ 0625

IN RE: TERMINATION OF PARENTAL RIGHTS TO THE MINOR CHILD L.H.

EDWARDS, J., assigning additional reasons.

I agree with the majority' s analysis and ultimate decision in this matter;

however, I would decline to assess appellate court costs to Ms. Haile. I write further

to acknowledge that the current procedures in the Louisiana Children' s Code

regarding voluntary acts of surrender did not protect the best interest of the minor

child here and to articulate my concerns about the manner in which the voluntary act

of surrender was made in this particular case.

The appellant, Li' Keisha Haile, was a twenty -two-year-old indigent, unwed

mother allegedly suffering from clinically -diagnosed postpartum depression,

attention deficit disorder, and bipolar syndrome disorder at the time she began a

search to obtain financial assistance for herself and her biological child, who was

then one -year-old, from organizations such as catholic charities and the Salvation

Army. During that search, Ms. Haile viewed an ad for St. Elizabeth Foundation,

which she claimed she believed was an organization that provided assistance to

pregnant and unwed mothers. According to Ms. Haile, she was not aware that St.

Elizabeth Foundation was an adoption agency until she met with one of its

representatives and was allegedly " subjected to a high pressure, hard sale campaign"

in order for her to execute a voluntary act of surrender for adoption. Ms. Haile

alleged that St. Elizabeth Foundation assured her that the adoption would be " open"

and that she would be allowed to maintain visits and contact with her biological

child. St. Elizabeth Foundation then paid for Ms. Haile' s food, clothing, rent,

medical care, and other living expenses. Ms. Haile averred that she spoke with a

Page I of 2

clinical psychologist prior to executing the voluntary act of surrender, but that she

only participated in one counseling session, not the requisite two counseling

sessions. Ms. Haile alleged that she was not represented by her own attorney prior

to or at the time she executed the voluntary act of surrender, but was instead

counseled by an attorney paid for by the adoptive parents. Ms. Haile signed the

voluntary act of surrender after assurances from St. Elizabeth Foundation of the

open" nature of the adoption.

Ms. Haile alleged that immediately after she executed the voluntary act of

surrender, she attempted to revoke the surrender that same day after she was

allegedly " told there would be no further contact and that she would never see her

child again." She claims that St. Elizabeth Foundation refused to " adhere to her

revocation of consent" to the voluntary act of surrender. Ms. Haile asserts it took her

several months thereafter to raise the necessary funds to hire her own attorney due

to her lack of financial means to challenge the voluntary act of surrender.

The majority is correct that the period. established by La. Ch.C. art. 1148 is

peremptive and that a surrendering parent loses the right to petition for the nullity of

a surrender of parental rights after the passage of ninety days from the execution of

the surrender or the entering of an adoption decree, whichever is earlier. Here, the

peremptive period for Ms. Haile to bring an action to annul her surrender expired on

October 19, 2022. What the peremptive law fails to recognize, however, is the

reality— and often dire circumstances— that indigent, unwed mothers face. The

promise of financial assistance can exert immense pressure, leading some mothers

to enter into agreements, such as voluntary acts of surrenders for adoption, that they

might not have consented to under less desperate conditions. It may be prudent for

the Legislature and the Louisiana Law Institute to review these procedures to ensure

fairness, the best interest of the child, and to confront the harsh reality faced by
indigent, unwed mothers.

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