In Re: D.L.D. Applying for Intrafamily Adoption

Judgment rendered January 13, 2021.
Application for rehearing may be filed
within the delay allowed by Art. 2166,
La. C.C.P.

No. 53,758-CA

COURT OF APPEAL
SECOND CIRCUIT
STATE OF LOUISIANA

*****

IN RE: D.L.D.
APPLYING FOR INTRAFAMILY ADOPTION

*****

Appealed from the
Fourth Judicial District Court for the
Parish of Morehouse, Louisiana
Trial Court No. 737-A

Honorable Sharon Marchman, Judge

*****

E.T.F. Appellant, In Proper
Person

AMY COATH JOHNSON Counsel for Appellee,
D.L.D.

SCOTTY W. LOWERY Counsel for Appellees,
G.T.F. and Z.T.F.

*****

Before PITMAN, GARRETT, and COX, JJ.

GARRETT, J.

ETF, the biological father of GTF and ZTF, appeals from a trial court

judgment finding that the father’s consent to an intrafamily adoption was not

required and a judgment granting the adoption.1 The father argues that his

due process rights were violated because the trial court did not appoint

counsel to represent him in proceedings which resulted in the termination of

his parental rights. For the following reasons, we reverse and remand to the

trial court for further proceedings.

FACTS

ETF and VFD were married and had two children, GTF, born

September 15, 2003, and ZTF, born March 14, 2005. GTF is nonverbal and

autistic. The parents divorced in July 2009 and were granted joint custody

of the children with VFD being named as the domiciliary parent. ETF was

ordered to pay $397 per month in child support. VFD married DLD on

January 22, 2011.

On March 9, 2020, DLD filed a petition for stepparent adoption. He

claimed that ETF had gone more than six months at a time without

contacting the children and was $56,000 in arrears in his child support

payments. DLD asserted that the consent of ETF to the adoption was not

required, pursuant to La. Ch. C. art. 1245(C)(2), because he had failed to

visit, communicate, or attempt to communicate with the children without

just cause for multiple periods in excess of six months. VFD executed an

authentic act of consent to the adoption.

1
Pursuant to URCA 5-1 and 5-2, the initials of the parties involved will be used
to protect the minors’ identities.

On April 3, 2020, an opposition to the adoption was filed into the suit

record. The opposition was dated March 31, 2020. It is in the format of an

email in the form of a letter sent from an iPhone to Brenda Hale, who is

ETF’s mother, and was signed by ETF. In the opposition, ETF claimed that

the information in the adoption petition was inaccurate. He maintained that

he had always been a part of his children’s lives, particularly GTF, who is

severely autistic. ETF asserted that GTF had spent days with him and had

lived with him on several occasions. According to ETF, VFD wanted to

place GTF in a facility in Alexandria, hours away from the family. ETF

opposed the decision and claimed the adoption was VFD’s way of getting

GTF into the facility without ETF’s approval. No request for an attorney

was made in this short one-page document. After the opposition was filed,

the trial court appointed an attorney to represent the children.

This matter was instituted in the early days of the COVID-19

pandemic of 2020. A hearing was scheduled on May 6, 2020. The

petitioner and his attorney and the attorney for the children appeared in court

via live video feed. ETF appeared in person for the hearing. The court

stated that, according to DLD, ETF’s consent to the adoption was not

required because he had failed to contact the children for a period in excess

of six months without just cause. The court noted that ETF opposed the

petition. The court stated that “because of our Covid-19 orders” it was not

in a position to actually take up a hearing on the matter that day.

The court recognized that ETF appeared without an attorney. ETF

said he tried to call “Legal Aid,” but “These numbers didn’t work. It went to

a number that was out of service and I can’t afford an attorney.” ETF stated

that he was not sure what to do. The court instructed ETF to find the
2

number for “Legal Services of North Louisiana.” The court said, “Now you

did not allege in your opposition that you filed that you were unable to

afford to hire an attorney. So your recourse is to go to a legal aid [service].

Do you understand that?” ETF said that he understood.

The court rescheduled the hearing for June 10, 2020, and stated that

the issue before the court would be whether ETF’s consent was required for

the adoption. The court said that DLD would have the burden of proving

that ETF had not had contact with the children for six months or more. The

court discussed at length that, if DLD proved that ETF had not had contact

with the children for six months, his consent to the adoption would not be

required.

The attorney for DLD stated that “Just in the spirit of full disclosure, I

want to make clear that there were two grounds for . . . not needing his

consent for the adoption and the other is that he has failed to pay child

support for a period of greater than six months as well.” The court examined

the petition and noted the allegation that ETF was $56,000 in arrears in child

support. According to the court, this was not sufficient to properly raise the

failure to pay child support for six months as a ground for dispensing with

ETF’s consent to the adoption. At the close of the hearing, the trial court

again urged ETF to contact Legal Services and said it would try to provide a

phone number for him.

On May 8, 2020, DLD filed an amended petition. He alleged that the

consent of the biological father to the intrafamily adoption may be dispensed

with under both La. Ch. C. art. 1245(B)(1) and (B)(2) because ETF had

refused or failed to comply with a court order of support without just cause

for a period of at least six months and because he had refused or failed to
3

visit, communicate or attempt to communicate with the children without just

cause for multiple periods in excess of six months each.2 The notice for the

amended petition was not issued by the clerk of court until June 2, 2020, and

was not served on ETF until June 3, 2020. The notice contained the hearing

date of June 10, 2020.

At the hearing on June 10, 2020, the parties appeared in court in

person. No further mention was made of ETF’s lack of an attorney other

than the court’s observation that he was representing himself. The court

explained to ETF the applicable burden of proof and the order of the trial.

ETF’s interactions with the court demonstrated that he did not fully

understand the proceedings.

According to the trial court, the narrow issue before it was whether

ETF’s consent to the adoption was necessary. The court noted that consent

would not be required if there was proof that, during any six-month period

of time, the father failed to pay his court-ordered child support or that he

failed to visit the children or call and inquire about them for a period of six

months without just cause. The trial court heard testimony from VFD, DLD,

and ETF. The court found that ETF admitted that he had not made any

payments of child support since 2010, a period in excess of six months. The

trial court found that fact alone made ETF’s consent to the adoption

unnecessary. The trial court also found that more than six months passed

when ETF did not see either child. The trial court failed to make the

required determination as to whether the failure to pay child support or visit,

2
In the amended petition, DLD erroneously cites La. Ch. C. arts. 1245(B)(1) and
(B)(2), rather than (C)(1) and (C)(2).
4

call, or inquire about the children for more than six months was without just

cause.

The court noted that another hearing would be necessary to determine

whether the adoption should be granted. ETF was instructed that he would

not be allowed to participate in that hearing because his consent to the

adoption was not necessary. He asked how he could get visitation with his

son and was told that he should contact an attorney. He was told that, if the

adoption was granted, his parental rights would be terminated and he would

not have visitation rights. He was again instructed to consult with an

attorney. A judgment dispensing with the consent of the biological father,

pursuant to La. Ch. C. art. 1245, was signed by the trial court on June 24,

2020.

On June 12, 2020, ETF filed a motion to proceed in forma pauperis,

stating that he is disabled. The motion was granted by the trial court. He

also filed a complaint against the trial judge, VFD and DLD, in the Fourth

Judicial District Court on a federal court form alleging that the trial court

violated his civil rights by failing to assign him an attorney when he asked

for one, to assign written reasons for the judgment, and to allow him to

appeal the decision. On June 24, 2020, the trial court made a written

notation on the filing which stated:

Relief requested is denied as mover filed in the wrong court
using Federal District Court forms. Furthermore, mover failed
to request an attorney during these proceedings.

On June 17, 2020, ETF filed a handwritten request to appeal the trial

court judgment rendered in open court on June 10, 2020. He claimed that

his constitutional rights had been violated. On July 1, 2020, after the

5

intrafamily adoption was granted, the trial court made the following notation

on ETF’s filing, “See separate order granting return date for appeal.”

On June 22, 2020, ETF filed an ex parte motion to stay the

proceedings, which was denied by the trial court, noting that ETF would

have the right to suspensively appeal from a judgment of adoption if one is

granted. ETF filed a second motion to proceed in forma pauperis, which

was denied as moot because the first motion was granted.

On July 1, 2020, the trial court held a hearing on the adoption in

chambers. The written judgment granting the adoption states that the

adoption was found to be in the best interest of the children “for reasons

orally assigned.” That hearing was not recorded or transcribed. The trial

court signed an order allowing ETF to appeal the judgment granting the

adoption. The trial court also made the notation referenced above on ETF’s

request to appeal the June 10, 2020 ruling. A notice of intent to apply for

writs was denied because an appeal was granted.

On appeal, ETF argues that his due process rights were violated when

the trial court failed to appoint counsel for him. ETF also urges that there

was no clear and convincing evidence to justify termination of his parental

rights and that it was not in the best interest of the children to terminate his

parental rights.

DUE PROCESS AND
APPOINTMENT OF COUNSEL

ETF is appearing in proper person in this appeal. He asserts that he

told the trial court he could not afford a lawyer and he claims that his due

process rights were violated because the court did not appoint a lawyer to

represent him in these proceedings which resulted in the termination of his

6

parental rights. ETF stated in his brief, “When I asked [the trial court] about

a lawyer because I couldn’t afford one she provided me with a paper with

phone numbers to legal aid. I tried calling legal aid numerous times to no

avail.”

For the reasons outlined below, we find that the trial court erred in

failing to conduct an inquiry as to whether ETF was entitled to appointed

counsel and we are constrained to reverse the trial court judgments.

Legal Principles

Intrafamily adoptions are authorized by La. Ch. C. arts. 1170 and

1243, et seq. The persons who may petition for an intrafamily adoption are

set forth in La. Ch. C. art. 1243, which provides in pertinent part:

A. A stepparent, . . . may petition to adopt a child if all of the
following elements are met:

(1) The petitioner is related to the child by blood, adoption, or
affinity through the mother of the child or through a father who
is filiated to the child in accordance with the Civil Code.

(2) The petitioner is a single person over the age of eighteen or
a married person whose spouse is a joint petitioner.

(3) The petitioner has had legal or physical custody of the child
for at least six months prior to filing the petition for adoption[.]

La. Ch. C. art. 1193 states in part:

Unless rights have been terminated in accordance with Title X
or XI, consent to the adoption of a child or relinquishment of
parental rights shall be required of the following:

....

(2) The father of the child, regardless of the child’s actual
paternity, if any of the following apply:

(a) The child is a child born of the marriage in
accordance with the Louisiana Civil Code or its legal equivalent
in another state[.]

7

Regarding the consent of a parent, La. Ch. C. art. 1244 provides in

part:

A. Except as otherwise provided herein, any parent may
execute an authentic act consenting to the adoption of his child
in an intrafamily adoption, including a waiver of service or
notice for any subsequent proceeding.

B. If the parent of a child born of marriage is married to the
stepparent petitioner and executes an authentic act of consent,
he need not join in the petition nor be served with a copy
thereof [.]

Opposition to an intrafamily adoption is governed by La. Ch. C. art. 1244.1:

A. A parent, whose rights have not been terminated in
accordance with Title X or XI or who has not previously
consented to the adoption in accordance with Article 1244, may
oppose the adoption of his child by filing a clear and written
answer and opposition to the adoption. The answer and
opposition shall be filed with the court within fifteen days from
the time of service of the filing of an intrafamily adoption
petition.

B. Upon receipt of the opposition, the court shall appoint an
attorney to represent the child, subject to the limitations in
Article 1121. Neither the child nor anyone purporting to act on
his behalf may be permitted to waive this right. The costs of the
representation of the child shall be taxed as costs of court.

C. When the opposition provides that the parent cannot afford
to hire an attorney, the court shall determine whether due
process requires the appointment of counsel within twenty-one
days of the filing of the opposition.

D. Notice shall be served in accordance with Articles 1133 and
1134 on the opposing parent, the legal custodian, the petitioner,
counsel appointed for the child, counsel appointed for the
parent, and the other parent not consenting to the adoption
pursuant to Article 1144 or whose rights have not previously
been terminated. [Emphasis supplied.]

Regarding instances in which parental consent to an intrafamily

adoption is not required, La. Ch. C. art. 1245 provides in pertinent part:

A. The consent of the parent as required by Article 1193 may
be dispensed with upon proof by clear and convincing evidence
of the required elements of either Paragraph B or C of this
Article at the hearing on the opposition and petition.
8

....

C. When the spouse of a stepparent petitioner has been granted
sole or joint custody of the child by a court of competent
jurisdiction or is otherwise exercising lawful custody of the
child and any one of the following conditions exists:

(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.

(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 failure of a parent to communicate with the child or to provide

court-ordered support for the child without just cause represents a failure by

the parent to foster the parent-child relationship and allows a stepparent to

adopt the child. See In re Puckett, 49,046 (La. App. 2 Cir. 4/17/14), 137 So.

3d 1264. An intrafamily adoption terminates parental rights of the

biological parent who has failed to contact and/or support the child without

just cause. See La. Ch. C. art. 1256.

The party petitioning the court for adoption carries the burden of

proving that a parent’s consent is not required under the law by clear and

convincing evidence. Once a prima facie case is proven, the burden of proof

shifts to the nonconsenting parent to show that his failure to visit the

children or to comply with the child support order was due to factors beyond

his control. In re B.J.C. Applying for Intrafamily Adoption, 51,110 (La.

App. 2 Cir. 9/28/16), 206 So. 3d 337.

Even if the parent’s failure was without just cause, the judge

nonetheless must determine whether the proposed adoption and consequent

severance of the parental relationship are in the best interest of the child.

9

Adoption of Latiolais, 384 So. 2d 377 (La. 1980); In re K.L.H., 1999-1995

(La. App. 3 Cir. 9/20/00), 771 So. 2d 706.

With regard to intrafamily adoptions, La. Ch. C. art. 1244.1 does not

grant an absolute right to counsel to an opposing parent in an intrafamily

adoption case, but it does provide the mechanism for the trial court to

determine if due process requires the appointment of counsel. See In re

T.E.N., 15-100 (La. App. 5 Cir. 6/30/15), 171 So. 3d 1219.

Due process requirements and concerns in termination of parental

rights have been considered by the United States Supreme Court in Lassiter

v. Department of Soc. Serv. of Durham Cty., 452 U.S. 18, 101 S. Ct. 2153,

68 L. Ed. 2d 640 (1981). In that case, the Supreme Court considered

whether the right to appointed counsel existed in state-instituted proceedings

to terminate parental rights. The plaintiff mother had been convicted of

second-degree murder and was serving a lengthy prison sentence. The State

of North Carolina sought to terminate her parental rights because she had

failed to communicate with her child or inquire about his well-being after he

was taken into state care. The plaintiff was brought to the hearing and the

court determined that she was given ample opportunity to obtain counsel and

was without just cause for failing to do so. At the hearing, the plaintiff did

not argue that she was indigent and the trial court did not appoint counsel for

her. After her parental rights were terminated, she appealed, arguing that,

because she was indigent, the Due Process Clause of the Fourteenth

Amendment entitled her to the assistance of counsel, and the trial court erred

in not appointing counsel for her.

Based on its precedents of what fundamental fairness means when

considering the right to counsel, the Supreme Court determined that there is
10

a presumption that an indigent has a right to appointed counsel only when, if

he loses, he may be deprived of his physical liberty. Lassiter, supra.

However, the court considered that, in some cases, due process may require

appointment of counsel. The Supreme Court then noted the case of Mathews

v. Eldridge, 424 U.S. 319, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976), which set

forth three elements to be evaluated in deciding what due process requires:

the private interests at stake, the government’s interest, and the risk that the

procedures used will lead to erroneous decisions. These elements must be

balanced against each other, and then against the presumption that there is a

right to appointed counsel only where the indigent, if he is unsuccessful,

may lose his personal freedom. Lassiter, supra.

In summarizing the Eldridge factors in light of the right to counsel

when a state seeks to terminate an indigent parent’s rights, the Supreme

Court in Lassiter stated:

[T]he parent’s interest is an extremely important one (and may
be supplemented by the dangers of criminal liability inherent in
some termination proceedings); the State shares with the parent
an interest in a correct decision, has a relatively weak pecuniary
interest, and, in some but not all cases, has a possibly stronger
interest in informal procedures; and the complexity of the
proceeding and the incapacity of the uncounseled parent could
be, but would not always be, great enough to make the risk of
an erroneous deprivation of the parent’s rights insupportably
high.

The Supreme Court ultimately concluded that it would leave the decision of

whether due process calls for the appointment of counsel for indigent parents

in termination proceedings to be answered in the first instance by the trial

court, subject, of course, to appellate review.3

3
Louisiana is among the states that statutorily provide for appointment of counsel
in state-instituted termination proceedings. See La. Ch. C. art. 1016.
11

Discussion

Strictly limited to the unique facts presented here, we find that the

trial court erred in failing to inquire into whether ETF’s due process rights

necessitated the appointment of legal counsel. The present matter is similar

to the issues presented in In re B.J.C., 49,852 (La. App. 2 Cir. 4/15/15), 163

So. 3d 905. In that case, the trial court granted an intrafamily adoption to a

stepfather when the biological father, who was incarcerated, filed a pro se

opposition to the adoption. The father did not request the appointment of

counsel in his opposition. The trial court held a hearing on the adoption and

the father was not present in court. The trial court granted the adoption and

the father appealed, arguing numerous errors in the trial court proceedings

and judgment, including the failure of the trial court to appoint an attorney to

represent him. In reversing the adoption and remanding for further

proceedings, this court found that the trial court failed to strictly construe La.

Ch. C. arts. 1244 and 1245. Regarding La. Ch. C. art. 1244.1, this court

stated:

Article 1244.1(B) requires that an attorney be appointed to
represent the children, which the trial court so ordered. But
subsection C of the article also provides, if necessary, for the
appointment of legal representation of the parent against whom
the adoption is brought, i.e., in this case, the biological father.
His opposition was made pro se, so obviously at the time of
filing his opposition, the biological father was unrepresented by
legal counsel. Although the biological father’s opposition does
not explicitly state that he could not afford an attorney, notably,
he was incarcerated at the time he responded pro se. The
record does not indicate that the trial court made any attempt to
determine whether the biological father was entitled to the
appointment of counsel. It would appear that the fact that the
biological father made his opposition pro se and he was
incarcerated, the trial court had a strong indicator that the
biological father was unable to afford an attorney. Considering
the seriousness of the matter—termination of the biological
father’s parental rights—at the very least, an inquiry should
have been made as to whether he needed the appointment of
12

legal counsel. The record does not reflect that the trial court
made any such inquiry.

In this case, ETF was served with the original petition and the

amended petition and, in each instance, the notice required by La. Ch. C. art.

1247 was given.4 This was the only instruction given to ETF about

requesting the appointment of counsel. That notice states in pertinent part:

4
The notices were not in the appellate record that was lodged with this court.
After oral argument, the record was supplemented. The notice required by La. Ch. C. art.
1247 states in part:

A. Except when waived in accordance with the provisions of Title
XI or XII, notice of the filing of the petition for intrafamily adoption shall
be issued by the clerk and served, together with a copy of the petition, on
every parent whose consent to the adoption is required pursuant to Article
1193 and whose parental rights have not been terminated by a court of
competent jurisdiction, and shall state:

Notice

Louisiana law provides that under certain circumstances your
consent to the adoption of your child may be dispensed with and you can
permanently lose your rights as a parent by final decree of adoption. An
intrafamily adoption petition has been filed requesting the court to grant
an adoption and terminate your parental rights to your child. A copy of the
petition is attached to this notice. If you do not file a written answer
stating your opposition to the adoption within fifteen days of receiving this
notice you will lose the right to object to the adoption. If you choose to file
a written answer stating your opposition to the adoption you must file it
with the clerk of court at _______________. Only if you file an answer
stating your opposition to the adoption will you have an opportunity to
present your opposition to the adoption. If you file an answer stating your
opposition, the court will set a hearing, and you will receive notice of the
hearing of your opposition.
If you do not file an answer stating your opposition, and if the
court at the adoption hearing finds that the facts set out in the petition are
true and that adoption is in the best interests of your child, the court can
enter a judgment ending your rights to your child. If the judgment
terminates your parental rights, you will no longer have any rights to visit
or to have custody of your child or make any decisions affecting your
child, and your child will be legally freed to be adopted.
This is a very serious matter. You should contact an attorney
immediately so that he or she can help you determine your rights. You
have the right to hire an attorney and to have him or her represent you. If
you cannot afford to hire an attorney and you oppose the adoption, your
answer stating your opposition may request that the court determine if you
have the right to have an attorney appointed. If you have filed an answer
stating your opposition, whether or not you decide to hire an attorney, you
will have the right to attend the hearing of your case, to call witnesses on
your behalf, and to question those witnesses brought against you.
You may call the telephone number on the attached form for
information concerning free legal aid. If you have any questions
13

If you cannot afford to hire an attorney and you oppose
the adoption, your answer stating your opposition may request
that the court determine if you have the right to have an
attorney appointed. [Emphasis supplied.]

An examination of the required notice shows that it is long and

complicated and the information about requesting the appointment of

counsel is located deep in the text. The notice did not state that a party

opposing an adoption must request the appointment of an attorney in his

opposition or forfeit any consideration of appointment of counsel by the trial

court.

In the present case, ETF filed a pro se opposition to the intrafamily

adoption. ETF is obviously unsophisticated in legal matters and, even

though he did not request the appointment of counsel in his opposition, he

did appear in person at the hearing on May 6, 2020, and placed his indigency

at issue. He expressly told the trial court that he could not afford counsel,

and indicated that he wanted the assistance of counsel. He stated that he had

tried unsuccessfully to contact legal aid services. Even though ETF did not

formally assert his indigency prior to the June 2020 hearing, he later filed a

motion to proceed in forma pauperis, which was granted by the trial court.

Therefore, his indigency has been established.

It is important to note that this case occurred during the early days of

the COVID-19 pandemic when many businesses were closed or working

remotely. This factor may have hampered ETF’s ability to contact a legal

aid service. At that point, when ETF stated that he could not afford an

attorney and indicated his desire for legal assistance in this very important

concerning this notice, you may call the telephone number of the clerk’s
office which is ___________[.] [Emphasis supplied.]

14

matter, rather than inquire into whether due process and fundamental

fairness required the appointment of counsel for ETF, the trial court simply

told ETF that, because he failed to include a request for appointed counsel in

his opposition, he was no longer entitled to it.

In spite of the difficulties experienced by courts across the state as a

result of the closures precipitated by the COVID-19 pandemic, this

intrafamily adoption proceeded quickly. The June 2020 hearing on whether

ETF’s consent to the adoption was necessary was held only three months

after the filing of the original petition, one month after the May hearing

where ETF requested counsel, and one month after the petition was

amended. The amended petition, which added the issue of nonpayment of

child support, was not served on ETF until June 3, 2020. The hearing was

held on June 10, 2020, only seven days later. La. Ch. C. art. 1137 gives a

parent opposing an adoption 15 days within which to file an opposition.

ETF was not given the full time to do so afforded by law.

After hearing the evidence regarding whether ETF’s consent to the

intrafamily adoption was required, the trial court found that ETF had failed

to pay child support and to contact the children for six months or more, but

made no determination as to whether those failures were without just cause.

The record reflects that ETF was unsure what the procedure in court would

be and, at the close of the hearing in June 2020, when the trial court

concluded that his consent was not required, ETF exhibited a lack of

understanding that his parental rights had been terminated, that he had lost

the right to visit either child or have any part in their lives, and that he could

not appear at the hearing to determine whether the intrafamily adoption was

in the best interest of the children.
15

ETF’s indigency has been established. We make no ruling as to

whether ETF is entitled to the appointment of counsel. However, under the

specific and unique circumstances of this case, we find that due process and

fundamental fairness require that the trial court make the inquiry as to

whether counsel should be appointed. This opinion should not be construed

to hold that, in all instances, trial courts will be required to inquire into the

necessity for counsel or to appoint counsel for every biological parent faced

with the loss of parental rights in intrafamily adoptions where that request

has not been made in the opposition. In this case, given ETF’s clear

statement at the first court appearance that he could not afford an attorney,

his obvious desire to have legal assistance in this very serious matter, the

difficulties involved in proceeding in this matter during a time when many

businesses were closed due to the pandemic, and the short time periods

involved here, we find that the trial court should have inquired into whether

the principles of fundamental fairness required appointment of counsel. The

trial court erred in failing to do so. This failure requires that the trial court

judgments, which found that ETF’s consent was not required and that the

adoption was in the best interest of the children, be vacated and the matter

remanded to the trial court for further proceedings in accordance with this

opinion.5 Because we vacate the judgments and remand for further

proceedings, ETF’s arguments on appeal regarding whether DLD presented

5
We make two observations concerning this record. First, ETF stated in court
that he does not oppose the adoption of ZTF. ETF may be willing to consent to that
adoption under La. Ch. C. art. 1244. Second, the hearing on whether the adoptions were
in the best interest of the children was not recorded, even though the trial court stated that
the decision was based upon reasons orally assigned. Should the trial court, on remand,
reach a hearing on whether the intrafamily adoption is in the best interest of the children,
we strongly urge that the proceedings be recorded to facilitate appellate review in the
event it becomes necessary.
16

clear and convincing evidence to terminate parental rights and whether the

adoption was in the best interest of the children are not considered.

CONCLUSION

For the reasons stated above, we vacate the judgments finding that

ETF’s consent was not necessary for this intrafamily adoption and granting

the petition for adoption filed by DLD. The matter is remanded to the trial

court for further proceedings in accordance with this opinion. All costs in

this court are assessed to DLD.

REVERSED AND REMANDED.

17