In Re: Kaitlyn Layne Boyd Cobb Applying for Intra Family Adoption of A.E.C.

Judgment rendered November 15, 2023.
Application for rehearing may be filed
within the delay allowed by Art. 2166,
La. C.C.P.

No. 55,401-JAC

COURT OF APPEAL
SECOND CIRCUIT
STATE OF LOUISIANA

*****

IN RE:
KAITLYN LAYNE BOYD COBB APPLYING FOR INTRA FAMILY
ADOPTION OF A.E.C.

*****

Appealed from the
Fifth Judicial District Court for the
Parish of West Carroll, Louisiana
Trial Court No. 332

Honorable John Clay Hamilton, Judge

*****

THE LOWERY LAW FIRM Counsel for Appellant,
By: Scotty Wayne Lowery Kaitlyn Layne Boyd
Cobb

BARRY W. DOWD, APLC Counsel for Intervenor-
By: Barry W. Dowd Appellee, Shelby
Danyell Smith

*****

Before STEPHENS, THOMPSON, and HUNTER, JJ.

HUNTER, J.

Plaintiff, Kaitlyn Layne Boyd Cobb, appeals the trial court’s ruling

denying her petition for intrafamily adoption and her motion for new trial.

The trial court concluded the mother of the child met her burden of proving

just cause for her failure to provide financial support and to visit and/or

communicate with the child for a period of at least six months. For the

following reasons, we affirm.

FACTS

Defendant, Shelby Danyelle Smith (“the mother”) and Landon Tylar

Cobb (“the father”), are the parents of A.E.C, born December 16, 2011. At

the time of A.E.C.’s birth, the mother was 14 years old, and the father was

17 years old. The mother has struggled with substance abuse issues and has

been incarcerated for drug-related offenses.

In 2016, the father was granted sole custody of A.E.C., and the mother

was granted limited supervised visitation at the father’s discretion. The

judgment further provided as follows:

***
[A]ny visitation with the child, of any type, by [the mother] is
contingent upon her enrollment in, and successful completion
of, a drug and alcohol treatment program and random drug
screenings through Northeast Louisiana Substance Abuse
program in Oak Grove, Louisiana; and, should she fail to enroll
in and successfully complete such a substance abuse program,
or test positive at any time for illegal or illicit drugs, then any
rights to visitation by her shall be terminated without further
order of the Court[.]
***

The mother was also ordered to “ensure that all documentation of any

drug screen or substance abuse program and all drug screen results be

furnished to counsel for [the father].” Further, the mother was ordered to

pay child support in the amount of $150 per month, in addition to arrears.

The mother was incarcerated when the judgment was entered. Additionally,

the father was represented by counsel during the custody proceedings, but

the mother was not.1

In 2017, the father began cohabiting with Kaitlyn Layne Boyd Cobb

(“the stepmother”), and the couple married on December 11, 2021. Soon

thereafter, on December 22, 2021, the stepmother filed a petition for the

intrafamily adoption of A.E.C., alleging, inter alia, the mother had not

provided financial support for the child in more than six months; the mother

had not visited or communicated with the child in more than six months; the

child had been living with her (the stepmother) for at least six months prior

to the filing of the petition for adoption; the mother had forfeited her right to

consent to the adoption; and it was in the best interest of the child to grant

the petition for adoption. The father signed an affidavit concurring with the

petition for adoption.

On February 14, 2022, a hearing on the adoption petition was held.

The father and stepmother were represented by counsel, and the mother was

unrepresented. The trial court determined it was in the best interest of the

child for the adoption to proceed and granted the petition for adoption. The

1
The judgment provided:

PLEASE SEND JUDGMENT and NOTICE OF JUDGMENT TO:

[The mother]
131 Taylor Steet
Oak Grove, Louisiana 71263

OR

Morehouse Parish Jail

However, there is no indication of record the mother was ever served with the judgment
or notice of judgment.

2

court signed a judgment terminating the parental rights of the mother and

granting a final decree of adoption. The mother appealed, and this Court

vacated the judgment, finding the mother had not been served with notice as

mandated by La. Ch. C. art. 1247. In re Boyd for Intra Fam. Adoption of

A.E.C., 54,807 (La. App. 2 Cir. 9/21/22), 349 So. 3d 1035.

Following remand, a hearing was held. After hearing the testimony

and reviewing the evidence, the trial court found the mother failed to comply

with the court order to pay child support and failed to visit and/or

communicate with the minor child for a period of at least six months.

However, the court denied the petition for adoption, finding the mother met

of burden of proving just cause for her failures. The trial court stated:

[B]ased on the testimony and the exhibits introduced, consisting
primarily of phone messages and text messages attempted by
the mother, Shelby Smith, to communicate with the child, this
Court finds that the mother has met her burden by a
preponderance of the evidence, in establishing just cause for her
failure to provide support or communicate with the child. This
finding is based on the numerous and consistent attempts that
the mother, Shelby Smith, made to establish communication
with the child through phone conversations and text messages
which were, for the most part, consistent and persistent
subsequent to her release from prison. While this Court firmly
believes that the mother’s attempts to establish communication
could have been more substantial, the Court finds that the low
threshold of her burden, being only a preponderance of the
evidence, has been established.

Thereafter, the stepmother filed a motion for new trial arguing the trial

court “dispensed with the issue of ‘best interest’ and thus disposed of the

entire adoption proceeding, thereby bypassing the need for an evidentiary

hearing in accordance with La. Ch. C. 1253[.]” The stepmother also argued

the court erred in failing to consider the child’s wishes. Further, the

stepmother took issue with the legal representation provided by the attorney

3

appointed to represent the child. According to the stepmother, the attorney

did not “make contact with the family or interview the child prior to the

hearing, did not examine or cross-examine any witnesses, called no

witnesses on behalf of the child, and offered up no report on behalf of the

child.” The trial court denied the stepmother’s motion for new trial, stating:

***
[B]ecause this Court found that the mother’s consent to the
adoption was required, and that she had not executed an act of
surrender nor had her parental rights been involuntarily
terminated, that the Petition for Intra-Family Adoption should
be dismissed, with no need to proceed to a “best interest”
hearing.
***

The stepmother appeals.

DISCUSSION

The stepmother contends the trial court erred in denying her petition

for intrafamily adoption. She argues she met her burden of proving the

mother had not communicated with the child or paid child support for a

period of at least six months; therefore, she made a prima facie showing the

mother’s consent to the adoption was not necessary. The stepmother further

contends the burden shifted to the mother to show her failure was due to

factors beyond her control, and she failed to meet that burden. Additionally,

the stepmother asserts the trial court erred in refusing to make a

determination of whether the adoption was in the best interest of the child in

this case.

Intrafamily adoptions are authorized by the Louisiana Children’s

Code. The persons who may petition for an intrafamily adoption are set

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

4

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 a father who is filiated to the child in
accordance with the Civil Code.

(2) The petitioner is *** 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[.]

Unless rights have been terminated, consent to the adoption of a child

or relinquishment of parental rights shall be required of the mother of the

child. See, La. Ch. C. art. 1193. With regard to 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.
***
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. In re R.A.L., 54,052 (La. App. 2 Cir. 7/14/21), 323 So. 3d

1006; In re D.L.D., 53,758 (La. App. 2 Cir. 1/13/21), 310 So. 3d 314; In re

5

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 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 his or her failure to visit the

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

his or her control. In re R.A.L., supra; In re D.L.D., supra; In re B.J.C.

Applying for Intrafamily Adoption, 51,110 (La. App. 2 Cir. 9/28/16), 206 So.

3d 337.

In the instant case, as the stepmother noted, she met her burden of

proving the mother failed to visit and/or communicate with the child or to

comply with the child support order for a period of at least six months.

Thus, the burden of proof shifted to the mother to show her failure to visit

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

beyond her control.

During the hearing, the father testified he works on a riverboat, which

requires him to rotate “28 days on” followed by “14 days off.” He stated the

stepmother assumed the responsibility for communicating with the mother

regarding the child. According to the father, the mother had not had any

physical visitation with the child since March 28, 2016. Further, the father

testified the mother was incarcerated when the custody/child support

judgment was entered. He also stated the mother communicated with the

6

child via telephone when she was incarcerated, and she continued to do so

after she was released. However, he testified the mother was not allowed to

physically visit with the child because she had not complied with the court’s

order to submit proof of her completion of a rehabilitation program. He

testified the mother had requested to “be a part of [A.E.C.]’s life”; however,

he refused to “go against . . . what the Judge had written down for us to – to

abide by.” Additionally, the father testified in November 2021, less than one

month before he and the stepmother were married, the mother asked the

stepmother for their address so she could “send support.” He admitted he

and the stepmother refused to provide the mother with their address because

he wanted to “talk to my attorney.” The father stated the mother repeatedly

attempted to communicate with the child via telephone until the stepmother

declared, “We’re stopping this.” Shortly thereafter, he and the stepmother

were married and filed the petition for adoption.

The stepmother testified the mother had never physically visited or

enjoyed any “outings” with the child during the time she had been involved

in the child’s life. She stated the mother would intermittently ask to visit the

child, and she told her “time and time that until we seen [sic] the drug

screens and rehab proof, that we were sticking to the Court orders.”

During cross-examination, the stepmother testified the mother sent her

a text message in November 2021, asking for their address so she could send

child support. She stated, “We told [the mother] we would have to speak to

our lawyer[.]” The stepmother also admitted the mother had communicated

with her and the child in November 2021, the same day she inquired about

the address. She testified the mother talked to the child on the telephone on

7

numerous occasions in 2020, “whenever [the child] wished to talk.” The

stepmother further testified with regard to the mother’s attempts to

communicate with the child as follows:

Well, around January was whenever [A.E.C.] decided that she
no longer wanted to talk to [the mother] so for a couple of
months I tried to keep the peace and just ignored the situation,
you know, tell [the mother] ‘[A.E.C.] is playing’ ‘[A.E.C.]’s
doing this’ and then around March is whenever we told [the
mother] you know ‘[A.E.C.] has decided she doesn’t want to
talk any more. We’ll let you know if and when she decides that
she wants to communicate.’
***

The stepmother testified the mother continued to attempt to

communicate multiple days of each month “for the most part,” until the

petition for adoption was filed. She also testified the mother was unaware

A.E.C. owned a phone; therefore, all attempts to communicate with A.E.C.

were made by contacting the stepmother’s cell phone. The stepmother

stated she acted as “the stepmother and communicator for [A.E.C.] for five

and a half years,” and the telephone conversations between A.E.C. and the

mother occurred “at least every month to a month and a half.”

Additionally, the stepmother testified she sent a photograph of the

judgment to the mother because “[s]he needed to know what she needed to

do in order to have visitation[.]” However, the photograph she provided was

introduced into the record and did not include the child support order.

Nevertheless, the stepmother insisted the mother “knew she was supposed to

pay child support.” She also stated the mother provided gifts for A.E.C. “on

two birthdays, one Christmas and one Easter.” She stated the mother did not

have their “exact address”; however, “she knows where we live [because]

it’s a small town.”

8

Moreover, the stepmother testified she and the father were not

romantically involved when the 2016 custody/visitation/child support

judgment was entered, and she was not present during those proceedings.

However, she testified the mother was aware of the child support obligation

because “we had spoke[n] about it,” and she (the stepmother) “read off the

Court papers to her.” She stated the mother did not have a copy of the

judgment, “or she had misplaced it,” so she (the stepmother) read it to her

“top to finish.” The stepmother also testified she sent the mother “a picture

of the papers.” However, when asked to produce the text messages and/or

photographs of the judgment she sent to the mother, the only portion of the

judgment depicted in the text messages concerned the restrictions of

visitation.

Rachel Brown testified she had known the stepmother and mother “all

my life,” and she had personally witnessed the mother’s attempts to

communicate with the child. Brown stated, “Sometimes she would call and

they would let her talk, sometimes [the stepmother] wouldn’t let her talk,

[the stepmother] would say, ‘[A.E.C.]’s busy[.]’” Brown also testified the

mother would attempt to communicate with the child by texting the

stepmother, and if the stepmother did not respond to the text message or

answer the phone, the mother would “just call her the next day.” Brown

further testified while in the company of the stepmother, she had witnessed

the stepmother telling the mother the child did not want to speak to her

without conferring with the child. Additionally, Brown stated the

stepmother stopped allowing the mother to talk to A.E.C. in January 2021;

9

however, the mother continued to “call her at least every week” throughout

2021.

Donna Smith, A.E.C.’s maternal grandmother, testified she had

known the stepmother “most of her life.” She stated she was initially

allowed physical visitation with the child; however, the father “stopped

letting me see her.” Smith also testified the mother was allowed to talk to

A.E.C. on the telephone until “probably January or February” of 2021, and

the stepmother prevented the mother from contacting the child throughout

2021. Jeff Smith and Lisa Smith, the mother’s father and stepmother, also

testified with regard to the mother’s futile attempts to communicate A.E.C.

Lisa Smith testified she facilitated gift exchanges for A.E.C, i.e., the mother

would bring the gifts to Lisa’s store, and the stepmother would pick them up.

Taylor Smith, the mother’s sister, testified she had been present when

the mother attempted to contact A.E.C., and the stepmother would not allow

the mother to speak to the child. Taylor stated she was unable to recall the

frequency of the mother’s attempts; however, she stated, “She tried often”

throughout 2020 and 2021.

The mother testified A.E.C. lived with her until the first time she was

incarcerated (September 2015). During that time, her mother brought the

child to visit her in jail every week. She stated after she was released from

jail in 2015, she and the father lived together “until I found out he hired an

attorney.” She stated she was arrested again approximately six months after

her release, and the father refused to allow the child to visit her. The mother

further testified she was incarcerated when the custody and child support

judgment was entered, and she was not provided with notice of the hearing.

10

She stated she was never served with a copy of the judgment, but she

recalled receiving a photograph of it from the stepmother. The mother

testified she saw the custody/visitation/child support judgment for the first

time after the stepmother filed the petition for adoption. She also testified

the stepmother was not being truthful when she (the stepmother) stated she

had read the entire judgment to her (the mother).

The mother also testified after she was released from jail in December

2019 and she attempted to enroll in a substance abuse program, but “because

of Covid, they [were] only taking a certain amount of people.” She stated

she talked to the child on the telephone “like every week,” and she would

send text messages on the days she was not allowed to speak to her. She

further testified she last spoke to A.E.C. on the telephone in January 2021.

Thereafter, the stepmother began to give her excuses as to why the could not

speak to the child. According to the mother, the stepmother “would not pick

up the phone or she would say, “[A.E.C.] didn’t want to talk.” She testified

the stepmother told her the child was upset and did not want to talk to her

because she (the mother) was pregnant. The mother testified she continued

to attempt to communicate with the child, but the stepmother would respond

by stating the child did not want to talk to her. She continued to send text

messages to the stepmother attempting to talk to A.E.C.; however, the

stepmother refused her requests to communicate with the child, and at one

point, threatened to file for a restraining order. The mother stated the

stepmother “would always threaten to put a restraining order on me if I was

at the ball park or something, in a public place.”

11

With regard to child support, the mother testified she had given

A.E.C. money and gifts over the years. However, she admitted she had

never given the father or the stepmother any money to benefit the child prior

to the filing of the petition for adoption. She testified the stepmother

informed her she had been ordered by the court to pay child support, but

when she asked the stepmother for their address, she was told “they would

have to speak to their lawyer.” She asserted she had not seen the portion of

the judgment pertaining to child support, and she did not know anything

about it “other than what [the stepmother] said.” She testified she saw the

entire judgment for the first time when she received the petition for

adoption.

The stepmother testified as a rebuttal witness. She stated in 2020, she

verbally informed the mother about the child support provisions of the

custody judgment.

We have reviewed this record in its entirety. The record shows the

mother did not visit or communicate with the child for a period of at least six

months. However, the record clearly demonstrates the mother was persistent

in her efforts to communicate with A.E.C. via telephone calls and text

messages. However, the stepmother was just as incessant in denying the

mother access to A.E.C. and in impeding the mother’s attempts to have a

relationship with the child. The father even testified the mother repeatedly

attempted to communicate with the child by telephone, and the stepmother

stated, “We’re stopping this.” According to the testimony of witnesses, the

stepmother was dogmatic in her efforts to prevent communication between

the mother and child, including threatening to obtain a restraining order.

12

Based on this record, we find the trial court did not err in finding the mother

met her burden of proving just cause for her failure to communicate with the

child.

The record also demonstrates the mother did not pay the court-ordered

child support for a period of at least six months, and the trial court found just

cause for her failure to do so. There is no indication in the record the mother

was ever provided with a copy of the child support judgment. The

stepmother testified she informed the mother of the order pertaining to child

support. However, the copies of the text messages between the mother and

stepmother belied her testimony, as the text messages included only the

portion of the judgment regarding visitation. Once the mother was informed

of the obligation to pay child support, she asked for the address to send the

payments, but the father and stepmother admittedly refused to provide her

with the address, stating they wanted to speak to their lawyer. Rather than

allowing the mother to initiate child support payments, the mother and

stepfather were married the following month, and the petition for adoption

was filed within days of the marriage.

Based upon the facts of this case, we find the trial court was not

manifestly erroneous or clearly wrong in determining the mother had just

cause for her failure to pay child support for at least six months. The record

also supports the trial court’s finding there is no need to proceed with a best

interest of the child hearing. Consequently, based upon this record, the trial

court did not err in denying the stepmother’s petition for adoption and

motion for new trial. The court’s ruling was not contrary to the law and the

evidence.

13

The stepmother also contends the trial court erred in appointing Molly

Clement to represent the child because Ms. Clement had a nonwaivable

conflict of interest.2 Additionally, according to the stepmother, Ms.

Clement’s representation of the child was inadequate in the following

aspects: (1) she did not contact the family or interview the child prior to the

hearing; (2) she did not examine or cross-examine any witnesses; (3) she did

not call any witnesses to testify; (4) she did not offer any report(s) or

evidence on behalf of the child; and (5) she only attended one hour of the

day-long hearing.

Moreover, the stepmother asserts although the trial court appointed

Ms. Clement, the court did not address her directly during the proceedings,

and Ms. Clement did not participate in the proceedings by asking any

questions or submitting any evidence. Therefore, the child was deprived of

her constitutional rights to be represented by counsel.

Throughout the Children’s Code, independent counsel is typically

required for the child in disputed cases. La. Ch. C. art. 1244.1(B) provides:

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.

The record reveals at the outset of the hearing, the attorney appointed

the represent the child stated:

I just wanted to note my presence in the Courtroom. I was
appointed to represent the child in this matter. I don’t think I
will play much of a role other than observer today but I wanted
to go on record.

2
The stepmother alleges the mother had consulted with and obtained advice from
Ms. Clement in the initial proceedings. However, there is no evidence in the record to
support the allegation.

14

We first note counsel for the stepmother did not object to counsel’s

statement and did not raise the issue of the performance (or lack thereof) of

counsel at any point during the hearing. Moreover, Ms. Clement was

appointed to provide independent qualified legal representation for the child,

and the role of the child’s counsel did not include aiding or bolstering the

case of either of the parties. The child was not a party in the proceedings,

and it was not incumbent upon her counsel to present any evidence or

examine any witnesses. Under the facts of this case, the presentation of

evidence and examination of witness was solely the responsibility of counsel

for the parties. Furthermore, the stepmother has offered no proof of

appointed counsel’s alleged conflict of interest or of her lack of

qualifications to provide legal representation for the child. This assignment

lacks merit.

CONCLUSION

For the reasons set forth herein, we affirm the trial court judgment

denying the stepmother’s request for an intrafamily adoption of A.E.C. and

the denial of her motion for new trial. Costs of this appeal are assessed to

the stepmother, Kaitlyn Layne Boyd Cobb.

AFFIRMED.

15