In Re: Clemmie Leon Porter Applying for the Adoption of L.R.C.

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

No. 55,433-JAC

COURT OF APPEAL
SECOND CIRCUIT
STATE OF LOUISIANA

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IN RE: CLEMMIE LEON PORTER, III,
APPLYING FOR THE ADOPTION OF
L.R.C.

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Appealed from the
Twenty-Sixth Judicial District Court for the
Parish of Bossier, Louisiana
Trial Court No. 3652

Honorable Robert Lane Pittard, Judge

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WEEMS, SCHIMPF, HAINES & Counsel for Appellants,
MOORE, APLC Clemmie Leon Porter, III,
By: Kenneth Patrick Haines and Kaitlyn Anne Clark
Porter

JAMES E. FRANKLIN, III

MADELINE SUE CARBONETTE Counsel for Appellee,
Assistant Attorney General State of Louisiana

LAW OFFICES OF J. DHU THOMPSON, Counsel for Appellee,
APLC Cameron Scott Jessup,
By: J. Dhu Thompson and Intervenor-Appellee,
Stacey Martin

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Before COX, STEPHENS, and ROBINSON, JJ.

ROBINSON, J.

Kaitlyn Porter (“Kaitlyn”), the biological mother of the minor child,

“LRP” (formerly “LRC” and “LRJ”), and Clemmie Porter (“Clemmie”), the

former stepfather and now adoptive father of LRP (collectively, the

“Porters”), appeal from a judgment denying the Porters’ motion seeking to

have La. Ch. C. arts. 1264 and 1267 regarding grandparent visitation rights

declared unconstitutional.

For the following reasons, we VACATE AND REMAND.

FACTS AND PROCEDURAL HISTORY

Kaitlyn and Cameron Scott Jessup (“Cameron”), the biological father

of LRP, were never married. Kaitlyn and Clemmie were married on

November 11, 2017. Kaitlyn was granted sole custody of LRP by judgment

dated June 21, 2018, when LRP was approximately four years old. The

judgment did not allow any visitation by Cameron; however, Cameron’s

mother, Stacey Martin (formerly “Stacey Jessup”) (“Stacey”), was granted

two hours per month supervised visitation.

The Porters filed a petition for intrafamily adoption on June 6, 2019.

Cameron was incarcerated at the time of trial, but contested the adoption.

The adoption trial was held on November 17, 2021. The court ultimately

granted the intrafamily adoption, declaring Clemmie to be LRP’s legal

father. The final adoption decree was initially signed on January 20, 2022,

although an amended final decree was issued on February 17, 2022, to

correct the rendering date. Neither adoption decree was appealed.

Stacey filed a motion to intervene in the adoption proceeding just

prior to trial, on October 26, 2021, seeking visitation with LRP pursuant to

La. Ch. C. art. 1264 in the event the adoption was granted. Following the

granting of the adoption, Stacey filed a motion on July 28, 2022, to set her

request for visitation for trial. The Porters then filed a motion to declare La.

Ch. C. arts. 1264 and 1267 unconstitutional on September 14, 2022, which

Stacey opposed.

The trial court ordered the parties to file memorandums in support of

their positions on the constitutionality of the referenced statutes, and the

matter was submitted on briefs. On May 16, 2023, the trial court issued an

opinion and judgment denying the Porters’ motion, finding La. Ch. C. arts.

1264 and 1267 to be constitutional because the Porters had failed to meet

their burden of proof for establishing unconstitutionality. An order was

entered on May 30, 2023, designating the May 16, 2023, decree a final

judgment for appeal. The Porters filed this appeal on June 7, 2023.

DISCUSSION

La. Ch. C. art. 1264, Post-Adoption Visitation Rights of

Grandparents, provides as follows:

Notwithstanding any provision of law to the contrary, the natural
parents of a party who has forfeited the right to object to the
adoption of his child pursuant to Article 1245 may have limited
visitation rights to the minor child so adopted.

La. Ch. C. art. 1267 establishes the burden of proof for the grandparents’

visitation request under art. 1264:

The grandparents requesting limited visitation rights shall prove
both of the following:

(1) That they have been unreasonably denied visitation rights.

(2) That such limited visitation rights would be in the best
interests of the minor child.

The trial court allowed the parties to submit briefs on the

constitutionality of La. Ch. C. arts. 1264 and 1267. On May 16, 2023, the

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court issued an opinion and judgment finding the statutes to be

constitutional, stating the Porters had failed to meet their burden of proof for

establishing unconstitutionality. In its opinion, the court reasoned that “in

both [articles], the grandparent can petition for visitation, the adoptive

parents can provide a response objecting to visitation by the grandparent,

and the trial court can weigh all the factors to come to a conclusion that is in

the best interest of the child.” To date, there has been no determination

regarding the granting of grandparent visitation rights to Stacey, due to the

Porters’ pending appeal of the trial court’s judgment regarding the

constitutionality of the referenced statutes.

As a general rule, legislative instruments are presumed to be

constitutional; therefore, the party challenging the validity of a legislative

instrument has the burden of proving its unconstitutionality. Louisiana

Federation of Teachers v. State, 13-0120 (La. 5/7/13), 118 So. 3d 1033;

State v. Citizen, 04-1841 (La. 4/1/05), 898 So. 2d 325. Because the

provisions of the Louisiana Constitution are not grants of power, but instead

are limitations on the otherwise plenary power of the people of the state,

exercised through the legislature, the legislature may enact any legislation

that the constitution does not prohibit. Louisiana Municipal Association v.

State, 04-0227 (La. 1/19/05), 893 So. 2d 809; Polk v. Edwards, 626 So. 2d

1128 (La. 1993). Nevertheless, the Porters argue that La. Ch. C. arts. 1264

and 1267 regarding grandparents’ visitation rights are prohibited by the

constitution.

The Porters argue that La. Ch. C. arts. 1264 and 1267 are

unconstitutional as applied in this case because parents have a fundamental

right to parent their children without government intrusion, including the
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right to decide who the children visit during the child’s minority. They rely

on the U.S. Supreme Court’s holding in Troxel v. Granville, 530 U.S. 57,

120 S. Ct. 2054, 147 L. Ed. 2d 49 (2000), that parents have a fundamental

constitutional right to make decisions concerning the care, custody and

control of their children and to determine the child’s best interests. Stanley

v. Illinois, 405 U.S. 645, 92 S. Ct. 1208, 31 L. Ed. 2d 551 (1972); Wisconsin

v. Yoder, 406 U.S. 205, 92 S. Ct. 1526, 32 L. Ed. 2d 15 (1972); Quilloin v.

Walcott, 434 U.S. 246, 98 S. Ct. 549, 54 L. Ed. 2d 511 (1978); Wood v.

Beard, 290 So. 2d 675 (La. 1974). The Troxel court called the special

interest of a parent to decide their child’s best interest, “one of the oldest of

the fundamental liberty interests protected by the Due Process Clause of the

Fourteenth Amendment.” Troxel, supra; Cook v. Sullivan, 20-1471 (La.

9/30/21), 330 So. 3d 152. This finding led the Supreme Court to hold:

... so long as a parent adequately cares for his or her children
(i.e. is fit), there will normally be no reason for the State to inject
itself into the private realm of the family to further question the
ability that parent to make the best decisions concerning the
rearing of that parent’s children. Troxel, at 530 U.S. 68, 120 S.
Ct. 2054.

The law presumes that fit parents make decisions in the best interest

of their children. Id.; Parham v. J.R., 442 U.S. 584, 99 S. Ct. 2493, 61 L.

Ed. 2d 101 (1979). If the parent’s decision is to be subjected to any type of

state or judicial review, the parent’s decision must be afforded some “special

weight.” Troxel, supra, at 2062. The decision for whether an inter-

generational relationship would benefit a child in any specific case is left

first to the parent. Id.

La. Ch. Code art. 1267 only requires the grandparent to prove that

they have been “unreasonably” denied visitation and that visitation is in the

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“best interest” of the child. The Porters claim that La. Ch. C. arts. 1264 and

1267 are unconstitutional because they afford no special weight to a fit

parent’s decision to deny a former grandparent visitation, in violation of

Troxel, as evidenced by the language in the trial court’s opinion that the

determination of whether to grant grandparent visitation is based solely on

the “best interest of the child.”

Although the court generally possesses the power and authority to

decide constitutionality of statutory provisions such as those challenged by

the Porters, it is required to decide a constitutional issue only “if the

procedural posture of the case and the relief sought by the appellant demand

that [it] do so.” State v. Mercadel, 03-3015 (La. 5/25/04), 874 So. 2d 829,

834; Ring v. State, DOTD, 02-1367 (La. 1/14/03), 835 So. 2d 423, 428. A

court should avoid constitutional questions whenever the case can be

disposed of on non-constitutional grounds. Mercadel, supra; Ring, supra.

Our jurisprudence counsels that the practice of courts is “never to anticipate

a question of constitutional law in advance of the necessity of deciding it.”

Ring at 426; Matherne v. Gray Ins. Co., 95-0975 (La. 10/16/95), 661 So. 2d

432, 434. A court must decide the threshold non-constitutional issue of

whether the person(s) challenging the provision(s) has standing. Mercadel,

supra. In order to have standing to challenge the constitutionality of a legal

provision, the person bringing the challenge must have rights in controversy,

in other words, if the statute seriously affects his or her rights. Id.

In Mercadel, a defendant was indicted by an Orleans Parish grand jury

for first degree murder and pled not guilty. Id. Before any hearings took

place, the Louisiana Supreme Court, in a separate case, struck down several

statutes governing Orleans Parish grand jury proceedings as unconstitutional
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local laws. Id. Some of the provisions were rewritten or amended, but

others were left unchanged. Id. The district court specifically found that the

defendant had not suffered any real harm as a result of any of the statutes

challenged, but still granted the defendant’s motion to quash in order to seek

guidance from the Supreme Court on the issues. Id. The Supreme Court

vacated the district court’s judgment declaring the statutes unconstitutional

and granting the motion to quash, holding that once the district court found

that the defendant lacked standing to challenge the statutes, it should have

denied the motion to quash. Id.

In Ring, an Illinois resident operating an eighteen-wheeled vehicle on

an interstate highway in Calcasieu Parish was ticketed by the Department of

Transportation and Development, Division of Weights and Standards, for

failing to stop at a stationary weight enforcement scale, a violation of La.

R.S. 32:388. Ring, supra. The violation carried a $2,000 fine, which Ring

was required to pay or face impoundment of his truck and cargo until such

time as the fine was paid, pursuant to La. R.S. 32:389. Id. Ring paid under

protest, then sought administrative review, which was denied. Id. Ring filed

suit against the State DOTD alleging that La. R.S. 32:388 violated

constitutional rights of drivers by depriving them of a substantive property

right and liberty interest without notice or opportunity to be heard, for

Louisiana drivers in particular since they are not subject to the same

requirements. Id. He also alleged that the statute failed to provide the

drivers a meaningful pre- or post-deprivation hearing prior to the collection

of fines or seizure of property, in violation of Due Process rights. Id. In

turn, the State responded by filing exceptions of prescription and no cause of

action. Id. The trial court ultimately granted Ring’s motion for partial
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summary judgment rendering the challenged statute unconstitutional, prior

to resolution of the State’s pending exceptions. Id. The Supreme Court held

that trial court’s judgment was premature because the case was clearly not in

a posture to render the issue of the constitutionality of La. R.S. 32:389 ripe

for resolution, and Ring would not be significantly injured by failure to

decide the constitutional issue at that time since the constitutional challenge

may not materialize depending on the resolution of the pending prescription

and no cause of action exceptions. Id.

In this case, much like in Ring, the trial court ruled on the Porters’

challenge of the constitutionality of La. Ch. C. arts. 1264 and 1267 prior to

the resolution of the underlying cause of action, the determination of

whether to grant Stacey grandparent visitation. It declared the statutes to be

constitutional, seemingly because no determination had been made at that

point as to whether to grant visitation. However, the trial court’s reasoning

in its opinion essentially translates to a finding that the Porters lacked

standing to challenge the constitutionality of the statutes because the matter

could still be disposed of on non-constitutional grounds. If the trial court

were to ultimately determine not to grant visitation to Stacey, then the

Porters would not benefit from a judgment determining the statutes to be

unconstitutional. In other words, the constitutional challenge may not

materialize depending on the resolution of the matter. Therefore, the Porters

do not have any rights in controversy sufficient to give them standing to

bring this action.

Statutes on their face are presumed to be constitutional. Instead of

ruling that the statutes were constitutional as a result of the fact that the

underlying action was pending, the trial court should simply have found that
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the Porters lacked standing to challenge the constitutionality of the statutes

at that time and decided the case on the merits. Without a ruling on the

merits, neither party suffered any injury and the constitutional challenge is

not properly before this Court. An opinion from this Court at this procedural

posture of the case would amount to an improper advisory opinion.

CONCLUSION

For the foregoing reasons, we VACATE AND REMAND the trial

court’s judgment declaring the statutes constitutional.

VACATED AND REMANDED.

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