John and Jane Doe, Prospective Adoptive Parents of Baby Doucet v. A.B., Natural Father of Baby Doucet

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

06-1226

JOHN AND JANE DOE, PROSPECTIVE ADOPTIVE
PARENTS OF BABY DOUCET

VERSUS

A.B., NATURAL FATHER OF BABY DOUCET

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APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, SURRENDER #176
HONORABLE GUY E. BRADBERRY, DISTRICT JUDGE
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GLENN B. GREMILLION
JUDGE

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Court composed of Oswald A. Decuir, Glenn B. Gremillion, and Billy Howard Ezell,
Judges.

REVERSED AND RENDERED.

Michael R. Garber
1801 Ryan Street
Lake Charles, LA 70601
(337) 494-5500
Counsel for Plaintiffs/Appellants:
John and Jane Doe,
Prospective Adoptive Parents

Sidney Joseph Rosteet
P. O. Box 2719
Sulphur, LA 70664
(337) 528-3014
Counsel for Plaintiffs/Appellants:
John and Jane Doe,
Prospective Adoptive Parents

Edward M. Nichols Jr.
827 Pujo Street
Lake Charles, LA 70601
(337) 439-8587
Counsel for Defendant/Appellee:
A. B.

Todd Holman Melton
616 Kirby Street
Lake Charles, LA 70601
(337) 439-2979
Counsel for Appellee:
Baby Doucet

GREMILLION, Judge.

The plaintiffs, John and Jane Doe, the prospective parents of Baby D,

appeal the judgment of the trial court in favor of A.B., the natural father of Baby D.

For the following reasons, we reverse and render.

FACTUAL AND PROCEDURAL BACKGROUND

Baby D was born November 3, 2005. Prior to her birth, her biological

mother, C.D., who was seventeen years old, decided to put her up for adoption and

a private adoption was arranged with the Does. On August 25, 2005, C.D. executed

a Notice of Intent to Surrender a Child for Adoption. The notice was served on A.B.

on September 8, 2005, and he filed an objection to the adoption. A hearing on the

opposition was held on January 9, 2006. The trial court upheld A.B.’s objection and

held that the adoption could not go forward without A.B.’s consent. Judgment was

signed July 11, 2006, and the Does now appeal assigning as error the trial court’s

grant of A.B.’s opposition to the adoption on the ground that he was thwarted in his

efforts to assume legal and physical care of the child. The Does claim that the trial

court did this without considering rebuttal evidence that established that he did

nothing to manifest a commitment to his parental responsibilities and that it is in the

best interests of the child to terminate his parental rights and allow the adoption.

DISCUSSION

Louisiana Children’s Code Article 1138 applies in this case and states

(emphasis added):

A. At the hearing of the opposition, the alleged or adjudicated
father must establish his parental rights by acknowledging that he is the
father of the child and by proving that he has manifested a substantial
commitment to his parental responsibilities and that he is a fit parent of

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his child.

B. Proof of the father’s substantial commitment to his parental
responsibilities requires a showing, in accordance with his means and
knowledge of the mother’s pregnancy or the child’s birth, that he either:

(1) Provided financial support, including but not limited to the
payment of consistent support to the mother during her pregnancy,
contributions to the payment of the medical expenses of pregnancy and
birth, or contributions of consistent support of the child after birth; that
he frequently and consistently visited the child after birth; and that he is
now willing and able to assume legal and physical care of the child.

(2) Was willing to provide such support and to visit the child and
that he has made reasonable attempts to manifest such a parental
commitment, but was thwarted in his efforts by the mother or her agents,
and that he is now willing and able to assume legal and physical care
of the child.

C. The child, the mother of the child, and the legal custodian may
offer rebuttal evidence limited to the issues enumerated in Paragraphs
A and B of this Article. However, the primary consideration shall be,
and the court shall accept evidence concerning, the best interests of the
child.

D. If the court finds that the alleged or adjudicated father has
failed to establish his parental rights, it shall decree that his rights are
terminated.

E. If the court finds that the alleged or adjudicated father has
established his parental rights, the court shall declare that no adoption
may be granted without his consent. The court may also order the
alleged or adjudicated father to reimburse the department, or the
licensed private adoption agency, or other agency, or whoever has
assumed liability for such costs, all or part of the medical expenses
incurred for the mother and the child in connection with the birth of the
child.

Thus, A.B. had to prove a substantial commitment to his parental

responsibilities and that he is a fit parent of his child. To establish substantial

commitment and fitness these three elements must be proven: “1) support; 2)

visitation; and 3) ability to care for the child.” In re Adoption of J.L.G., 01-269

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(La.App. 1 Cir. 2/21/01), 808 So.2d 491, 493. If it is shown that the mother has

thwarted the father’s efforts, the father must prove that he is now willing and able to

assume legal and physical care of the child and that he is fit to parent a child.

La.Ch.Code art. 1138 (B)(2). This showing requires more than a father coming forth

and expressing his desire to raise his child. See In re Adoption of J.L.G., 808 So.2d

491. The Children’s Code defines parental fitness in Article 1103(5):

(a) That a parent has not abused the child. For purposes of this
Subparagraph, abuse means the infliction of physical or mental injury
which causes deterioration to the child, sexual abuse, exploitation, or
overworking of a child to such an extent that his health or moral or
emotional well-being is endangered.

(b) That a parent has consistently offered to provide reasonably
necessary food, clothing, appropriate shelter, or treatment for the child.
For purposes of this Subparagraph, treatment means medical care or
other health services provided in accordance with the tenets of a well-
recognized religious method of healing with a reasonable, proven record
of success.

c) That a parent suffers from no medical or emotional illness,
mental deficiency, behavior or conduct disorder, severe physical
disability, substance abuse, or chemical dependency which makes him
unable or unwilling to provide an adequate permanent home for the
child at the present time or in the reasonably near future based upon
expert opinion or based upon an established pattern of behavior.

(d) Viewed in its entirety, the parent’s past or present conduct,
including criminal convictions, would not pose a risk of substantial
harm to the physical, mental, or emotional health of the child.

In In re McLarrin, 38,616, p. 6 (La.App. 2 Cir. 2/4/04), 865 So.2d 317,

321-22, writ denied, 04-0595 (La. 3/24/04), 871 So.2d 331, the appellate court stated

(quoting Lehr v. Roberston, 463 U.S. 248, 261-62, 103 S.Ct. 2985, 2993 (1983))

(citations omitted):

The significance of the biological connection is that it
offers the natural father an opportunity that no other male

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possesses to develop a relationship with his offspring. If
he grasps that opportunity and accepts some measure of
responsibility for the child’s future, he may enjoy the
blessings of the parent-child relationship and make
uniquely valuable contributions to the child’s development.

“This interest does not come into existence or is soon lost, however, if
the father is unable to demonstrate that he is fit and committed to the
responsibilities of parenthood.” “[H]e must show that he has taken
concrete actions to grasp his opportunity to be a father and that there is
a potential for him to make a valuable contribution to the child’s
development.” Simply showing a biological relationship and fitness is
not enough to sustain the father’s interest.

Additionally, the father has the burden of “showing his own commitment to his

parental responsibilities, not the commitment of his family.” In re Adoption of EHM

00-2705, p. 7 (La.App. 1 Cir. 12/15/00), 808 So.2d 397, 402.

Pursuant to the well-settled manifest error standard of review,

“[s]ubstantial commitment and parental fitness are factual findings that are entitled

to deference unless the trial court is clearly wrong.” In re Adoption of J.L.G., 808

So.2d at 498. Having reviewed the record and the findings of the trial court, we find

the trial court was clearly wrong/manifestly erroneous in finding that A.B. proved that

he is fit to parent Baby D.

A.B. testified that he and C.D. dated for about eight months in 2004 and

2005. He stated that he believed he was the father of the child, but that he did not

know her name nor when she was born. He stated that he was eighteen at the time of

trial and lived in a three-bedroom trailer with his parents. A.B. said that he has his

own room while his eight-year-old brother sleeps on the couch. A.B. testified that he

was not presently employed but had “several jobs” waiting once the court

proceedings ended including building fences, general construction, and training to be

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a welding inspector. He claimed that his future income would be “around twenty

dollars an hour.” A.B. stated that he has never been convicted of a crime, does not

take illegal drugs, and hardly ever drinks anymore.

A.B. testified that he first found out about Baby D when he was served

with the Intent to Surrender documents, sometime in late August or early September.

However, on cross-examination, he testified that he had “heard” through mutual

relatives of his and C.D.’s , that C.D. was pregnant. A.B. testified that he was willing

and able to assume legal and physical care of the baby. He said his parents will help

out for a while, but that he would pay them back “every cent” that they have to pay.

A.B. testified that he tried to contact C.D. before the birth of the baby, but that she

would never answer the phone.

On cross-examination, A.B. testified that he worked as a painter’s helper

for a few months around the time of the hurricanes and that he worked for one week,

but that the was fired for missing too many days of work. He further testified that he

had been unemployed since the previous time he had appeared in court, four weeks

earlier, and that he had not attempted to find a job. A.B. also testified that he quit

going to school in the fourth grade, at which time his grandmother began home

schooling him, but that he was not aware if she registered with the state for home

schooling. However, he testified that she did not use any books and just “wrote down

stuff on paper.” He further stated that he had not participated in any testing since the

fourth grade and that he had a relative write down the answers to questions that

counsel put forth because he does not write well.

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A.B. testified that his father is currently on probation for distribution of

marijuana, and also had numerous prior arrests and convictions. A.B. stated that,

although he is not smart, no other person could show the baby as much love as he

could. He testified that his mother or aunt would take care of the baby while he

worked. He further testified that he does not have a car, but uses his mother’s car

when necessary. A.B. further stated that he goes out to a bar called “Cowboys” with

his friends and drinks because they ask him to, even though he is not of legal drinking

age.

T.B., A.B.’s mother, testified that her eight-year-old son sleeps on the

couch because he wants to. She stated that they heard that C.D. was pregnant three

months before they received a phone call from the lawyer handling the Intent to

Surrender. T.B. stated that they had no firsthand knowledge from C.D. or her family

of C.D.’s pregnancy. She said that they knew nothing about the baby including the

sex or her birthday. T.B. testified that she took A.B. out of school in the fourth grade

because “she couldn’t get him to go.” T.B. testified that she works at a laundromat

making $6.00 an hour. She testified that she drives to work in a truck that is not

registered in her name because she does not have a driver’s license due to outstanding

charges. She claims that she has not cleared up the charges even though she has the

means because she is afraid she might go to jail. T.B. further testified that she pays

for all the food for the family, the utilities, and A.B.’s cell phone. T.B. stated that her

husband has had a DWI and was convicted of indecent exposure with a juvenile. She

testified that her son drinks with his friends when he goes to “Cowboys.”

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T.B. testified that she spoke to C.D. two weeks before the baby was born

and offered to let her live at her house so that C.D. would not have to give up the

baby for adoption. She also testified that A.B. spoke to C.D. that day.

R.B., A.B.’s dad, testified that they had heard rumors that C.D. was

pregnant, but that the first confirmation of it was when they received the Intent to

Surrender paperwork. R.B. testified that he is employed making $20 an hour. He

stated that he is on five years supervised probation for possession of marijuana with

intent to distribute. He stated the probation includes random drug testing.

J.D., A.B.’s grandmother, testified that she home schooled A.B. until he

was thirteen or fourteen years old. She stated that he does not write well. She further

stated that A.B. would make a good father.

C.D. testified that she first found out that she was pregnant when she

four or five months into her pregnancy. She said that she called A.B. and told him

she was pregnant. However, C.D. stated that the next day she called A.B. back at her

mother’s direction, and told him that she was not pregnant. C.D. claimed that she saw

one of A.B.’s friends in a store when she was visibly pregnant (seven or eight months

pregnant) and that A.B. told her on the telephone that the friend had seen her. C.D.

stated that, at that time, she told A.B. that she was going to put the baby up for

adoption.

C.D. testified that A.B. did not offer to pay any expenses of her

pregnancy. She stated that her mom and dad paid for the expenses, except that the

Does paid the medical bills. C.D. confirmed that T.B. offered her a place to live

while she was pregnant and after the birth of the baby. C.D. also stated that she never

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informed A.B. as to the baby’s birthday or sex. She said that A.B.’s aunt called

shortly after the baby had been born and that A.B. was present during the

conversation, but that she did not want to speak to the aunt. She further stated that

A.B. never asked to see the child. C.D. testified that she did not ask for any help from

A.B., nor did he offer any. C.D. made it clear that she did not want A.B. calling her

because she was afraid it would stir up trouble in her home. She further testified that

she did not tell A.B. or his family where the baby would be born because she did not

want them showing up at the hospital. C.D. further testified that she never told A.B.

again that she was pregnant after she called and told him she was not. C.D. further

said that, although she had not seen A.B. do drugs, he told her that he had done drugs,

probably Ecstacy and crystal methamphetamine, and that she knew that he hung

around with people who did drugs.

The trial court found that A.B. was thwarted by the mother and stated

(our emphasis added):

This Court has to decide today whether the rights of a biological father
should be terminated by his educational background, his economic
status and his ability to care for this child. The Court finds that those
factors should not impair or impede a biological parent from asserting
his rights. So, the court finds that because the father was thwarted and
because of the efforts of the mother and her agents from keeping the
child from this father, I think the father has, indeed, established his
parental rights, and, as a result thereof, the Court’s going to declare that
no adoption will be granted without his consent.

On this issue of the placement of [Baby D] I do not find at this time that
it would be in the best interest of the child to place this child in the
father’s custody until a determination, a possible evaluation, including
and not limited to a home study and a psychological evaluation and any
other evaluations that are to be deemed necessary to take place. . . .

In the absence of any silence in terms of the custodial
arrangement at this point, I want it to be noted for the record that there

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was not a surrender executed by the mother. There was an attempted
surrender. That has a legal significance inasmuch as the mother now has
the rights and custody of this minor child.

SUBSTANTIAL COMMITMENT

We begin our discussion with an analysis of the statute at issue.

Louisiana Children’s Code Article 1138(A) provides that the father must prove he

manifested a substantial commitment to his parental interest and that he is a fit parent.

To prove that substantial commitment, he must show that he provided financial

support to the mother which includes during her pregnancy, the birth of the child, and

support of the child after birth. The statute also requires that when he is thwarted by

the mother in making those efforts, as was found by the trial court in this case, the

father must prove that he was willing and made reasonable attempts to provide that

substantial commitment. Further, according to the statute, he must show that he is

now willing and able to assume legal and physical care of the child. Finally, the trial

court must consider the best interests of the child. In that regard, we find that A.B.

came woefully short of overcoming his burden of proof in this instance.

While A.B. claims that he did not know about Baby D until after the

birth of the child, he testified that he “heard” that C.D. was pregnant from relatives

both he and C.D. shared. Yet, with that knowledge, he made no attempts to discover

if he was, in fact, the father of the child. He offered no proof that after being served

with the Intent to Surrender, he made any attempts to visit the child or pay for any of

the expenses. There is no evidence in the record that he made any reasonable

attempts to manifest any substantial commitment. From the time he was served with

the Intent to Surrender until the time of trial (a period of four months), there was no

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evidence A.B. provided any financial support to C.D. Thus, we find that A.B. failed

to show a substantial commitment to parenting in providing financial support to his

child. Further, we find that he failed to prove his parental fitness.

PARENTAL FITNESS

It appears to us that the trial court dismissed A.B.’s burden of proving

that he is fit to parent his child, because the trial court specifically stated that A.B.’s

“ability to care for this child,” did not impair his ability to assert his parental rights.

On the contrary, A.B. had the burden of proving that he has ability to care for the

child. As we have said, we find that this burden was not met. It is undisputed that

A.B. had no work history other than a job he held for a week and lost because he

missed too many days of work, had no job at the time of trial, and had only

speculative future possibilities for a job. Nothing in A.B.’s background shows the

necessary responsibility and commitment required to raise an infant. His lack of an

appropriate education further hinders his ability to gain stable employment.

Moreover, there was no indication that A.B. would be able to

independently provide a suitable home for this child. A.B.’s own mother testified that

she paid all the bills and that she did not expect that A.B. would be moving out of her

residence any time in the near future. A.B. had to prove his present fitness for

custody, and this cannot be done by simply stating his future desires to get a $20 an

hour paying job or to move out of his parent’s home. Moreover, pursuant to

La.Ch.Code art. 1103(5)(b), A.B. had to prove that he could provide “appropriate

shelter” for the child. We do not believe that the record supports that his current

living situation meets that definition.

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A.B. testified that his mother would take care of Baby D while he

worked. However, his mother had a job that took her out of the home during the day.

It is also noteworthy that she admitted that she will not go to court to take care of

outstanding charges because she is afraid “she will go to jail,” despite the fact that she

apparently had a large medical malpractice settlement that would have paid for

whatever fines had been assessed against her. She continues to break the law by

driving a vehicle while her license is suspended. Her youngest son, A.B.’s eight-

year-old brother, has ADHD with aggression and sleeps on the sofa “because he

wants to.” A.B.’s father has a lengthy rap-sheet with multiple arrests and convictions,

and he is currently on probation. None of these undisputed facts lead us to a finding

that A.B. can provide a suitable home for Baby D. Additionally, we found C.D.’s

testimony to be very reliable. She stated that A.B. ran with the wrong crowd, and had

told her that he had done drugs. Viewing all of these facts together, we find that

A.B. failed to prove he was fit to raise Baby D. Additionally, as we have noted,

Article 1138(C) requires as a primary consideration that the best interests of the child

be considered. Considering the foregoing facts, we cannot find that it would be in the

best interests of this child for A.B. to assume legal and physical care of this child and

that his parental rights be maintained. Accordingly, his parental rights are terminated

and he cannot challenge the adoption.

CONCLUSION

The judgment of the trial court maintaining A.B.’s opposition to the

adoption of Baby D is reversed, and judgment is now rendered terminating his

parental rights. All costs of the appeal are assessed against A.B.

REVERSED AND RENDERED.

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