In the Interest of Hardy Ray Krantz

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

07-1310

IN THE INTEREST OF H. R. K.

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. JC-2006-0639-I
HONORABLE THOMAS DUPLANTIER, DISTRICT JUDGE
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GLENN B. GREMILLION
JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, John D. Saunders, and
Glenn B. Gremillion, Judges.

AFFIRMED ON DIFFERENT GROUNDS.

Ann D. Latour
405 West Main Street
Lafayette, LA 70501
(337) 235-3878
Counsel for Plaintiff/Appellant:
J. H. K.

Lloyd Dangerfield
703 E. University Avenue
Lafayette, LA 70503
(337) 232-7041
Counsel for Defendant/Appellee:
J. M. K.

Allyson Prejean
P. O. Box 3862
Lafayette, LA 70502
(337) 288-4028
Counsel for Defendant/Appellee:
H. R. K.

GREMILLION, Judge.

In this case, the plaintiff, J.H.K., appeals the judgment of the trial court

denying her abandonment action which sought to terminate the parental rights of the

defendant, J.M.K. For the following reasons, we affirm but on different grounds.1

FACTUAL AND PROCEDURAL BACKGROUND

The minor child, H.R.K., was born July 13, 2003, during the pendency

of the marriage of J.M.K. and J.H.K., which terminated August 18, 2005. A March

10, 2005 consent judgment awarded joint custody of H.R.K. with J.H.K. being named

the domiciliary parent. J.M.K. was ordered to pay child support in the amount of

$481.50 per month. In June 2006, J.H.K. file an application for leave of court to file

abandonment proceedings pursuant to La.Ch.Code art. 1004(F) urging that J.M.K. had

failed to provide significant contributions to the child’s care and support for the

previous thirteen months and failed to maintain significant contact with the child by

not visiting him within the previous eight months. Following a hearing on October

24, 2006, the trial court denied the application for leave of court to file abandonment

proceedings. J.H.K. now appeals.

ISSUES

J.H.K. assigns as error:

1. The trial court’s conclusion that a private attorney has no
authority to petition for abandonment.

2. The trial court’s denial of her abandonment action.

J.H.K. further urges that we should review the record de novo and correct the legal

1
Pursuant to Uniform Rules—Courts of Appeal, Rule 5-2, we use initials throughout this
opinion to protect the minor’s identity.

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error on appeal without remand to the trial court.

DISCUSSION

Appellate review of a question of law is simply a decision as to whether

the trial court’s decision is legally correct or incorrect. Jim Walter Homes, Inc. v.

Jessen, 98-1685 (La.App. 3 Cir. 3/31/99), 732 So.2d 699. If the trial court’s decision

was based on its erroneous application of law, its decision is not entitled to deference

by the reviewing court. Kem Search, Inc. v. Sheffield, 434 So.2d 1067 (La.1983).

When an appellate court finds that a reversible error of law was made in the lower

court, it must redetermine the facts de novo from the entire record and render a

judgment on the merits. Lasha v. Olin Corp., 625 So.2d 1002 (La.1993).

Louisiana Children’s Code Article 1004(F) states:

By special appointment for a particular case, the court or the
district attorney may designate private counsel authorized to petition for
the termination of parental rights of the parent of the child on the ground
of abandonment authorized by Article 1015(4).

The record reveals that in June 2006, the district attorney for the Fifteenth

Judicial District Court, Michael Harson, signed an affidavit authorizing and appointing

counsel to petition for the termination of J.M.K.’s rights. Thereafter, the trial court

signed a motion and order to appoint private counsel pursuant to Article 1004(F) to

petition for the termination of parental rights on the ground of abandonment, as

authorized by La.Ch.Code art. 1015(4)(b) and (c). However, at the beginning of the

hearing on the motion, it was clear that this was the first time that a private party had

ever filed a petition for termination of parental rights in the trial court.

At the conclusion of the trial, the trial court stated:

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Have you proven to me that this gentlemen, for a great deal of his life has
been a bad dad? You have. And if that’s what the Court of Appeals says
you’re entitled to terminate a parental right for, then so be it. My
problem is that I handle terminations once a month, and I handle it filed
by the state, the real state District Attorney, and there’s a long process.
There is an in-depth process by which the state actively pursues a case
plan. And we often have drug addicts involved. And many times they
work their case plan and are able to be reunited.

Is this going to happen in this case? I don’t know. I don’t have a
crystal ball. But I do know that with regards to the termination of
parental rights it is a finite thing that never gives an individual a right to
prove that he can correct his problem or problems in parenting. And I
just don’t think that the procedure employed, in my mind—and again, I
may be absolutely wrong. But having done these things, I think that it
just takes more to terminate a parental right than it does to do many of
the other things, to keep someone out of a child’s life. And based on
that, the Court is going to deny your request at this time.

This case presents an interesting issue of law and, that is, whether an

individual can petition to terminate, via special authority of the district attorney or of

the court, another person’s parental rights. It appears from a plain reading of the

legislature’s statutes that one does have the right to do so. However, as the trial court

pointed out, this is a procedure that has historically been undertaken by the state and

which involves lengthy and detailed procedural measures to ensure that every step has

been taken before terminating parental rights.

Courts have widely acknowledged the sanctity of parental rights, stating
that “[p]arental rights to the care, custody, and management of children
is a fundamental liberty interest warranting great deference and vigilant
protection under the law.” Thus, termination of parental rights “is one
of the most drastic actions the State can take against its citizens.” As a
result, the Louisiana legislature “has imposed strict procedural and
evidentiary requirements that must be met before the issuance of a
judgment terminating parental rights.”

Mouret v. Godeaux, 04-496, p. 4 (La.App. 3 Cir. 11/10/04), 886 So.2d 1217, 1220

(citations omitted).

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Nevertheless, according to Article 1004(F), the legislature has clearly

provided that private counsel can be appointed to petition for termination based on

abandonment. The grounds warranting involuntary termination based on

abandonment of a child are found in La.Ch.Code art. 1015(4)(b) and (c), which states:

(4) Abandonment of the child by placing him in the physical
custody of a nonparent, or the department, or by otherwise leaving him
under circumstances demonstrating an intention to permanently avoid
parental responsibility by any of the following:

....

(b) As of the time the petition is filed, the parent has failed to
provide significant contributions to the child’s care and support for any
period of six consecutive months.

(c) As of the time the petition is filed, the parent has failed to
maintain significant contact with the child by visiting him or
communicating with him for any period of six connective months.

The burden of proof is on the petitioner who must establish “each element of a ground

for termination of parental rights by clear and convincing evidence.” La.Ch.Code art.

1035. Of paramount concern in any case involving the termination of parental rights,

is the best interest of the child. La.Ch.Code art. 1039.

A parent does have affirmative defenses available to him to rebut the

claim of abandonment, namely, “a mental or physical disability,” which he must prove

by a preponderance of the evidence. La.Ch.Code art. 1035.

Although we find that the trial court erred as a matter of law in not

finding that specially appointed private counsel can pursue a termination of parental

rights due to abandonment, we still find, based on the statements of the trial court, that

the motion for leave to file abandonment proceedings was properly denied. Based on

the statements made by the trial court and our own review of the record, we find no

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error in the trial court’s finding on the ground that it would not be in the best interest

of the minor child, at this time, to terminate J.M.K.’s parental rights.

Based on the trial court’s comments and our own review of the record,

we find that the trial court believed that it did not have sufficient evidence to

determine if termination was in the child’s best interests. Unlike in a state prosecuted

case where there is a significant and lengthy history of the parent’s behavior, there was

no such evidence in this case. Clearly, J.M.K. had shirked his parental responsibilities

by failing to pay child support or visit his son; however, without any further evidence

to suggest that he is not working on his current problems and working to be a better

parent, we cannot say that it was in H.R.K.’s best interest for J.M.K.’s rights to be

terminated. J.M.K. admitted that he had a drug problem and was currently in jail at

the time of the hearing. However, he testified that he had completed a treatment

program for his drug addiction. Moreover, it is clear that far worse parental behavior

is not grounds for such speedy termination when the state is pursuing the matter. To

deem it so when a private specially appointed individual is pursuing the matter seems

to contravene the ideal that the termination of parental rights is not to be taken lightly.

Furthermore, there was uncontroverted evidence at trial that the child had a substantial

and beneficial relationship with J.M.K.’s family. Based on these facts, we find the

trial court could have reasonably found that termination was not currently in the

child’s best interests. Accordingly, we find no error in the trial court’s denial of the

motion for leave to file abandonment proceedings.

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CONCLUSION

The judgment of the trial court is affirmed. All costs of this appeal are

assessed against the plaintiff-appellant, J.H.K.

AFFIRMED ON DIFFERENT GROUNDS.

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