State of Louisiana in the Interest of A.L.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

09-1565

STATE OF LOUISIANA IN THE INTEREST OF A.L.

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF ACADIA, NO. JU-4545
HONORABLE JOHN DAMIAN TRAHAN, DISTRICT JUDGE

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ULYSSES GENE THIBODEAUX
CHIEF JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Jimmie C. Peters, and J.
David Painter, Judges.

AFFIRMED.

Leah Antoinette Beard
825 Kaliste Saloom Road
Brandywine I, Room 218
Lafayette, LA 70508
Telephone: (337) 262-1555
COUNSEL FOR:
Appellee - State of La., Department of Social Services

James Daboval Landry
P. O. Box 1368
Crowley, LA 70527
Telephone: (337) 788-1850
COUNSEL FOR:
Appellee - Julien (Unknown father)

Glen E. Howie
The Howie Law Office, L.L.C.
P. O. Box 932
Crowley, LA 70527
Telephone: (337) 785-8500
COUNSEL FOR:
Appellee - A.L.

John Clay Lejeune
P. O. Box 1919
Crowley, LA 70527
Telephone: (337) 788-1505
COUNSEL FOR:
Appellant - M.A.L.

THIBODEAUX, Chief Judge.

Michael Lange, a non-parent, sought custody as a parent of a minor child

as a consequence of signing a birth certificate. The child had been born with drugs

in his system, and the Louisiana Department of Social Services took immediate

custody of the child at birth, placing him with certified foster parents with whom he

has resided for two years. The trial court dismissed Mr. Lange’s petition to establish

custody. We affirm.

I.

ISSUES

We must decide whether the trial court abused its discretion in

dismissing Mr. Lange’s Petition to Establish Custody.

II.

FACTS AND PROCEDURAL HISTORY

Michael Lange signed the birth certificate of A.L. shortly after his birth

on February 5, 2008, with the expectation of rearing A.L. with A.L.’s half sibling and

Mr. Lange’s two other children. None of the children are Mr. Lange’s biological

children, but the arrangements for Mr. Lange to raise A.L. were permitted by the

mother and requested by other family members.

On February 6, 2008, the Louisiana Department of Social Services

(DSS), upon notice of a child born with cocaine in his system, took immediate

custody of A.L. and placed him with foster parents. At the adjudication hearing in

March 2008, where A.L. was found to be a Child in Need of Care, Mr. Lange

admitted that he was not the biological father of A.L., that he had never had sexual

relations with the mother of A.L., and he stated that he no longer sought the adoption

of A.L. Upon the specific request of an assistant district attorney, Mr. Lange was

ordered excused from further proceedings relating to A.L.

Notwithstanding this judicial proceeding, in August of 2009 the District

Attorney’s office obtained an order for child support against Michael Lange in the

amount of $1,006.00 per month, with an arrearage of $3,018.00, based on his

signature on A.L.’s birth certificate.

On September 17, 2009, Michael Lange filed a petition to establish

custody. On September 23, 2009, A.L.’s mother legally surrendered her parental

rights to A.L. She knew the biological father only by his first name, and DSS is

attempting to locate the father for a surrender of rights so that A.L. can be legally

adopted by the foster parents with whom he has lived since his birth two years ago.

Mr. Lange’s petition to establish custody of A.L. was denied in October

2009; hence this appeal. With great disappointment in, and admonition for, the

inconsistent actions of our state agencies, we must affirm the trial court’s denial of

Mr. Lange’s Petition to Establish Custody of A.L.

III.

LAW AND DISCUSSION

Standing

Mr. Lange contends that the trial court erred in denying his petition for

custody because the State of Louisiana had no standing to argue that the absence of

a biological connection can act as a preclusion to custody or visitation. This

argument lacks merit. The State of Louisiana Department of Social Services learned

of the birth of A.L. with cocaine in his system and filed an order for custody within

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two days of his birth in early February of 2008.1 The DSS is a party to these

proceedings and has a statutory right to argue paternity. More specifically, La.R.S.

9:396 provides in pertinent part as follows:

§ 396. Authority for test; ex parte orders; use of results

A. (1) Notwithstanding any other provision of law
to the contrary, in any civil action in which paternity is a
relevant fact, or in an action en desaveu, the court may, on
its own initiative, or shall, under either of the following
circumstances, order the mother, child, and alleged father,
or the mother’s husband or former husband in an action en
desaveu, to submit to the collection of blood or tissue
samples, or both, and direct that inherited characteristics in
the samples, including but not limited to blood and tissue
type, be determined by appropriate testing procedures:

(a) Upon request made by or on behalf
of any person whose blood or tissue is
involved, provided that such request is
supported by a sworn affidavit alleging
specific facts which either tend to prove or
deny paternity.

(b) Upon motion of any party to the
action made at a time so as not to delay the
proceedings unduly.

....

B. (1) The district attorney, in assisting the
Department of Social Services in establishing paternity as
authorized by R.S. 46:236.1.1 et seq., may file a motion
with a court of proper jurisdiction and venue prior to and
without the necessity of filing any other legal proceeding.
...

Accordingly, under La.R.S. 9:396(A)(1)(b) and (B)(1), the DSS is a party

to the action and has authority to order testing that establishes paternity. Included

therein is the authority to contest paternity, as paternity tests are used by all parties

for both determining and contesting paternity. While it is true that the State did not

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While Mr. Lange had signed the birth certificate in February 2008, he disavowed paternity
in March 2008 and did not file his “Petition to Establish Custody” until September of 2009, when
A.L. was already one and a half years old, and had been in the custody of the State and in placement
with his foster parents for basically his entire life.

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order paternity testing, and that the role of the State in this case is one in which the

State is actually contesting an avowed paternity, the State does have standing to argue

issues involving Mr. Lange’s paternity.

Additionally, as the State points out, they are obligated under the

Louisiana Children’s Code, Articles 675, 700, 702 and 710, to establish a case plan

to assure the health and safety of the child and to place the child in accordance with

his best interest. Therefore a determination of Mr. Lange’s eligibility to adopt or to

obtain custody of or visitation rights with A.L. is squarely in the purview of the DSS.

Acknowledgment

Mr. Lange further contends that his acknowledgment of A.L. by signing

the birth certificate provides him with the rights to pursue the custody of and

visitation with A.L. More specifically, La.R.S. 9:392.1 on Legitimation, La.R.S.

9:405 on Filiation (which contain identical text), and La.Civ.Code art. 196 provide

as follows (emphasis added):

§ 392.1. Acknowledgment; obligation to support

In child support, custody, and visitation cases, the
acknowledgment of paternity by authentic act is deemed to
be a legal finding of paternity and is sufficient to establish
an obligation to support the child and to establish visitation
without the necessity of obtaining a judgment of paternity.

§ 405. Legal effect of acknowledgment

In child support, custody, and visitation cases, the
acknowledgment of paternity by authentic act is deemed to
be a legal finding of paternity and is sufficient to establish
an obligation to support the child and to establish visitation
without the necessity of obtaining a judgment of paternity.

Art. 196. Formal acknowledgment; presumption

A man may, by authentic act or by signing the birth
certificate, acknowledge a child not filiated to another
man. The acknowledgment creates a presumption that the

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man who acknowledges the child is the father. The
presumption can be invoked only on behalf of the child.
Except as otherwise provided in custody, visitation, and
child support cases, the acknowledgment does not create a
presumption in favor of the man who acknowledges the
child.

As indicated above, La.R.S. 9:392.1 and 9:405 pertain only to an

acknowledgment by authentic act, while La.Civ.Code art. 196 includes an

acknowledgment by the signing of the birth certificate. The latter is what occurred

here. However, only the biological father may formally acknowledge an illegitimate

child by having his name placed on the child’s birth certificate. See McKinley v.

McKinley, 25,365 (La.App. 2 Cir. 1/19/94), 631 So.2d 45 (no legal effect to

acknowledgment by stepfather on birth certificate, though he was given custody as

a non-parent due to best interest of child); See also Succession of Robinson, 94-2229

(La. 5/22/95), 654 So.2d 682 (acknowledgment in will by authentic act was in

contravention of law and invalid if a biological relationship did not exist between

decedent and the children).

In this case, Mr. Lange’s acknowledgment of A.L. is not valid and is

without legal effect. He admitted in the adjudication hearing that he was not the

biological father of A.L. and that he had never had sexual relations with the mother

of A.L. In Robinson, the court quoted the Planiol treatise on the precursor articles to

La.Civ.Code art. 196 above:

Under La.Civ.Code art. 203, an illegitimate child is
acknowledged by a declaration executed before a notary
public, in the presence of two witnesses, by the “mother”
or “father.” Although art. 203 does not expressly preclude
executing an acknowledgment where no biological
relationship exists, this conclusion is self-evident and
definitional of an acknowledgment. An acknowledgment
is an avowal emanating from the “mother” or “father” to
establish maternal or paternal filiation. 1 M. Planiol,
Treatise on the Civil Law § 1476 (La.St.L.Inst. transl.
1959). The word “filiation” describes the fact of biological

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parentage. La.Civ.Code arts. 193-197. Thus, through the
acknowledgment, the “mother” or “father” provides proof
of maternal or paternal filiation, that is, biological
parentage. Absent a biological relationship, the avowal is
null. “A fact cannot be avowed when it has never existed.”
1 Planiol[ at ] § 1490(2). If the acknowledgment is null, it
produces no effects.

Succession of Robinson, 654 So.2d at 684.

Judicial Estoppel

Mr. Lange further contends that the State should be precluded and

judicially estopped from asserting that Mr. Lange is not the biological father of A.L.

because of its actions in establishing the order of child support. Regrettably, we can

provide Mr. Lange no relief through the vehicle of judicial estoppel.

In Miller v. Conagra, Inc., 08-21 (La. 9/8/08), 991 So.2d 445, our

Louisiana Supreme Court stated:

[T]he Supreme Court of the United States has generally
described judicial estoppel as an equitable doctrine
designed to protect the integrity of the judicial process by
prohibiting parties from deliberately changing positions
according to the exigencies of the moment. New
Hampshire v. Maine, 532 U.S. 742, 749-50, 121 S.Ct.
1808, 1814-15, 149 L.Ed.2d 968 (2001). Because it is an
equitable doctrine, it is invoked at the court’s discretion.
Id. at 750, 121 S.Ct. at 1815.

Miller, 991 So.2d at 452.

In New Hampshire v. Maine, the United States Supreme Court

articulated three non-exclusive but typically existing factors for determining whether

judicial estoppel should apply:

First, a party’s later position must be “clearly inconsistent”
with its earlier position. Second, courts regularly inquire
whether the party has succeeded in persuading a court to
accept that party’s earlier position, so that judicial
acceptance of an inconsistent position in a later proceeding
would create “the perception that either the first or the
second court was misled,” Edwards [v. Aetna Life Ins.

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Co.], 690 F.2d [595], 599 (6th Cir. Mich., 1982). Absent
success in a prior proceeding, a party’s later inconsistent
position introduces no “risk of inconsistent court
determinations,” United States v. C.I.T. Constr. Inc., 944
F.2d 253, 259 (C.A.5 1991), and thus poses little threat to
judicial integrity. A third consideration is whether the
party seeking to assert an inconsistent position would
derive an unfair advantage or impose an unfair detriment
on the opposing party if not estopped.

In enumerating these factors, we do not establish inflexible
prerequisites or an exhaustive formula for determining the
applicability of judicial estoppel. Additional
considerations may inform the doctrine’s application in
specific factual contexts.

New Hampshire v. Maine, 532 U.S. at 750-51, 121 S.Ct. at 1815 (some citations

omitted).

In the present case, we do not find judicial estoppel in favor of Mr.

Lange on the basis presented. The three most typical factors exist in his favor: (1)

the State (DSS) is claiming that Mr. Lange’s acknowledgment is invalid in order to

deny custody and visitation, while the State (District Attorney) previously used the

acknowledgment to obtain an order of child support against Mr. Lange. The State’s

current position is clearly inconsistent with its previous position; (2) the State

previously persuaded the court to hear a Rule to set Child Support, and the court

entered an order of child support against Mr. Lange, finding that he had a legal

obligation to support “his” minor child; (3) Mr. Lange will not derive an unfair

advantage by estoppel, or impose an unfair detriment on the State, because he is

merely seeking custody of the child that he is already supporting.2

However, in this case, an additional factor under New Hampshire

informs our decision in determining the propriety of estoppel. Our decision not to

apply judicial estoppel to preclude the DSS from arguing an invalid acknowledgment

2
Mr. Lange has not, at least in the proceedings before us, legally contested the child support
order.

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is based upon the fact that, even prior to the order of child support, Mr. Lange himself

invalidated his acknowledgment by admitting in open court, in March 2008, that he

was not the biological father of A.L. We cannot stop the State from asserting a truth

that Mr. Lange had already judicially confessed.3

Now having said that, we strongly admonish our State agencies for using

the courts to obtain blatantly inconsistent orders and to create inequities against a

party who, though uninformed of appropriate procedure, sought with his long-term

partner to do what they and the family of the child thought was in the best interest of

the child. That best interest was to rear A.L. with his half sibling (and two other older

children being successfully raised by Mr. Lange) and to keep other family

connections alive. This may or may not have been in the best interest of the child,

depending upon the family connections at issue, but it certainly deserved

investigation under the circumstances.4 If exigencies existed that prevented an

investigation, such as the time that it would have taken to get Mr. Lange certified or

qualified, then at the very least the DDS and the District Attorney should have

communicated with each other and prevented the issuance of an order of child

support against a non-parent who had no legal obligations toward the child. This is

particularly egregious since Mr. Lange had been excused from all further proceedings

involving A.L. at the request of the State and had indicated “concerns over his (Mr.

Lange’s) actual paternity of the child” the day after A.L. was born and again in the

Judgment of Adjudication.

3
This finding does not negate or vitiate other avenues of pursuing custody in the future as a
non-parent, as in Mckinley v. McKinley, 631 So.2d 45, by fully arguing and presenting evidence of
the best interest of the child, which was not done herein.
4
It certainly appears that Mr. Lange’s best intentions for this child have been demonstrated
in that he did not appeal the order of child support against him, apparently because he has concerns
that the foster parents cannot afford the care of the child.

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At the oral argument of this matter, the DSS indicated that it did not

know what the District Attorney’s office was doing in getting an order of child

support against Mr. Lange. We find this inexcusable. The order itself indicates that

the child support payments are to be mailed to the designated Post Office box of the

DSS. Therefore, these agencies cannot pretend to be without knowledge of each

other’s inconsistent actions.

IV.

CONCLUSION

Based upon the foregoing, we must affirm the denial of Mr. Lange’s

petition to establish custody, as he initially used an inappropriate vehicle (false

acknowledgment) to seek custody and visitation.

AFFIRMED.

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