State in the Interest of P. T.

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

14-1160

STATE IN THE INTEREST OF P.T.

************

APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 24444 “A”
HONORABLE D. KENT SAVOIE, DISTRICT JUDGE

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JAMES T. GENOVESE
JUDGE

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Court composed of Jimmie C. Peters, Billy Howard Ezell, and James T. Genovese,
Judges.

Ezell, J., dissents and assigns written reasons.

AFFIRMED IN PART;
REVERSED IN PART;
AND RENDERED.

Frank Granger
A Professional Law Corporation
1135 Lakeshore Drive, 6th Floor
Lake Charles, Louisiana 70601
(337) 439-2732
COUNSEL FOR INTERVENORS/APPELLANTS:
R.T. and G.T.

Jonathan L. Johnson
Johnson & Vercher, L.L.C.
910 Ford Street
Post Office Box 849
Lake Charles, Louisiana 70601
(337) 433-1414
COUNSEL FOR INTERVENOR/APPELLEE:
S.R.

Amy E. McGray
MHAS/ Child Advocacy Program
1 Lakeshore Drive, Suite 1585
Lake Charles, Louisiana 70601
(337) 491-2461
COUNSEL FOR THE MINOR CHILD:
P.T.

Stephen A. Berniard, Jr.
Raggio, Cappel, Chozen & Berniard
Post Office Box 820
Lake Charles, Louisiana 70601
COUNSEL FOR APPELLEE/STATE OF LOUISIANA

GENOVESE, Judge.

In this juvenile proceeding, the maternal grandparents, R.T.1 and G.T.,

appeal the trial court’s judgment: (1) denying their petition for adoption of the

minor child, P.T.; (2) awarding joint custody of P.T. to R.T. and G.T. along with

the paternal grandmother, S.R.; (3) granting co-domiciliary status to the parties;

and, (4) terminating the jurisdiction of the Department of Children and Family

Services (DCFS). For the reasons that follow, we affirm in part, reverse in part,

and render.

FACTS AND PROCEDURAL HISTORY

P.T., the child of J.S. and S.T, was born May 27, 2009. On October 16,

2011, the DCFS filed a petition to have P.T. adjudicated a child in need of care.

Thereafter, the trial court issued an instanter order placing P.T. into the custody of

the DCFS. Following a continued custody hearing, P.T. was placed in the

temporary custody of the DCFS. On November 17, 2011, the trial court found P.T.

to be a child in need of care. The trial court held a dispositional hearing on

December 8, 2011, and maintained custody of P.T. with the DCFS.

S.R. filed a Petition for Intervention on December 12, 2011, seeking custody

of P.T. or, alternatively, visitation. On January 11, 2012, R.T. and G.T. filed a

Petition for Intervention and Custody whereby they also sought the sole care,

custody and control of P.T. Following a hearing on February 29, 2012, P.T. was

placed with R.T. and G.T., and S.R. was given specified visitation.

Several case review hearings occurred thereafter. In 2012, the trial court

approved the DCFS’s recommendation that the case plan goal be changed from

1
Pursuant to Uniform Rules—Courts of Appeal, Rules 5–1 and 5–2, the initials of the
parties will be used to protect and maintain the privacy of the minor child involved in this
proceeding.

that of reunification to adoption. On March 28, 2013, the trial court considered a

Petition for Certification and Termination of Parental Rights. Subsequent thereto,

the trial court terminated the parental rights of J.S and S.T., and P.T. was freed for

adoption.

The trial court held a case review hearing on May 28, 2013, at which time it

found that adoption would not be in P.T.’s best interest. The trial court reached

this conclusion based upon the equal sharing of custody of P.T. between R.T. and

G.T. and S.R. at that time.

On November 12, 2013, the trial court considered the matter of the adoption

of P.T., S.R.’s Petition for Custody,2 and the answer and reconventional demand of

R.T. and G.T., wherein they also sought custody of P.T. in the event the trial court

denied their Petition for Adoption. Following a hearing on these matters, the trial

court denied R.T. and G.T.’s Petition for Adoption, awarded R.T. and G.T. joint

custody of P.T. along with S.R., and it granted co-domiciliary status to the parties.

Additionally, the trial court terminated the jurisdiction of the DCFS. On June 19,

2014, the trial court signed a judgment in accordance therewith, which included a

Joint Custody Plan. R.T. and G.T. appeal.

ASSIGNMENTS OF ERROR

R.T. and G.T. present the following for our review:

1. The trial court erred in denying the Petition for Adoption of
P.T. by Appellants, R.T. and G.T.[]

2. The trial court erred in not applying the presumption in favor of
adoption by R.T. and G.T. in the proceeding and ruling that

2
S.R.’s appellate brief states that S.R. also filed a Petition for Adoption, a copy of which
is attached as an exhibit thereto; however, she notes that this pleading “does not appear in the
record but is discussed in the transcript[.]” We agree with S.R. that although the record is void
of this pleading, it is apparent that her petition was considered. However, given that S.R. has not
appealed nor answered the appeal, the propriety of any action, vel non, by the trial court relative
to her petition is not before this court.

2

they failed to meet their burden of proof that the adoption of
P.T. was in her best interest[.]

3. Appellee, S.R., failed to prove the adoption is not in the best
interest of P.T. Further, she had no legal standing to adopt but
could only challenge the adoption as not in P.T.’s best
interest[.]

4. The trial court erred in awarding joint custody of P.T. to R.T.
and G.T and S.R.[]

5. The trial court erred in making R.T. and G.T. and S.R.
co-domiciliary parents of P.T. []

6. The trial court erred in terminating the jurisdiction of DCFS
when it denied the adoption in violation of [La.Ch.Code arts.]
1037 and 1042.

LAW AND DISCUSSION

We note at the outset that the parties dispute the proper standard of review to

be applied by this court on appeal. R.T. and G.T. contend that due to legal errors

of the trial court, it is incumbent upon this court to conduct a de novo review of the

record. We disagree.

As stated, R.T. and G.T.’s second assignment of error raises an issue that

they contend constitutes a legal error by the trial court in failing to apply a

rebuttable presumption that adoption is in the best interest of the child.3 They

conclude that the presumption “shifts the burden on the natural parent, or in this

case, the intervening maternal grandmother, S.R., to prove that the adoption is not

in the child’s best interest.” We find no merit to this contention.

This is not an intra-family adoption governed by La.Ch.Code art. 1255.

Because this case involves an agency adoption, the authority relied upon by R.T.

and G.T. is inapplicable. The presumption contained in La.Ch.Code art. 1255 did

not apply in this agency adoption case. Therefore, the trial court did not legally err
3
Louisiana Children’s Code Article 1255(C) provides that “[w]hen a court has granted
custody to either the child’s grandparents or his parent married to the stepparent petitioner, there
shall be a rebuttable presumption that this adoption is in the best interests of the child.”

3

in failing to apply a presumption in favor of adoption by R.T. and G.T.

The trial court’s denial of R.T. and G.T.’s Petition for Adoption was made

upon his finding that the adoption “would be detrimental to [P.T.’s] best interest.”

Such a determination is fact intensive; thus, the trial court’s findings are entitled to

great weight and will not be disturbed on appeal unless it is manifestly erroneous

or clearly wrong. In re M.J.C., 09-1355 (La.App. 3 Cir. 3/10/10), 33 So.3d 397.

After applying the pertinent law, the trial court made the factual determination that

the burden of proof was not met in this case; thus, the adoption was denied. This

determination will not be disturbed absent a finding of manifest error by this court.

R.T. and G.T.’s first three assignments of error are intertwined in that they

all address the merits of the trial court’s denial of the Petition for Adoption. For

our purposes, we shall address these purported errors of the trial court in

combination and not in the order in which they were presented.

R.T. and G.T. raise issues of the burden of proof. They argue both that the

trial court erroneously found “that R.T. and G.T. did not meet their burden of proof

that the adoption was in the best interest of P.T.[,]” and, that “S.R. failed to prove

the adoption is not in the best interest of P.T.” We find no merit to these

contentions.

In its oral reasons for judgment, the trial court first cited La.Ch.Code art.

1217(B), which provides that “[t]he court, after hearing and after taking into

consideration information from all sources concerning the adoption, may enter a

final decree of agency adoption, or it may deny the adoption. The basic

consideration shall be the best interests of the child.” The trial court went on to

note that the criteria for determining the best interests of the child in the case of a

petition for adoption has never been articulated by the legislature “except for broad

considerations expressed in [La.Ch.Code art.] 1208.” Specifically addressing the
4

burden of proof, and referencing In re J.M.P., 528 So.2d 1002 (La.1988),4 the trial

court noted that “it put the burden of proof on the person proposing to get the

adoption to convince the court that it was, in fact, [in] the best interest of the

child.”

In In re JMP, 528 So.2d at 1012, our supreme court stated as follows:

The statute does not allocate the burdens of proof with respect
to the best interest of the child. But in our opinion both the burden of
producing evidence and the burden of persuasion should be on the
adoptive parents. The facts with regard to the crucial issue of the
nature of the child’s relationship with the adoptive parents lie
peculiarly within their knowledge. Additionally, they are more apt to
be able to produce expert witness testimony helpful to the court in
deciding what is in the child’s physical and emotional best interests.
See McCormick, On Evidence, § 337, at 950 (3rd ed. 1984).

Thus, in the instant case, R.T. and G.T. bore the burden of proving that their

adoption of P.T. would be in the best interest of the child. Therefore, assignment

of error number three is without merit. Having so concluded, we must next

consider whether they, in fact, met that burden based on the record in this case and

guided by the instruction of our supreme court.

The exact scope of the standard “best interest of the child”
under the private adoption statute has not been detailed by the
Legislature or this court. But the policy reflected in these words is
firmly established in other statutes and in the law of virtually every
American jurisdiction. The basic concept underlying this standard is
nothing less than the dignity of the child as an individual human
being. For this reason the words of the criterion cannot be precise and
their scope cannot be static. “The best interests of the child” must
draw its meaning from the evolving body of knowledge concerning
child health, psychology and welfare that marks the progress of a
maturing society.

Among modern legal and child psychological authorities, the
consensus is that, of the multifarious considerations relevant to the
best interests of a child in resolving a private custody dispute between

4
In re J.M.P. involved a private adoption and the applicable statute; however, as this
court noted, “the best interest of the child standard is paramount in all adoptions[.]” In re
Billeaud, 600 So.2d 863, 866 (La.App. 3 Cir. 1992); see also, In re G.E.T., 529 So.2d 524
(La.App. 1 Cir. 1988).

5

the natural parent and the proposed adoptive parents, the most
important factors are: (1) Whether each person seeking custody is fit
to be the child’s parent; (2) Whether either of the adoptive parents
has a psychological relationship with the child; and (3) The natural
parent’s biological relationship with the child.

In re J.M.P., 528 So.2d at 1012-13 (footnotes omitted).

In accordance with In re J.M.P., when considering the paramount

consideration of P.T.’s best interest, the trial court considered the factors set forth

by our supreme court. The trial court first referenced the testimony of P.T.’s

school principal, who “very clearly said that she could see no difference when the

child is with one set of grandparents versus the other set of grandparents.”

Similarly, the trial court mentioned the CASA worker’s testimony that she could

see no reason why S.R. “would not be a suitable parent as well.” There being no

issue of the fitness of the parties, the trial court found both “sets of grandparents,

[to be] fully capable of rearing a four year old child.” This determination by the

trial court is wholly supported by the record.

Additionally, the trial court expressly considered the parties’ relationships

with P.T. Beginning in February 2012, R.T. and G.T., along with S.R., began

jointly sharing responsibly for P.T. Although P.T. was placed with R.T. and G.T.,

S.R. was given visitation on alternating weeks such that the parties were sharing

custody of P.T. on an equal basis. The evidence substantiates that the parties each

enjoyed a close and loving relationship with the child. In the words of the trial

court, “the child has established a relationship with both the paternal grandmother

and the maternal grandparents, such that putting one party in control of that

relationship, either way, . . . would be detrimental to her best interest.”

Unquestionably, with respect to the psychological relationships involved, R.T.,

G.T., and S.R., all had a close and loving relationship with P.T., which the trial

court deemed essential and needed to be maintained.
6

Lastly, we note that although In re J.M.P. lists the relationship of the

biological parents as a factor, it is not relevant in this case since their parental

rights were terminated in 2013, and the present case solely involves the competing

interests of P.T.’s paternal grandmother and maternal grandparents.

In brief, R.T. and G.T. devote considerable discussion to the concern voiced

by the trial court that in the event of an adoption, R.T. and G.T. may deny S.R.

contact and visitation with P.T. They contend that that the trial court denied their

petition for adoption based upon a “fear that if adoption were granted, somehow,

S.R. would be ‘cut out’ or not have any say in the decision-making authority for

the child[.]”

We agree with S.R. that the trial court’s oral reasons for judgment reveal its

concern of ensuring that all of the parties have continued contact with P.T. The

trial court was fully cognizant that “an adoption establishes a parent/child

relationship with the adoptive parents, and terminates the familial relationship with

other relatives.” As such, the trial court noted the reality that an adoption would be

permanent in nature and that “future circumstances may change[.]” Further, the

trial court stated that it did “not think that it’s in the best interest of the child that at

this young age that [it] make a determination that’s forever going to affect how she

is raised.” However, these considerations were not determinative; rather, they

were considerations of the trial court in determining what was in the best interest

of P.T. We agree with S.R. that the trial “court’s denial of the adoption[] in this

case was well-founded on the evidence presented and well-reasoned based upon

7

the correct application of the law, burden of proof, and basic consideration of the

best interest of P.T.”5

The key distinction between an adoption and custody is that an adoption is

permanent; whereas, custody is always subject to change. It is in P.T.’s best

interest, considering her tender age, that there be a flexible arrangement between

the parties which is readily adaptable to the changing needs of both P.T. and her

respective grandparents. A custodial arrangement, as opposed to the permanence

of an adoption, is best suited to adjust to P.T.’s needs up through majority. An

adoption cannot be altered, but custody can always be modified to provide for

P.T.’s best interest.

After a thorough review of the record, it is clear that the evidence supports

the trial court’s judgment denying the adoption and that the trial court was neither

manifestly erroneous nor clearly wrong. For these reasons, we affirm the trial

court’s denial of R.T. and G.T.’s Petition for Adoption.

R.T. and G.T. also contend that the trial court erred in awarding joint

custody of P.T. to R.T. and G.T. and S.R. We disagree.

[T]he unique facts of this case do not fit cleanly into the parameters of
La. Civ.Code art. 133. Nonetheless, it is well-established that each
child custody case must be viewed in light of its own particular set of
facts and circumstances, with the paramount goal of reaching a
decision that is in the best interest of the child. Barberousse v.
Barberousse, 556 So.2d 930 (La.App. 3 Cir.1990). The trial court has
great discretion in this area, and its determination will not be disturbed
in the absence of a clear abuse of discretion. Bagents v. Bagents, 419
So.2d 460 (La.1982). The primary consideration and prevailing
inquiry is whether the custody arrangement is in the best interest of
the child. See Evans v. Lungrin, 97-0541, 97-0577 (La.2/6/98), 708
So.2d 731.

5
We note that the attorney for the minor child filed a brief with this court wherein she
adopts the law and argument presented by S.R. and requests that the ruling of the trial court be
affirmed.
8

McCormic v. Rider, 09-2584, pp. 3-4 (La. 2/12/10), 27 So.3d 277, 279. Since the

best interest of P.T. is the paramount consideration for purposes of both adoption

and custody, the same considerations discussed above apply to the issue of

custody. Moreover, the applicable law must be applied against the backdrop of

the unique set of facts of this case.

From the time that she was placed in the custody of the DCFS, the maternal

grandparents and the paternal grandmother have all played vital roles in the

upbringing of P.T. from a very young age. As the trial court noted, P.T. was

fortunate to have her grandparents fill the void once her parents’ rights were

terminated. Although P.T. was placed in the home of R.T. and G.T., S.R. had

visitation with P.T. on alternating weeks. This arrangement continued for two

years without incident. Clearly, P.T. has established a close and loving

relationship with both parties, and the arrangement has been to her benefit. Both

of the parties are also fit to care for the child and are capable of rearing the child.

Given the strength of these relationships, the record is clear that the trial court was

intent on ensuring that P.T. continues to maintain contact with both her paternal

grandmother and her maternal grandparents.

On the question of custody, we agree with S.R.6 that “the court’s ruling did

precisely what [La.Ch.Code art. 7027] suggests and was based on the exact criteria

6
Again, we note that the minor child has adopted the law and arguments of S.R. relative
to the trial court’s ruling.
7
Louisiana Children’s Code Article 702 provides, in pertinent part:

C. The court shall determine the permanent plan for the child that is most
appropriate and in the best interest of the child in accordance with the following
priorities of placement:

(1) Return the child to the legal custody of the parents within a specified
time period consistent with the child’s age and need for a safe and permanent
home. In order for reunification to remain as the permanent plan for the child, the
parent must be complying with the case plan and making significant measurable
9

that this article demands.” Once the trial court concluded that adoption was not in

P.T.’s best interest, in keeping with La.Ch.Code art. 702(C)(4), which lists “a

relative who is willing and able to offer a safe, wholesome, and stable home for the

child[,]” the trial court concluded that both of the parties were capable of doing so.

Moreover, the resolution reached by the trial court is wholly in keeping with article

702(D)’s mandate that consideration be given to P.T.’s “need for continuing

contact with any relative . . . with whom the child has an established and

significant relationship[.]” For these reasons, we find no error in the trial’s court

determination that joint custody was in the best interest of P.T., and, accordingly,

we affirm same.

R.T. and G.T. also assert that the trial court erred in designating

co-domiciliary status to them and S.R. We agree.

Louisiana Revised Statutes 9:335(B) provides:

(1) In a decree of joint custody the court shall designate a
domiciliary parent except when there is an implementation order to
the contrary or for other good cause shown.

progress toward achieving its goals and correcting the conditions requiring the
child to be in care.

(2) Adoption.

(3) Placement with a legal guardian.

(4) Placement in the legal custody of a relative who is willing and able to
offer a safe, wholesome, and stable home for the child.

(5) Placement in the least restrictive, most family-like alternative
permanent living arrangement. The department shall document in the child’s case
plan and its report to the court the compelling reason for recommending this plan
over the preceding higher priority alternatives.

D. The court shall consider a child’s need for continuing contact with any
relative by blood, adoption, or affinity with whom the child has an established and
significant relationship in accordance with Article 1269.2 as one of several factors
in determining the permanent plan that is most appropriate and in the best interest
of the child.

10

(2) The domiciliary parent is the parent with whom the child
shall primarily reside, but the other parent shall have physical custody
during time periods that assure that the child has frequent and
continuing contact with both parents.

(3) The domiciliary parent shall have authority to make all
decisions affecting the child unless an implementation order provides
otherwise. All major decisions made by the domiciliary parent
concerning the child shall be subject to review by the court upon
motion of the other parent. It shall be presumed that all major
decisions made by the domiciliary parent are in the best interest of the
child.

In this case, the trial judge, when specifically questioned on the issue of

domiciliary status, replied that his decision was “co-domiciliary parents. I’m not

putting one in charge of the other.” The record reflects that there was then a

discourse on the legal propriety of such a designation with counsel urging that the

law requires that a domiciliary parent be named, to which the trial court responded:

“I’ll name both of them.” While this reasoning of the trial court is in keeping with

the general tenor of its decision being concerned with not elevating the authority of

one party over the other, we agree with R.T. and G.T. that co-domiciliary status is

inappropriate and not in the best interest of the child, considering the facts in this

case.

By its express terms, La.R.S. 9:335(B)(1), grants a trial court the authority,

upon a finding of “good cause,” to decline to name a domiciliary parent. R.T. and

G.T. do not dispute that co-domiciliary status may never be granted; rather, they

“do not believe that such circumstances exist in this case.” We agree.

The trial court, in its oral reasons for judgment, stressed its desire and belief

that the parties should both be apprised of and consulted in decisions being made

relative to P.T. In principle, we agree. However, in practice, and in actuality, we

agree with R.T. and G.T. that co-domiciliary status may easily result in “a

disagreement by one [that] will effectively prevent decisions being made on behalf

11

of P.T.” The result of such an occurrence could easily establish conflicting

co-authorities and an untenable domiciliary status which will not serve the best

interests of P.T. Additionally, the slightest disagreement between the respective

co-domiciliary grandparents has the potential of spawning litigation over the

routine rearing of the child.

Considering the totality of the circumstances, especially considering the fact

that the joint custody plan calls for P.T. to reside with R.T. and G.T. during the

school year, we find that the trial court erred in its designation of co-domiciliary

status to the parties. We find the placement of P.T. in the home of R.T. and G.T.,

her maternal grandparents, since 2012, to be significant in this regard. We note

that the maternal grandparents, a married couple, have been active in providing for

and rearing P.T. since the inception of these proceedings. Additionally, while not

minimizing the contributions and care provided by S.R., we find that designating

R.T. and G.T. to be the domiciliary grandparents of P.T. to be in her best interest.

For these reasons, we reverse the trial court’s grant of co-domiciliary status to the

parties, and we render judgment herein designating R.T. and G.T. as the

domiciliary grandparents of P.T.

In their final assignment of error, R.T. and G.T. contend that the trial court

erroneously terminated the jurisdiction of the DCFS. We disagree.

P.T. came into the custody of the DCFS after being found to be a child in

need of care. That is no longer the case. Currently, P.T. is in the joint custody of

her paternal grandmother and maternal grandparents and is no longer in need of

care. The State’s position is that there are no continuing concerns, and it has

requested to be released. Considering the facts and the status of this case, there is

nothing to justify or warrant maintaining the DCFS in this case. Accordingly, we

12

find no error with the trial court’s decision to release the DCFS from these

proceedings, and we affirm that portion of the judgment regarding same.

DECREE

For the reasons assigned, we affirm the trial court’s judgment denying R.T.

and G.T.’s Petition for Adoption, awarding joint custody to R.T. and G.T. along

with S.R., and terminating the jurisdiction of the Department of Children and

Family Services. Additionally, we reverse that portion of the trial court’s

judgment and the Joint Custody Plan granting co-domiciliary status to both parties,

and we render judgment herein designating R.T. and G.T. as the domiciliary

grandparents of P.T. Costs of this appeal are assessed fifty percent to R.T. and

G.T., and fifty percent to S.R.

AFFIRMED IN PART;
REVERSED IN PART;
AND RENDERED.

13

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

14-1160

STATE IN THE INTEREST OF P.T.

EZELL, Judge, dissenting.

For the following reasons, I respectfully dissent. This matter began as a

child in need of care case by petition filed by the State on October 6, 2011. On

October 27, the trial court placed the child in the temporary custody of the

Department of Child and Family Services (DCFS). On December 12, 2011, the

paternal grandparent, S.R., filed for custody of P.T. On January 11, 2012, the

maternal grandparents R.T. and G.T. filed to intervene and for custody of P.T.,

therein asking for sole care, custody, and control of P.T.

At a dispositional hearing on February 29, 2012, P.T. was placed with R.T.

and G.T., with S.R. being given alternating Tuesdays from 9:00 a.m. to Sunday at

5:00 p.m. All efforts toward reunification with the parents of P.T. failed!

At the case review hearing on February 19, 2013, the goal set by the State

was that adoption was in the best interest of the child. On March 28, 2013, the

parental rights of the parents of P.T. were terminated. The trial court, on May 28,

2013, determined that it was not in the best interest of the child to be adopted and

rendered judgment that the paternal and maternal grandparents would share the

custody of P.T. All the grandparents were joined or placed at issue the custody

and/or adoption of P.T. in pleadings before the trial court.

On August 22, 2013, in a court report by the CASA representative for the

court, it was recommended that P.T. be adopted by R.T. and G.T., due to the fact

that both parties were in agreement that the paternal grandparent, S.R., would have

visitation every other weekend. However, when the parties came before the trial
1

court, they had not reached an agreement. Even though there was no agreement,

the CASA worker again recommended adoption by R.T. and G.T. This occurred

on November 5, 2013. On November 12, 2013, a bench trial was held and the

court denied the adoption and granted co-domiciliary custody to R.T. and G.T.,

maternal grandparents, and to S.R., paternal grandparent.

All of the agency reports and CASA reports indicate that the maternal

grandparents, R.T. and G.T., have provided the child with all of her needs and the

child is comfortable in their home. P.T. was originally place with the maternal

grandparents on March 1, 2012. The CASA report of September 2013 clearly

shows that the grandparents, before lawyers became involved in the court

proceedings as representatives of both of the grandparents, were agreeable to

having the child adopted by the maternal grandparents, as long as S.R. got the child

every other weekend and shared holidays with the maternal grandparents.

On September 5, 2013, the trial court ordered that counsel for the parties

make a proposal to the maternal grandparents as to custody of P.T. The CASA

designee, Marie Jones, on November 5, 2013, filed her report and again

recommended adoption by R.T. and G.T.

The trial court, on November 12, 2013, after a trial, denied the adoption and

awarded joint custody of P.T. and granted co-domiciliary custody of the child, P.T.

to both sides and terminated the jurisdiction of DCFS and incorporated a joint

custody plan on June 19, 2014. This judgment was read and signed on August 18,

2014. It is clear from the comments made by the trial court that the court was

under the mistaken impression that if the parties could and would agree to a

visitation agreement under a “Continuing Contact Agreement,” which is

permissible as per La.Ch. Code art. 1218(D), and more specifically under La.Ch.

2

Code art. 1269.1, that the trial court would not be able to alter the judgment of

adoption in the future.

We must remember that one of the purposes for termination of the parents’

rights is to make the child available for adoption. The trial court, by not allowing

for adoption, in reality makes the child an orphan or a child without a parent or

parents. La.Ch. Code art. 1037.1. It is clear that the preference is given to

adoption in these cases. La.Ch. Code art. 702(C). The reasoning by the trial court

was, “If I do custody agreement and I find that one party is not cooperating then I

can change the custody agreement, . . . . and give more authority to one party than

the other. . . . versus an adoption, I’m stuck.” This I feel is legal error! The

decision in this case by the trial court will not resolve the differences between the

parties, but engender and require litigation in the future to resolve differences. In a

Continuing Contact Agreement, the court can require mediation between the

parties to resolve any differences. See La.Ch. Code art. 1269.8(B).

It is clear that S.R. did not present sufficient evidence to controvert the

presumption that adoption of P.T. was in her best interest. In re C.B., Applying for

Adoption, 94-755 (La. 10/17/94), 643 So.2d 1251. The only evidence presented by

S.R. was with regard to her visitation/access. S.R. was concerned as to what was

in her best interest and presented that evidence at trial.

It is clear that pursuant to La.R.S. 9:335(B)(1), unless “an implementation

order to the contrary or for other good cause shown,” there shall be a designated

domiciliary parent,” not co-domiciliary parents.

If the trial court denied the adoption in this matter, the State’s involvement is

not terminated. I find that termination of the involvement of the DCFS is a legal

error.

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Every child needs stability, and in this case, that stability would call for the

adoption of the child, P.T., by her maternal grandparents and a “Continuing

Contacts Agreement” with the paternal grandparent.

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