In Re: Alr and Bar

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

17-916

IN RE: ALR AND BAR

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APPEAL FROM THE
SIXTEENTH JUDICIAL DISTRICT COURT
PARISH OF IBERIA, NO. 15-82
HONORABLE CURTIS SIGUR, DISTRICT JUDGE

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CANDYCE G. PERRET
JUDGE

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Court composed of Marc T. Amy, Shannon J. Gremillion, and Candyce G. Perret,
Judges.

MOTIONS TO CONSOLIDATE AND CORRECT RECORD ARE
DENIED; EXCEPTION OF RES JUDICATA DENIED; JUDGMENT
AFFIRMED.

Edward Moses, Jr.
Attorney at Law
P. O. Box 83232
Baton Rouge, LA 70884
(225) 295-5632
COUNSEL FOR DEFENDANT-APPELLANT:
S.R.

Shane Errol Romero, Jr.
Attorney at Law
110 E. Pershing St.
New Iberia, LA 70560
(337) 321-6945
COUNSEL FOR PLAINTIFFS-APPELLEES:
C.R.
M.R.

David Y. Lamm
Attorney at Law
P. O. Box 9710
New Iberia, LA 70562
(337) 321-6535
COUNSEL FOR APPELLEES:
A.L.R.
B.A.R.

PERRET, Judge.

In this intrafamily adoption case, the trial court granted the petition for

adoption filed by the biological father, C.R., 1 and his wife, M.R. In granting the

adoption, the trial court terminated the parental rights of S.R., the natural mother,

finding that she failed to make child support payments for at least six months and

that the adoption by the stepmother was in the best interest of the two minor

children. For the following reasons, we affirm the judgment of the trial court.

FACTS AND PROCEDURAL HISTORY:

The mother of the children, S.R., and their natural father, C.R., were married

to each other in September 2001, and divorced on October 16, 2006. From their

marriage, two girls were born: A.L.R. was born on March 13, 2000, and B.A.R.

was born on March 31, 2004. On November 16, 2009, S.R. was ordered to pay

child support to C.R. in the amount of $305.00 per month, effective November 1,

2009. On March 17, 2010, C.R. was awarded sole custody of the two minor

children. At that time, S.R. was involved in a criminal proceeding, which resulted

in her incarceration in the Lafayette and Vermillion parish jails from March 11,

2010 until November 15, 2010.

On April 14, 2007, C.R. married M.R., the minors’ stepmother (collectively

“the Plaintiffs”). On January 6, 2012, the Plaintiffs filed this intrafamily adoption

suit alleging that S.R. failed to support her minor children without just cause for a

period of six months and that she failed to communicate with the minor children

without just cause for a period of six months. On March 22, 2012, the trial court

granted the adoption finding that it is in the best interest of the children.

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The initials of the parties will be used to protect and maintain the privacy of the minor children
involved in this proceeding. See Uniform Rules–Courts of Appeal, Rules 5-1 and 5-2.

However, on June 14, 2012, S.R. filed a Petition to Annul Final Judgment

alleging that the Plaintiffs did not properly serve her with the adoption suit and that

the judgment was obtained by fraud and ill practice. After a hearing on March 19,

2014, the trial court found that no service was ever attempted on the mother, C.R.,

and that the Plaintiffs failed to provide the appointed curator with information that

would have been helpful in locating her. On May 22, 2014, the trial court signed

the judgment that granted the Petition to Annul Final Judgment. In its reasons for

judgment, the trial court did not find fraud; rather, the annulment was only to cure

procedural defects and to allow S.R. the opportunity to object to the Plaintiffs’

Petition for Intrafamily Adoption. Specifically, the trial court stated as follows

(citations omitted):

An ill practice justifying annulment of a judgment
encompasses situations where the circumstances under
which the judgment is rendered show the deprivation of
the legal rights of the litigant who seeks relief, if the
enforcement of the judgment would be unconscientious
and inequitable, even though no actual fraud or
intentional wrong is shown in the procurement of the
judgment. The jurisprudence has considered conduct
which unfairly prevents the opposing party from having
his day in court to urge his defenses as an ill practice
justifying annulment of a judgment so obtained.

In this case, the Court does not find fraud, however,
the Court does find that the information withheld from
Mr. Tabb [the curator], directly prevented [S.R.] from
being notified of the adoption of the minor children. This
resulted in ill practice. Plaintiff did not accomplish due
process.

On May 27, 2014, S.R. was personally served with the Petition for

Intrafamily Adoption. On October 8, 2014, S.R. filed an answer alleging that she

was unable to financially pay the support obligation and that in May of 2011, she

was involved in an automobile accident with an eighteen wheeler that rendered her

unable to work. S.R. also filed peremptory and declinatory exceptions of no cause
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of action, no right of action, lis pendens, and improper service, all of which were

denied by the trial court on January 22, 2015. On January 29, 2015, S.R. filed a

motion for new trial, re-urging her exceptions of no cause of action, no right of

action, and lis pendens. On December 19, 2016, after a hearing, the trial court

signed a judgment that denied the motion for new trial.

On May 17, 2016, a bench trial was held on the Petition for Intrafamily

Adoption. After a four-day trial, the trial court granted the Plaintiffs’ adoption,

finding that S.R. failed to pay child support and that it was in the best interest of

the minor children to be adopted. S.R. now appeals this final judgment, alleging

the following assignments of error: (1) the trial court erred when it allowed C.R.

and M.R. to re-litigate their intrafamily adoption after it was annulled by judgment

on May 22, 2014; (2) the trial court erred when it overruled her peremptory

exception of no cause of action and no right of action and her declinatory

exception of lis pendens; (3) the trial court erred when it failed to find that when an

adoption judgment is annulled, the case resolves itself into a custody dispute; and

(4) the trial court erred in finding that her consent was dispensed with when she

failed to pay child support for a period of six months after the court ruled that C.R.

and M.R. interfered with her attempts to visit or communicate with her children.

In their appellee brief, Plaintiffs alleged as their assignment of error that the

December 13, 2016 judgment “should be modified, revised or reversed insofar as

the adoption should have also been granted for the refusal or failure of [S.R.] to

visit, communicate or attempt to communicate with the children, without just case,

for a period of at least six (6) months.” However, we find that this issue is not

properly before this court as no answer to the appeal was filed pursuant to La.Code

Civ.P. art. 2133. Thus, we will not consider Plaintiffs’ argument.

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While on appeal, S.R. filed two motions to consolidate, a peremptory

exception of res judicata, and an emergency motion to correct record. On

November 15, 2017, this court denied S.R.’s expedited motion to consolidate this

current intrafamily adoption proceeding with an unlodged appeal in her non-

support action finding that “judicial efficiency is not served with this

consolidation.” After reviewing the record, and for the reasons already stated by

this court in its November 15, 2017 ruling, we deny S.R.’s second motion to

consolidate this appeal with her unlodged appeal involving her non-support

proceeding.

S.R. argues in her exception of res judicata that once the trial court annulled

the Plaintiffs’ intrafamily adoption decree on grounds of ill practices on May 22,

2014, the doctrine of res judicata bars the Plaintiffs from re-litigating their

intrafamily adoption case. S.R. also argues that the intrafamily adoption

proceeding resolved into a custody dispute by operation of law after the trial court

annulled the adoption decree because it was obtained through ill practices. In

support of this argument, S.R. cites to In Re Wildeboer, 406 So.2d 687, 690 (La.

App. 2 Cir. 1981) and Durr v. Blue, 454 So.2d 315 (La.App. 3 Cir. 1984), for the

proposition that once the nullity of an adoption judgment is determined, the contest

resolves itself into a custody dispute. As such, S.R. argues that the Lafayette

Parish District Court has subject matter jurisdiction over the custody and child

support issues and that the Iberia Parish District Court lacked jurisdiction over the

intrafamily adoption proceeding. After reviewing the pleadings and case law

discussed below, we find no merit in S.R.’s res judicata argument that this matter

resolved into a custody proceeding following the judgment being annulled or that

the Iberia Parish District Court lacked subject matter over this adoption hearing.

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The Louisiana Supreme Court addressed the history of the Louisiana

Children’s Code in State in Interest of K.C.C., 15-1429, p. 9 (La. 1/27/16), 188

So.3d 144, 149, and stated, in pertinent part:

The Children’s Code was enacted in 1991
principally “to gather together all of the laws affecting
the exercise of juvenile court jurisdiction” previously
scattered within the Revised Statutes and the Code of
Juvenile Procedure. Lucy S. McGough, The Drafting of
the Children’s Code, 1 Louisiana Children’s Code
Handbook, pp. xi, xvi (West 2016). The intention of the
drafters was “a true code, an internally consistent,
harmonious set of substantive principles and procedures .
. . for any proceeding within the juvenile court’s
jurisdiction.” Id. at xvii-xix. A goal of the drafters was
“to resolve ambiguity and to reconcile often conflicting
laws . . . ,” such as “in the differences in the standing
requirements and procedure governing abandonment
proceedings and termination of parental rights cases. . . .”
Id. at xvii-xviii; see also Comment, Involuntary
Termination of Parental Rights in Louisiana: Unraveling
the Statute, 58 Tul. L.Rev. 1045 (1984)(critiquing the
pre-Code statutes as poorly drafted).

The Louisiana Children’s Code authorizes intrafamily adoptions that involve a

stepparent and spouse of the custodial parent of the child. La.Ch.Code arts. 1170

and 1243. Further, “[t]he 1991 enactment of the Children’s Code, which includes

fully articulated adoption procedures for . . . intrafamily adoptions, recognizes the

importance of well-established, timely procedures for adoption. The title of the

code which governs adoption states as its purpose ‘to promote the permanent

placement of available children into suitable homes.’” In re Rodrigue, 95-0009, p.

4 (La.App. 1 Cir. 6/23/95), 657 So.2d 648, 650, writ denied, 95-2141 (La.

10/27/95), 662 So.2d 2 (quoting La.Ch.C. art. 1167) (footnote omitted).

The cases cited by S.R. to support her argument that the intrafamily adoption

matter is now a custody case, pre-existed the enactment of the Louisiana

Children’s Code. Because the Louisiana Children’s Code now provides the

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requirements and procedure for intrafamily adoptions, we find the Wildeboer and

Durr cases unpersuasive in application to these proceedings. We also find no

merit to the argument that res judicata bars the Plaintiffs from “re-litigating” their

intrafamily adoption petition. As stated previously, the trial court specifically

noted that it annulled the first judgment of adoption to cure a procedural defect and

that it did not find fraud or ill practice. Accordingly, we deny S.R.’s exception of

res judicata and find that the adoption proceeding was properly heard before the

Iberia Parish District Court on May 17, 2016.

We also find no merit to S.R.’s emergency motion to correct the record that

was filed on January 25, 2018. Although S.R. alleges in her motion that the record

is missing the trial transcript from the March 19, 2014 hearing on the Petition to

Annul Final Judgment, we find the record void of any request for the transcript or

an appeal from the ruling on the annulment. Because S.R. is only appealing the

December 13, 2016 judgment granting the intrafamily adoption, we see no need to

supplement the record with the March 19, 2014 transcript that merely annulled the

March 2, 2012 judgment on a procedural defect.

STANDARD OF REVIEW:

An intrafamily adoption is the adoption of a child by a stepparent or certain

other relative. See La.Ch.Code. art. 1243. The manifest error standard of review

applies when reviewing a trial court’s decision to grant or deny a petition for

adoption. In re W.E.B., 07-1395 (La.App. 3 Cir. 3/5/08), 980 So.2d 123.

“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., [01-269, p. 10

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(La.App. 1 Cir. 2/21/01),] 808 So.2d [491,] 498.” Doe v. A.B., 06-1226, p. 5

(La.App. 3 Cir. 1/31/07), 949 So.2d 602, 605.

DISCUSSION:

Before considering the merits of the case, we will first address S.R.’s

argument on appeal that the trial court erred in denying her peremptory exceptions

of no right of action and no cause of action. The Louisiana Supreme Court

discussed these exceptions in Badeaux v. Sw. Computer Bureau, Inc., 05-0612, pp.

6-7 (La. 3/17/06), 929 So.2d 1211, 1216-17, (citations omitted) and stated in

pertinent part:

This court has recognized that one of the primary
differences between the exception of no right of action
and no cause of action lies in the fact that the focus in an
exception of no right of action is on whether the
particular plaintiff has a right to bring the suit, while the
focus in an exception of no cause of action is on whether
the law provides a remedy against the particular
defendant.

The function of an exception of no right of action
is a determination of whether plaintiff belongs to the
class of persons to whom the law grants the cause of
action asserted in the petition. The exception of no right
of action serves to question whether the plaintiff in the
particular case is a member of the class of persons that
has a legal interest in the subject matter of the litigation.

In contrast, an exception of no cause of action
questions whether the law extends a remedy against the
defendant to anyone under the factual allegations of the
petition. The exception is triable on the face of the
petition and, to determine the issues raised by the
exception, each well-pleaded fact in the petition must be
accepted as true. In reviewing a district court’s ruling
sustaining an exception of no cause of action, appellate
courts conduct a de novo review because the exception
raises a question of law and the district court’s decision is
based only on the sufficiency of the petition. An
exception of no cause of action should be granted only
when it appears beyond doubt that the plaintiff can prove
no set of facts in support of any claim which would
entitle him to relief. If the petition states a cause of

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action on any ground or portion of the demand, the
exception should generally be overruled. Every
reasonable interpretation must be accorded the language
used in the petition in favor of maintaining its sufficiency
and affording the plaintiff the opportunity of presenting
evidence at trial.

In this case, Plaintiffs have a right of action in their suit as they clearly

belong to the class of persons that have a legal interest under the La.Ch.Code. arts.

1243 and 1245. We further find that Plaintiffs have a cause of action as the last

judgment regarding custody of the minor children was in March of 2010, when

C.R. was awarded sole custody of the girls in the 15th Judicial District Court for the

Parish of Lafayette. After reviewing the record, we find that C.R. and S.R. were

not involved in “on-going” custody litigation during the two years prior to the

Plaintiffs filing for the intrafamily adoption on January 6, 2012, that would have

prevented them from filing this action in the 16th Judicial District Court for the

Parish of Iberia. For these reasons, we find no error in the trial court judgment

denying S.R.’s peremptory exceptions of no right of action and no cause of action.

We also find no merit to S.R.’s argument that the trial court erred in denying

her declinatory exception of lis pendens. In Louisiana, lis pendens is defined by

La.Code Civ.P. art. 531, and states:

When two or more suits are pending in a Louisiana
court or courts on the same transaction or occurrence,
between the same parties in the same capacities, the
defendant may have all but the first suit dismissed by
excepting thereto as provided in Article 925. When the
defendant does not so except, the plaintiff may continue
the prosecution of any of the suits, but the first final
judgment rendered shall be conclusive of all.

Again, because we find that there was no “on-going” custody litigation in

the 15th Judicial District Court for the Parish of Lafayette for the two years prior to

the Plaintiffs filing this intrafamily adoption case in the 16th Judicial District Court

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for the Parish of Iberia, and because the two suits do not involve the same parties,

we find that the trial court properly denied the declinatory exception of lis pendens.

We will now address the merits of the appeal. The issue before this court is

whether the trial court erred in granting the Plaintiffs’ Petition for Intrafamily

Adoption on December 13, 2016. “To determine whether the grant or denial of a

petition for adoption is warranted, the paramount consideration is the best interest

of the child.” In re W.E.B., 980 So.2d at 126-27. Additionally, “[t]his

determination is assessed on the facts of each individual case, and the trial court is

vested with great discretion in making such decision.” Id. at 127.

Generally, under La.Ch.Code art. 1193, a parent’s consent is required for an

intrafamily adoption. However, under La.Ch.Code art. 1245, consent of a parent is

not necessary if the petitioner proves that the parent has forfeited his right to

consent. Louisiana Children’s Code Article 1245 states as follows:

A. The consent of the parent as required by
Article 1193 may be dispensed with upon proof by clear
and convincing evidence of the required elements of
either Paragraph B or C of this Article at the hearing on
the opposition and petition.

B. When a petitioner authorized by Article 1243
has been granted custody of the child by a court of
competent jurisdiction and any one of the following
conditions exists:

(1) The parent has refused or failed to comply with
a court order of support without just cause for a period of
at least six months.

(2) The parent has refused or failed to visit,
communicate, or attempt to communicate with the child
without just cause for a period of at least six months.

C. When the spouse of a stepparent petitioner has
been granted sole or joint custody of the child by a court
of competent jurisdiction or is otherwise exercising
lawful custody of the child and any one of the following
conditions exists:
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(1) The other parent has refused or failed to
comply with a court order of support without just cause
for a period of at least six months.

(2) The other parent has refused or failed to visit,
communicate, or attempt to communicate with the child
without just cause for a period of at least six months.

Thus, C.R. and M.R. must carry the burden of proving S.R.’s consent is not

required under the law. In the petition for adoption filed in January 2012, C.R. and

M.R. alleged that C.R. was awarded sole custody of the two minor children in

March of 2010, and that S.R. had neither paid child support since June of 2011, nor

seen her children since December 2009.

At trial, S.R. agreed with the Plaintiffs’ allegations that she had not paid

child support since 2011, and that she had not seen the girls since December 2009,

but testified that she was unable to work because of injuries she suffered after

being in an accident with an eighteen wheeler and that Plaintiffs hindered her

attempts to communicate and visit with her children. Although the trial court

found just cause for S.R. not visiting or communicating with her children, it found

that C.R.’s refusal or failure to comply with her court ordered child support

obligation was without just cause for a period of at least six months prior to the

filing of the petition. In its reasons for judgment, the trial court found that S.R.

failed to present any evidence that she was unable to perform any type of work.

Specifically, the trial court provided the following reasons for the judgment

(citations to exhibits and trial transcripts omitted):

[S.R.] provided no medical testimony of any physician
that she was unable to perform any level of employment.
Furthermore, during this period of time, [S.R.] failed to
file for a modification or suspension of her child support
obligation. The only evidence provided by [S.R.]
showing her inability to work was an evaluation by Dr.
Cornelius E. Gorman, II, a Certified Rehabilitation
Counselor and Certified Life Care Planner. That

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examination took place on January 10, 2014[,] for a
forensic consultation. This evaluation failed to provide
this Court with sufficient proof that [S.R.] was unable to
perform any level of work. This evaluation by Dr.
Cornelius E. Govman, [sic] II was conducted about two
(2) years after the filing of the PETITION FOR
INTRAFAMILY ADOPTION.

This Court also finds that [S.R.’s] incarceration
was not just cause for her failure to pay court ordered
child support. She was incarcerated from March-
November 2010. She did not provide any evidence that
shows her incarceration was due to a mistake or error by
law enforcement. [S.R.] never made any child support
payments from the date ordered by the court up to and
through her incarceration. In addition, she failed to pay
any of her child support obligation[s] for a seven (7)
month period following her incarceration. Again, [S.R.]
never sought a modification or suspension of her current
child support obligation. It is clear to this Court that
[S.R.] did not have any intention of paying her child
support obligation. [S.R.] testified under cross
examination on May 18, 2016[,] that she filed a lawsuit
by herself (in forma pauperis) in Federal Court against
Wal-Mart, Incorporated on January 21, 2015[.] Thus,
this Court finds [S.R.] had the ability to file for a
modification or suspension of her child support
obligation.

This Court finds that petitioners, [C.R. and M.R.]
have proven by clear and convincing evidence that
[S.R.’s] refusal or failure to comply with her court
ordered child support obligation was without just cause
for a period of at least six (6) months prior to the filing of
the PETITION FOR INTRAFAMILY ADOPTION on
January 6, 2012. (Emphasis added)[.] This Court also
finds that [S.R.’s] consent to this adoption is
unnecessary.

After reviewing the record and exhibits, we agree with the trial court that

S.R. failed to present evidence of “just cause” for her failure to pay her court

ordered child support obligation. As such, we find that C.R. forfeited her right to

consent to this adoption.

We now consider whether M.R.’s adoption is in the best interests of the

children. Louisiana Children’s Code Article 1255(C) provides that “[w]hen a court
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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.”

In this case, the children have been living with C.R. and M.R. since C.R.

obtained custody of the minor children in March 10, 2010. In its reasons for

judgment, the trial court gave reasons for finding the adoption was in the best

interests of the children, and stated, in pertinent part (citations to exhibits omitted):

[M.R.] is responsible for transporting the minor children
to and from their respective schools. [M.R.] also plays a
vital role in helping them with their homework and
extracurricular school activities.

According to [A.L.R.’s] testimony, she had been
emotionally and physically abused by her mother, [S.R.].
In addition, [A.L.R.] also reported that she was
physically abused by [S.R’s.] husband, Frank. Together
both children suffer from childhood trauma and severe
anxiety as a result of the treatment from [S.R.] and Frank.
Their greatest fear is being required to return to the home
of [S.R.]. Ms. Amiee Broussard of priority Psychiatric
Services reported to this Court that it was her
professional opinion that these minor children are well
cared for by [C.R.] and [M.R.]. Ms. Broussard further
opined that removing the minor children from their stable
environment would be detrimental to these children’s
emotional well[-]being.

At trial in the matter, [A.L.R.] further testified that
she has no relationship with her mother, [S.R.]. She last
saw her mother in 2008. During the period of time while
with her mother, she was physically and emotionally
abused. She felt that when Frank physically abused her,
[S.R.] failed to protect her. She testified that she does
not want to see [S.R.]. It is her desire that she and her
sister be adopted by [M.R.]. [A.L.R.] further testified
that she has no love for her mother. Finally [A.L.R.]
testified that her mother does not care about her.

[B.A.R.] testified that [S.R.] and her husband,
Frank[,] were very abusive. As a form of punishment,
she was locked in a dog room (laundry room) where the
dog sleeps. [B.A.R.] felt that her mother refused to
protect her from the abuses of Frank. It is also her desire
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that the adoption is granted. She has no desire to talk to
[S.R.]. [M.R.] takes them to school, helps them with
their homework, special projects, as well as her personal
needs. She is fearful of going back to [S.R.]. She nor her
sister ever received any Christmas or birthday gifts from
their mother. They only received two (2) letters during
the time their mother was incarcerated.

This Court finds that [A.L.R.] and [B.A.R.] do not
have any type of relationship with their natural mother,
[S.R.]. They do not consider [S.R.] to be their mother
anymore. There is no type of bond with [S.R.]. It is their
strong desire to be with their father and stepmother. This
Court finds that the distance in time from the point their
father obtained sole custody of the children to the filing
of the PETITION FOR INTRAFAMILY ADOPTION
has erased any emotional attachment with their natural
mother. It appears that the only things the minor children
remember from their natural mother are the physical and
emotional abused inflicted on them over seven (7) years
ago.
[C.R.] and [M.R.] have provided the minor
children with a stable home. [M.R.] has treated these
girls as if she was their natural mother helping with their
school work, extracurricular school activities, as well as
their personal needs. She also provides for their
economic needs as well as their emotional needs. This
Court finds that the actions of their natural mother [S.R.]
is the total opposite.

Finally, this Court finds that this Intrafamily
Adoption of the minor children is in their BEST
INTEREST. (Emphasis added). For this Court to find
otherwise under the facts of this case would be an
injustice to [A.L.R.] and [B.A.R.].

After a thorough review of the record, we find that the evidence supports the

trial court’s judgment that granted the adoption and found that the adoption is in

the best interest of the children. Therefore, we find the trial court’s judgment

neither manifestly erroneous nor clearly wrong.

In conclusion, we affirm the December 14, 2016 judgment that granted C.R.

and M.R.’s Petition for Intrafamily Adoption. Further, S.R.’s motions to

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consolidate and correct the record on appeal as well as her exception of res judicata

are denied. All costs of this appeal are assessed to S.R.

MOTIONS TO CONSOLIDATE AND CORRECT RECORD ARE
DENIED; EXCEPTION OF RES JUDICATA DENIED; JUDGMENT
AFFIRMED.

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