State in the Interest of E.A.D.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

JMC-18-451

STATE OF LOUISIANA IN THE INTEREST OF E.A.D.

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. JC 2015985, DIVISION I
HONORABLE THOMAS R. DUPLANTIER, DISTRICT JUDGE
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JOHN E. CONERY
JUDGE
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Court composed of Shannon J. Gremillion, John E. Conery, and Van H. Kyzar,
Judges.

MOTION TO SUPPLEMENT GRANTED.

Christine Mire
Mire Law Firm
2480 Youngsville Highway, Suite C
Youngsville, Louisiana 70592
(337) 573-7254
Counsel for Appellants/Applicants:
T.D. and S.D. (maternal grandparents)

Diane E. Cote
Mary Baudoin, CWS III
Department of Children and Family Services (DCFS)
825 Kaliste Saloom Road
Brandywine III, Suite 150
Lafayette, Louisiana 70508
(337) 262-5913
Counsel and Case Worker for Appellee/Respondent:
State of Louisiana, DCFS

William T. Babin
405 West Convent Street
Lafayette, Louisiana 70501
(337) 232-7747
Counsel for Appellees:
R.M. and K.M. (foster parents)

Jami D. Pellerin
Tamiko Chatman
Acadiana Legal Services
1020 Surrey Street
Lafayette, Louisiana 70501
(337) 237-4320
Counsel for Appellee:
E.A.D. (minor child)

Nicole Guidry
15th Judicial District Public Defender’s Office
100 South Louisiana Street, Suite 500
Abbeville, Louisiana 70510
(337) 740-8885
Counsel for Appellee:
J.D. (biological mother)

Tracy D. McGraw, Assistant District Attorney
15th Judicial District Attorney’s Office
Post Office Box 3306
Lafayette, Louisiana 70502
(337) 232-5170
Counsel for Appellee:
State of Louisiana

CASA Coordinator
CASA of Acadiana
1819 West Pinhook, Suite 103
Lafayette, Louisiana 70508

CONERY, Judge.

Appellants, T.D. and S.D., are the maternal grandparents of the minor child,

E.A.D. 1 This matter was previously before this court on a writ application in

docket number 18-233, State of Louisiana in the Interest of E.A.D. Appellants

sought review of the trial court’s February 7, 2018 ruling, which ordered that it

was in the best interest of this child to allow the adoption by the foster parents,

R.M. and K.M., to proceed. 2 On May 16, 2018, this court denied the writ

application, finding that T.D. and S.D. had an adequate remedy by appeal. See

State of Louisiana in the Interest of E.A.D., 18-233 (La.App. 3 Cir. 5/16/18)

(unpublished writ decision). Because the appeal delays had expired, this court

considered the timely filed notice of intent to seek writs as a timely filed motion

and order for appeal. See Armstrong v. Stein, 94-97 (La. 3/18/94), 634 So.2d 845.

Following the issuance of this court’s writ denial, T.D. and S.D. filed a

request for the trial court to set a reasonable return date. The trial court set June

30, 2018, as the return date. The State of Louisiana, through the Department of

Children and Family Services (DCFS), filed a motion that opposed the lodging of

the entire record of the proceedings. The trial court signed an order on June 7,

2018, stating “that the record to be lodged regarding the appeal to the Third Circuit

Court of Appeal is limited to the record of the hearing of January 8, 2018,

including the written reasons for judgment and the judgment.” T.D. and S.D.

1
The initials of the minor child are used to preserve confidentiality of juvenile records.
See La.Ch.Code art. 412. See also Uniform Rules―Courts of Appeal, Rules 5‒1 and 5‒2. For
the same reason, the mother, the maternal grandparents, and the foster parents are also referred to
by their initials.
2
On August 15, 2017, T.D. and S.D. petitioned to intervene in the adoption proceedings
filed on behalf of R.M. and K.M. in docket number 2017-0041-B in the Fifteenth Judicial
District Court, Parish of Lafayette. T.D. and S.D. also filed their own petition to adopt E.A.D.

assert that this ruling was based on the trial court’s interpretation of this court’s

statement in its writ decision that “the trial court’s written judgment dismissing

Relators’ petition for adoption was signed on December 21, 2017, and notice

issued that same date. That judgment was not appealed and is not the subject of

the instant proceedings.” State of Louisiana in the Interest of E.A.D., 18-233

(La.App. 3 Cir. 5/16/18) (unpublished writ decision).

Following the trial court’s June 7, 2018 ruling, and before the trial court

record was lodged, T.D. and S.D. filed a motion in this court to supplement the

appellate record, which was assigned docket number 18-451. While that motion

was pending, the designated trial court record, marked “Designation,” was received

by this court and assigned docket number 18-465. It contained no pleadings before

January 8, 2018. In their motion to supplement the record, T.D. and S.D. have

listed fifteen hearings from December 15, 2015, through January 8, 2018. T.D.

and S.D. assert that they are appealing rulings other than the February 7, 2018

judgment and that the record should include all pleadings, notices, returns, and

transcripts. T.D. and S.D. argue that they were not provided notice or a reasonable

opportunity to be heard before those rulings were issued. Accordingly, they ask

that the appeal record be supplemented to include: all pleadings filed in this matter;

all subpoenas, notices, and returns on service; and transcripts of all hearings.

DCFS opposes the motion to supplement and asserts that the adoption

proceedings are separate from the child in need of care proceedings. However, we

note that the trial court issued a ruling that the juvenile court has continuing

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jurisdiction over these proceedings and ordered that the adoption proceedings be

transferred to Division I, docket number JC 2015985.3

DCFS states that the trial court’s designation of the record by the granting of

its motion follows the applicable rules of civil procedure and that the appellants,

T.D. and S.D., are not entitled to have the record supplemented. DCFS also argues

that the motions filed by T.D. and S.D. are premature because the record had not

been lodged at the time the motion to supplement was filed. DCFS’s proposition

that Appellants cannot supplement the record is antithetical to law and

jurisprudence.

“[T]he appellant is responsible for the record on appeal.” Daigle v. LaPoint,

14-410, p. 5 (La.App. 3 Cir. 11/5/14), 150 So.3d 599, 603. This court has found

that “[t]o the extent the [designated] record is inadequate for the type of review

requested by the [appellants],” appellate courts “‘can apply the presumption that

the trial court’s judgment is correct and affirm.’” Id. at 602-603 (quoting Grantt

Guillort Enterprises, Inc. v. Quebedeaux, 12-931, p. 7 (La.App. 3 Cir. 2/6/13), 110

So.3d 182, 188. “[T]he appellant has a duty to provide the portions which are in

fact necessary.” Colvin v. Colvin, 97-749, p. 3 (La.App. 3 Cir. 12/10/97), 704

So.2d 353, 355 (emphasis in original).

3
T.D. and S.D.’s petition to adopt E.A.D. as well as their separate petition to intervene in
adoption proceedings initiated by E.A.D.’s foster parents, R.M. and K.M., were initially assigned
to Division B at docket number 2017-0041. The minute entry from docket number 2017-0041-B,
states “that the juvenile court has continuing jurisdiction over these proceedings” and ordered
that the adoption proceedings be transferred to docket number 2015-0985-I, which is the docket
number of the proceedings concerning E.A.D., including the child in need of care proceedings.

3

Designation of the record is addressed in La.Code Civ.P. arts. 2128 and

2132, and Uniform Rules―Courts of Appeal, Rule 2‒1.17. Louisiana Code of

Civil Procedure Article 2128 provides (emphasis added):

The form and content of the record on appeal shall be in
accordance with the rules of the appellate court,[4] except as provided
in the constitution and as provided in Article 2128.1. However, . . .
the appellant may designate in a writing filed with the trial court
such portions of the record which he desires to constitute the record
on appeal. . . . [T]he other party . . . may also designate in a writing
filed with the trial court such other portions of the record as he
considers necessary. . . . [A] party or the trial court may cause to be
filed thereafter any omitted portion of the record as a supplemental
record. When no designation is made, the record shall be a
transcript of all the proceedings as well as all documents filed in
the trial court.

Louisiana Code of Civil Procedure Article 2132 states that:

A record on appeal . . . which omits a material part of the trial
record, may be corrected even after the record is transmitted to the
appellate court, by the parties by stipulation, by the trial court or by
the order of the appellate court. All other questions as to the content
and form of the record shall be presented to the appellate court.

When the appellant designates the record, an appellee is provided an

opportunity to designate additional portions of the record that it deems necessary

for review. See Hamilton v. Progressive Sec. Ins. Co., 10-1005 (La.App. 3 Cir.

10/6/10), 49 So.3d 513. See also Hooper v. Hero Lands Co., 15-929 (La.App. 4

Cir. 3/30/16), 216 So.3d 956, writ denied, 16-971 (La. 9/16/16), 26 So.3d 205 (trial

court did not err in ordering production of the entire record to the court of appeal

when appellant designated only a portion of the record, but appellee designated the

entire record; the court found that “[w]ithout the entire record, it would be

extremely difficult to unravel the facts and several complex issues in this case, a

4
Uniform Rules―Courts of Appeal, Rule 2‒1.17 states that “the parties may designate,
in writing, portions of the record to constitute the record in a Court of Appeal.”

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difficulty compounded by the appellants’ apparent inability to present

straightforward and consistent arguments.” Id. at 980.) See La.Code Civ.P. art.

2128. See also Hamilton, 49 So.3d 513.

DCFS was successful in having the record designated to its liking and T.D.

and S.D. should be allowed an opportunity to designate those portions of the record

they deem necessary for review. See Carter v. Barber Bros. Contracting Co., Inc.,

623 So.2d 8, (La.App. 1 Cir.), writ denied, 629 So.2d 1180 (La.1993).

Appellants do not seek to supplement the record with any evidence or testimony

that is outside the record, and DCFS has not demonstrated to this court that they

will be prejudiced by the supplementation of the record. See Carter, 623 So.2d 10.

Considering “the inadequacy of the record is imputable to the appellant,” this court

finds that although DCFS, as the appellee, designated the record first, it would be

unjust to disallow the appellants, T.D. and S.D., an opportunity to also designate

the portions of the they deem necessary.

For these reasons, Appellants’ motion to supplement the record is granted.

The Clerk of the Fifteenth Judicial District Court, Parish of Lafayette, is ordered to

prepare and transmit to this Court by August 1, 2018, a supplemental record, in

duplicate, containing the “transcript of all the proceedings as well as all documents

filed in the trial court,” including but not limited to all pleadings, subpoenas,

notices, returns of service, evidence, and transcripts of all hearings in State in the

Interest of E.A.D., bearing docket number JC 2015985, Division I, which were

filed or occurred before January 8, 2018. See La.Code Civ.P. art. 2128. Costs for

this supplemental record are assessed to Appellants, T.D. and S.D.

MOTION TO SUPPLEMENT GRANTED.

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