Opinion
NUMBER 2013 CU 1477
12-27-2013
C.M.H. v. D.M. AND S.D.M.
Sacha S. Tessier Baton Rouge, LA Attorney for Appellants Defendants - D.M. and S.D.M. Steven M. Miller Thibodaux, LA Attorney for Appellee Plaintiff - C.M.H.
NOT DESIGNATED FOR PUBLICATION
Appealed from the
23rd Judicial District Court
In and for the Parish of Assumption, Louisiana
Trial Court Number 33819
Honorable Thomas J. Kliebert, Jr., Judge
Sacha S. Tessier
Baton Rouge, LA
Attorney for Appellants
Defendants - D.M. and S.D.M.
Steven M. Miller
Thibodaux, LA
Attorney for Appellee
Plaintiff - C.M.H.
BEFORE: WHIPPLE, C.J., WELCH, AND CRAIN, JJ.
WELCH, J.
In this intrafamily custody dispute, D.M. and S.D.M., the adoptive parents/biological great-grandparents of the minor child T.M.C., appeal a judgment of the trial court awarding joint custody of T.M.C. to them and C.M.H, T.M.C.'s biological mother but legal "non-parent." We affirm.
This case arises from a unique set of facts and circumstances. On May 28, 2006, C.M.H., who was then 15 years old, gave birth to T.M.C. At the time, C. M.H. and her younger brother, G.H., were residing in the home of D.M. and S.D.M., their maternal grandparents. On August 29, 2007, D.M. and S.D.M. adopted G.H. (their grandson), C.M.H. (their granddaughter), and T.M.C. (their great grandson). Thus, by virtue of this intrafamily adoption, C.M.H. became T.M.C.'s sister and the child of D.M. and S.D.M.
The adoption was an intrafamily adoption pursuant to La. Ch.C. art. 1243, et seq.
Following the adoption, the family dynamics of the household of D.M. and S.D.M remained the same as before the adoption—C.M.H. and T.M.C. continued to reside in the home, C.M.H. continued in her role as the mother of T.M.C, D.M. and S.D.M. continued in their roles as the great-grandparents of T.M.C, and T.M.C.'s name was not changed. According to D.M., the purpose of the intrafamily adoption was to allow D.M. to obtain social security benefits on behalf of C.M.H. and T.M.C. to assist with the cost of feeding and clothing them.
On June 15, 2009, almost two years after the adoption (and after C.M.H reached the age of majority and graduated from high school), she moved out of D. M. and S.D.M.'s home. D.M. and S.D.M. refused to let C.M.H. take T.M.C. with her and to allow her any meaningful visitation or communication with T.M.C. Therefore, on September 15, 2009, C.M.H. instituted proceedings seeking to nullify the adoption; however, that action was ultimately dismissed by this court on April 4, 2012 based on peremption. See C.M.H. v. D.M. and S.D.M., 2012-0251 (La. App. 1st Cir. 4/4/12) (unpublished writ action); C.M.H v. D.M. and S.D.M., 2012-0251 (La. App. 1st Cir. 5/10/2012) (unpublished writ action, rehearing), writ denied, 2012-0979 (La. 6/22/12), 91 So.3d 972; C.M.H. v. D.M. and S.D.M., 2012-0384, p.2 (La. App. 1st Cir. 7/25/12) (unpublished); C.M.H. v. D.M. and S.D.M., 2011-1719 (La. App. 1st Cir. 9/21/11) (unpublished writ action), writ denied, 2011-2326 (La. 11/9/11), 75 So.3d 438.
However, while the action to nullify the adoption was still pending, on July 15, 2010, a "consent judgment" was purportedly entered into between C.M.H. and D.M. and S.D.M., which provided that C.M.H. would share joint custody of T.M.C. with D.M. and S.D.M. (who would have domiciliary status) for a period of 18-24 months, after which time the court would annul the adoption decree. C.M.H. v. D.M. and S.D.M., 2012-0384, p.l. Thus, between July 15, 2010 and April 4, 2012, C.M.H. shared joint physical custody of T.M.C. with D.M. and S.D.M.
This judgment was ultimately vacated and dismissed by this court's April 4, 2012 ruling. See C.M.H. v. D.M. and S.D.M., 2012-0251 (La. App. 1st Cir. 4/4/12) (unpublished writ action): C.M.H v. D.M. and S.D.M., 2012-0251 (La. App. 1st Cir. 5/10/2012) (unpublished writ action, rehearing), writ denied, 2012-0979 (La. 6/22/12), 91 So.3d 972.
On appeal, D.M. and S.D.M assign error to the trial court's evidentiary ruling allowing a true copy of the July 15, 2010 consent judgment into evidence because the judgment was ultimately vacated and dismissed. While that consent judgment has no legal effect and is obviously not enforceable, the record reflects that its evidentiary value was not for its legal effect or enforcement, but rather to further corroborate other factual testimony establishing that C.M.H. and D.M. and S.D.M. shared physical custody of T.M.C. for over a year and a half, which was relevant to the trial court's determination of what was in the best interest of T.M.C. Accordingly, we cannot say that the trial court abused its vast discretion in admitting a true copy of the consent judgment into evidence and we find no merit to this assignment of error.
After C.M.H. 's action to nullify the adoption was dismissed, on August 20, 2012, she filed a petition for joint custody and/or to establish visitation. The trial court ordered the parties to submit to an evaluation by Dr. Danny Roussel, a licensed professional counselor and licensed marriage and family therapist. A trial on the merits was held, and by judgment rendered and signed on June 19, 2013, the trial court ordered, among other things, that D.M., S.D.M., and C.M.H. would share joint custody of T.M.C. on an equal or 50/50 basis, with D.M. and S.D.M. designated as the domiciliary parents. From this judgment, D.M. and S.D.M. appeal, challenging the trial court's award of custody to C.M.H.
In response to this petition, D.M. and S.D.M. filed a peremptory exception raising the objections of no cause of action and no right of action. The objections were overruled by the trial court and applications for supervisory writ of review were denied by this court and by the supreme court. C.M.H. v. D.M. and S.D.M., 2012-1961 (La. App. 1st Cir. 1/30/13) (unpublished writ action), writ denied, 2013-0470 (La. 3/15/13), 109 So.3d 389.
See footnote 3. On appeal, D.M. and S.D.M. contend that the trial court also erred in "declaring" the adoption a sham because it was an impermissible collateral attack of the final decree adoption. A collateral attack is defined as an attempt to impeach a decree in a proceeding not instituted for the express purpose of annulling it. Knight v. Sears, Roebuck & Co., 566 So.2d 135, 137 (La. App, 1st Cir.), writ denied, 571 So.2d 628 (La. 1990). See also Smith v. LeBlanc, 2006-0041 (La. App. 1st Cir. 8/15/07), 966 So.2d 66, 71-72. However, the petition filed by C.M.H. did not seek and the judgment on appeal herein does not declare that the adoption was a sham. Rather, this statement appears in the trial court's reasons for judgment wherein it stated that the "adoption was basically a sham with the sole purpose of obtaining social security benefits to help financially in raising not one, but two minors, [C.M.H.] and [T.M.C.]." It is well settled that appeals are taken from judgments and not the reasons for judgment. See Huang v. Louisiana State Bd. of Trustees for State Colleges and Universities, 99-2805 (La. App. 1st Cir. 12/22/00), 781 So.2d 1, 6. Nonetheless, we do not construe the trial court's statement as a declaration that the adoption was a sham or otherwise as an attempt to impeach or invalidate the adoption, but rather as a description of how the adoption was viewed by D.M., S.D.M. and C.M.H. Furthermore, it is apparent from the trial court's reasons for judgment that it gave the adoption full legal effect as to the parental rights of D.M. and S.D.M. and that it properly imposed the heavy burden of proof required of a non-parent in a custody proceeding (La. C.C. art. 133) on C.M.H. Therefore, we find no merit to this assignment of error.
As recognized by the trial court, this case is factually and procedurally unusual. By virtue of the adoption, D.M. and S.D.M. are the parents of T.M.C, while C.M.H., T.M.C.'s biological mother, is a non-parent. Pursuant to La. C.C. art. 133, a non-parent is only entitled to custody upon a showing that "an award of joint custody or of sole custody to either parent would result in substantial harm to the child ..." See also McCormic v. Rider, 2009-2584 (La. 2/12/10), 27 So.3d 277, 279. Furthermore, 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. McCormic, 27 So.3d at 279. The trial court has great discretion in this area and its determination will not be disturbed in the absence of a clear abuse of that discretion. Id. The primary consideration and prevailing inquiry is whether the custody arrangement is in the best interest of the child. Id. The court is to consider all relevant factors in determining the best interest of the child. La. C.C. art. 134.
However, legally, C.M.H. is T.M.C.'s sister and as such, her status is more than simply a stranger seeking custody or visitation.
Louisiana Civil Code article 134 provides that
The court shall consider all relevant factors in determining the best interest of the child. Such factors may include:
(1) The love, affection, and other emotional ties between each party and the child.
(2) The capacity and disposition of each party to give the child love, affection, and spiritual guidance and to continue the education and rearing of the child.
(3) The capacity and disposition of each party to provide the child with food, clothing, medical care, and other material needs.
(4) The length of time the child has lived in a stable, adequate environment, and the desirability of maintaining continuity of that environment.
(5) The permanence, as a family unit, of the existing or proposed custodial home or homes.
(6) The moral fitness of each party, insofar as it affects the welfare of the child.
(7) The mental and physical health of each party.
(8) The home, school, and community history of the child.
(9) The reasonable preference of the child, if the court deems the child to be of sufficient age to express a preference.
(10) The willingness and ability of each party to facilitate and encourage a close and continuing relationship between the child and the other party.
(11) The distance between the respective residences of the parties.
(12) The responsibility for the care and rearing of the child previously exercised by each party.
In this case, the trial court determined that "maintaining the status quo[,]" i.e., D.M. and S.D.M. having custody of T.M.C. and not allowing him to have contact or a relationship with C.M.H., "will cause substantial damage to the child and it [was] in the best interest of the minor child that [D.M. and S.D.M.] and [C.M.H.] share joint custody." In reaching this determination, the trial court also found that it would be in T.M.C.'s best interest to have frequent and continuing contact with C.M.H, because she and T.M.C. shared a strong mother and child bond and relationship while C.M.H. was living in the home of D.M. and S.D.M. and during the time of joint custody while the purported consent judgment was in place, and because C.M.H. exercised her parental responsibilities in caring for T.M.C, was presently living in a stable environment suitable for raising a child, was capable of providing food, clothing, and medical care for T.M.C, and exhibited a willingness to foster a positive relationship between T.M.C and D.M. and S.D.M.
After reviewing the record, we find that the trial court very closely and carefully considered all of the evidence presented and that its factual determinations are fully supported by the record. Dr. Roussel specifically opined that the "status quo" was causing substantial harm to T.M.C and that a relationship between T.M.C. and C.M.H. needed to be re-established. Dr. Roussel's opinion in this regard was premised on that fact that, unlike other adoption situations, in this case, following the adoption, the surrendering parent/biological mother (C.M.H.) remained in the household of the adoptive parents (D.M. and S.D.M.), C.M.H. remained in her role as T.MC.'s mother and was involved in T.M.C.'s life, and D.M. and S.D.M remained in their role as grandparents (or rather, great grandparents). The evidence established that this changed not because of the adoption, but because C.M.H. moved out of the home of D.M. and S.D.M. Dr. Roussel noted that during the time C.M.H. lived in the home of D.M. and S.D.M. (from T.M.C.'s birth on May 28 2006 through June 15, 2009) and during the time that the consent judgment was in place (from July 15, 2010 through April 4, 2012), T.M.C. had formed attachments with C.M.H, that those attachments had been broken when D.M. and S.D.M. had refused to allow any meaningful contact or visitation between CM.H and T.M.C, and that those attachments needed to be reestablished.
Accordingly, we cannot say that the trial court abused its vast discretion in determining that an award of custody to D,M. and S.D.M. would result in substantial harm to T.M.C. or in concluding that an award of shared joint custody between D.M., S.D.M. and C.M.H. with D.M. and S.D.M. designated as the domicilary parent was in T.M.C.'s best interest. This arrangement allows T.M.C. to have a relationship with D.M., S.D.M., and C.M.H., all of whom have comprised the family unit he has known for his entire life. Under similar circumstances, courts have approved joint custody arrangements between parents and non-parents. See McCormic, 27 So.3d at 278-280 (an award of joint custody between the biological grandmother/adoptive mother and the biological mother and father/non-parents was in the best interest of the child after determining that an award of sole custody to the grandmother/adoptive mother would be detrimental to the child); Whitman v. Williams, 2008-1133 (La. App. 3rd Cir. 2/4/09), 6 So.3d 852, 853-854 (an award of joint custody between the mother, father, and maternal aunt/non-parent with the maternal aunt designated as the domiciliary parent was in the best interest of the child after determining that substantial harm would come to the child if the child was moved from the maternal aunt's home); and Smith v. Tierney, 2004-2482 (La. App. 1st Cir. 2/16/05), 906 So.2d 586 (an award of joint custody between the paternal grandparents/non-parents and the biological mother was in the best interest of the child after determining that an award of sole custody to the mother and removal of the child from the grandparents home would result in substantial harm to the child).
Accordingly, the June 19, 2013 judgment of the trial court is affirmed in compliance with Uniform Rules, Courts of Appeal, Rule 2-16.1(B). All costs of this appeal are assessed to the defendants/appellants, D.M. and S.D.M.
AFFIRMED.
C. M.H.
VERSUS
D. M. AND S.D.M.
2013 CU 1477
CRAIN, J., concurs.
I agree that McCormic v. Rider, 2009-2584 (La. 2/12/10), 27 So. 3d 277, and the applicable standards of appellate review require the result reached in this case. I concur to state that these adoptive parents, described by the court-appointed expert as loyal and protective, in my opinion, have done nothing to warrant or justify them having to share their parental authority with anyone. They voluntarily accepted the legal responsibility of raising two adoptive children, C.M.H. and her biological child, T.M.C. While their parenting of C.M.H. is complete, critical upbringing remains for T.M.C. A fundamental element of parenting is determining to what and to whom a child will be exposed. As the adoptive parents, if D.M. and S.D.M. believe that because of the choices of C.M.H., that it is in the best interest of T.M.C. that he not be unsupervised while with C.M.H., that is the tough parenting decision they accepted when they became the legal parents of T.M.C. The adoptive parents should not have to worry that by making such tough but fundamental parenting decisions, they risk losing custody to a biological parent.