Opinion
2015 CJ 1157
05-10-2016
IN RE: ADOPTION OF B.N.H.
Marlise O. Harrell Hammond, Louisiana Attorney for Plaintiffs/Appellees E.B.H. & L.M.H. Sherman Q. Mack Leslie B. Kidder Albany, Louisiana Attorneys for Adoptee/Appellee B.N.H., Minor Child Alistair A. Adkinson New Orleans, Louisiana Attorney for Defendant/Appellant J.B.S.
NOT DESIGNATED FOR PUBLICATION On Appeal from the Twenty-First Judicial District Court In and for the Parish of Tangipahoa State of Louisiana
No. 2013-0040033 The Honorable Jeffrey T. Oglesbee, Judge Presiding Marlise O. Harrell
Hammond, Louisiana Attorney for Plaintiffs/Appellees
E.B.H. & L.M.H. Sherman Q. Mack
Leslie B. Kidder
Albany, Louisiana Attorneys for Adoptee/Appellee
B.N.H., Minor Child Alistair A. Adkinson
New Orleans, Louisiana Attorney for Defendant/Appellant
J.B.S. BEFORE: GUIDRY, HOLDRIDGE, AND CHUTZ, JJ. HOLDRIDGE, J.
J.B.S., the biological mother of the minor child, B.N.H., appeals the trial court's judgment terminating her parental rights and allowing the final adoption of the minor child by the paternal grandparents, E.B.H. and L.M.H. For the following reasons, we reverse and remand with instructions.
The initials of the parties will be used to protect and maintain the privacy of the minor child involved in this proceeding. See Uniform Rules-Courts of Appeal, Rules 5-1(a) and 5-2.
FACTS AND PROCEDURAL HISTORY
This intrafamily adoption proceeding began in 2009, when the grandparents of B.N.H. were granted temporary custody by ex parte order. A final judgment granting sole custody of B.N.H. to the grandparents was signed on February 10, 2011. On November 14, 2013, the grandparents filed a petition for intrafamily adoption of B.N.H. In response, J.B.S. filed an opposition to the petition for intrafamily adoption on January 6, 2014.
This adoption was an intrafamily adoption pursuant to La. Ch. C. art. 1243, et. seq.
The biological father of B.N.H., N.B.H., consented and approved of the adoption of B.N.H. by the grandparents pursuant to La. Ch. C. art. 1244.
Thereafter, on January 22, 2014, the grandparents filed a motion to appoint an attorney for the minor child pursuant to La. Ch. C. art. 1244.1(B), as no attorney had been appointed. The trial court appointed Amber Amore to represent B.N.H. On June 10, 2014, the grandparents filed a motion and order to set attorney's fees, which stated "[the grandparents] have retained other counsel on behalf of B.N.H." The trial court granted this motion ex parte on June 16, 2014.
Louisiana Children's Code article 1244.1(B) provides that upon receipt of the opposition, the court shall appoint an attorney to represent the child, subject to the limitations in Article 1121. Neither the child nor anyone purporting to act on his behalf may be permitted to waive this right.
On June 26, 2014, Sherman Q. Mack and Leslie Bankston Kidder filed a motion and order to substitute and enroll as counsel of record for B.N.H. and discharge Ms. Amore from any further representation. The trial court once again granted the motion ex parte on June 27, 2014. After receiving a copy of the ex parte order, Ms. Amore initially opposed the motion and requested a contradictory hearing on the grounds that La. Ch. C. art. 1244.1(B) explicitly provides "the court shall appoint an attorney to represent the child ... [n]either the child nor anyone purporting to act on his behalf may be permitted to waive this right." The record does not contain a minute entry indicating that a hearing was held on this motion. The minute entry for July 22, 2014, reveals that Ms. Amore made an oral motion to substitute counsel without opposition. Further, "[t]he [trial] [c]ourt granted [the] motion and Mr. Sherman Mack made an oral motion to enroll as counsel for the [minor] child [and] Ms. Amore was dismissed."
Leslie Bankston Kidder will be referred to as "Ms. Bankston" in this opinion.
This court agrees with Ms. Amore's opposition that the right to counsel may not be waived during the adjudicatory stage of the proceeding. Here, in such a disputed case, the right to counsel cannot be waived, as the child's individual best interests warrant protection by independent legal representation. Louisiana Children's Code article 607(A) provides that in child need of care cases, the court shall appoint independent counsel for the child and neither the child nor anyone purporting to act on his behalf may be permitted be waive this right. This same independent representation by counsel should apply in cases of termination of parental rights and intrafamily adoptions. See La. Ch. C. arts. 1016(B) and 1244.1(B).
At trial, the burden was on the grandparents to prove by clear and convincing evidence that J.B.S.'s consent to the adoption was not required and that the termination of her parental rights was in B.N.H.'s best interest. In order to meet this burden, the grandparents retained Dr. Victoria Witt, who was offered as an expert in clinical psychology, to testify concerning the best interest of the child. Counsel for J.B.S. objected to Dr. Witt's testimony and the introduction of her records; however, the trial court allowed her to testify to everything relating to her records subject to the objection. Thus, when Dr. Witt was questioned on her opinion of who B.N.H.'s parents should be she responded, "I can't give you an opinion about the quality of the parents because I didn't do an evaluation of any of the adults." "I have not met [J.B.S.] ... I have not evaluated [J.B.S.] ... I can't say [J.B.S. is] an evil mom or ... an awesome mom ... based on what I have."
Additionally, counsel for J.B.S. offered Julie Kringas as an expert in marriage and family counseling to testify on her behalf. Counsel for the grandparents objected to Ms. Kringas being permitted to testify as an expert witness because she only evaluated J.B.S. and had not counseled any other parties in the matter. The trial court ruled that Ms. Kringas could testify and qualified her as an expert, subject to the objection. Ms. Kringas testified that she reached her opinion as to the best interest of B.N.H. based solely upon her observation of J.B.S. and that she did not do "a full custody evaluation."
Despite these admissions given by Dr. Witt and Ms. Kringas that a full custody evaluation was never completed on the parties, the trial court determined that the adoption was in the best interest of B.N.H. and that J.B.S.'s parental rights should be terminated. On September 11, 2014, a final decree of adoption was rendered in favor of the grandparents, which terminated the parental rights of J.B.S. The trial court stated in its oral reasons for judgment that J.B.S.'s consent to the adoption of B.N.H. was not necessary in this matter pursuant to La. Ch. C. art. 1245. From this judgment, J.B.S. now appeals.
Based upon the testimony provided by J.B.S., because she refused or failed to visit, communicate, or attempt to communicate with B.N.H. without just cause for a period of at least six months, the trial court held that her consent was not necessary in the adoption of B.N.H. See La. Ch. C. art. 1245(B)(2).
STANDARD OF REVIEW
The intrafamily adoption is the adoption by a stepparent or certain other relatives of the child. See La. Ch. C. arts. 1170, 1243. The party petitioning the court for adoption carries the burden of proving a parent's consent is not required under the law. In re B.L.M., 13-0448 (La. App. 1 Cir. 11/1/13), 136 So.3d 5, 9. The burden of proof for the person seeking to adopt under such circumstances is clear and convincing evidence. In re Bourgeois, 04-1466 (La. App. 5 Cir. 4/26/05), 902 So.2d 1104, 1108, writ denied, 05-1197 (La. 6/3/05), 903 So.2d 470. However, even upon finding that a parent has lost his right to consent to the adoption, the adoption should only be granted when it is also found to be in the best interest of the child. In re Intra Family Adoption of A.G.T., 06-805 (La. App. 5 Cir. 3/13/07), 956 So.2d 641, 648 writ denied, 07-0783 (La. 5/4/07), 956 So.2d 611. The trial court is vested with great discretion in determining whether an adoption is in the best interest of the child and each case must be decided on its own facts. The trial court's discretion is not absolute and a determination of the child's best interest is subject to reversal if the record reveals manifest error in the determination. In re B.E.M., 07-94 (La. App. 5 Cir. 5/29/07), 961 So.2d 498, 501.
LAW AND DISCUSSION
In her first assignment of error, J.B.S. contends that the trial court erred by permitting the grandparents to substitute their own retained counsel for court-appointed counsel to represent the minor child, which created a potential conflict of interest in this matter. J.B.S. further contends that this substitution prevented any unbiased assessment of the child's needs, desires, and psychological well-being, as well as making it impossible for the trial court to determine if the termination of her parental rights was in the best interest of B.N.H.
The question of withdrawal or substitution of counsel largely rests within the discretion of the trial judge, and the ruling will not be disturbed in the absence of a clear showing of an abuse of discretion. State v. Gorman, 11-491 (La. App. 5 Cir. 2/14/12), 88 So.3d 590, 598.
In this matter, the trial court erred in allowing the attorneys retained by the grandparents to be substituted in place of the statutorily-mandated, independent court-appointed attorney for the minor child. As La. Ch. C. art. 1244.1(B) provides, "the court shall appoint an attorney to represent the child ... [n]either the child nor anyone purporting to act on his behalf may be permitted to waive this right." [Emphasis added.] The language of the statute is mandatory and therefore is not subject to waiver, i.e., "the court shall appoint." We recognize that adoption is a creature of statute and all of the statutory requirements must be strictly carried out. In re T.M.L., 06-1442 (La. App. 1 Cir. 12/28/06), 951 So.2d 364, 366.
Louisiana Children's Code article 1244.1(B) seeks to ensure that there is independent representation of the child's interest, free from potential conflicts. "Throughout the Children's Code, independent counsel is typically required for the child in disputed cases." In re T.M.L., 951 So.2d at 366. (quoting Lucy S. McGough & Kerry Triche, Louisiana Children's Code Handbook 2006, Authors' Notes, at 649). Louisiana Children's Code article 1255(B) also mandates that the basic consideration of the court with regard to intrafamily adoptions "shall be the best interests of the child." In such a disputed case, the child's individual best interests warrant protection by independent legal representation. Thus, we find that La. Ch. C. art. 1244.1(B)'s mandatory requirement was not satisfied when the grandparents (the prospective adoptive parents) personally selected and retained Mr. Mack and Ms. Bankston to represent the minor child in place of the independent, court-appointed attorney originally appointed by the trial court.
The court-appointed attorney must exercise his professional judgment solely on behalf of the child and must disregard the desires or influences of others, however subtle, that might impair his judgment or in any way affect his duty to act as the child's loyal advocate. See In Interest of Genusa, 381 So.2d 504, 505-06 (La. 1980). Having one of the parties in a contested intrafamily adoption proceeding personally select and pay for an attorney to represent the child creates the potential for divided loyalties. See Rules of Professional Conduct 1.7, 1.8, 1.9, 1.10.
Moreover, in a termination of parental rights proceeding such as this, which will profoundly affect the minor's life, La. Ch. C. arts. 1016(B) and 1244.1(B) require that the court shall appoint a qualified independent attorney to represent the child in such a proceeding. Because the minor child's court-appointed attorney, Ms. Amore, withdrew and was substituted with attorneys retained by the grandparents seeking to adopt the child, a question is raised as to whether the grandparents intended for Mr. Mack and Ms. Bankston to play a significant role in directing the course of representation. Since La. Ch. C. arts. 1016(B) and 1244.1(B) require independent counsel for B.N.H. to ensure that her best interests are ascertained, we find that the trial court abused its discretion in allowing the substitution of counsel who were retained by the minor child's prospective adoptive parents.
Additionally, in her fourth assignment of error, J.B.S. contends that the trial court erred in allowing the grandparents' expert witness, Dr. Witt, to testify regarding the minor child's best interest in spite of her testimony that such an opinion could not be rendered absent a full custody evaluation. J.B.S. contends, and this court agrees, that Dr. Witt was unable to determine whether or not the adoption of B.N.H. by her grandparents was in her best interest because Dr. Witt never evaluated J.B.S., the mother of the minor child.
Although Dr. Witt seemed convinced that the grandparents had the best interest of B.N.H. at heart, she acknowledged that she did not evaluate J.B.S., did not administer any psychological testing on her, and did not know anything about her parental fitness or ability to parent a child. Dr. Witt unequivocally stated that she could offer no opinion regarding the termination of J.B.S.'s parental rights in this case.
Moreover, like Dr. Witt, the other expert in this matter, Ms. Kringas, failed to give any testimony establishing that the best interest of the child had been met. Ms. Kringas, who is a licensed professional counselor and a board approved supervisor, testified that "[i]t would almost be necessary to have someone evaluate the full situation because there are so many ... factors to evaluate[.]" Therefore, the record clearly establishes that neither expert could definitively state that the best interest of the child would be served by terminating J.B.S.'s parental rights and allowing the minor child to be adopted by the grandparents.
Accordingly, we hold that the trial court erred in allowing the minor child's independent court-appointed attorney to withdraw and to be substituted by attorneys selected by the minor's prospective adoptive parents. This fundamental defect, together with the scarcity of evidence presented to determine whether the adoption was in the best interest of the minor child, B.N.H., requires this court to reverse the judgment of the trial court. The effect on the trial process of the minor child not having independent counsel, together with the question as to the child's best interest, renders the record before us insufficient to make a de novo ruling and necessitates that we remand this matter to the trial court for the appointment of new independent counsel for B.N.H. and for a new trial. See Fox v. Fox, 97-1914 (La. App. 1 Cir. 11/6/98), 727 So.2d 514, 517, writ denied, 99-0265 (La. 3/19/99), 740 So.2d 119. We pretermit discussion of all remaining assignments of error raised by J.B.S.
CONCLUSION
For the foregoing reasons, the trial court's judgment terminating J.B.S.'s parental rights and ordering the intrafamily adoption of B.N.H. by the grandparents is reversed and remanded to the trial court for further proceedings consistent with this opinion. All costs are assessed to plaintiffs-appellees, L.M.H. and E.B.H.
In order to help determine the best interest of the child, the trial court is now able to consider B.N.H.'s wishes and testimony, as she is of the appropriate age to testify concerning her adoption. See La. Ch. C. art. 1253(C). --------
REVERSED AND REMANDED WITH INSTRUCTIONS.