Opinion
NO. 18-C-728
03-25-2019
STATE OF LOUISIANA IN THE INTEREST OF C. C., JR., P. B., M. B. AND J. B.
Mary E. Legnon Chief Deputy Clerk IN RE J. M. AND R. M. APPLYING FOR SUPERVISORY WRIT FROM THE JEFFERSON PARISH JUVENILE COURT, PARISH OF JEFFERSON, STATE OF LOUISIANA, DIRECTED TO THE HONORABLE BARRON C. BURMASTER, DIVISION "C", NUMBER 16-CC-85 Panel composed of Judges Fredericka Homberg Wicker, Jude G. Gravois, and John J. Molaison, Jr.
WRIT GRANTED; JUDGMENT VACATED; REMANDED
In this ongoing Child in Need of Care ("CINC") proceeding for the minor child, J.B., relators, J.B.'s foster parents, filed exceptions to challenge J.B.'s alleged father, D.W.'s, motion to modify the disposition, requesting custody of J.B. Relators seek review of the trial court's December 11, 2018 denial of their "Exceptions of Lack of Procedural Capacity/Standing and No Right of Action," which were filed in response to D.W.'s motion. For the following reasons, relators' writ is granted, and the trial court's ruling denying relators' exceptions is vacated.
To protect the identity of the minor child involved, the parties will be referred to using initials. U.R.C.A. 5-1, 5-2; L.R.F. v. A.A., 13-797 (La. App. 5 Cir. 2/26/14), 133 So.3d 716, 717 n.2.
The minute entry of December 11, 2018, indicates that the trial court denied D.W.'s motion to modify the disposition.
Counsel for the State, contrary to the minute entry in the writ application, suggests that the trial court "dismissed the exceptions filed by [relators] since they were all based on [D.W.] not being the legal father of [J.B.]."
This Court's Prior Opinion
In the prior appeal of this matter, this Court determined that the record lacked any evidence regarding D.W.'s biological connection to J.B. Our opinion noted that "a biological father has two options to establish his paternity of a child not filiated to another man: one is to acknowledge the child in an authentic act and the second is to file filiation proceedings in a court of competent jurisdiction. La. C.C. art. 196; La. C.C. art. 198; La. R.S. 9:408." We further acknowledged that the statutory law requires a putative father to file an action to establish filiation, rather than allowing DNA test results alone to establish filiation. State in the Interest of C.C, J.R., P.B., M.B., J.B., 18-440 (La. App. 5 Cir. 10/12/18), --- So.3d ---, writ denied, 18-1766 (La. 12/3/18), --- So.3d ---.
Procedural History Following Appeal
The limited application before us contains an undated and unsigned Motion To Modify Disposition, purportedly filed by D.W. In the motion, D.W. asserts that he was "named" as J.B.'s father and that DNA testing "confirmed" his paternity of J.B. As noted above, this Court opined in the prior appeal of this case that these two factors, without more, were not sufficient to legally establish a biological connection to J.B. Essentially, both exceptions filed by relators in response to D.W.'s motion rely on the same premise: that D.W. has not conclusively demonstrated that he is J.B.'s father.
Evidence Adduced At The Hearing
A minute entry regarding the hearing on D.W.'s motion, held December 11, 2018, indicates that a copy of a Louisiana vital records registry acknowledgement of paternity for the putative father registry, executed by D.W., was accepted by the court into evidence. The minute entry from that date further states, "COURT FINDS [D.W.] TO BE THE BIOLOGICAL FATHER OF [J.B.] AND HE HAS DONE EVERYTHING POSSIBLE TO ESTABLISH HIS PARENTAL RIGHTS." Relators' counsel represents to this Court that the actual vital records registry acknowledgement of paternity was not entered into evidence at the hearing, but instead, counsel for D.W. showed a photograph of the acknowledgement to the trial court. Relators' counsel further represents to this Court that it is unknown whether the actual acknowledgement was ever presented to the trial court following the hearing. While counsel for D.W. asserts in her brief that, "The act of acknowledgment was submitted to Jefferson Parish Juvenile Court and filed in the record on December 13, 2018." This occurred two days after the hearing on relators' exceptions took place and was ruled upon.
La. C.E. art. 1002 states, "To prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required, except as otherwise provided by this Code or other legislation." Here, the writ application does not show on its face that an exception under La. C.E. art. 1004 applies.
The importance of these proceedings pertaining to the future custody of J.B., as it would be with any child in these circumstances, cannot be overstated. While D.W. may very well have rights to assert if he is, in fact, the biological father of J.B., the basis of those rights must stem from properly introduced evidence of his paternity. See, La. C.E. art. 1002 and La. C.E. art. 1004. We specifically reject the type of cavalier argument regarding evidence, as set forth by DCFS in its opposition to relators' exceptions for example, that, "The notion that this [juvenile] court cannot consider DNA test results because of the lack of foundation also falls when one considers the nature of these proceedings, how often this [juvenile] court has done that very thing ." (Emphasis added.) The State's allegation, that the rules of evidence are routinely disregarded by the juvenile courts in these serious matters, should be of great concern to that court as they are to this Court in reviewing the proceedings.
The copy of the vital records registry acknowledgement contained in the writ application is mostly illegible. The witnesses' signatures are obscured, as is the identifying information of the notary public. Because the trial court apparently based its ruling upon this image of the original document, and our review necessitates a preliminary verification that the acknowledgement is in authentic form, the condition of this exhibit precludes us from conducting a full consideration of the issues raised in relators' application. To the extent that the trial court may have relied on the exact same image before us, with the same defects, to deny relators' exceptions, we find reversible error based upon insufficient evidence.
Even assuming that a legible copy of the registry acknowledgement was properly introduced into evidence and considered by the trial court, we find that the court erred in denying relator's exceptions on the basis of the document alone. As correctly noted by relators, while an acknowledgement of paternity for the putative father registry can be used as evidence, La. R.S. 9:400(C) limits that use to anyone "other than the person who filed such notice." Accordingly, because the acknowledgement was executed specifically for the purposes of the Louisiana vital records registry, we find that La. R.S. 9:400(C) applies to preclude D.W. from using it as evidence of paternity in this matter.
The Question Of Paternity
As a matter of well settled legal principle, this Court may not provide advisory opinions. However, the sum total of our rulings, including the applicable statutes and case law cited therein, are these:
Perschall v. State, 96-0322 (La. 7/1/97), 697 So.2d 240.
1) To have standing in this matter, D.W. could either
a) acknowledge J.B. in an authentic act that is properly introduced into the record and considered by the trial court (which would afford D.W. limited rights under La. C.C. art. 196 and La. R.S. 9:405);
or
b) file filiation proceedings in a court of competent jurisdiction. (DNA test results would be admissible as evidence in such a proceeding.)
This assumes that the action is timely filed under La. C.C. art. 198. --------
Acknowledgement
Under La. C.C. art. 196, a man who acknowledges a child creates a presumption that he is the father, which operates in favor of the child only. Such an acknowledgment is created either by an authentic act in which the father acknowledges his paternity, or by his signing the child's birth certificate as father. La. C.C. art. 196, Revision Comments-2005, Comment (a). Moreover, there is no time period during which an action must be instituted to challenge the presumption granted by this article in favor of the child. La. C.C. art. 196, Revision Comments—2005, Comment (d). In re Succession of Loustalot, 15-0631 (La. App. 1 Cir. 11/6/15), 183 So.3d 556, 559.
An acknowledgment of an illegitimate child by authentic act effectively creates a presumption of biological parentage. Conversely, the acknowledgment is premised on a biological relationship, which is the reason for the acknowledgement. An authentic act of acknowledgment of paternity of an illegitimate child is a solemn statement by the acknowledger that he believes a child is his. The acknowledgment does not cause the child to be his; it merely acknowledges that he believes it is. Rousseve v. Jones, 97-1149 (La. 12/2/97), 704 So.2d 229, 232-33.
In child support, custody, and visitation cases, the acknowledgment of paternity by authentic act is deemed to be a legal finding of paternity and is sufficient to establish an obligation to support the child and to establish visitation without the necessity of obtaining a judgment of paternity. La. R.S. 9:405.
Filiation Proceedings
La. C.C. art. 198, regarding the establishment of paternity, provides:
A man may institute an action to establish his paternity of a child at any time except as provided in this Article. The action is strictly personal.
If the child is presumed to be the child of another man, the action shall be instituted within one year from the day of the birth of the child. Nevertheless, if the mother in bad faith deceived the father of the child regarding his paternity, the action shall be instituted within one year from the day the father knew or should have known of his paternity, or within ten years from the day of the birth of the child, whichever first occurs.
In all cases, the action shall be instituted no later than one year from the day of the death of the child.
The time periods in this Article are peremptive.
Regarding the sufficiency of evidence in filiation proceedings, the First Circuit explained in Jackson v. McNeal, 15-0067 (La. App. 1 Cir. 7/13/15), 180 So.3d 376, 381:
As to the sufficiency of the evidence, proof of paternity under Article 198 may be made by any relevant evidence, including the same type of evidence used in an action by or on behalf of a child to prove his paternity under Louisiana Civil Code article 197. See La. Civ.Code art. 198, Revision Comment (b). Examples of such relevant evidence include blood tests, an informal acknowledgment, and cohabitation of the mother and father at the time of conception. See La. Civ.Code art. 197, Revision Comment (c); Jenkins v. Mangano Corporation, 00-0790 (La.11/28/00), 774 So.2d 101, 103. The standard of persuasion is a preponderance of the evidence. See La. Civ.Code art. 198, Revision Comment (b); Cook v. Sager Brown School, 486 So.2d 981, 982 (La.App. 1 Cir.1986). Proof of paternity is a factual question, and a trial court's determination of the issue should not be disturbed absent manifest error. State ex rel. Department of Social Services v. Johnson, 98-2712 (La.App. 1 Cir. 2/18/00), 753 So.2d 388, 392.
Conclusion
It appears that there remain outstanding issues of great importance to be determined. The most obvious of these is whether, since our previous opinion was rendered, D.W. has established paternity of J.B. to a legal certainty. Based upon the limited information provided in the application, which includes a transcript of the December 11, 2017 hearing that we ordered to be supplemented by relators, we cannot say that D.W. has proven even that he properly executed a formal acknowledgment since our prior opinion was rendered.
It is incumbent upon the trial court to consider the evidence submitted and make all findings of fact to determine whether, considering the applicable legal standards, D.W. has met his burden of proving his paternity.
Based on the foregoing, relators' writ is granted, and the trial court's ruling denying relators' exceptions is vacated. The matter is remanded for further proceedings. J.B. is ordered to remain in the custody of DCFS.
Gretna, Louisiana, this 25th day of March, 2019.