Opinion
No. 2008 CJ 2569.
May 8, 2009.
ON APPEAL FROM THE 21ST JUDICIAL DISTRICT COURT IN AND FOR THE PARISH OF LIVINGSTON TRIAL COURT NO. 116,342, DIVISION "A" HONORABLE WAYNE R. CHUTZ, JUDGE PRESIDING.
Bruce Craft, Baton Rouge, LA, Counsel for Plaintiff/Appellant, P.L.C.
Otha Lewis Nelson, Baton Rouge, LA, Counsel for Defendant/Appellee, N.B.
Walter L. Underwood, Livingston, LA, Counsel for Minor Child, A.N.B.
BEFORE: PETTIGREW, McDONALD, AND HUGHES, JJ.
This is an appeal of a judgment denying an intra-family adoption.
FACTS
J.R.C. and N.B. are the biological parents of the minor child, A.N.B., born on July 31, 2003. J.R.C., the child's father, filed a Petition for Filiation, Child Custody, and Child Support, on April 16, 2004 in East Baton Rouge Parish. Judgment was rendered on May 25, 2004, establishing that J.R.C. is the biological father of A.N.B., that he and the mother would share joint custody, that the mother would be the child's domiciliary parent, and that J.R.C. would have reasonable visitation.
Pursuant to that judgment, J.R.C. picked up A.N.B. for visitation on May 19, 2005. When he phoned to let N.B. know that he was bringing A.N.B. home, N.B.'s mother told him that N.B. was not there, that she did not know when N.B. would return, and that she would not accept the child.
J.R.C. has maintained continuous custody since that time and on November 28, 2005 a judgment was signed wherein he was granted permanent sole care, custody, and control of A.N.B., with N.B. to have reasonable visitation. That judgment also terminated J.R.C.'s child support obligation and ordered N.B. to pay to J.R.C. "an amount equal to one month of the previously set child support, that amount being $706.00 due and payable immediately." Thereafter, on January 26, 2006 J.R.C. filed a motion to set child support, requesting that N.B. be ordered to pay child support to him, and for an ex parte order to change A.N.B.'s last name from her mother's to his.
On August 26, 2006, J.R.C. married P.L.C. P.L.C. then filed a petition to adopt A.N.B. on June 18, 2007 pursuant to LSA-Ch.C. art. 1245, alleging that J.R.C. had sole custody of A.N.B. and that N.B. had neither visited, nor attempted to visit or communicate with A.N.B. since May 19, 2005. The petition further alleged that N.B. had refused to comply with a court order of child support.
That petition was later amended to include J.R.C. as an additional petitioner.
On August 24, 2007 N.B. filed an opposition to the petition for adoption and after an April 14, 2008 trial, the adoption was denied. Crediting the grandmother's testimony, the trial court found that N.B. had attempted to communicate with A.N.B. on at least two or three occasions between November 28, 2005, when J.R.C. was granted custody of A.N.B., and June 18, 2007, when the petition for adoption was filed. The trial court found that based on the grandmother's testimony, N.B. had also attempted to give the child a Christmas gift in 2006. Based on those findings, the trial court determined that petitioners had failed to prove that a period of six months had elapsed without an attempt by N.B. to communicate with A.N.B.
Moreover, the trial court found that the language in the November 28, 2005 judgment was not an order of child support, but rather the payment ordered in the judgment was a reimbursement to J.R.C. for one month's worth of child support that he had paid to N.B. while N.B. did not have custody of A.N.B.
Because LSA-Ch.C. art. 1245(C)(1) and/or (2) were not satisfied, the adoption was denied. J.R.C. and P.L.C. now appeal and challenge the trial court's factual findings.
LAW AND DISCUSSION
Generally, a parent's consent is necessary for an intra-family adoption. LSA-Ch.C. art. 1193. However, pursuant to LSA-Ch.C. art. 1245, the necessity of a non-custodial parent's consent is obviated if the petitioner proves, by clear and convincing evidence, that the parent has forfeited his right to consent, as follows:
A. The consent of the parent as required by Article1193 may be dispensed with upon proof by clear and convincing evidence of the required elements of either Paragraph B, or C of this Article.
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:
(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.
J.R.C. and P.L.C. allege that LSA-Ch.C. art. 1245 (C) is applicable for two reasons. First, they allege that the November 28, 2005 judgment included an order of child support and that N.B. had failed to abide by that order for a period of at least six months. Secondly, they allege that N.B. has failed to visit, communicate, or attempt to communicate with A.N.B. for a period of more than six months. They therefore urge that N.B.'s consent is no longer necessary for the adoption.
A court of appeal may not set aside a trial court's or a jury's finding of fact in the absence of "manifest error" or unless it is "clearly wrong." Rosell v. ESCO, 549 So.2d 840, 844 (La. 1989). The supreme court has announced a two-part test for the reversal of a fact finder's determinations: (1) the appellate court must find from the record that a reasonable factual basis does not exist for the finding of the trial court, and (2) the appellate court must further determine that the record establishes that the finding is clearly wrong (manifestly erroneous). Stobart v. State, Department of Transportation and Development, 617 So.2d 880, 882 (La. 1993). See also Mart v. Hill, 505 So.2d 1120, 1127 (La. 1987). Thus, the issue to be resolved by a reviewing court is not whether the trier-of-fact was right or wrong, but whether the fact finder's conclusion was a reasonable one. Stobart v. State, Department of Transportation and Development, 617 So.2d at 882. Where factual findings are based on determinations regarding the credibility of witnesses, the trier-of-fact's findings demand great deference. Boudreaux v. Jeff, 2003-1932, p. 9 (La.App. 1 Cir. 9/17/04), 884 So.2d 665, 671; Secret Cove, L.L.C. v. Thomas, 2002-2498, p. 6 (La.App. 1 Cir. 11/7/03), 862 So.2d 1010, 1016, writ denied, 2004-0447 (La. 4/2/04), 869 So.2d 889. Even though an appellate court may feel its own evaluations and inferences are more reasonable than the fact finder's, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review where conflict exists in the testimony. Rosell v. ESCO, 549 So.2d at 844.
After a thorough review of the record before this court, we are unable to say that the trial court committed manifest error or was clearly wrong in its findings.
Non-Payment of Child Support
The trial determined that the payment awarded to J.R.C. in the November 28, 2005 judgment was not child support. The language of the judgment reads as follows:
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that Defendant owes [J.R.C.] an amount equal to one month of the previously set child support, that amount being $706.00 due and payable immediately.
J.R.C. testified that he was ordered to pay $706.00 per month in child support to N.B. during the time that she was the domiciliary parent. He testified that even though he had custody of A.N.B., he continued to pay child support to N.B. on the advice of his attorney, until the obligation was terminated by judgment. Further, in the motion for change of custody, J.R.C. prayed that the court grant him an amount equal to one month's child support as reimbursement if he was named primary custodial parent. Finally, J.R.C. filed a motion to set child support in January 2006, after the November 28, 2005 judgment. There exists, then, a reasonable factual basis for the trial court to determine that the November 28, 2005 judgment was not an order of child support, but rather an order of reimbursement to J.R.C. in the amount he had "over-paid" in child support once he had legal custody of A.N.B.
Failure to Visit, Communicate or Attempt to Communicate
We also find that there exists a reasonable basis in the record for the trial court's determination that a period of six months had not elapsed without an attempt by N.B. to communicate with her daughter.
According to the testimony of A.N.B.'s grandmother, and N.B.'s mother, in 2006 N.B. did ask her to contact J.R.C. on her behalf to "see if he was amenable for [A.N.B.] to see [N.B.]" The grandmother stated that she had seen N.B. attempt to call J.R.C. on at least two occasions in 2006, once in the summer months, and once after that. Further, she testified that N.B. purchased a Christmas gift for A.N.B. in December of 2006, but that "if it had [N.B.'s] name on it, the child didn't get it."
The grandmother also alleged that J.R.C. threatened to make it difficult for her to see A.N.B. if she facilitated visitation with N.B. And the grandmother testified that in approximately April 2007 J.R.C. and P.L.C. moved to Livingston Parish and that it was difficult to reach them after their move.
The trial court found the grandmother to be a credible witness and was persuaded by her testimony. The trial court concluded that N.B. had attempted to contact A.N.B. on at least two occasions during and after the summer months of 2006 and that N.B. had attempted to give her daughter a Christmas gift in December 2006. As such, N.B. had not relinquished her right to consent to the adoption. Therefore, the judgment of the trial court is affirmed. All costs of this appeal are assessed against appellants, J.R.C. and P.L.C.