State ex rel. K.C.C.

Citations: 188 So. 3d 144; 2016 La. LEXIS 123; 2016 WL 314771Docket: No. 2015-CJ-1429

Court: Supreme Court of Louisiana; January 26, 2016; Louisiana; State Supreme Court

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In this case concerning the termination of parental rights, the appellate court overturned the juvenile court's decision and upheld the biological parents’ exception of no right of action. The court ruled that the couple caring for the child lacked the standing to petition for termination of parental rights under Louisiana Children’s Code Article 1004. The appellate court erred in its conclusion that the petition, filed by private counsel for the custodians with juvenile court approval, was improperly initiated.

The case involved a child, K.C.C., born to T.T. on March 1, 2013. T.T.'s former boyfriend, M.M., questioned his paternity. Initially, T.T. considered an open adoption and engaged an adoption agency. M.M. sought a temporary caretaker for the child, leading to G.J., a relative, connecting the Cs, a couple desiring to adopt. E.C. spoke with M.M. and T.T., who expressed her desire to give the child up for adoption. After discussions, T.T. and M.M. signed the birth certificate. However, T.T. later changed her mind about the adoption.

On April 9, 2013, T.T. executed a notarized power of attorney granting the Cs parental rights until K.C.C.'s 18th birthday. Despite later revoking this power of attorney without notifying the Cs, they initiated adoption proceedings in October 2013 based on E.C. being listed as K.C.C.'s father. A subsequent DNA test in January 2014 indicated that M.M. could not be excluded as the biological father, leading to the dismissal of the adoption petition. The Cs then filed a “Petition for Custody and Request for Permission to Petition for Termination of Parental Rights,” followed by a “Petition for Termination of Parental Rights” on March 3, 2014, citing abandonment and lack of support from T.T. and M.M.

On March 7th, T.T. filed exceptions of no right of action and no cause of action in juvenile court, arguing that the Children’s Code does not allow non-parents, like the Cs, to terminate parental rights, especially when they contributed to the separation of the parent and child. On March 12th, the Cs’ attorney, Tilton Hunter, Jr., requested permission to file a Petition for Termination of Parental Rights, which the juvenile court granted on March 13th, along with overruling the biological parents' exceptions. An attorney was appointed to represent K.C.C., and following a trial, the juvenile court found abandonment under La. Child Code art. 1015(4) and terminated T.T. and M.M.'s parental rights, making K.C.C. available for adoption.

The court of appeal later reversed the juvenile court's ruling on the exception of no right of action, stating that La. Ch. Code art. 1004(A) only permits court-initiated actions and does not allow private parties to petition. Although recognizing an alternative route under La. Ch. Code art. 1004(F), the appeal noted that the Cs had incorrectly filed under 1004(A). The appeal emphasized the need to balance parental rights with the child’s best interests. The Cs and K.C.C.'s attorney sought review of the appellate court’s decision, which the higher court accepted to evaluate the appropriateness of Mr. Hunter's petition under the juvenile court's leave.

The critical legal issue revolves around whether the petition was properly initiated by the private counsel for the prospective adoptive parents, requiring a de novo review of the applicability of La. Ch. Code art. 1004. The court found that the court of appeal erred in reversing the juvenile court's ruling regarding the exception of no right of action, emphasizing that only individuals with a legitimate interest can bring such actions as per La. Code Civ. Proc. art. 681. The focus of the exception is on the plaintiff's right to bring the suit, assuming the petition presents a valid cause of action for someone. The court will closely analyze the Children’s Code, particularly Article 1004, to determine the validity of the petition brought by the Cs’ counsel.

The appellate court highlights La. Ch.Code art. 1004, which outlines the procedures for filing a petition for involuntary termination of parental rights. This article allows the court to order the filing of a petition at any time during a child in need of care proceeding and permits the court or district attorney to appoint private counsel to pursue termination on the basis of abandonment. The Cs argue that the appellate court mistakenly ruled that private parties lack standing to initiate such actions, asserting that the Louisiana legislature intended to allow them to file with court approval under art. 1004(F). Conversely, T.T. contends that the statute only grants authority to the court or district attorney, not private individuals, to initiate termination proceedings, and warns that allowing private actions would undermine parental rights and bypass necessary legal procedures for adoption. 

The legislative history of art. 1004 indicates an effort to expand who may file for termination of parental rights, which is aimed at protecting children from parents unable to provide adequate care. The focus of these proceedings is the child's best interest, as the termination of rights is the precursor to permanent placement in a safe environment. Initially, in 1948, only state agencies or court officers could initiate such actions for abandoned children. Subsequent amendments in 1974 added more grounds for termination, but the authority to file remained with state entities until recent legislative changes.

Proceedings for abandonment actions were permitted for children under juvenile court jurisdiction, including those in legal custody of the department. In 1984, Louisiana amended La.Rev.Stat. 9:403, allowing private individuals or residential child-caring institutions to file abandonment actions with court approval. A judicial declaration of abandonment could be sought by various parties, but they were required to obtain leave of court and demonstrate good cause before proceeding. The initiating affidavit had to be served on the department, which was tasked with preparing a report for the court.

The enactment of the Children’s Code in 1991 aimed to consolidate laws related to juvenile court jurisdiction and resolve ambiguities in existing statutes, particularly regarding abandonment and termination of parental rights. Article 1004 was introduced, allowing the district attorney or department to petition for termination of parental rights after the child had been in custody for at least 18 months. The court also had the authority to order termination proceedings. Under the previous law, private individuals could not file for termination of parental rights, but abandonment actions could be initiated by them with court leave. The legislative amendments in 1992 refined Article 1004 to clarify the petitioning authority for termination of parental rights, emphasizing the need for court approval for any party other than the district attorney or department to initiate such actions.

The district attorney has the authority to appoint special counsel to petition for the termination of parental rights under specific grounds, including desertion (Article 1015(8)), abandonment (Article 1015(9)), and failure to maintain contact (Article 1015(10)). The department can initiate termination proceedings based on desertion or abandonment or for other grounds if the child has been in its custody for at least eighteen months. The court may also order a petition to be filed on its own initiative. Amendments in 1992 restored the district attorney’s authority to appoint department counsel and allowed for private counsel to petition for termination on various grounds, including abandonment.

In the 1997 case, *In the Interest of D.G.C.*, the Fourth Circuit examined whether a private individual could seek to terminate parental rights. The biological mother had informally given custody of her child to the petitioner, who cared for the child for five years. The petitioner filed for termination of parental rights, asserting that both parents had abandoned their responsibilities. The juvenile court initially granted the petition, but the court of appeal reversed the decision, emphasizing that the 1991 comment allowing private individuals to seek termination was not law and that the relevant comments, while informative, do not constitute legal authority. The case highlights the limitations on who may file for termination of parental rights and clarifies the reliance on statutory provisions rather than comments.

The D.G.C. court highlighted that the 1992 amendments allowed private party counsel, with district attorney approval, to be designated for abandonment actions. It noted that the only mention of a private individual's role in termination proceedings is found in a Comment rather than the law itself, indicating an intentional legislative choice to require state action for parental rights termination. The court ruled that the petition for termination was improperly filed as a private action but suggested it should not be dismissed. It clarified that La. Ch.Code 1004(E) does not empower juveniles courts to permit private individuals to file termination petitions; instead, it allows the court to order the district attorney or the department to initiate such proceedings. Additionally, it stated that the district attorney could amend the petition to designate private counsel. In response to the D.G.C. ruling, the Louisiana legislature amended La. Ch.Code art. 1004 to grant juvenile courts the authority to designate private counsel to initiate termination proceedings for abandonment. The amended article outlines various scenarios under which petitions for termination of parental rights may be filed by the court, appointed counsel, the district attorney, or the department based on specific grounds for termination.

Private counsel may be appointed by the court or district attorney to petition for the termination of parental rights on grounds of abandonment, as established by La. Ch.Code art. 1004(F) and Article 1015(4). The 1997 amendments to Art. 1004 clarify the court's primary authority to initiate such proceedings, highlighting that severe parental misconduct in child care cases can justify immediate termination of rights. The revisions expand the categories of individuals who can initiate these actions, allowing private counsel to act in cases of abandonment.

In a relevant case, the original petition by the "Cs" was initially challenged for lack of standing, as they were not authorized to bring the action under Paragraph F. However, this issue was resolved when counsel for the Cs was designated as special counsel to pursue termination on abandonment grounds, which the juvenile court confirmed. Although the motion referenced Paragraph A, the court recognized that the action was initiated under Paragraph F, leading to the dismissal of the no right of action exception.

While the law permits one parent's counsel to seek termination of the other parent's rights, courts have expressed concerns about this practice, citing a lack of protective measures typically enforced by the State. Nevertheless, cases like In re H.B.K. have allowed such actions under La. Ch.Code art. 1004(F), despite these concerns, if abandonment is not adequately proven.

The case of State in the Interest of D.M. acknowledges the juvenile court's authority to appoint private counsel as special counsel under La. Ch.Code art. 1004(F), but clarifies that this article does not apply when parental rights are terminated for reasons other than abandonment, specifically citing rape. The juvenile court must balance parental rights with the child's best interests, particularly when the petitioner for termination may have conflicting interests regarding family reunification. The court retains the authority under La. Ch.Code art. 1004(A) to mandate the State, either through the department or district attorney, to file termination petitions, emphasizing the overarching goal of protecting children.

The ruling highlights that private counsel may be specially appointed to pursue termination of parental rights due to abandonment under La. Ch.Code art. 1015(4). The court of appeal's reversal of the juvenile court's denial of the parents' exception of no right of action was deemed erroneous, leading to a partial reversal and remand for consideration of the parents’ unaddressed assignments of error.

The grounds for involuntary termination based on abandonment are defined in La. Ch.Code art. 1015(4)(b) and (c), which stipulate that a parent must have either failed to provide significant care or support for six consecutive months or failed to maintain contact with the child for the same duration. The petitioner bears the burden of proving each element for termination by clear and convincing evidence, underscoring that the best interest of the child is the paramount concern in such cases, as stated in various provisions of the Children’s Code. Additionally, La. Rev. Stat. 9:403 outlines the conditions under which a child may be deemed abandoned if a parent has deserted them for at least four months without providing for their care or support. Affidavits can be submitted to initiate hearings on abandonment, which must be scheduled at least sixty days after the order.

Individuals recognized as officers of the court include the Clerk, Deputy Clerks, Minute Clerk, Sheriff, Constable or Marshal, Crier, Court Reporter, Court Appointed Expert, and Attorneys, as outlined in La.Code Civ. Proc. arts. 251-375. In *In re Fischbein*, 194 So.2d 388 (La.App. 4th Cir. 1967), the court addressed whether an attorney could begin termination proceedings by affidavit and then allow paternal grandparents to take over the case. The court ruled that the grandparents could not petition as there was no private right of action, but it did not dismiss the case, acknowledging the attorney's nominal role as an officer of the court allowed the action to continue. Additionally, La.Rev.Stat. 13:1601 permits the district attorney to petition for termination of parental rights in specific circumstances concerning abused or neglected children, and they may appoint attorneys from the Department of Health and Human Resources for prosecution. The summary of *D.G.C.* illustrates the legal context surrounding the amendments to La. Ch.Code art. 1004. The 2001 legislative amendment allowed foster parents intending to adopt to file for parental rights termination if the department did not act, with certain time constraints. Furthermore, "any interested person" may initiate termination actions, either through the district attorney or independently, under specific conditions, including the conviction of the child's other parent for murder or unjustified intentional killing, as amended in 2005.