
    In re K.L.H., Applying for Intrafamily Adoption of K.H. and L.H.
    No. 99-1995.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 20, 2000.
    
      Lyle Fogleman, Crowley, LA, Counsel for Plaintiff-Appellee.
    Sam Aucoin Voorhies and Labbe, Lafayette, LA, Counsel for Defendani/Appellant.
    (Court composed of NED E. DOUCET, Chief Judge, SYLVIA R. COOKS, OSWALD A. DECUIR, GLENN B. GREMILLION, and MICHAEL G. SULLIVAN, Judges).
   |,COOKS, Judge.

The natural mother appeals the trial court’s judgment granting the step-mother’s petition for intrafamily adoption. For reasons set forth below, we reverse the trial court’s ruling.

FACTS

M.D. and T.H. are the natural parents of two children: L.H., who was born in 1988, and K.H., who was born in 1990. The parents married in 1991, but were divorced in 1993. The father was awarded the sole care, custody and control of the minor children. The mother was granted reasonable visitation rights. Initially, the mother was ordered to pay child support in the amount of $191.00 per month. A subsequent, judgment ordered her to pay child support in the amount of $418.00 per month, plus 37% of all medical expenses not covered by insurance. Sole custody was maintained in favor of the father, with the mother continuing to enjoy visitation rights.

In 1995, the father married K.L.H. The natural mother, who also remarried, subsequently failed to pay child support for more than one year. On July 16, 1999, K.L.H., as the children’s stepmother, applied for the intra-family adoption of the children. She alleged because the natural mother failed to pay child support for more than one year, her consent to the adoption was unnecessary according to La. Ch.Code art. 1245(D)(1). At trial, the natural mother argued the statute was unconstitutional and violated her due process rights. On August 24,1999, the trial judge granted the step-mother’s petition for adoption. From this judgment, the natural mother appeals.

ANALYSIS

Judicial termination of parental rights results in the permanent elimination by court order of all a mother’s or father’s parental rights and duties. An adoption may not be granted without the consent of both parents, except when parental consent has Lbeen dispensed with by law. Adoption of Otterstatter v. Otterstatter, 525 So.2d 117 (La.App. 3 Cir.1988). In this case, the stepmother argued the natural mother’s parental consent was not necessary as provided by La. CLCode art. 1245(D)(1) because she failed to pay child support for more than one year. La. Ch. Code art. 1245 provides:

A. The consent of a parent as required by Article 1193 may be dispensed with upon proof of the required elements of either Paragraph B, C, or D.
D. When a parent lawfully exercising actual custody of the child is married to a stepparent petitioner and either of the following conditions exist:
(1) The other parent has refused or failed to comply with a court order of support for a period of one year.

However, the courts have held non-compliance with a support order will not automatically result in forfeiture of parental rights unless the failure is without just cause. Leger v. Coccaro, 98-202 (La.App. 3 Cir. 4/29/98); 714 So.2d 770, writ denied, 98-1423 (La.7/2/98); 724 So.2d 740; Wyatt v. Dep’t of Public Welfare, 442 So.2d 1369 (La.App. 3 Cir.1983); In re Bas, 424 So.2d 405 (La.App. 2 Cir.1982); Adoption of Rapp, 348 So.2d 107 (La.App. 4 Cir.1977). And even if the parent’s failure was without just cause, the judge nonetheless must determine whether the proposed adoption and consequent severance of the parental relationship are in the best interest of the child. Adoption of Latiolais, 384 So.2d 377 (La.1980).

It is undisputed the natural mother failed to pay child support for more than one year. Although her failure may have obviated the requirement that she consent to the proposed adoption, permanent severance of the natural mother’s relationship with her children by court order is warranted only if the evidence established her failure was without just cause and terminating her parental rights is in the children’s best interest.

IJUST CAUSE

An appellate court may not set aside a trial court’s finding of fact in the absence of manifest error or unless it is clearly wrong. Stobart v. State, Through DOTD, 617 So.2d 880 (La.1993). A two-tiered test for reversal of a fact finder’s determination has been established by the Louisiana Supreme Court: (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. Stobart, 617 So.2d at 882, citing Mart v. Hill, 505 So.2d 1120, 1127 (La.1987).

The natural mother alleges the trial court erred in finding she did not show “just cause” for her failure to pay support as ordered. The natural mother notes the record contains uncontradicted evidence that during the year in which she failed to pay child support, she was physically abused by her then husband. The natural mother eventually left her husband, with whom she had started a business shortly after their marriage. She was forced to relocate several times and find new employment. The natural mother, alleged the father verbally agreed during this period to suspend her child support payments. The father acknowledged he was aware the natural mother was being abused by her second husband, but he denied entering a verbal agreement to suspend the payments. We cannot.say the trial judge erred in failing to accept as proven the alleged agreement. However, we are satisfied the judge manifestly- erred in failing to consider as mitigating factors the domestic abuse suffered by the natural mother and the attendant instability in her life. Even if we disregarded the natural mother’s domestic upheavals and found no just cause existed for her failure to pay the court ordered support, the question still remains whether severance of all ties with her children is in their best interest.

BEST INTEREST OF THE CHILDREN

|,qAs noted, a parent may lose the right to consent to the adoption of her child as provided by La. Ch.Code articles 1193 and 1245(D)(1), but the adoption should only be granted when it is in the best interest of the child. Adoption of Latiolais, 384 So.2d 377 (La.1980). The party petitioning the court for adoption carries the burden of proving the adoption is in the best interest of the child. In re JMP, 528 So.2d 1002 (La.1988); Wyatt v. Dep’t. of Public Welfare, 442 So.2d 1369 (La.App. 3 Cir.1983).

Whether an adoption is in the best interest of the child must be decided on the facts of each case, and the trial judge is vested with great discretion in making that determination. In re Farrar, 93-1347 (La.App. 3 Cir. 4/6/94); 635 So.2d 674. However, this discretion is not absolute and the trial judge’s best interest determination is subject to reversal if the record reveals it was manifestly erroneous. La-tiblais, 384 So.2d 377.

This court in In re F.arrar, 635 So.2d at 676-77 thoroughly reviewed the applicable law and jurisprudence concerning adoption. We stated:

In reviewing the law in the area of adoption, we note that there is no clear definition or absolute outline of factors that should be used in determining what is in the best interest of a child. Louisiana courts have cited several factors including the ability of the stepparent to serve as parent, the ability of the stepparent to provide for the child’s physical needs, the stepparent’s ability to fulfill the psychological needs of the child, and lastly, whether the aforementioned considerations outweigh the existent natural parent-child relationship. In re Billeaud, 600 So.2d 863, 865 (La.App. 3d Cir.1992). More specifically, where a stepparent is married to the natural parent having custody and seeks to adopt that child, Louisiana courts have held: The most important factors are the child’s relationship with h[is] stepfather and h[is] natural father. It is not enough to examine the love and home environment provided by the petitioner/stepparent. It is necessary as well to examine the depth of closeness of the child’s ties with the non-custodial natural parent, and the effect which the loss of this relationship would have on the child. In Re JGG v. JLF, 556 So.2d 236 (La.App. 2d Cir.1990). The court must also consider the seriousness and finality of the severing of the relationship between the parent and child, as well as the importance and benefit to the child of a continued | ^relationship with the parent. Id.

Knapp v. Adoption of Cotten, 577 So.2d 241, 246 (La.App. 1st Cir.), mit denied, 580 So.2d 364 (La.1991). Consequently, a court, for example, cannot automatically grant a stepparent’s petition for adoption even where the relationship between a stepfather and his stepson is closer and more affectionate than the relationship between the son and his natural father. The law requires that the court also evaluate the relationship between the child and the natural parent and the effect on the child of severing the natural parent-child relationship.

This court has previously addressed the importance of the natural parent-child relationship. In Latiolais, which was affirmed by the Louisiana Supreme Court, we pointed out that an adoption terminates any right of visitation between the child subject to the adoption and the non-custodial natural parent. Adoption of Latiolais, 376 So.2d 555, 560 (La.App. 3d Cir.), affirmed 384 So.2d 377 (La.1980). In reviewing a stepparent’s petition for adoption and the effect on the natural parent-child relationship, this court held: “[Granting the petition for adoption] would be tantamount to a pronouncement of death between them.” Latiolais, supra. This death in the natural parent-child relationship would extend to the entire family of the natural parent. Latiolais, supra. In an adoption, a child’s family name changes and he becomes a new legal person with no legal ties to his natural family. In the Louisiana Supreme Court’s opinion affirming our decision in Latiolais, the court referred to the issue of the rupture of the natural parent-child relationship as a crucial factor in determining the best interest of the child. Adoption of Latiolais, 384 So.2d 377, 378 (La.1980).

In another Louisiana Supreme Court case, the court again addressed the importance of the biological relationship. Although this case involved a private adoption, its discussion of general policy considerations is relevant and helpful in determining the appropriate weight to give to the natural parent-child relationship.

Under broadly shared social values the general rule is that the responsibility and opportunity of custody is assigned to a child’s natural parents. The high value placed on family autonomy reflects a consensus that the natural parent-child relationship should be disturbed only if necessary to protect the child from physical or psychological harm. Moreover, preservation of the child’s sense of lineage and access to his extended biological family can be important psychologically, as evidenced by the felt need of some adoptive children to search out their natural parents.

In re J.M.P., 528 So.2d at 1015.

“Louisiana courts have historically been reluctant to sever the parent-child relationship and derogate from- the natural rights inherent |7therein since the jurisprudence recognizes the fundamental belief that a child has a right to know and love his parents and such rights should not be denied except when the parent has proven himself unworthy of this love.” Billeaud, 600 So.2d at 866 (citations omitted); see also, Hinton, 390 So.2d 972 (holding petitioner must show that the denial of a petition for adoption, which would rupture the natural parent-child relationship, would operate to the detriment of the child). In cases similar to the one before this court, i.e. 1) where a stepparent is married to the natural parent having custody, 2) a stepparent’s relationship with stepchild is excellent, and 3) a stepparent seeks to adopt that child, Louisiana courts have adhered to the presumption that maintaining the natural parent-child relationship is in the best interest of the child unless petitioner shows otherwise.
In order to rebut the presumption that it is in the best interest of the child to keep open or continue the natural parent-child relationship, Louisiana courts have required that the petitioner establish one of the following: 1) no natural parent-child relationship exists, 2) the natural parent is indifferent about the child’s well being, or 3) the natural parent’s visits with the child have been sporadic and inconsistent.

(Footnote omitted.)

We are convinced, after reviewing the record, that a strong parental bond exists between the natural mother and her minor children. The children testified they loved their mother, and acknowledged she regularly visits with them. The natural mother is not indifferent to the children’s well-being. She testified she loves her daughters very much and has vigorously opposed the adoption.

In a similar case, Leger v. Coceara, 98-202, (La.App. 3 Cir. 4/29/98); 714 So.2d 770, this court noted the provisions of La. Ch.Code art. 1245 are not mandatory. The trial court is not required to grant an adoption solely because the technical conditions of the statute are met. Instead, the court must consider the seriousness and finality of severing the relationship between a parent and child, as well as the importance and benefit to the child of a continued relationship with that parent. Id.

While the testimony also establishes the children have a strong relationship with their stepmother, the effects and benefits of maintaining the ongoing relationship of love and affection between the children and their natural mother is not lessened | sthereby. The father confirmed over the last few years the children have regularly visited their mother. A report from Social Services indicates the same. The stepmother acknowledged in years past that the children were disappointed on the weekends their mother could not. pick them up. The testimony also revealed the children have a younger half-sister who lives with the natural mother.

The evidence is wholly insufficient to show that maintenance of the natural parent-child relationship, in this instance, will harm the children and is not in their best interest. Adoption statutes are strictly construed in favor of the actual parent and against the party seeking to adopt. Adoption of Edwards, 369 So.2d 210 (La. App. 3 Cir.1979). The trial court erred in ordering the termination of the natural mother’s parental rights.

The natural mother’s assignment of error contesting the unconstitutionality of La. CbuCode art. 1245 is rendered moot by our disposition of the previous issues.

DECREE

For the foregoing reasons, the trial court’s judgment granting the petition for intrafamily adoption is reversed. All costs at trial level and on appeal are assessed to plaintiff-appellee, the stepmother.

REVERSED.

DOUCET, C.J., dissents and assigns written reasons.

SULLIVAN, J. dissents for the reasons assigned by DOUCET, C.J.

hDOUCET, Chief Judge,

Dissenting:

For the following reasons, I respectfully disagree with the majority in this case.

First, I am reminded of the primary tenet of appellate review:

In applying the manifest error-clearly wrong standard, the appellate court must determine not whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was a reasonable one. Freeman [v. Poulan/Weed Eater ], 93-1530 at p. 5 [ (La.1/14/94) ], 630 So.2d [733] at 737-738; Stobarb v. State, 617 So.2d 880, 882 (La.1993); Mart v. Hill, 505 So.2d 1120, 1127 (La.1987). Where there are two permissible views of the evidence, a factfinder’s choice between them can never be manifestly erroneous or clearly wrong. Stobart, 617 So.2d at 882. Thus, “if the [factfinder’s] findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even if convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.” Sistler v. Liberty Mut. Ins. Co., 558 So.2d 1106, 1112 (La. 1990).

Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840, pp. 7-8 (La.7/1/97), 696 So.2d 551, 556.

\9I am also cognizant of the jurisprudence which states that even when the consent of the legitimate parent is unnecessary the adoption may not be granted unless the court finds that it is in the child’s best interest. See Adoption of La-tiolais, 384 So.2d 377 (La.1980). The trial court’s finding as to the best interest of the child is a finding of fact and will not be disturbed on review unless there is no reasonable factual basis for the finding or it is clearly wrong. Arceneaux v. Do-mingue, 365 So.2d 1330 (La.1978).

After reviewing the entire record,, and especially the testimony of the two, non-party witnesses, Joseph LeBlanc and Mrs. Dale Cormier, I cannot say the trial judge was clearly wrong in his determination that it would be in the best interests of the children to grant the adoption. Mr. Le-Blanc testified, among other things, that on one occasion M.D. (the natural mother) had showed up at his home to pick up the children for visitation four and one-half hours late and visibly intoxicated. Mrs. Cormier, a retired teacher, who provides child care and academic help to the children, testified that K.L.H. (the step-mother)is a wonderful mother to K.H. and L.H., who helps them with their school work, attends extra curricular functions with them and loves them as her own. She also testified that the children complain when they have to visit with M.D. and were ecstatic when they found out K.L.H. wanted to adopt them. Additionally, the trial judge interviewed both children in chambers. After reviewing the testimony of the children, I am convinced the trial judge made the right decision. They stated that they wanted to be adopted by K.L.H., that during visits with M.D., she would mostly visit with her friends or watch T.V., that she would drink and drive, and that on at least one occasion, M.D. physically abused K.H..

[.^Further, the law favors Appellees. Appellant, M.D., and her former husband, Tony, had two children: K.H. and L.H.. The couple were divorced in August 1993, with Tony being granted sole custody of the two children and M.D. being ordered to pay child support. Thereafter, on July 4, 1995, Tony married K.L.H., who assumed the role of mother to the two girls. M.D. failed to pay any child support between July 1998 and August 1999. In July 1999, K.L.H. filed the instant petition for adoption. The trial judge found that because the natural mother had failed to support her children for more than one year her consent to the adoption was unnecessary. I note the version of La. Ch. Code art 1245 in effect at the time perfi-nent to this case required a one year period in which a parent “failed to comply with a court order of support” before that parent’s permission was no longer necessary for a step-parent to adopt.

In Tutorship of Shea, 619 So.2d 1236, 1241-42 (La.App. 3 Cir.), writ denied, 626 So.2d 1165 (La.1993), we stated:

In order for a parent to avoid the effects of LSA-R.S. 9:422.1 and its successor, Article 1245 of the Louisiana Children’s Code, the support that he provides must be “significant.” An unworthy parent cannot prevent an adoption, which is in the child’s best interests, by making a token payment each year in a nominal sum, which is insufficient to provide for the child’s maintenance and support. In re Ackenhausen, 244 La. 730,154 So.2d 380 (1963).
Whether the support provided is “significant” depends on the particular facts and circumstances of the case under consideration. \ ¿Haynes v. Mangham, 375 So.2d 103 (La.1979). In In re May, 441 So.2d 500, 505 (La.App. 2nd Cir. 1983), writ denied, 449 So.2d 1028 (La. 1984), opinion reinstated, 452 So.2d 800 (La.App. 2nd Cir.1984), writ denied, 458 So.2d 475 (La.1984), the court observed:
“Support in the context of LSA-R.S. 9:422.1 [now La. Ch.Code art. 1245], which the parent must provide in order for his consent to adopt to be necessary, is termed as ‘significant’ support. While each case must be viewed in light of its particular circumstances, significant support has been defined as being something only in the range of twenty to thirty percent of the alimentary obligation. Haynes v. Mangham, 375 So.2d 103 (La.1979); DeRosier v. Dean, 378 So.2d 588 (La.App. 3rd Cir.1979).”

In Haynes v. Mangham, the Louisiana Supreme Court explained:

The interpretation of the language of R.S. 9:422.1 and its application to the facts of this case is not a simple matter. [ ... ]
The language “refused or failed to comply with a court order of support for a period, of one year” can be interpreted in a number of ways: It can be inter.preted on the one extreme so rigorously as to apply even to the parent who pays each month for twelve consecutive months prior to suit, but in each case for an arrearage, so that for the full twelve months he had never been in full compliance with the court order, and on the other extreme so leniently as to permit any payment however small, within twelve months prior to the filing of the petition for adoption and irrespective of the amount of accumulated arrearages, to suffice to prevent application of the statute. Neither 'of these extremes is acceptable.
Required as we are to achieve a result in this litigation by interpreting and applying the statute, we find that a common sense interpretation is the following: If a parent under court order to support a child has not made a significant support payment within a year pri- or to filing of the petition for adoption, that parent loses the right to prevent the adoption by withholding consent.

Haynes, 375 So.2d at 105.

The record establishes that beginning in February of 1996, M.D. was condemned to pay $191.00 per month in child support. By September of 1996, she was already $1,528.00 in arrears. On June 1, 1997, M.D.’s child support obligation |Bwas increased to $418.00 per month. This equates to a total child support obligation, from February 1996 through August 1999, of $13,924.00. At the time of the trial, August 24,1999, K.L.H. testified that M.D. had paid a grand total of $3,713.66 in child support, a figure which would leave M.D. $10,210.34 in arrears. K.L.H. further testified that the last child support payment M.D. paid was $96.66 in July 1998. Thus, I am of the opinion that M.D. lost her right to prevent K.L.H.’s adoption of K.H. and L.H. by withholding her consent.

“Once nonpayment of child support is established by the stepparent, the natural parent must demonstrate that he or she had just cause not to pay or that the failure to pay resulted from circumstances beyond his or her control.” In re Acken-hausen, 154 So.2d at 383. The majority address the issue of M.D.’s alleged “just cause” for not paying her child support and concludes that even if her non-payment was unjustified, the adoption should not be allowed to proceed. Considering the amount of arrearage and the fact that M.D.’s last support payment, in July 1998, was only $96.66,1 find no “just cause,” and I disagree with their conclusion that the adoption should not be allowed to proceed.

The majority citing Leger v. Cocearo, 98-202, (La.App. 3 Cir. 4/29/98); 714 So.2d 770, unit denied, 98-1423 (La.7/2/98); 724 So.2d 740, states the provisions of La. Ch.Code art. 1245 are not mandatory. Nevertheless, Leger goes on to say: “However, the adoption should normally be granted in the absence of extenuating circumstances. Ultimately, however, whether an adoption is in the best interest of the child must be decided on the facts of each individual case, and the trial court is vested with great discretion in making that determination.” Id. at p. 8; 714 So.2d 744 (citations omitted). Adoption of Latiolais, 376 So.2d 555 (La.App. 3 Cir.1979), aff'd, lfi384 So.2d 377 (La.1980) which is cited in Leger as authority that the provisions of La. Ch.Code art. 1245 are not mandatory explains as follows:

In our approach to the issue, we first note that the provisions of LSA-R.S. 9:422.1 are not mandatory provisions. •All that the statute does is to dispense with the necessity of obtaining consent from a legitimate biological parent under the special circumstances where the parents have become divorced and the new spouse of the parent having custody desires to adopt a child of the first marriage. Nothing in the statute grants a stepfather any legal rights in these circumstances. Nothing in the statute requires that the court considering the adoption must grant it merely because the technical conditions of the statute are met. The purpose of the statute, by its very terms, is merely to substitute for consent, otherwise necessary for adoption, the fact of failure to provide support. The support must be court-ordered if the party owing it is within the state; if the party is a non-resident, a court order is not necessary.
Despite these comments the approval of an adoption is not entirely within the discretion of the trial court. In Adoption of Edwards, 369 So.2d 210 (La.App. 3rd Cir.1979), we noted that adoption should be granted in the absence of extenuating circumstance or “just cause We also noted that just cause was “a jurisprudential addendum to the statute”.

Latiolais at 559 (Footnote omitted; first, third and fourth emphasis added). Inasmuch as just cause has already been addressed, I see no reason to repeat those comments.

As I see it, adoption under La. Ch.Code art. 1245 requires proof of two elements: 1) unjustified non-support by a parent under a court order to provide child support; and 2) that the adoption would be in the best interests of the child or children. Both of these elements are factual determinations to be made by the trial court subject to the manifest error rule.

In sum, I find no error by the trial court. I would affirm its judgment and allow the adoption of K.H. and L.H. by their step-mother, Petitioner, K.L.H. 
      
      . La. Ch.Code art. 1245(C)(1) current provides:
      C. When the spouse of a stepparent petitioner has been granted sole or joint cústo-dy 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 other parent has refused or failed to comply with a court order of support without just cause for a period of at least six months.
     