In Re: Nelita Thompson Applying for Intrafamily Adoption, Of Children Under the Age of Eighteen ( 2023 )

IN RE: NELITA THOMPSON APPLYING FOR NO. 23-CA-320
INTRAFAMILY ADOPTION, OF CHILDREN
UNDER THE AGE OF EIGHTEEN FIFTH CIRCUIT
COURT OF APPEAL
STATE OF LOUISIANA
ON APPEAL FROM THE JEFFERSON PARISH JUVENILE COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 2022-AD-56, DIVISION "C"
HONORABLE BARRON C. BURMASTER, JUDGE PRESIDING
October 23, 2023
JUDE G. GRAVOIS
JUDGE
Panel composed of Judges Jude G. Gravois,
Stephen J. Windhorst, and Scott U. Schlegel
APPEAL DISMISSED WITHOUT PREJUDICE; REMANDED
JGG
SJW
SUS
COUNSEL FOR PLAINTIFF/APPELLEE,
NELITA THOMPSON
Roy M. Bowes
Mitchell A. Palmer
COUNSEL FOR DEFENDANT/APPELLANT,
GERALD CONAWAY
Erin A. Fisher
GRAVOIS, J.
Appellant, Gerald Conaway, Jr., appeals the April 11, 2023 judgment of the
Juvenile Court of Jefferson Parish which found that under La. Ch.C. art. 1245, his
consent was not required for the court to rule upon the Petition for Intrafamily
Adoption of G.T.C. III and N.E.C., his minor children, filed by Nelita Thompson,
his minor children’s maternal grandmother and their temporary legal custodian.
For the following reasons, we find that the judgment on appeal is not a final,
appealable judgment. Accordingly, we dismiss the appeal without prejudice and
remand the matter to the Juvenile Court for further proceedings.
FACTS AND PROCEDURAL HISTORY
On September 1, 2022, Nelita Thompson filed a Petition for Intrafamily
Adoption of the minor children, G.T.C. III and N.E.C. Her petition averred that
she was the children’s maternal grandmother and had been granted legal custody of
the children by a judgment of the Juvenile Court signed on July 21, 2015, which
was attached to the petition.1 The petition alleged that Mr. Conaway had an
extensive criminal record and that Ms. Thompson’s daughter, Dillia N. Hackler,
the children’s mother, died in 2017. In her petition, Ms. Thompson alleged that it
was in the best interest of the children that she be allowed to adopt them, as she
had provided the primary care for them before and since the custody judgment, and
continued to do so. She alleged that Mr. Conaway had either refused or failed to
visit, communicate with, or attempt to communicate with the children for a period
of at least six months. She further alleged that he had failed to provide significant
contributions to the children’s care and support for a period in excess of six
consecutive months. Among other exhibits, the children’s birth certificates and the
1
The order of custody was granted in Docket No. 2015-CC-62, a child in need of care
proceeding in Juvenile Court to which the parties refer in the appellate record and in briefs. The
record of this child in need of care proceeding is not part of the appellate record in this
proceeding.
23-CA-320 1
“Revocation of Custody” judgment in State in the Interest of C.M., N.H., and G.C.
III, docket No. 2015-CC-62 in the Juvenile Court for the Parish of Jefferson, were
attached to the Petition.
On November 9, 2022, Mr. Conaway filed into the record of this proceeding
a handwritten letter wherein he stated his opposition to the intrafamily adoption.
He alleged that Ms. Thompson had lied to the court and concealed the exact
whereabouts of the children from him, and that they were currently with another
relative, not Ms. Thompson, who had legal custody. He also alleged that he was
not able to afford an attorney to represent him.
Counsel was appointed to represent the minor children. A hearing was held
to determine whether due process required the appointment of counsel for Mr.
Conaway. Following the hearing, counsel was appointed for Mr. Conaway on
November 29, 2022.2
At the April 11, 2023 hearing on the opposition to the adoption and the final
decree of the adoption, Mr. Conaway’s opposition to the adoption was heard. At
issue were the allegations in Ms. Thompson’s petition that Mr. Conaway had failed
to contact the children for a period in excess of six months and had also failed to
provide significant support to the children for a period in excess of six months.3
2
The record indicates that the Petition for Adoption was set hearing on December 19,
2022; however, a minute entry from that day states that the matter was continued to coincide
with the hearing of the “opposition to adoption.” A hearing on Mr. Conaway’s opposition to the
adoption and the final decree of adoption was held on January 30, 2023, but was continued to
allow counsel for Mr. Conaway to review all discovery and the previous child in need of care
proceeding, Docket No. 2015-CC-62. The next hearing was set for March 17, 2023. At that
hearing, the court found that further discovery was necessary. The hearing on the opposition to
the adoption and the final decree of the adoption was then reset for April 11, 2023.
3
La. Ch.C. art. 1245 provides:
A. The consent of the parent as required by Article 1193 may be dispensed with
upon proof by clear and convincing evidence of the required elements of
either Paragraph B or C of this Article at the hearing on the opposition and
petition.
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:
23-CA-320 2
Following testimony from Mr. Conaway, the trial court ruled from the bench that
he had not borne his burden of proof that he had made the required communication
with his children or provided the required support. The trial court found that as a
result, Mr. Conaway had lost the right to oppose the adoption; i.e., his consent to
the adoption was not required. Counsel for Mr. Conaway objected to the ruling.
The trial court did not proceed with the final decree of adoption at that time,
however, finding that the record was missing a required affidavit. Mr. Conaway
filed a Notice of Intent to File Appeal of the April 11, 2023 judgment on April 21,
2023, which was granted that same day. On May 22, 2023, the final decree on the
petition for adoption was taken up; however, as evidenced by a minute entry in the
appellate record, the final decree of adoption was continued pending the outcome
of this appeal.
LAW
Intrafamily adoptions, the adoption of a child by a stepparent or certain other
relatives, are authorized by the Louisiana Children’s Code. La. Ch.C. arts. 1170,
1243. As per La. Ch.C. art. 1245, the party petitioning for adoption has the initial
burden of proving that a biological parent’s consent is not required due to the
parent’s nonsupport of or lack of communication with the child by clear and
(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 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.
(2) The other 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.
23-CA-320 3
convincing evidence. In re J. W. R., 21-691 (La. App. 5 Cir. 3/3/22), 340 So.3d
1242, 1246.
JURISDICTIONAL CHALLENGE
In brief to this Court, appellee Ms. Thompson argues that the trial court’s
judgment of April 11, 2023 is not a final judgment and thus this Court is without
appellate jurisdiction to review said judgment. In support, she cites this Court’s
opinion in In re L. D. B., 17-373 (La. App. 5 Cir. 10/4/17), 228 So.3d 296, 299,
wherein this Court stated:
Before considering the merits of any appeal, appellate courts
have the duty to determine sua sponte whether subject matter
jurisdiction exists, even when the parties do not raise the issue.
Lynch-Ballard v. Lammico Ins. Agency Inc., 13-475 (La. App. 5 Cir.
11/19/13); 131 So.3d 908, 910. This Court’s appellate jurisdiction
extends only to final judgments. Alvarez v. LeBlanc, 08-247 (La.
App. 5 Cir. 9/30/08); 996 So.2d 517, 520, citing La. C.C.P. art. 2083.
A final judgment is one that determines the merits in whole or in part,
while an interlocutory judgment is one that does not determine the
merits, but only preliminary matters in the course of the action. La.
C.C.P. art. 1841. While a final judgment is appealable, an
interlocutory judgment is appealable only when expressly provided by
law. La. C.C.P. art. 2083.
A judgment that only partially determines the merits of the
action is a partial final judgment, and therefore only appealable if
authorized by La. C.C.P. art. 1915. Article 1915 provides six
situations, none of which exist in this case, where a judgment that
does not grant the successful party all of the requested relief or
adjudicate all of the issues may still constitute a final judgment. Even
so, a partial final judgment is only appealable if “it is designated as a
final judgment by the court after an express determination that there is
no just reason for delay.” La. C.C.P. art. 1915(B)(1).
The written judgment in this case expressly found that “as a
matter of law,” under La. Ch.C. art. 1245, “K.L.’s consent to the
adoption of E.J.B. by her stepmother is not required for the adoption
to proceed.” It further stated:
IT IS ORDERED, ADJUDGED AND DECREED
that the opposition to the adoption of E.J.B. is hereby
denied.
IT IS FURTHER ORDERED, ADJUDGED AND
DECREED that the Final Decree on the adoption of
E.J.B. shall proceed accordingly.
23-CA-320 4
Despite K.L.’s representations on appeal, the judgment does not
explicitly grant or deny the adoption and it does not terminate K.L.’s
parental rights; therefore, it does not constitute a final judgment.
(Footnotes omitted.)
In In re L. D. B., this Court found that the issue of whether the consent of a
natural parent is required for an intrafamily adoption is only the first part of the
inquiry regarding whether a petition for intrafamily adoption should be granted.
The basic consideration for an intrafamily adoption is the best interest of the child.
La. Ch.C. arts. 1193 and 1255. This Court noted that even if consent of a
biological parent is not necessary under La. Ch.C. art. 1245 because of the failure
to support or visit/communicate with the child, the court must still consider
whether the adoption is in the best interest of the child. Thus, this Court found that
the Juvenile Court had not completed the pertinent inquiry, and that the judgment
on appeal, which ruled only on the issue of whether the parent’s consent was
required, was not final for appellate purposes. Based upon these findings, this
Court dismissed the appeal without prejudice. Id. at 300.
The procedural posture in the instant case is identical to In re L. D. B.,
except for the additional fact that in this case, the trial court specifically continued
the final decree of adoption until such time as this Court rules on the instant
appeal. As such, the April 11, 2023 judgment is not final for appellate purposes.4
Because this Court is without appellate jurisdiction to review the April 11, 2023
judgment, we hereby dismiss this appeal without prejudice.
DECREE
For the foregoing reasons, this appeal is dismissed without prejudice and the
matter is remanded to the Juvenile Court for further proceedings.
APPEAL DISMISSED WITHOUT PREJUDICE; REMANDED
4
The judgment on appeal, as a partial final judgment, would only be appealable if “it is
designated as a final judgment by the court after an express determination that there is no just
reason for delay.” La. C.C.P. art. 1915(B)(1). The appellate record contains no such express
determination.
23-CA-320 5
SUSAN M. CHEHARDY CURTIS B. PURSELL
CHIEF JUDGE CLERK OF COURT
SUSAN S. BUCHHOLZ
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON LINDA M. WISEMAN
STEPHEN J. WINDHORST
FIRST DEPUTY CLERK
JOHN J. MOLAISON, JR.
SCOTT U. SCHLEGEL FIFTH CIRCUIT
MELISSA C. LEDET
JUDGES 101 DERBIGNY STREET (70053)
DIRECTOR OF CENTRAL STAFF
POST OFFICE BOX 489
GRETNA, LOUISIANA 70054 (504) 376-1400
(504) 376-1498 FAX
www.fifthcircuit.org
NOTICE OF JUDGMENT AND CERTIFICATE OF DELIVERY
I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED
IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY
OCTOBER 23, 2023 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES
NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:
23-CA-320
E-NOTIFIED
JUVENILE COURT (CLERK)
HON. BARRON C. BURMASTER (DISTRICT JUDGE)
MITCHELL A. PALMER (APPELLEE) ERIN A. FISHER (APPELLANT) RAMONA G. FERNANDEZ (APPELLANT)
MAILED
ROY M. BOWES (APPELLEE) JUDITH A. DEFRAITES (APPELLEE)
ATTORNEY AT LAW ATTORNEY AT LAW
2550 BELLE CHASSE HIGHWAY 700 CAMP ST
SUITE 200 NEW ORLEANS, LA 70130
GRETNA, LA 70053