In re Mulvihill
56 So. 3d 418
La. Ct. App.2011Background
- Intrafamily adoption petition under Louisiana Children’s Code Article 1245 was brought by Raymond C. Mulvihill to adopt 8-⅜ year-old G.B.P., whose biological mother is Tricia Mulvihill, now Mrs. Mulvihill; biological father Larry Potter opposed.
- Potter and Mulvihill lived together after 1999; their relationship ended around 2002; Potter’s access to G.B.P. became restricted and contested.
- G.B.P. was born December 14, 2001; Potter allegedly paid little child support for an eight-year period; Mulvihill provided for G.B.P. financially and medically.
- In October 2002 a consent judgment was entered restricting Potter’s visitation; later, Mulvihill married Mr. Mulvihill in 2006; adoption petition filed January 6, 2006 (decided Oct. 29, 2009).
- Potter’s opposition, appointed counsel for the child, and contested trial proceeded with conflicting evidence on Potter’s contact with G.B.P. and best-interest considerations.
- District court denied the stepparent adoption; appellate review affirmed, holding Potter’s efforts were reasonable and thwarted by Mulvihill; best interest favored maintaining parental rights over adoption.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Potter violated six-month communication/visitation requirement | Mulvihill: Potter failed to contact for six months since Dec 2004 | Potter: he did attempt contact and visits; interruptions were due to Mulvihill | No error; district court credibility findings supported upholding six-month absence defense |
| Whether adoption by Mulvihill is in G.B.P.’s best interest | Mulvihill: expert testified adoption would benefit bond with Mulvihill; child’s relationship with father doesn’t preclude adoption | Potter: his relationship with G.B.P. favors maintaining paternal rights; evidence does not show harm in holding Potter as father | Deemed not in best interest to terminate parental rights and grant intrafamily adoption |
| Whether trial court properly applied Article 1193/1138 standards | Mulvihill: Potter must show substantial commitment under Article 1138 to establish parental rights | Potter: consent not required if he demonstrated paternal involvement; no need for strict support order | Court affirmed denial; trial court’s application of 1138 credibility and best-interest standards proper |
Key Cases Cited
- In re Succession of Stamm, 43 So.3d 326 (La.App. 4 Cir. 2010) (clear standard for manifest error and credibility not to be disturbed on review)
- Clarkston v. Louisiana Farm Bureau Cas. Ins. Co., 989 So.2d 164 (La.App. 4 Cir. 2008) (reasonable evaluations of credibility preserved on appeal)
- In re: Fleming, 817 So.2d 371 (La.App. 5 Cir. 2002) (burden on petitioner to prove lack of consent is unnecessary)
- In re: C.E.M., III, 31 So.3d 1138 (La.App. 5 Cir. 2010) (factors for intrafamily adoption and burden shifting for parental rights)
- W.E.B. Applying for Adoption, 980 So.2d 123 (La.App. 3 Cir. 2008) (dual focus analysis; best interest governs adoption decisions)
- In re: Miller, 665 So.2d 774 (La.App. 1st Cir. 2005) (best interest as primary consideration even if consent conditions met)
- Syrie v. Schilhab, 693 So.2d 1173 (La. 1997) (appellate review of factual determinations under manifest error standard)