188 So. 3d 144
La.2016Background
- Infant K.C.C. was born March 1, 2013; maternal power of attorney transferred custody to E.C. and K.C. (the Cs) in April 2013; mother later revoked but did not notify them.
- DNA later showed M.M. was the biological father; intra-family adoption petition was dismissed; the Cs then sought custody and filed for termination of parental rights for abandonment under La. Ch. Code art. 1015(4).
- Biological parents (T.T. and M.M.) filed exceptions of no right and no cause of action in juvenile court.
- Juvenile court granted private counsel (Tilton R. Hunter, Jr.) leave to file the termination petition and overruled the parents’ exceptions; after trial the court found abandonment and terminated parental rights.
- The court of appeal reversed, holding art. 1004(A) did not permit private parties to seek leave and that the petition was improperly brought; this Court granted review.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether private counsel for prospective adoptive custodians may be specially appointed to file a petition to terminate parental rights for abandonment under La. Ch. Code art. 1004 | Cs: Article 1004(F) and legislative history allow the court to authorize private counsel to initiate abandonment-based termination actions with court approval | T.T.: art.1004(F) authorizes only delegation by court or DA to counsel acting on behalf of State/district attorney; no private-party-initiated termination procedure in Title X | Court: art.1004(F) permits special appointment of private counsel by the court (or DA) in a particular case to petition for termination for abandonment; juvenile court properly overruled no-right exception |
Key Cases Cited
- Reese v. State Dep’t of Pub. Safety & Corr., 866 So.2d 244 (La. 2004) (stands for class-of-plaintiffs/right-of-action exception principles)
- Miller v. Thibeaux, 159 So.3d 426 (La. 2015) (all well-pleaded facts taken as true on exception of no right of action)
- In re D.G.C., 690 So.2d 237 (La. App. 4th Cir. 1997) (held private individual could not file termination petition; court must order State to act or DA to designate counsel)
- State in the Interest of Bartee, 446 So.2d 512 (La. App. 4th Cir. 1984) (earlier rejection of private-party-initiated termination under pre-Code statutes)
- In re Fischbein, 194 So.2d 388 (La. App. 4th Cir. 1967) (discussed attorney as officer of court initiating abandonment proceeding; private petitioners lacked direct right)