|,In this termination of parental rights case, the court of appeal overruled the judgment of the juvenile court and sustained the biological parents’ peremptory exception of no right of action, on the basis the couple having custody of the child did not possess a private right of action to petition for termination of parental rights under La. Ch.Code art. 1004. For the reasons set forth below, we find the appellate court erred in concluding the petition was improperly brought by private counsel for the custodians upon approval of the juvenile court.
FACTS
The child, K.C.C., was born at 3:03 a.m. on March 1, 2013, to his biological mother,
Two days later, on March 3, 2013,- T.T. and KC.C. were discharged from the hospital. K.C.C. went home with the Cs that day, after the Cs took T.T. to her sister’s home. Whether T.T. intended a permanent or temporary transfer of E.C.C.’s custody has been disputed, but is ultimately not relevant to our resolution of the procedural issue in this case. However, on April 9, 2013, T.T. executed a power of attorney drafted by K.C., which granted to the Cs all of her powers and parental rights regarding the care and custody of K.C.O. 'and provided that the rights, powers, and authority granted would remain in full force until the child’s 18th birthday. The document was signed by T.T., E.C., and K.C., and notarized. Approximately one month later, after T.T.’s relationship with the Cs had soured, T.T. executed a notarized document revoking the power of attorney, although she never informed the Cs of the revocation. • '
Several months later, in October of 2013, the Cs instituted adoption proceedings, filing a petition for intra-family adoption in the Jefferson Parish Juvenile Court, based on E.C. being listed as the child’s father on the birth | ^certificate. However, in January 2014, a.DNA test revealed that M.M. could not be excluded as the father of K.C.C. Thus, on February 3, 2014, the petition for intra-family adoption was dismissed. The next day, the Cs filed a “Petition for Custody and Request for Permission to Petition for Termination of Parental Rights” in the 24th J.D.C.
On March 3, 2014, . the Cs filed a “Petition for Termination .of Parental Rights” in the juvenile court. That petition sought termination of parental rights under La. Child. Code art. 1015(4) for abandonment, and alleged that T.T. and M.M. had made no attempt to establish a relationship with K.C.C., nor had they provided any support for the child. The petition acknowledged that a blood test had verified that M.M. was K.C.C;’s biological father. On March 7th, T.T. filed exceptions of no right of action and no cause of action in juvenile court, asserting inter alia that the Children’s Code did not confer upon non-parents such as the Cs a right of action to
| ¿The court of appeal reversed, the juvenile court’s ruling on the exception of no right of action and remanded the matter to the juvenile court for further proceedings. State in the Interest of K.C.C.,
LAW AND ANALYSIS'
The issue presented is, whether the Petition to Terminate Parental Rights was properly brought by Mr. Hunter, private counsel for the prospective adoptive parents, with leave of the juvenile court. Because resolution of this issue involves the applicability and interpretation of La. Ch. Code art. 1004, this case presents us with a question of law, which requires de novo review. Holly & Smith Architects, Inc. v. St. Helena Congregate Facility, Inc., 06-0582, p. 9 (La.11/29/06),
| ¿Except as otherwise provided by law, an action can be brought only by a person having a real and actual interest, which he asserts. La.Code Civ. Proc. art. 681. See also Reese v. State Department of Public Safety and Corrections, 03-1615 (La.2/20/04),
In determining whether' ‘the petition was properly brought by counsel for the Cs, we turn to the Children’s Code itself, particularly Article 1004. As the appellate court noted, this article delineates the exclusive procedures for instituting a petition for the involuntary termination of parental rights. La. Ch.Code art. 1004, entitled “Petition for termination of parental rights; authorization to file,” provides in pertinent part as follows:
A. At any time, including in any hearing in a child in need of care procééding, the court on its own motion may order the filing of a petition on any-ground authorized by-Article 1015.
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F. By special appointment for a particular case, the court or the district attorney may designate private counsel authorized to petition for the termination of parental rights of the parent of the child on the ground of abandonment authorized by Article 1015(4).1
|fiThe Cs contend the court of appeal erred in ruling that private parties, through private- counsel, lack standing to initiate and pursue termination of parental rights actions for abandonment, when the Louisiana legislature has clearly shown its intent to allow such parties to do so with leave of court by adopting La. Ch.Code art. 1004(F). Thus, they contend they are proper parties with a right to bring, this action. T.T. contends the Cs do not have the authority to file privately an action to terminate parental rights. , They argue Art. 1004(F) does not provide that an individual or his counsel may institute a termination proceeding. Instead, the article gives authority only to the court or the district attorney to delegate certain roles. T.T. maintains there is ho procedure within Title X of the Children’s Code for a privately filed termination of parental rights action. To allow such private actions, she argues, interferes with the parent’s “paramount right” to raise her children and to make decisions as to “where and with whom the child shall reside,” and circumvents the formalities and procedures required by the legislature for private adoptions, formalities that are intended to secure informed consent and the best interest of the child.
We find the legislative history behind La. Ch.Code art. 1004 evidences an attempt by the legislature to broaden the class of persons who may instigate a 17petition for. termination .of parental rights. The involuntary termination "of parental rights falls within Title X of the
In 1948, the Louisiana legislature first recognized termination of parental rights, but limited it to “abandoned” children. Acts 1948, No. 227 (enacting former La. Rev.Stat. 9:403).
Perhaps in response to Bartee, the legislature subsequently amended the former La.Rev.Stat. 9:403 in 1984 to permit, with the court’s approval, a private individual or a residential child-caring institution lawfully exercising physical ^custody to file the abandonment action. Acts 1984, No. 535; La.Rev.Stat. 9:403 B, repealed by 1991 La. Acts No. 235, § 17; see also Harrison,, p. 504. Consequently, for children who had been abandoned or deserted by a parent or parents, a judicial declaration of abandonment could be sought “by an agency, private individual, residential child-caring institution ..., or an officer of the court.” La.Rev.Stat. 9:403 B, repealed by JL991 La. Acts No. 235, § 17. Nonetheless, a private individual or residential institution seeking to have a child declared abandoned had to obtain leave of court and show good cause prior to proceeding. I'd. In all cases, the initiating affidavit had to be served on the department, which was required to prepare a report for the court. Id.
The Children’s Code was enacted in 1991 principally “to gather together all of the laws affecting the exercise of juvenile court jurisdiction” previously scattered within the Revised Statutes and the Code of Juvenile Procedure. Lucy S. McGough, The Drafting of the Children’s Code, 1 Louisiana Children’s Code Handbook, pp. xi, xvi (West 2016). The intention of the drafters was “a true code, an internally consistent, harmbnious set of substantive principles and procedures ..'. for any proceeding within the juvenile court’s jurisdiction.” Id. at xvii-xix. A goal of the drafters was “to resolve ambiguity and to reconcile often conflicting laws ...,” such as “in the differences in the standing requirements and procedure governing abandonment proceedings and termination of parental rights cases....” Id. at xvii-xviii; see also Comment, Involuntary Termination of Parental Rights in Louisiana: Unraveling the Statute, 58 Tul. L.Rev. 1045 (1984)(critiquing the pre-Code statutes as poorly drafted).
As a result of this consolidation and attempted reconciliation, Article 1004 was originally enacted, effective January 1, 1992, as follows:
|1(>A. The district attorney or the department when a child has been placed in its custody for at least eighteen months may petition for the termination of parental rights of the parent of • the child.
B. The court on its own motion, may order the filing of a petition.
•1991 La. Acts No. 235, § 10.
In the Official Comments — 1991, the scope of the court’s authority in Paragraph B to permit persons other than the district attorney or the department to initiate termination proceedings was explained:
Under prior law, a prívate individual had no. authority to file a termination of parental rights petition. R.S. 13:1601. However, an abandonment-action could be initiated by affidavit by a “private individual” or by a private “residential child-caring institution lawfully exercising physical custody of the . child at issue” with., leave of court. R.S. 9:403(B)(1) and (2). (An “officer of the court” could file an abandonment affidavit without leave of court.) Paragraph B strikes a balance between the two conflicting source statutes. It requires that approval of the court must be obtained in the form of a court order before an action seeking termination of parental rights is filed on any ground by anyone other than a representative of the district attorney or the department.
The Legislature revisited Article 1004 in 1992, and amended it as follows:
A. The district attorney may petition for the termination of parental rights of the parent of the child.
B. By special appointment, the district attorney may designate counsel for the department • as a special assistant authorized to petition for the termination of parental rights of the parent of the child.
C. By special appointment for a particular case, the district attorney may designate counsel as a special assistant authorized to petition for the termination of parental rights of the parent of the child on grounds authorized by Article 1015(8), desertion of the child, Article 1015(9), abandonment of the child, and Article 1015(10), failure to maintain contact with the child.
D. When a petition alleges grounds authorized by Article 1015(8), desertion of the child, or Article 1015(9), abandonment of the child, the department may petition for the termination of parental rights of the parent of the child. In cases involving all other grounds authorized by Article 1015, the department may petition for the termination of parental rights of the parent of the child when a child has been placed in its custody for at least eighteen months.
|nE. The court on its own motion may order the filing of a petition.
Acts 1992, No. 705, § 1, eff. July 6, 1992.
The Official Comments — 1992 explained that the amendments reinstated the authority of the district attorney to appoint department counsel as a special assistant and the authority of the department to initiate termination of parental rights proceedings on abandonment grounds. The 1992 amendments also allowed the district attorney to appoint private counsel as a special assistant authorized to petition for ihe termination of parental rights on various grounds, including abandonment. La. Ch.Code art. 1004, Official Comment— 1992.
In 1997, the Fourth Circuit was called upon to determine whether a private individual could request leave of court to file a petition for termination of parental rights pursuant to Art. 1004(E). (1992). In the Interest of D.G.C.,
The court of appeal reversed. The D.G.C. court rejected.the petitioner’s argument that she could proceed with the action based on the 1991 Commentate the original Art. 1004(B), which had explained that, with approval of. the court, &. person other than the district attorney or the department- could seek termination of parental rights on any ground. D.G.C., p. 5,
|,¡Although the D.G.C. court held the petition for termination was improperly filed and could not be maintained as a private action, it nonetheless opined the action need not be dismissed. D.G.C., p. 11,
A. At any time, including in any hearing in a child in need of care proceeding, the court on its own motion may order the filing of a petition on any ground authorized by Article 1015.
B. Counsel appointed for the child pursuant to Article 607 may petition for the termination of parental rights of the parent of the child if the petition alleges a ground authorized by Article 1015(4), (5), or (6) and, although eighteen months have elapsed since the date of the | uchild’s adjudication as a child in need of care, no petition has been filed by the district attorney or the department.
C. The district attorney may petition for the termination of parental rights of the parent of the child on any ground authorized by Article 1015.
D. The department may petition for the termination of parental rights of the parent of the child when the child has been abandoned and termination is authorized by Article 1015(4), when as a result of a prior child in need of care disposition, termination is authorized by Article 1015(5), or when the child is in foster care because the parent is incarcerated and termination is authorized by Article 1015(6).
E. When termination is authorized by Article 1015, other than on the grounds specified by Paragraph D of this Article, by special appointment, the district attorney may designate counsel for the department as a special assistant authorized to act in his stead in all such termination actions or in a particular case.
F.By special appointment for a particular case, the court or the district attorney may designate private counsel authorized to petition for the termination of parental rights of the parent of the child on the ground of abandonment authorized by Article 1015(4),
Acts 1997, No. 256, § 1.
The 1997 amendments substantially revised and reorganized Art. 1004 “to emphasize that the court has the primary authority and responsibility to oversee the initiation of termination of parental rights proceedings.” La. Ch.Code art. 1004, Comment (a), Comments — 1997. Notably the court’s authority to order institution of termination proceedings is now found in Paragraph A, which recognizes that evidence of parental misconduct introduced in child in need of care cases could be so egregious as to constitute grounds for the immediate termination of parental rights. La. Ch.Code art. 1004, Comment (b), Comments — 1997. Most pertinent to our resolution of the issue before us is the addition of Paragraph F, which specifically allows the court, by special appointment in a particular case, to designate private counsel authorized to petition for the termination of parental rights on the ground of abandonment set forth in La. Ch.Code art. 1015(4). The Revision Comment explains that “Paragraph F clarifies the fact that the court, as 11fiwell as the district attorney, may authorize private counsel to initiate a termination case based on the ground of abandonment.”
This history, culminating in the legislature granting the juvenile court the specific power to authorize private counsel to initiate a termination of parental rights proceeding on the ground of abandonment, convinces us that the legislature has intentionally broadened the classes of persons
ImWe recognize that courts interpreting La. Ch.Code art. 1004(F) have questioned the wisdom of allowing private counsel for an interested party to bring an action to terminate parental rights, especially where the interested party is the other parent. See In re T.E.R., 43, 145 (La.App. 2 Cir. 3/19/08),
CONCLUSION
After reviewing the applicable law, Title X of the Children’s Code and La. Ch.Code art.' 1004(F), we hold that private counsel in a particular case may be specially appointed, by approval of the court, to pursue the termination of parental rights due to abandonment under La. Ch.Code art. 1015(4). Accordingly, we find the court of appeal erred in reversing the juvenile court’s ruling denying the exception of no right of action filed by the parents. The court of appeal’s judgment is reversed in part and’the matter is remanded to the court of appeal for consideration of the parents’ assignments of error pretermitted by the appellate court.
REVERSED and REMANDED
Notes
. The grounds warranting involuntary termination based on abandonment of a child are found in La.Ch.Code art. 1015(4)(b) and (c), which states:
(4) Abandonment of the child by placing him in the physical custody of a nonparent, or the department, or by otherwise leaving him under circumstances demonstrating an intention to permanently avoid parental responsibility by any of the following:
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(b) As of the time the petition is tiled, the parent has failed to provide significant contributions to the child's care and support for any period of six consecutive months.
(c) As of the time the petition is filed, the parent has failed..to maintain significant contact with the child by. visiting him or communicating with him for any period of six connective months.
The burden of proof is on the petitioner who must establish “each element of a ground for termination -of parental rights by clear and convincing evidence.” La. Ch.Code art. 1035. Of paramount concern in: any case involving the termination of parental rights, is the best interest of the child. See La. Ch.Code arts. 1001, 1037(B), and 1039(B).
. La.Rev.Stat. 9:403 provided in part as fol- • lows:
A. If any child has been deserted for a period of at least four months by his parent and the whereabouts of his parent are unknown and the parent has made no provision for the child's care, or the parent has refused to provide for the care and support of the child for a period of at least four months under circumstances showing an intention to permanently avoid all parental responsibilities, the child shall, after proceedings as hereinafter Set forth, be considered an abandoned child.
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B. An affidavit may be made by an agency, or an officer of the court, before the judge or clerk of the juvenile court having jurisdiction over the child setting forth in general terms the facts constituting abandonment and the place of residence of the parent of the child if known to the deponent. The judge shall then by order fix a time and place for the hearing of this matter not less than sixty days after the date of the order. ...
. The following individuals have been deemed officers of &e court: the Clerk, Deputy Clerks, the Minute Clerk, Sheriff, Constable or Marshal, Crier, Court Reporter, Court Appointed Expert and Attorneys. See La.Code Civ. Proc. arts. 251-375.
Whether an attorney could initiate termination proceedings by affidavit as an officer of the court and.then turn over the prosecution of the petition to the paternal grandparents was considered in In re Fischbein,194 So.2d 388 (La.App. 4th Cir.1967), holding the grandparents could not appear as petitioners in the proceeding because there was no private right of action. The court, nevertheless, did not dismiss the action on that basis, recognizing the action could be maintained due to the nominal appearance of the attorney as an officer of the court.194 So.2d at 390 . See also La. Ch.Code art. 1004, Comments— 1991 (explaining that prior to the enactment of the Children's Code, an "officer of the court” could file an abandonment affidavit without leave of court.). Ultimately, the Fischbein court found insufficient proof of abandonment. Id. at 392-93.
. La.Rev.Stat. 13:1601 provided as follows:
The court on its own motion may order that the district attorney petition, or the district attorney in his discretion may petition, for the termination of parental rights of the parent or parents of an abused, neglected, or other child within a juvenile court's jurisdiction, when the grounds set forth in the petition meet all the conditions of Subsections A, B, C, D, E, or F, of this Section. The district attorney may appoint any attorney representing the Department of Health and Human Resources as a special assistant district attorney for the purpose of prosecuting any such case, regardless of the domicile of said special assistant.
. We summarize the reasoning and holdings of the court in D.G.C. to show the státe of the jurisprudence at the time the legislature amended La. Ch.Code art. 1004, and thus také no position on whether any of the reasoning or holdings of the court in D.G.C. were correct.
. Indeed, the legislature added Paragraph G to La. 'Ch.Code art. 1004 in 2001 specifying that foster parents who intend to adopt the child may bring an action to terminate parental rights, but only if the department has failed to act and with certain time limitations. Acts 2001, No. 567, § 1; see La. Ch.Code art. 1004, Comments — 2001. Similarly, the legislature allows "any interested person” to initiate an action to terminate parental rights, either through the district attorney or, if the district attorney does not act, on his own, though this is limited to situations set forth in La. Ch.Code art. 1015(1) (conviction of murder of the child's other parent) and (2) (unjustified intentional killing of the child’s other parent). La. Ch.Code art. 1004(H); Acts 2005, No. 80, § 1.