State v. JonesState v. Jones
This is an appeal from a judgment of adoption granted the husband of the child‘s legitimate mother over the protest of the legitimate father.
The child‘s mother was divorced from its father on October 31, 1972. On April 7, 1978, petitioner, the present husband of the mother, filed a petition for a “step-рarent adoption” pursuant to
After a trial on the merits, judgment was rendered in favor of the stepparent, granting his petition for adoption. The legitimate father has appealed.
In this court appellant contends: (1) The petition for adoption did not state a cause of action under
The pertinent statute,
“If the spouse of the petitioner is the legitimate parent of the child or if the petitioner is the grandparent or grandparents of the child, then the consent of the other legitimate parent is not necessary if the first and second or the first and third conditions exist:
(1) The spouse of the petitioner or the grandparent or grandparents or the mother or the father have been granted custody of the child by a court of competent jurisdiction and
(2) The other legitimate parent has refused or failed to comply with a court order of support for a period of one year or
(3) The other legitimate parent is a nonresident of this state and has failed to support the child for a period of one year after judgment awarding custody to the mother or father or grandparent or grandparents.”
LSA-R.S. 9:422.1 .
Regarding the first contention, appellant argues the trial court committed errоr in allowing testimony, despite objection thereto, concerning any court order condemning him to pay child support because the petition only alleges non-support by him for more than one year after an award of custody to thе mother, and does not allege non-support in defiance of a court order.
Even assuming the correctness of this technical argument, we see no point in agreeing with it. An exception of no cause
Nor do wе agree with appellant‘s second contention, that he did not violate a court order of support. Relative to that contention, he argues the divorce decree did not contain an order condemning respondent to pay child support and that the only possible order of child support was one rendered by the Juvenile Court for the Parish of Orleans on June 13, 1975 under
By appellant‘s own admission his argument presupposes that the court order mentiоned in
This is a much too strained interpretation of
While we are aware of the Louisiana jurisprudence to the effect that the adoption laws are in derogation of the rights of natural parents and therefore must be strictly construed,6 we conclude the statute is satisfied and consent is unnecessary when a natural parent, without lawful cause, fails to make the payments required by a court support order for a period of one year, which one year period need not be immediately prior to the filing of the petition.
In this case appellant concedes he was under an effective court order from June, 1975 to at least June, 1977 during which time he failed to make any payments under that ordеr. In the absence of lawful cause justifying that failure to pay, this lapse of compliance with his obligation under
The case of In re Coile7 appears to be directly in point. In that case the natural father failed to make court ordered child support payments for one entire year but began making those payments when he learned the petition for adoption was going to be filed. He also offered to pay all past due installments. The Coile court rejected this attempt to circumvent the statute, stаting, at page 327:
“Once he failed to make the payments for one year his consent was no longer essential to the adoption of his daughter by her stepfather under the terms of
R.S. 9:422.1 .”
Finally, appellant argues that even if he was under a valid court order to support his minor child he is legally excused from making such payments because of his incarceration and his mental and emotional health during the one year period preceding the filing of the petition for adoption. We notе the statements above made regarding the relevance of the one year period immediately preceding adoption apply likewise to the inability of a parent to make support payments.
Appellant became addicted to heroin in 1968, but discontinued use of the drug after contracting hepatitis. In early 1970 he obtained employment at Folger‘s Coffee Company, where he worked for two or three years. He resumed the use of heroin, and again contraсted hepatitis in 1971. After leaving the hospital, he did not resume living with his wife and child.
Following his release from the hospital in January, 1971, he visited his child approximately three times a month. These visitations lasted four to five months until he left employment with Folger‘s to seek еmployment in New York. He performed roofing work in New York, but returned to New Orleans when winter weather terminated the availability of that employment. Since January, 1972 he has not had a regular job, but worked for a night club in Orlando, Florida in 1975, and then returned to New Orlеans where he worked in night clubs on Bourbon Street until March, 1976. In addition, he worked in July and August, 1976 as a deck hand at a wage of $135 per week. After this job terminated he again worked in night clubs.
Appellant was arrested in 1972 for possession of marijuana with intent to distribute and wаs placed on two years active probation. In August, 1975 he was convicted of possession of marijuana. Sentence was suspended upon condition he enter a local drug rehabilitation program on five years active probation. He stayed in the program approximately three months before going to work in Orlando, Florida in night clubs as mentioned above. Appellant again was arrested in March, 1976 on a fugitive warrant because of his unauthorized departure from the drug rеhabilitation program and he was incarcerated until June, 1976. For approximately one year from that time he attended a program for drug users and alcoholics. In October, 1977 he was arrested for the burglary of a pharmacy, and was sentenced to the state penitentiary in January, 1978. He has been incarcerated since that time.
While the law is clear that if failure to pay child support is caused by circumstances beyond the control of the legitimate parent, the requirеment of consent to the adoption is not removed,8 here we do not conclude such circumstances were beyond his control. Appellant‘s arguments to the effect that failure to pay in this case was beyond his control is not persuasive and not supported by the cases on which he relies.
In Adoption of Rapp,9 the natural father was never free of imprisonment for at least a twelve month period while under a court
In the present case, there is no substantial question as to the nature and extent of appellant‘s illness nor of the connection between the illness and his total failure to provide support. He was not under disability during the entire time оf the court order of 1975, yet he did not make child support payments. Moreover, the activities engaged in by appellant show he was able to function both mentally and emotionally and that he was able to hold a job if he desired to do so. Undеr these circumstances, his drug addiction and involuntary incarceration from January, 1978 until the filing of the petition do not serve as a legal excuse for the non-support of his child.12
Appellant argues that while he did not graphically describe to the trial court the physical or emotional depth to which he sank during his heroin addiction, but merely related the facts of his hospitalizations for hepatitis, his arrest for drug possession and burglary, and his inability to hold a job, nevertheless the evidence taken аs a whole is sufficient for us to find he was legally excused from any obligation to pay child support. We disagree with that argument.
The record taken as a whole clearly supports the trial court‘s finding of fact that appellant was not legally excused from his obligation to furnish child support, and we hold the trial court properly granted the adoption.
For the reasons assigned, the judgment appealed from is affirmed.
AFFIRMED.