State of Louisiana in the Interest of E. M.

STATE OF LOUISIANA IN THE INTEREST OF NO. 22-C-34 E. M. FIFTH CIRCUIT

COURT OF APPEAL

STATE OF LOUISIANA

March 25, 2022

Nancy F. Vega Chief Deputy Clerk

IN RE STATE OF LOUISIANA, DEPARTMENT OF CHILDREN AND FAMILY SERVICES

APPLYING FOR SUPERVISORY WRIT FROM THE JEFFERSON PARISH JUVENILE COURT, PARISH OF JEFFERSON, STATE OF LOUISIANA, DIRECTED TO THE HONORABLE MARK J. DOHERTY, JUDGE AD HOC, DIVISION "C", NUMBER 2021-TP-1

Panel composed of Judges Jude G. Gravois, Robert A. Chaisson, and Stephen J. Windhorst

WRIT GRANTED; RULING REVERSED; MATTER REMANDED

Relator, the State of Louisiana, Department of Children and Family Services (“DCFS”), seeks this Court’s supervisory review of the juvenile court’s January 4, 2022 oral ruling which granted the peremptory exception of no cause of action filed by defendant, J.P., as to DCFS’s Petition for Termination of Parental Rights filed against J.P. For the following reasons, we grant the writ application, reverse the trial court’s ruling which granted the exception of no cause of action, and remand the matter to the trial court for further proceedings.

On June 4, 2021, DCFS filed a Petition for Termination of Parental Rights, alleging that J.P. abandoned E.M., his minor child. In its petition, DCFS alleged that the court previously terminated the rights of E.M.’s mother, Y.M., and J.D., the man who was previously identified as E.M.’s father. Subsequently, J.P. was identified as the father of E.M. following DNA testing. The petition alleged that J.P. has taken no action to acknowledge paternity, enroll on the putative father registry, or otherwise record his paternity of the child. DCFS claimed that J.P.’s parental rights should be terminated pursuant to La. Ch.C. art. 1015(5) because he has failed to provide significant contributions to E.M.’s care and support and has failed to maintain significant contact with E.M. for six consecutive months, from September 5, 2019 until the Petition for Termination of Parental Rights was filed. In response, J.P. filed a peremptory exception of no cause of action. In his exception, J.P. argued that DCFS has not stated a cause of action against him since none of the provisions of La. Ch.C. art. 1015 apply to him. Specifically, he argued that he was not informed by E.M.’s mother that he was the father of the child, he

was not named on child’s birth certificate, and the child’s mother, Y.M., did not demand child support from him. He argued that from September 5, 2019, when the child was placed in the State’s custody, until he learned the results of the DNA test in April 2021, he did not know about E.M.’s existence and thus cannot be responsible for not complying with the provisions of La. Ch.C. art. 1015.

The matter came on for a hearing on January 4, 2022, and following arguments, the juvenile court granted the exception of no cause of action in open court. In extensive written reasons for judgment signed that same day, the juvenile court found that relying on September 5, 2019 as the date marking the start of the abandonment period is arbitrary and misplaced, considering that J.P. was not factually aware that he was the father of E.M. until nineteen months later. The juvenile court found that the abandonment period should begin in April 2021, when J.P. was notified of the DNA test results. The court then considered the actions J.P. took after April 2021 and found that DCFS could not meet its burden of proof to show abandonment for a period of six months. After a review of the facts of the case, the juvenile court found that DCFS could not meet its burden of proof to show six consecutive months of J.P.’s failure to financially support E.M. and six consecutive months of his failure to visit or communicate with her. The court stated: “There is nothing in the record of the father’s actions to suggest that, once he had knowledge that he was the father of the child, that [sic] he desired to permanently avoid his parental responsibility regarding [E.M.]. In fact, the opposite is almost inescapable.”

In reviewing a trial court’s ruling on a peremptory exception of no cause of action, an appellate court considers this question of law de novo. Am. Rebel Arms, L.L.C. v. New Orleans Hamburger & Seafood Co., 15-599 (La. App. 5 Cir. 2/24/16), 186 So.3d 1220, 1222. The function of the exception of no cause of action is to question whether the law extends a remedy against the defendant to anyone under the factual allegations of the petition. In other words, the exception tests the legal sufficiency of the petition by determining whether the plaintiff is afforded a remedy in law based on the facts alleged in the pleading. The exception is triable only on the face of the petition, accepting as true the well-pleaded facts therein. Thus, the standard for granting an exception of no cause of action is not the likelihood that the plaintiff will prevail at trial; rather, it is whether, on the face of the petition, accepting all allegations as true, the petition states a valid cause of action for relief. Id. If the petition states a cause of action as to any ground or portion of the demand, the exception of no cause of action generally should be overruled. Everything on Wheels Subaru, Inc. v. Subaru S., Inc., 616 So.2d 1234, 1236 (La. 1993). On review, the appellate court asks whether, in the light most favorable to the plaintiff and with every doubt resolved in the plaintiff’s favor, the petition states any valid cause of action. Am. Rebel, supra. Upon de novo review, accepting as true the well-pleaded facts asserted in the Petition for Termination of Parental Rights, we find that the allegations contained therein assert a valid cause of action against J.P. We find that the trial court erred in judging the merits of the claims asserted in the petition (rather than simply accepting as true the well-pleaded facts asserted therein) and in sustaining the exception of no cause of action filed by J.P. We accordingly grant the writ

application, reverse the trial court’s ruling which granted the exception of no cause of action, and remand the matter to the trial court for further proceedings.1

Gretna, Louisiana, this 25th day of March, 2022.

JGG RAC SJW

1 Nothing herein should be construed as judging the merits of the petition.

SUSAN M. CHEHARDY CURTIS B. PURSELL CHIEF JUDGE CLERK OF COURT

NANCY F. VEGA FREDERICKA H. WICKER CHIEF DEPUTY CLERK JUDE G. GRAVOIS MARC E. JOHNSON ROBERT A. CHAISSON SUSAN S. BUCHHOLZ STEPHEN J. WINDHORST FIRST DEPUTY CLERK HANS J. LILJEBERG JOHN J. MOLAISON, JR. FIFTH CIRCUIT MELISSA C. LEDET JUDGES 101 DERBIGNY STREET (70053) DIRECTOR OF CENTRAL STAFF POST OFFICE BOX 489 GRETNA, LOUISIANA 70054 (504) 376-1400

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NOTICE OF DISPOSITION CERTIFICATE OF DELIVERY I CERTIFY THAT A COPY OF THE DISPOSITION IN THE FOREGOING MATTER HAS BEEN TRANSMITTED IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 4-6 THIS DAY 03/25/2022 TO THE TRIAL JUDGE, THE TRIAL COURT CLERK OF COURT, AND AT LEAST ONE OF THE COUNSEL OF RECORD FOR EACH PARTY, AND TO EACH PARTY NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:

22-C-34 E-NOTIFIED Juvenile Court (Clerk) Honorable Mark J. Doherty (DISTRICT JUDGE) Hon. Barron C. Burmaster (DISTRICT JUDGE) Kirby N. Kenny (Respondent) Lori L. Dunn (Respondent) Mary R. Mustaller McMillan (Respondent)

MAILED Katherine M. Dowling (Relator) Attorney at Law Department of Children and Family Services 1450 Poydras Street Suite 1600 New Orleans, LA 70112

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