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-parent adoption" pursuant to R.S. 9:422.1 and based on failure "to support the child for a period of more than one year after Judgment awarding custody to the mother." A curator ad hoc was appointed to represent the natural father, he was contacted through a classified newspaper advertisement, and responsive pleadings were filed in his behalf.
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 R.S. 9:422.1; (2) he did not fail to pay child support for one year in violation of a court order; and (3) if he did violate a court order in failing to pay child support, his non-payment was legally justified.
The pertinent statute, R.S. 9:422.1, provides:
Regarding the first contention, appellant argues the trial court committed error 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 the 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 we 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 R.S. 14:74, which makes neglect of family a criminal offense. Under that statute neglect is a misdemeanor
By appellant's own admission his argument presupposes that the court order mentioned in R.S. 9:422.1(2) must be in effect for the year immediately prior to the filing of the petition for adoption by the stepparent.
This is a much too strained interpretation of R.S. 9:422.1(2). A simple reading of that section of the statute shows the legitimate parent forfeits his right to oppose an adoption when, without just cause, he has failed or refused to comply with a court order of support for a period of one year. The statute does not state that one year period must be the year immediately prior to the adoption proceeding and neither of the cases cited by the appellant, In re Pscenicka,
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,
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 order. In the absence of lawful cause justifying that failure to pay, this lapse of compliance with his obligation under
The case of In re Coile
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 note 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 contracted 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 employment 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 Orleans 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 was 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 rehabilitation 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 requirement of consent to the adoption is not removed,
In Adoption of Rapp,
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 of 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. Under 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.
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 as 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.