THOMSON v. CAVANAUGH

No. 97-35.

688 So.2d 1259 (1997)

Joshua Kayne THOMSON v. Robert CAVANAUGH, et al.

Court of Appeal of Louisiana, Third Circuit.

Writ Denied; Stay Recalled February 21, 1997.


Attorney(s) appearing for the Case

Percy, Smith, Foote & Gadel, Elizabeth Erny Foote, Susan C. Segura, Alexandria, for Defendant.

Provosty, Sadler & Delaunay, Ricky L. Sooter, Alexandria, for Respondents.

Before SAUNDERS, WOODARD and SULLIVAN, JJ.


WRIT DENIED:

The trial court was correct in finding that the Relator, Joshua Kayne Thomson, as natural father of Andrew Kayne Cavanaugh, retained his right of action to pursue his cause of action to annul the adoption of his biological son, Andrew Cavanaugh. Relator's petition to annul was filed timely pursuant to La.Ch.C. art 1263. Relator's petition to annul sufficiently states a cause of action for fraud as required by La.Ch. C.art 1262. As stated by La.C.C.art.1953, "Fraud may also result from silence or inaction." As stated by the Louisiana Supreme Court in In re Adoption of B.G.S., 556 So.2d 545, 554 (La.1990): [W]hen the father's identity is known or readily discoverable, he must be given notice of any proposed action to terminate his rights.... Otherwise, the inaction constitutes fraud and gives rise to a right of action, as Andrew's natural father, to bring the instant proceeding to annul the adoption of his natural son. Therefore, limiting our holding to the facts of this case, we find no error in the ruling of the trial court.

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