                         Supreme Court of Louisiana
FOR IMMEDIATE NEWS RELEASE                                         NEWS RELEASE #030


FROM: CLERK OF SUPREME COURT OF LOUISIANA



The Opinions handed down on the 27th day of June, 2018, are as follows:



BY WEIMER, J.:


2017-CJ-1988      IN RE: L.M.M., JR., A MINOR (Parish of Jefferson)
                  In this action, the biological mother of a child placed under
                  guardianship with the child’s paternal great-aunt filed a
                  petition to terminate that guardianship and to regain custody of
                  the child.    Following a trial conducted over three days, the
                  district court rendered judgment terminating the guardianship and
                  awarding joint custody of the child to the guardian and the
                  biological mother, with the mother designated as the domiciliary
                  custodian. On appeal, the court of appeal reversed the district
                  court judgment, reinstated the guardianship, and remanded the
                  case to the district court for purposes of establishing a
                  visitation schedule for the mother.    At the mother’s behest, we
                  granted certiorari to assess whether the correct legal standards
                  were applied by the courts below and to review the correctness of
                  the district court’s determination that the guardianship should
                  be terminated. Finding that this case highlights the distinction
                  that exists between custody determinations under the Civil Code
                  and the guardianship provisions of the Children’s Code, we hold
                  that the proper standard for determining whether an order of
                  guardianship should be modified or terminated is statutorily
                  prescribed by Article 724 of the Children’s Code, which, in this
                  case, requires proof by the movant/mother by “clear and
                  convincing evidence” of “a substantial and material change in the
                  circumstances   of   the  guardian   or   child”  because  either
                  “[c]ontinuation of the guardianship is so deleterious to the
                  child as to justify a modification or termination of the
                  relationship” or “the harm likely to be caused from a change in
                  the guardianship is substantially outweighed by the advantages to
                  the child of the modification.” La. Ch.C. art. 724(D). Weighing
                  the evidence in light of that evidentiary burden, we agree with
                  the court of appeal’s assessment that the district court erred in
                  determining that the mother met her burden of proving the
                  guardianship should be terminated.      Therefore, we affirm the
                  judgment of the court of appeal reinstating the guardianship
                  order.

                  AFFIRMED AND REMANDED.

                  HUGHES, J., dissents and assigns reasons.
06/27/18


                      SUPREME COURT OF LOUISIANA


                                 No. 2017-CJ-1988

                         IN RE: L.M.M., JR., A MINOR

                ON WRIT OF CERTIORARI TO THE COURT OF APPEAL,
                     FIFTH CIRCUIT, PARISH OF JEFFERSON



WEIMER, Justice

      In this action, the biological mother of a child placed under guardianship with

the child’s paternal great-aunt filed a petition to terminate that guardianship and to

regain custody of the child. Following a trial conducted over three days, the district

court rendered judgment terminating the guardianship and awarding joint custody of

the child to the guardian and the biological mother, with the mother designated as the

domiciliary custodian. On appeal, the court of appeal reversed the district court

judgment, reinstated the guardianship, and remanded the case to the district court for

purposes of establishing a visitation schedule for the mother. At the mother’s behest,

we granted certiorari to assess whether the correct legal standards were applied by the

courts below and to review the correctness of the district court’s determination that

the guardianship should be terminated.

      Finding that this case highlights the distinction that exists between custody

determinations under the Civil Code and the guardianship provisions of the

Children’s Code, we hold that the proper standard for determining whether an order

of guardianship should be modified or terminated is statutorily prescribed by Article
724 of the Children’s Code, which, in this case, requires proof by the movant/mother

by “clear and convincing evidence” of “a substantial and material change in the

circumstances of the guardian or child” because either “[c]ontinuation of the

guardianship is so deleterious to the child as to justify a modification or termination

of the relationship” or “the harm likely to be caused from a change in the

guardianship is substantially outweighed by the advantages to the child of the

modification.” La. Ch.C. art. 724(D). Weighing the evidence in light of that

evidentiary burden, we agree with the court of appeal’s assessment that the district

court erred in determining that the mother met her burden of proving the guardianship

should be terminated. Therefore, we affirm the judgment of the court of appeal

reinstating the guardianship order.

                        FACTS AND PROCEDURAL HISTORY

         L.M.M. was born prematurely1 on November 16, 2011, to 18-year-old Kodie

Servat (“Kodie”) and 19-year-old Lane Mouney, Sr. (“Lane”). The biological parents

were unmarried and needed assistance caring for the child. As a result, upon his

release from the hospital, the child lived on an alternating weekly basis at the homes

of his maternal grandmother, Denise Roques (“Denise”), and his paternal great-aunt,

Lisa Mouney (“Lisa”). While Lane lived primarily with Lisa, Kodie would alternate

between homes, depending on which home the child was living in at the time.

         As both Kodie and Lane candidly acknowledged, the couple routinely used

illicit drugs, including synthetic marijuana, after L.M.M. was born. Denise confirmed

that the couple “started messing up,” getting high on synthetic drugs. According to

Denise, all Kodie was worried about at the time was Lane. She and Lisa cared for

L.M.M. while Kodie and Lane were “out doing their thing.” Lisa testified that their

1
    According to evidence presented at trial, the child was born at 30 weeks gestation.

                                                  2
shared living arrangement became untenable when she suspected Kodie and Lane

were stealing from her, so she asked them to leave. Kodie and Lane moved to

Mississippi to live with Kodie’s father, leaving the child in Louisiana. Denise and

Lisa continued to care for the child on an alternating weekly basis for approximately

nine months, until Denise brought L.M.M. to Kodie in Mississippi.

      During their tenure in Mississippi, the couple came to the attention of the

Mississippi Department of Human Services (“DHS”). At a surprise home visit on or

about February 19, 2013, a DHS case worker observed Lane in open possession of

a container of synthetic marijuana. Kodie and Lane were subsequently arrested for

possession of synthetic cannabinoids, and L.M.M. was taken into the custody of the

DHS and placed in foster care.

      While in foster care, L.M.M. became ill, requiring hospitalization. The foster

mother, who had expressed concerns that L.M.M. was developmentally delayed,

indicated that she could no longer care for him. Lisa stepped in and, on March 20,

2013, filed a Petition for Appointment of Guardian in the Chancery Court of Jackson

County, Mississippi. Attached to the petition were “Consent to Guardianship”

documents executed by both Kodie and Lane. That same day, a Decree Appointing

Guardian was signed by the court, appointing Lisa as guardian of L.M.M. on a

finding that the guardianship was necessary because the child had been removed from

the custody of his natural parents and that Lisa is a fit and proper person to serve as

guardian. Legal and physical custody of the child was released by the DHS.

      When Lisa assumed guardianship of then 15-month-old L.M.M., he had several

problems, including recurring ear infections and the inability to walk. He was only

able to “army crawl.” On the advice of his doctor, Lisa arranged for L.M.M. to have

tubes inserted in his ears and his adenoids removed.          She re-established his

                                          3
enrollment in Early Steps, a therapy program for premature infants who might be

expected to experience developmental delays. Through Early Steps, Lisa was

referred to Dr. Aaron Karlin, a pediatrician who specializes in physical medicine and

rehabilitation. Dr. Karlin diagnosed L.M.M. with developmental delays and spastic

hemiparetic cerebral palsy,2 which is a lifelong condition requiring ongoing therapy.

By the time of trial, through Lisa’s efforts, L.M.M. had made significant progress.

He was regularly attending physical and speech therapy, had been fitted with a boot

to correct his dragging right foot, and was enrolled in gymnastics to help with his

balance.

       By all accounts, Kodie also made remarkable progress. After struggling with

synthetic marijuana abuse for a brief period of time, Kodie ceased her drug use.

While Lane drifted in and out of jail, Kodie obtained employment, married, and

established a stable home with a supportive family and religious community.

       In light of these developments, on March 30, 2015, Kodie filed a Petition to

Make Foreign Judgment Executory in the 24th Judicial District Court, seeking to have

the Mississippi Decree Appointing Guardian made executory in Jefferson Parish. On

March 31, 2015, the district court signed an order making the Mississippi decree “the

Judgment of this Court.”

       Thereafter, on August 24, 2015, Kodie filed a Petition to Modify Custody and

to Terminate Guardianship of Minor. In her petition, Kodie represented that

circumstances have changed since Lisa was granted guardianship, warranting a

change in custody and the return of L.M.M. to his mother. Specifically, Kodie

alleged that she has remained drug-free for over a year, has maintained steady



2
  In L.M.M.’s case, the condition largely manifests itself as right-side weakness, with a tendency on
the child’s part to drag his right foot. Witnesses described his gait as a type of “duck walk.”

                                                 4
employment, is now married and living in a stable environment, has no contact with

L.M.M.’s father, who remains incarcerated, and has generally established a stable

lifestyle, making her capable of parenting L.M.M and providing a wholesome

environment for him. She averred that Lisa has refused to foster a good relationship

between L.M.M. and herself and has restricted her contact with L.M.M. Furthermore,

Kodie contended that any harm likely to be caused from a change in the guardianship

is substantially outweighed by the advantages to the child of the modification sought.

      Lisa answered the petition, generally denying the allegations of a change in

circumstances and asserting that she should remain as sole guardian of the child. On

December 9, 2015, the district court signed an order appointing Dr. Karen Van Beyer

as a mental health expert to perform a custody evaluation. After Dr. Van Beyer

completed her evaluation and issued her report, which recommended that joint

custody be awarded to Kodie and Lisa with Kodie as domiciliary parent, the

recommendation was made an interim order of the court. Both Kodie and Lisa

objected to the interim order and requested a de novo hearing before the district court.

      At Lisa’s request, a second custody evaluator, Dr. A. James Klein, was

appointed by the court. In the interim, Kodie filed a First Supplemental and

Amending Petition to Modify Custody and to Terminate Guardianship, seeking, in the

alternative, an order annulling the Decree Appointing Guardian for fraud and ill

practices pursuant to La. C.C.P. art. 2004. Lisa answered the amended petition,

denying the allegations and again asserting that she should remain as sole guardian

of L.M.M.




                                           5
       Trial of this matter was conducted over three days in October and November,

2016. In addition to offering testimony from extended family members,3 Kodie

testified. She explained that after L.M.M.’s birth, he was moved to the neonatal

intensive care unit of the hospital, where he remained for approximately two months.

She testified that she visited L.M.M. at the hospital daily and that when he was

released, L.M.M. was a healthy baby. Kodie denied using drugs while pregnant,

although she admitted to smoking cigarettes. She confirmed that on his release from

the hospital, L.M.M. spent alternating weeks at her mother’s house and at Lisa’s

home, and that she would stay at Lisa’s when L.M.M. was there. As a result of his

prematurity, L.M.M. was enrolled in the Early Steps therapy program, but Kodie

testified that she terminated L.M.M.’s participation in the program in July of 2012

because he was “caught up” and developing normally, “doing all that he should.”

       Kodie admitted that L.M.M. was removed from her custody and placed in state

custody in Mississippi after drugs were found in the apartment she shared with Lane

and L.M.M., and they were arrested. She testified that after L.M.M. was taken into

state custody, she met with Child Services in Mississippi and understood that she

could work towards regaining custody by submitting to drug tests, going to rehab, and

taking parenting classes. She was never told by Mississippi authorities that her

parental rights were about to be terminated.

       Kodie acknowledged that L.M.M. became sick and was hospitalized while in

foster care, but maintained that he was healthy and doing well when removed from

her custody. She explained that she moved back to Louisiana in March of 2013. She

admitted signing a “Consent to Guardianship” document on March 20, 2013,


3
   Kodie’s mother, Denise, her mother-in-law, Robin Servat, and her husband, Benjamin Servat
testified regarding Kodie’s early struggles and her subsequent efforts at rehabilitation and towards
establishing a safe and nurturing environment for L.M.M.

                                                 6
consenting to Lisa’s appointment as guardian of L.M.M.; however, she maintained

that nothing was read to her and she was just told where to sign. According to Kodie,

it was her understanding that, if she agreed to the guardianship, she would be able to

see L.M.M. whenever she wanted and that she would be involved in any medical

decision-making concerning the child. She stated that she believed the guardianship

was just a temporary situation until she and Lane could obtain stable employment and

stay off of drugs. Nonetheless, she agreed that the guardianship order does not grant

her visitation. She acknowledged that if Lisa had not been granted guardianship,

L.M.M. would have remained in state custody until she and/or Lane complied with

Mississippi’s requirements to regain custody.

      Kodie testified that after Lisa was granted guardianship of L.M.M., she was

only allowed to see him four or five times from March 2013 through December 2013,

although she asked to see him more often. In 2014, she was allowed to visit with

L.M.M. for two hours every Monday.

      Kodie complained that her suggestions for L.M.M.’s medical treatment would

be ignored, and that she would be notified of his medical appointments too late to

enable her to participate. She acknowledged that L.M.M. has some medical issues,

but testified that she does not believe he has cerebral palsy. She explained that

L.M.M. has some stiffness in the muscles of his right leg, but claims that this is the

result of physical therapists being told he has right-side weakness and giving him

exercises to strengthen his right side, which caused the muscles to tighten. She

admitted L.M.M. speaks with a lisp and that she cannot always understand what he

is saying, but she does not believe this is a problem for a child who gets excited and

tries to talk too fast. Kodie acknowledged that one of L.M.M.’s foster parents in

Mississippi expressed concern that L.M.M. was showing signs of developmental

                                          7
delays, and that Dr. Karlin’s records reflect a diagnosis of developmental delays and

spastic hemiparetic cerebral palsy. However, she testified that she would like to

obtain a second opinion because she believes Dr. Karlin’s diagnosis was colored by

the history reported by Lisa.

      Ultimately, Kodie testified that she believes Lisa’s care of L.M.M. benefitted

her son at a time when she was not in a position to do what was best for him.

However, she explained that since that time, she has remained drug-free and has

found a good job, a good home, a family with her husband, Ben, a church family,

good in-laws, and a strong support team who remind her that she is not the person she

was three to four years ago. She testified that she believes that Lisa has played a very

important role in L.M.M.’s life and that cutting Lisa out of L.M.M.’s life would not

be in his best interest. She believes Lisa should remain in L.M.M.’s life, but as a

great-aunt, and not as a mother-figure. Finally, she expressed concern about her

ability to co-parent with Lisa, noting that when Lisa has control, she has a tendency

to cut Kodie out.

      Lisa also testified at trial. She explained that she has known Kodie since Kodie

was about 13 years old and considered her a member of the family. Lisa confirmed

that after L.M.M. was born, Kodie, Lane and L.M.M. lived at her house on alternating

weeks, but that she eventually asked them to leave because she suspected they were

stealing from her. Kodie and Lane moved to Mississippi and initially left L.M.M.

with her and Denise. Shortly after Denise took L.M.M. to live with Kodie and Lane

in Mississippi, the couple was arrested, and L.M.M. was placed in foster care. Lisa

testified that while in foster care, L.M.M. fell ill and was hospitalized. The foster

parents could not take care of him because he was so sick and he was about to be

moved to another foster placement, so she contacted a Mississippi attorney. The

                                           8
attorney prepared guardianship papers. Kodie and Lane each signed a document

consenting to the guardianship. When asked “why guardianship,” Lisa explained that

she was being told that L.M.M. was “severely retarded” and needed medical attention,

but that no one else would take him. She believed time was of the essence in getting

L.M.M. the medical attention he required. Lisa denied speaking to Kodie about the

guardianship, testifying that Kodie discussed it with Denise, Kodie’s sister Alisha,

and Lane. According to Lisa, her understanding of the guardianship was that she was

to take L.M.M., protect him, and do everything she could to make him better and get

him back to a normal life.

      Lisa disputed Kodie’s claim that she denied Kodie visitation with her son. Lisa

testified that, to the contrary, there was never a time when she told Kodie she could

not visit with L.M.M. Lisa did acknowledge that she told Kodie’s family that L.M.M.

could not spend the night with them if Kodie was present, but explained that this was

because she took her responsibilities as guardian seriously and did not want harm to

come to the child. She was concerned that, if anything should happen to L.M.M., it

would be her fault. For that reason also she insisted that visitation be supervised, as

she was concerned that Kodie could potentially put L.M.M. at risk.

      Lisa testified that Kodie initially visited with L.M.M. one day a week.

Visitation was later increased to two days a week, until Dr. Van Beyer’s

recommendation was made an interim order of the court. Lisa explained that she did

not have a problem allowing Kodie to visit with L.M.M., but that Kodie was “in and

out of his life” and that she sometimes did not hear much from Kodie. Moreover,

there were times when L.M.M. would visit Kodie’s family and Kodie did not go to

see him.




                                          9
      Lisa testified that L.M.M.’s right side is weaker than his left, so he tends to

hold up his right arm. She explained that he walks with a limp and drags his foot, so

he wears a “boot” to try to correct the problem. Lisa stated that although she told

Kodie several times that Dr. Karlin has diagnosed L.M.M. with hemiparesis or

cerebral palsy, Kodie does not believe that L.M.M. has cerbral palsy or any disability.

According to Lisa, the cerebral palsy has to be controlled with ongoing therapy and

treatment; however, she believes that if he continues to receive the treatment he

requires, L.M.M. will be able to have a stable adult life.

      Lisa confirmed that she has consistently taken L.M.M. to physical therapy and

to medical and dental appointments. She acknowledged that she informed L.M.M.’s

doctors that Kodie may have been on drugs when L.M.M. was born, but explained

that she did so because she believed it was a possibility and that the doctors needed

to know all of the facts. Lisa enrolled L.M.M. in private daycare where the director

reported that L.M.M. has developed and progressed physically, mentally and

emotionally.   She also enrolled him in gymnastics to help with his physical

limitations. Lisa testified that Kodie has done nothing to assist her in helping L.M.M.

with his disability. She explained that, except for a period of four to five months

when L.M.M. was in Mississippi, he lived in her home and calls her home his home.

Lisa testified that she has been a constant presence in L.M.M.’s life, helping to care

for and financially support him even before she was granted guardianship. She

testified that she would like to continue that guardianship and is more than willing to

continue to help with L.M.M.’s medical needs. Lisa explained that she has provided

L.M.M. with a stable environment in which he has thrived. She stated that she

believes it is important for L.M.M. to have Kodie in his life and that having time with

Kodie is not the problem. Her primary concern is with Kodie’s willingness to keep

                                          10
up with L.M.M.’s medical care. She fears that Kodie will not follow through and,

thus, believes it is in L.M.M.’s best interest that she remain as guardian.

      The two experts in child custody evaluations who were appointed by the court,

Drs. Van Beyer and Klein, also testified. Dr. Van Beyer testified that, after Lisa

assumed guardianship of L.M.M., it took Kodie a couple of months to get clean, but

that by the time the child was about 18 months old, she had stopped using drugs. Dr.

Van Beyer stated that she did not know of any reason why Kodie should not have

been allowed to see L.M.M. She opined that Kodie appears to have very adequate

parenting skills and an appropriate attitude insofar as setting consequences for the

child. After meeting with Kodie and her husband, Ben, Dr. Van Beyer did not have

any reservations about L.M.M. transitioning into Kodie’s home.

      Dr. Van Beyer testified that she interviewed Lisa during the evaluation process

and did not feel that Lisa had overstated any of L.M.M.’s medical needs. She noted

that L.M.M. was born prematurely and that Lisa was determined and avid in her

pursuit of the medical attention he needed; so much so that by the time she saw

L.M.M., he was no longer really behind. It was Dr. Van Beyer’s understanding that

Kodie was not notified and did not attend any medical or therapy appointments. Dr.

Van Beyer felt that Lisa should have made every effort to include Kodie in L.M.M.’s

everyday life, medical treatment, and psychotherapy. She recommended that Kodie

and Lisa share joint custody of L.M.M. for a year with Kodie having domiciliary

custody and that thereafter, if Lane proved unable to stay out of jail and drug free,

Kodie should have sole custody.

      Dr. Klein testified that he interviewed L.M.M. and that, while the child did not

appear to be significantly disabled from a lay perspective, he did demonstrate a mild

preference for one side and his language was not very clear. Dr. Klein stated that it

                                          11
was very evident that L.M.M. has a positive, bonded attachment to both Lisa and

Kodie. It was his clinical judgment that Kodie has turned her life around. He could

find no negative markers in Kodie’s ability to parent, and he ultimately recommended

that Kodie and Lisa be granted joint custody of L.M.M. with Kodie as the domiciliary

parent.

       After hearing testimony from Lane, the district court took the matter under

advisement.4 On December 8, 2016, the court rendered judgment terminating the

guardianship and awarding joint custody of L.M.M. to Kodie and Lisa, with Kodie

designated as the domiciliary custodian.5 In written reasons, the district court

explained:

              The petition for appointment of guardian did not comply with La.
       Ch.C. art. 720(B) Motion for guardianship. The petition did not include
       a description of the mental and physical health of the child, addresses of
       the parents of the child and, most importantly, a plain and concise
       statement of the facts on which the motion for guardianship was sought
       and why neither adoption nor reunification with a parent is in the best
       interest of the child. In addition, it appears that the requirements of La.
       Ch.C. arts. 722(A)(2) and (C) were not met.

               Furthermore, according to testimony, the guardianship papers
       were provided to Kodie Servat and she was told to sign the papers or
       give up her child, [L.M.M.] for good. Kodie Servat testified that she
       thought she would have visitation and eventually have her child returned
       to her.



4
  Lane confirmed the events leading up to his arrest and the removal of L.M.M. to the custody of
the state. He testified that Lisa came to have custody of L.M.M. because he and Kodie wanted
someone in the family to have custody of the child and no one else would take him. Lane testified
that he understood when he signed the guardianship documents that he was relinquishing his rights
to his son until L.M.M. reached age 18, and that no one coerced or forced him to sign the consent
to guardianship. He stated that he consented to the guardianship because he could not care for
L.M.M. at the time and because it was in the child’s best interest that Lisa be his guardian. While
Lane testified that he does not have any concerns as far as Kodie and Ben’s ability to parent L.M.M.,
he feels it is in the best interest of L.M.M. that Lisa be a part of his life today.
5
  The district court judgment additionally set forth a visitation schedule, appointed a parenting
coordinator, made provisions for the child’s therapy, set forth requirements for Kodie and Lisa to
share medical, educational, and other information pertaining to L.M.M., and directed that Lane have
only supervised visitation until such time as he provides proof that he has not engaged in criminal
activity and has remained drug free for one year.

                                                 12
             After review of the custody evaluation reports prepared by Dr.
      Karen Van Beyer and Dr. Alan James Klein, considering the best
      interest of the minor child, and considering that Kodie Servat has
      developed a stable lifestyle and is quite capable of caring for [L.M.M.],
      this Court is of the opinion that the guardianship of [L.M.M.] by Lisa
      Mouney shall be terminated.

      Lisa appealed. In a unanimous decision, the court of appeal reversed the

judgment of the district court, reinstated the guardianship, and remanded the case to

the district court for purposes of establishing a visitation schedule for Kodie. In re:

L.M.M., Jr., 17-345 (La.App. 5 Cir. 10/25/17), 230 So.3d 301.

      In rendering its decision, the court of appeal noted that modification or

termination of a guardianship is governed by the provisions of the Children’s Code

and, in particular, La. Ch.C. art. 724. The court pointed out that pursuant to La. Ch.C.

art. 724(D), a guardianship may be modified or terminated only if there is proof by

clear and convincing evidence of a change in circumstances of either the guardian or

the child under one of three situations: (1) the guardian no longer wishes to serve or

can no longer serve as guardian; (2) the continuation of the guardianship is so

deleterious to the child as to justify a modification or termination of the relationship;

or (3) the harm likely to be caused from a change in the guardianship is substantially

outweighed by the advantages to the child of the modification. In re: L.M.M., Jr.,

17-345 at 13, 230 So.3d at 309.           Finding that the first two situations for

demonstrating a change in circumstances of either the minor or the guardian have not

been met, as the record reflects that Lisa wishes to continue as guardian and that the

guardianship, far from being deleterious to L.M.M., has greatly benefitted him, the

court went on to assess whether clear and convincing evidence was offered to prove

a change in circumstances pursuant to the third situation; i.e., the harm likely to be

caused from a change in guardianship is substantially outweighed by the advantages


                                           13
to the child of the modification. Id., 17-345 at 13-14, 230 So.3d at 309. Reviewing

the evidence, the court of appeal concluded that while her drug rehabilitation is

commendable, Kodie failed to prove that the advantages to L.M.M. gained from her

self-improvements “substantially outweigh” the harm to L.M.M. from terminating the

guardianship of someone who has become a “psychological parent” to the child and

who has provided stability, consistency, and been diligent in obtaining the medical

care and therapy he requires. Id., 17-345 at 14, 230 So.3d at 309-10.

      In reaching its decision, the court of appeal rejected Kodie’s contention and

any suggestion in the district court’s written reasons, that the guardianship order did

not comply with the law and that it should be annulled due to fraud or ill practices.

The court pointed out that it was Kodie who moved to have the guardianship order

make executory and recognized as a valid judgment in Louisiana, and concluded that

her failure to appeal the guardianship order precluded her from attacking the original

guardianship order in this proceeding. Id., 17-345 at 15, 230 So.3d at 310 n.9.

      Applying an abuse of discretion standard to the district court’s factual

determinations based on the custody evaluators’ reports, the best interests of the

child, and Kodie’s self-improvements, the court of appeal ultimately concluded that

the district court abused its discretion in finding that Kodie met her burden of proving

the guardianship should be terminated. Id., 17-345 at 15, 230 So.3d at 310-11. The

court reinstated the guardianship order and remanded the matter for the district court

to set a visitation schedule for Kodie. Id.

      This court granted writs on Kodie’s application to determine whether the court

of appeal applied the correct legal standards in reviewing the district court judgment




                                          14
terminating the guardianship.6 In re: L.M.M., Jr., 17-1988 (La. 2/9/18), 234 So.3d

888.



                                   LAW AND ANALYSIS

       This case involves a guardianship, which is a relatively recent concept in

Louisiana law. See 2011 La. Acts 128, § 1 (enacting guardianship); see also Official

Comments to La. Ch.C. art. 718 (describing historical development of guardianship

as a legally recognized relationship). While guardianship is a form of custody, it

represents a markedly different form of custody from that delineated in the Civil Code

articles addressing custody, La. C.C. arts. 131, et seq. Guardianship, under the

Children’s Code, is a custodial arrangement that is intended to be permanent. As

explained in La. Ch.C. art. 718:

              A. The purpose of guardianship is to provide a permanent
       placement for children when neither reunification with a parent nor
       adoption has been found to be in their best interest; to encourage
       stability and permanence in the lives of children who have been
       adjudicated to be in need of care and have been removed from the
       custody of their parent; and to increase the opportunities for the prompt
       permanent placement of children, especially with relatives, without
       ongoing supervision by the department.

             B. This Chapter is intended to ensure that the fundamental needs
       of children are met and the constitutional rights of all parties are
       recognized and enforced.

       The legislature has set forth stringent criteria for any change or modification

to a guardianship. Pursuant to La. Ch.C. art. 724(D):




6
  In her writ application, Kodie does not challenge the validity of the guardianship order for formal
defects or vices of consent. The only issue raised in her application is whether the district court
properly terminated the guardianship in accordance with the provisions of La. Ch.C. art. 724.
Therefore, any claim of formal defects in the guardianship order is not properly before this court.
See, Boudreaux v. State, Dept. of Transportation and Development, 01-1329, p. 5 (La. 2/26/02),
815 So.2d 7, 11 (questions not contained in the original writ application are not properly before us).

                                                 15
             A guardianship order may be modified or terminated if the court
      finds by clear and convincing evidence that there has been a substantial
      and material change in the circumstances of the guardian or child
      because of any of the following:

            (1) The guardian no longer wishes to serve or can no longer serve
      as guardian of the child.

              (2) Continuation of the guardianship is so deleterious to the child
      as to justify a modification or termination of the relationship or the harm
      likely to be caused from a change in the guardianship is substantially
      outweighed by the advantages to the child of the modification.

      Before this court, Kodie concedes that her petition seeking to terminate Lisa’s

guardianship is governed by the criteria set forth in La Ch.C. art. 724(D). However,

she argues that the statutory criteria, as set forth and applied by the court of appeal,

conflict with and undermine the overriding consideration in all custody disputes: the

best interest of the child. According to Kodie, by requiring evidence of a substantial

and material change in the circumstances of the guardian or the child as a predicate

to terminating the guardianship, the statutory criteria thwart, rather than promote, the

best interest of the child. Kodie argues that the situation in this case is akin to that

addressed in Tracie F. v. Francisco D., 15-1812 (La. 3/15/16), 188 So.3d 231,

wherein, in a dispute between two parties with shared custody arising from a consent

decree, this court rejected a standard for showing a material change in circumstances

that would have required a rehabilitated father to prove not only his rehabilitation, but

also a material change in the stable environment in which the child was placed in

order to expand his custodial rights. In Tracie F., this court noted that under the

factual scenario presented–a stipulated custody award–the heightened standard

applied by the court of appeal to obtain a change in custody thwarted, rather than

promoted the best interest of the child because, “if the non-parent’s custodial

environment remains stable, ... a court will never question whether a change to


                                           16
parental custody would be in the child’s best interest.” Tracie F., 15-1812 at 13, 188

So.3d at 241. Kodie argues that the same situation occurs here and that the statutory

criteria for modifying a guardianship, which are derived from the Bergeron v.

Bergeron, 492 So.2d 1193 (La. 1986) standard for modifying considered decrees,

diminish the constitutional rights of parents and lead to absurd consequences.

      Kodie’s reliance on our ruling in Tracie F. is misplaced. Tracie F. involved

a dispute between a parent and non-parent who shared joint custody arising from a

consent decree. The present action involves a guardianship. The proceeding

originated in Mississippi, in the Jackson County Youth Court, after the Mississippi

Department of Human Services had assumed legal and physical custody of L.M.M.

The guardianship order found it necessary to appoint a guardian for L.M.M. because

the child was removed from the custody of his natural parents. Sole custody of

L.M.M. was awarded to Lisa. Thus, this is not, as in Tracie F., a situation wherein

a parent seeks to expand existing custodial rights, but rather one in which the parent

is seeking to regain such rights. As this court made clear, in Tracie F., we were “not

presented with a custody contest between a biological parent who has voluntarily

relinquished custody or whose parental rights have otherwise been terminated; such

a contest represents a separate class of cases.” Tracie F., 15-1812 at 21, 188 So.3d

at 246.

      It is true, as Kodie argues, that biological parents have constitutionally

protected rights regarding their children. The Fourteenth Amendment to the United

States Constitution protects a biological parent’s due process right to “the

companionship, care, custody and management” of his or her child, Santosky v.

Kramer, 455 U.S. 745, 758-759 (1982), as does the Louisiana Constitution. See In

re Adoption of B.G.S., 556 So.2d 545, 552 (La. 1990) (“[W]e believe that the

                                         17
interest of a biological parent in having an opportunity to establish a relationship with

his child is one of those liberties of which no person may be deprived without due

process of law under our state constitution.”) Unless and until the relationship of

parent and child is lawfully terminated, parents retain parental rights, even under

circumstances in which they may have lost parental power.

             The fundamental liberty interest of natural parents in the care,
      custody, and management of their child does not evaporate simply
      because they have not been model parents or have lost temporary
      custody of their child to the State. Even when blood relationships are
      strained, parents retain a vital interest in preventing the irretrievable
      destruction of their family life. If anything, persons faced with forced
      dissolution of their parental rights have a more critical need for
      procedural protections than do those resisting state intervention into
      ongoing family affairs. When the State moves to destroy weakened
      familial bonds, it must provide the parents with fundamentally fair
      procedures.

Santosky, 455 U.S. at 753-54.

      For these reasons, if the law did not afford a rehabilitated parent of a child

under a guardianship any opportunity at all to revisit the question of a guardianship

and thereby regain some of his or her parental power, it would raise serious

constitutional questions. A plain reading of the provisions of La. Ch.C. art. 724

demonstrates, however, that the law does not have that effect.

      As set forth in La. Ch.C. art. 718(B), the purpose of guardianship is two-fold.

It is intended “to ensure that the fundamental needs of children are met,” by, among

other matters, fostering “stability and permanence in the lives of children who have

been adjudicated to be in need of care and have been removed from the custody of

their parent” while at the same time ensuring that “the constitutional rights of all

parties are recognized and enforced.” The statutory scheme honors both by imposing

a test for modification that, while stringent, does not permanently deny a rehabilitated



                                           18
parent the opportunity to alter a custodial arrangement; neither does it undermine the

best interest of the child determination, as Kodie alleges.

       Admittedly, La. Ch.C. art. 724(D) provides that those who seek to change or

modify a guardianship must prove “a substantial and material change in the

circumstances of the guardian or child,” without specifically referencing the

circumstances of the parent. As the Official Revision Comments to La. Ch.C. art. 724

explain:

              Paragraph D reflects the policy that the most important feature of
       a guardianship was its permanence during the child’s minority;
       therefore, the standard for modification or termination ought to be quite
       stringent, except where the guardian seeks termination or modification.
       Thus, the material change must occur in the circumstances of the
       guardian or child. [Emphasis added.]

La. Ch.C. art. 724, Comments–2011(c).7

       This is not to imply that the circumstances of the parent are irrelevant under La.

Ch.C. art. 724(D). While improvement of a parent’s capabilities will not satisfy the

requirement of proving a change in circumstances of the guardian, under La. Ch.C.

art. 724(D)(2), a “substantial and material change in the circumstances of the ... child”

can be proved in either of two ways. Specifically, a parent can show either that

“‘[c]ontinuation of the guardianship is so deleterious to the child as to justify a

modification or termination of the relationship or the harm likely to be caused from

a change in the guardianship is substantially outweighed by the advantages to the

child of the modification.” La. Ch.C. art. 724(D)(2); Id.

       In this instance, Kodie’s drug rehabilitation and the stable environment she has

established undoubtedly constitute an “advantage” to L.M.M. within the meaning of



7
 While the Official Comments are not the law, they may be helpful in determining legislative intent.
Traci F., 15-1812 at 8, 188 So.3d at 238 (quoting Arabie v. CITGO Petroleum Corp., 10-2605,
pp.4-5 (La. 3/13/12), 89 So.3d 307, 312).

                                                19
the latter phrase. Such a conclusion is rooted in the reality that L.M.M. now has a

secure and welcoming home with his own room where he can visit Kodie and in the

ordinary legal arrangement, recognizing children belong in the care and custody of

their parents. See, e.g., La. C.C. art. 133, (the language of which is described as

“giving effect to a parent’s paramount right to custody of his child as against any

nonparent.” Revision Comments–1993 (b)). Considering the ordinary preference

under the law favoring parental custody, it follows that the rehabilitation and

subsequent fitness of a parent from whose custody the child has previously been

removed is an “advantage” that may amount to a “material change in the

circumstances of the ... child” within the meaning of La. Ch.C. art. 724(D) sufficient

to warrant modification or termination of a guardianship, provided there is proof, by

clear and convincing evidence, that the advantages to the child from the parent’s self-

improvement “substantially” outweigh the presumed harm from changing the

guardianship.

      A plain reading of the provisions of La Ch.C. art. 724(D) reveals that the article

does not, as Kodie alleges, “permanently den[y] a parent the opportunity to alter a

custodial arrangement.” What the article does is to make the requirements for

modification “stringent,” a burden that does not undermine the best interest of the

child determination, but that is imposed “as a means of implementing the best interest

standard in light of the special considerations present in change of custody cases.”

La. C.C. art. 131, Revision Comments–1993 (d) (discussing the Bergeron standard

for modifying custody in considered decrees that has been adopted by the legislature

in La. Ch.C. art. 724(D)(2); see Official Comment (c) to La. Ch.C. art. 724).

      Moreover, the article does not contemplate that a different evidentiary standard

for modifying or terminating a guardianship should apply where the parents consent

                                          20
to the guardianship, as Kodie and Lane did in this case. Indeed, La. Ch.C. art. 720(A)

gives parents standing to move for (and thereby consent to) the guardianship, which

is authorized only after a child has been removed from the custody of his or her

parents and has been adjudicated to be in need of care. The guardianship thus bears

none of the hallmarks of a stipulated judgment, wherein the parties consent to a

custodial arrangement and there is no evidence required regarding parental fitness.8

       Having determined that the statutory criteria of La. Ch.C. art. 724(D) supply

the relevant legal standard for determining whether the guardianship of L.M.M.

should be terminated and that interpretation of those criteria require no jurisprudential

modification, we next examine Kodie’s alternative argument, that she met her burden

of proof under La. Ch.C. art. 724(D)(2).9

       Before examining the evidentiary record, it is necessary to determine the

appropriate standard of review to be applied to the district court’s judgment. Based

on the district court’s statement that her findings of fact were issued pursuant to La.

Ch.C. art. 724, the court of appeal applied an abuse of discretion standard of review

to the district court’s judgment. In re: L.M.M., Jr., 17-345 at 15, 230 So.3d at 310.

However, a review of the court’s written reasons reveals that, in reaching the

conclusion that the guardianship should be terminated, the district court recited



8
  To the extent that Kodie complains that the guardianship in this case does not “fit into the pattern
of a guardianship” because “the guardianship was not the result of a trial resulting in a determination
of parental unfitness,” her complaint of a formal defect in the Mississippi proceeding was waived
when she failed to appeal the order, allowing it to become a final judgment. See La. C.C.P. art.
1841. Further, by moving to have the guardianship order made executory in Louisiana, Kodie
acquiesced in that Mississippi judgment. See La. C.C.P. art. 2003 (“A defendant who voluntarily
acquiesced in the judgment, or who was present in the parish at the time of its execution and did not
attempt to enjoin its enforcement, may not annul the judgment on any of the ground enumerated in
Article 2002.”).
9
 La. Ch.C. art. 724(D)(1) has no relevance in this matter as a ground for modification or termination
of the guardianship as Lisa testified that she is both willing and able to continue as L.M.M.’s
guardian.

                                                  21
considerations that are irrelevant to the instant proceeding10 for reasons previously

explained11 and that, while reflecting on circumstances surrounding the confection of

the guardianship,12 are not germane to the issue presented: whether Kodie presented

proof by clear and convincing evidence of a material and substantial change in the

circumstances of L.M.M. because either (1) continuation of the guardianship is so

deleterious to L.M.M. as to justify its termination or (2) the harm likely to be caused

from termination of the guardianship is substantially outweighed by the advantages

to L.M.M. of that termination. While indicating that consideration was given to the

custody evaluation reports, the best interest of the child, and Kodie’s improved

circumstances, the district court’s reasons do not reflect that this evidence was viewed

through the lens of the stringent standards for modification of guardianship orders

required by La. Ch.C. art. 724. Because the district court’s reasons do not reflect that

the court considered the relevant legal standards in reaching its judgment and that the

court considered extraneous factors in rendering its decision, we find that the court

committed legal error in its analysis, warranting de novo review. See, e.g., Bridges

v. Nelson Indus. Steam Co., 15-1439, p. 4 (La. 5/3/16), 190 So.3d 276, 279 (where

the district court’s reasons for ruling reveal an error in the legal analysis, de novo

review is required).

         Pursuant to La. Ch.C. art. 724(D)(2) Kodie’s burden in this case is to prove, by

clear and convincing evidence,13 that there has been a material and substantial change

10
  The district court found among the “salient” facts that the original guardianship proceeding did
not comply with La. Ch.C. arts. 720(B), 722(A)(2) and 722(C).
11
     See n.9, supra.
12
  The district court additionally found as “salient” that Kodie was told to sign the guardianship
papers or give up her child for good and that Kodie thought she would have visitation and eventually
have her child returned to her.
13
   “Clear and convincing” evidence requires more than a “preponderance,” but less than “beyond
a reasonable doubt.” See e.g., Louisiana State Bar Association v. Edwins, 329 So.2d 437, 442

                                                22
in circumstances of L.M.M. because either (1) continuation of the guardianship is so

deleterious to L.M.M. as to justify its termination or (2) the harm likely to be caused

from a change in the guardianship is substantially outweighed by the advantages to

the child.

       With respect to the first situation, Kodie argues that the continuation of a

guardianship which denies her any significant contact with her son and denies her the

right to have input into medical or educational decisions affecting L.M.M. is “so

deleterious” to L.M.M. as to warrant termination of the guardianship. As support for

this argument, she points to the testimony of Dr. Van Beyer, who found fault with

Lisa’s guardianship in the following respects: (1) Lisa restricts Kodie’s access to

L.M.M. and does not allow her to participate in educational and medical decisions;

(2) Lisa indulges the child and allows him to sleep with her when he is upset; and (3)

Lisa has had difficulties with the child having temper tantrums that others have not

reported experiencing.

       As to the first criticism, Lisa’s limiting Kodie’s access to L.M.M., this criticism

is directed not to any change in the circumstances of L.M.M., but derives from

Kodie’s changed circumstances: her rehabilitation and the self-improvements that

have led her to seek greater involvement in L.M.M.’s life. As Comment–2011(c) of

the Official Comments to La. Ch.C. art. 724 explains, however, “[i]mprovement of

a parent’s capabilities ... would not satisfy the threshold requirement that some

deterioration in the quality of the guardian’s care must be demonstrated.”

Furthermore, implicit in the requirement that continuation of the guardianship be

“deleterious” to the child is that there be some showing of a deterioration in the



(La. 1976). Under the “clear and convincing” standard, the existence of the disputed fact must be
highly probable or much more probable than its nonexistence. Id.

                                               23
guardian’s care. No such showing appears in the record of this case. To the contrary,

the record reflects that Lisa’s guardianship has greatly benefitted L.M.M., a fact that

Kodie acknowledged.14

       The evidence establishes that once she obtained guardianship of L.M.M., Lisa

was instrumental in re-enrolling him in the First Steps program and in securing the

medical and therapeutic services he required. Lisa has consistently taken L.M.M. to

physical therapy and to medical and dental appointments, and has enrolled him in

gymnastics to assist with his balance. She has also paid for his enrollment in private

daycare, where the director reports that he has progressed physically, mentally, and

emotionally. Indeed, Dr. Van Beyer testified that Lisa has been both determined and

avid in her pursuit of the medical attention L.M.M. requires, so much so that by the

time Dr. Van Beyer met, L.M.M., “he had caught up, he was not any longer really

behind.” Further, while Dr. Van Beyer opined that Lisa should have made every

effort to consult Kodie about L.M.M.’s medical condition and to include her in

therapy and medical appointments, Dr. Van Beyer also testified that she had no

concern (unlike Kodie) that Lisa had overstated L.M.M.’s medical needs. Given

Kodie’s testimony that she does not believe that L.M.M. has cerebral palsy, it can

hardly be said that Kodie has demonstrated that Lisa’s actions in not seeking her

advice were “so deleterious” to L.M.M. as to warrant a change in the guardianship.

       As to Dr. Van Beyer’s concern that L.M.M. has tantrums with Lisa that no one

else has experienced, it appears that Lisa reported to Dr. Van Beyer that L.M.M. is

resistant to change and that he will have a tantrum if he has to alter his routine. While

Dr. Van Beyer was not aware of this occurring with his mother and expressed concern



14
   Kodie admitted at trial that Lisa’s care of L.M.M. benefitted him at a time when neither of his
parents was in a position to provide what was best for him.

                                               24
that L.M.M. only reacted this way with Lisa, Kodie admitted at trial that L.M.M.

behaves similarly with her. She testified that L.M.M. is a child “who gets used to

where he is at the time.” According to Kodie, when L.M.M. has to leave her, “he

cries and throws fits and screams and doesn’t want to leave.” Thus, it appears Dr.

Van Beyer’s concerns were based on an incomplete understanding of the facts.

      In the final analysis, Dr. Van Beyer’s criticisms of Lisa simply do not rise to

the level of clear and convincing evidence that continuation of the guardianship is “so

deleterious” to L.M.M. as to require its termination. By all accounts, Lisa has worked

to improve L.M.M.’s health and has provided him with a stable home environment

and an enriching education, and the evidence suggests that she will continue to do so.

Significantly, the record does not support a finding that there has been any

deterioration in the quality of Lisa’s care of L.M.M.

      With respect to the second factor which requires the showing of a substantial

and material change in the circumstances of the child, i.e., when the harm likely to be

caused from a change in the guardianship is substantially outweighed by the

advantages to the child of the modification, Kodie argues that the record demonstrates

that the advantages to L.M.M. of being reared by his mother substantially outweigh

any harm likely to result from termination of the guardianship. In support of this

argument, Kodie cites to her rehabilitation and greatly improved circumstances. She

also relies on the recommendations of the two experts witnesses, Dr. Van Beyer and

Dr. Klein, that Kodie share joint custody with Lisa with Kodie as the domiciliary

custodian.

      The record in this case establishes, and no one disputes, that Kodie has made

significant strides, turning her life around. For that, she is to be commended. It is

also clear that L.M.M. has benefitted from having his mother in his life in that he has

                                          25
formed a strong attachment to her. The burden Kodie faces in seeking modification

of the guardianship, however, is to demonstrate, clearly and convincingly, that the

advantages gained from her self-improvement “substantially outweigh” the harm

likely to result from removing L.M.M. from Lisa’s guardianship.

      In this regard, it bears repetition that the evidence establishes that Lisa’s

guardianship has been greatly beneficial to L.M.M. Since his birth, even predating

the guardianship, Lisa has been a consistent presence in L.M.M.’s life, providing

care, shelter, and support. In fact, with the exception of the four to five-month period

during which L.M.M. was living in Mississippi and in foster care, the child has lived

in the same room in Lisa’s home. Once she obtained guardianship, Lisa invested

considerable time, energy, and finances in ensuring that L.M.M. had available all the

resources he required to thrive, physically and emotionally. Dr. Klein noted that

L.M.M. has a significant attachment to Lisa and that she has become a “psychological

parent” to the child. He opined that to terminate or severely limit this relationship

would cause “immeasurable harm” to L.M.M. Finally, Lisa expressed concern that

if the guardianship were terminated, Kodie would not follow through with L.M.M.’s

medical needs, as Kodie does not accept Dr. Karlin’s cerebral palsy diagnosis “to the

extent that it’s being pushed,” a concern on Lisa’s part that does not appear

unreasonable in light of Kodie’s acknowledged rejection of that diagnosis.

      Balanced against this evidence is the testimony of the custody evaluators, Drs.

Van Beyer and Klein. Admittedly, both experts recommended a joint custody

arrangement with Kodie as domiciliary parent. Kodie relies heavily on these

recommendations in arguing that she sustained her burden of proof. However, there

is no indication that the experts evaluated the situation in light of the stringent




                                          26
requirements of La. Ch.C. art. 724.15 Their testimonies and recommendations do not

address whether the harm likely to be caused from a change in the guardianship is

substantially outweighed by the advantages to L.M.M. of the modification. Yet, this

was the burden Kodie was required to meet. On the present record, Kodie has simply

failed to produce sufficient evidence from which we can discern that any advantage

to L.M.M. gained from her self-improvement substantially outweighs the harm that

would likely result from terminating the guardianship.

       This conclusion is bolstered when the purpose of guardianship is considered.

La. Ch.C. art. 718(A). In making the requirements for modification of guardianships

stringent, the legislature has made a policy decision about the benefits of stability in

children’s lives that is consistent with this court’s pronouncements in Bergeron: “The

child has at stake an interest of transcending value in a custody modification suit–his

best interest and welfare–which may be irreparably damaged, not only by a mistaken

change in custody, but also by the effects of an attempted or threatened change of

custody on grounds that are less than imperative.” Bergeron, 492 So.2d at 1200. In

the final analysis, the evidence offered by Kodie fails to convince us that this is the

narrow case in which the benefits to the child from a modification of custody are “so

great that they clearly and substantially outweigh any harm that will be likely to result

from the change even though the present custody is not deleterious to the child.” Id.

                                        CONCLUSION

       As previously noted, guardianship is a custody regime that has been relatively

recently introduced in Louisiana law. It is intended to be a permanent placement for

children when neither reunification with a parent nor adoption has been found to be


15
  In fact, Dr. Klein’s report indicates that, in making his recommendation, he considered the factors
set out in La. C.C. art. 134 for determining the child’s best interest.

                                                 27
in their best interest, although it is not immutable. Louisiana Ch.C. art. 724(D) sets

forth the requirements for modifying or terminating a guardianship.                          Those

requirements apply here. A de novo review of the evidence presented in this case

reveals that the district court erred in determining that Kodie met her stringent burden

of proving the guardianship should be terminated. The evidence fails to establish a

substantial and material change in the circumstances of the child on either of the

grounds set forth in La. Ch.C. art. 724(D)(2). The record simply does not support a

finding that there has been a deterioration in the quality of Lisa’s care such that

continuation of the guardianship is so deleterious to the child as to justify termination

of the guardianship. Further, while Kodie’s self-improvement is admirable, it alone

is not sufficient to establish that the harm likely to be caused by a change in the

guardianship is substantially outweighed by the advantages to the child of the

modification. We therefore affirm the decision of the court of appeal to reverse the

district court judgment and reinstate the guardianship, and remand this matter to the

district court for the purpose of setting a visitation schedule for Kodie, consistent with

the court of appeal’s direction.16

       AFFIRMED AND REMANDED.




16
   As Lisa did not seek a writ challenging the ruling of the appellate court, we leave that aspect of
the appellate court decision intact.

                                                 28
06/27/18


                     SUPREME COURT OF LOUISIANA

                                No. 2017-CJ-1988

                          IN RE: L.M.M., JR., A MINOR

   ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, FIFTH
               CIRCUIT, PARISH OF JEFFERSON


Hughes, J., dissenting.

      “Courts should look through the caption of pleadings in order to ascertain

their substance and to do substantial justice.” Smith v Cajun Insulation, 392 So.2d

398, 402 (La. 1980). Substantial justice has not been done in this case. This court

has previously rejected an attempt to convert a custody judgment into a

guardianship governed by the Louisiana Children’s Code. See George v Dugas,

203 So.3d 1043 (La. 2016).       Unfortunately, the opinion in the present case

succeeds in doing so on an even shakier foundation.

      Guardianship is a type of “super custody”, which is very difficult to modify

once established, lasting until a child is eighteen, thus making reunification

between a parent and child extremely difficult.

      The preamble of the Children’s Code, Art. 101, provides that preserving

families is essential to a free society and that the relationship between parent and

child is preeminent in establishing and maintaining the wellbeing of the child.

Because of the “permanent” nature of guardianship under Louisiana law, it is

especially important that its requirements be recognized and honored, especially by

courts on review.

      To achieve guardianship in Louisiana there must be two separate

adjudications. First, there must be a finding that the child is in need of care. A

Child in Need of Care proceeding may only be initiated by the District Attorney,
by verified petition. The parents must answer, and then a timely adjudication

hearing must be held. Only after a child has been adjudicated a child in need of

care may a motion for guardianship be filed. Art. 720 provides the requirements

for the motion. Pursuant to Art. 722, a hearing shall be held where the mover must

prove by clear and convincing evidence that, among other things, reunification

with a parent is not in the best interest of the child. The court is required to enter a

written order that includes findings upon which the order is based.

      In its haste to impose the more onerous burden of proof and standard of

review of guardianship on the ruling of the trial court in favor of the child’s

mother, the opinion fails to discuss these prerequisites of guardianship, possibly

because they are simply not present. Rather, the basis for imposing Louisiana

guardianship law in this case is a judgment from Mississippi.            Although the

judgment refers to a “Guardian”, it bears little resemblance to Louisiana

guardianship. “Letters of Guardianship” are ordered, it speaks to the “child’s

estate,” and provides that the Guardian will serve “without bond and is hereby

excused from filing annual accountings.” It is clear that Mississippi law in this

matter is the common law equivalent of tutorship in Louisiana. The judgment was

entered into by consent and is not a “considered decree.” None of the requirements

of the Children’s Code have been met, as recognized by the trial court, but

nonetheless the Mississippi judgment is bootstrapped into the equivalent of

Louisiana guardianship, a much different animal, simply because it contains the

word “guardian,” with no analysis of its underpinnings, thus elevating form over

substance to an absurd level.

      In creating a Louisiana guardianship with the strictures of the Children’s

Code when there has been no adjudication of a child in need of care and when

there has been no guardianship hearing with clear and convincing proof that

                                           2
reunification is not in the best interest of the child, this court infringes on the

constitutional and due process rights of the parent and child as recognized by the

United States Supreme Court in Santosky v Kramer, 455 U.S. 745, 753, 102 S.Ct.

1388, 1394-95, 71 L.Ed.2d 599 (1982) and this court in State in re J.M., J.P.M.,

and M.M., 837 So.2d 1247 (La. 2003).

      The trial court recognized the shortcomings of the Mississippi judgment,

considered the best interest of the minor child, and “terminated” the Mississippi

guardianship. The court of appeal and this court rule that “best interest of the

child” no longer applies, accepting at face value the Mississippi guardianship, with

no analysis of its substance.

      Louisiana has fact pleading. It is the duty of the courts to discern and apply

the law to the facts. Justice Clark, writing for this court, in Wooley v Lucksinger,

09-0571, pp. 49, 62-62 (La. 4/1/11), 61 So.3d 507, 554, 562-63 (emphasis added),

stated:

      The Louisiana Constitution provides that the appellate jurisdiction of
      a court of appeal in a civil matter extends to both law and facts. La.
      Const. 1974, art. 5, § 10(B). Questions of law are reviewed de novo,
      with the judgment rendered “on the record, without deference to the
      legal conclusions of the tribunals below.” Holly & Smith Architects,
      Inc. v. St. Helena Congregate Facility, Inc., 2006-0582 p. 9 (La.
      11/29/06), 943 So.2d 1037, 1045; citing Louisiana Municipal
      Association v. State, 2004-0227 p. 35 (La. 1/19/05), 893 So.2d 809,
      836.
                                       * * *

             At the outset, we note the absence of an assignment of error or
      lack of objection to the district court's choice of law ruling by a
      litigant would not prevent the court of appeal from raising this issue.
      Without doubt, an appellate court has the authority to raise an issue
      sua sponte on appeal. The state constitution authorizes the appellate
      jurisdiction of a court of appeal in civil matters to extend to law and
      facts. La. Const. art. 5, § 10(A) and (B). La. C.C.P. art. 2129
      specifically provides: “[a]n assignment of error is not necessary in
      any appeal.” La. C.C.P. art. 2164 provides an appellate court “shall
      render any judgment which is just, legal, and proper upon the record
      on appeal.”


                                         3
      The best interest of the child in this case may be debatable, but the

requirements of the Children’s Code are not. If the majority truly believes the

Mississippi judgment has been transformed into full-fledged Louisiana

guardianship, this court should vacate the trial court judgment and remand this

matter to the Jefferson Parish Juvenile Court, which has original exclusive

jurisdiction over Child in Need of Care proceedings pursuant to Title VI of the

Children’s Code, including Chapter 19 (Guardianship). See LSA-Ch.C. Art. 302

and 303. In this is a Louisiana guardianship, the 24th Judicial District Court has no

jurisdiction to hear this matter. Jurisdiction cannot be waived by consent and

should be raised sua sponte on review.

      As noted by Judge (now Justice) Weimer in Bordelon v Dehnert, 770 So.2d

433 (La. App. 1st Cir. 2000):

      Subject matter jurisdiction is a threshold issue because a judgment
      rendered by a court which has no jurisdiction over the subject matter
      of the action or proceeding is void. See LSA–C.C.P. art. 3.
      Jurisdiction over the subject matter is the legal power and authority of
      a court to hear and determine a particular class of actions or
      proceedings, based upon the object of the demand, the amount in
      dispute, or the value of the right asserted. LSA–C.C.P. art. 2. Subject
      matter jurisdiction cannot be waived by the parties and the lack
      thereof can be recognized by the court at any time, with or without
      formal exception. LSA–C.C.P. arts. 3 and 925. (Emphasis added.)




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