Louisiana court: child's right to counsel in adoptions is mandatory

08/23/2018, Legislation, Termination of Parental Rights (Private) - Children

In In re K.S.S., 2018 La. App. LEXIS 1617 (2018), the Louisiana Court of Appeals (Fifth Circuit) held that the failure to appoint counsel for a child in an intrafamily adoption proceeding as required by statute was a “fundamental defect” that required reversal of the adoption. The court held that "The language of the statute is mandatory and is not subject to waiver. Further, adoption is a creature of statute and all of the statutory requirements must be strictly carried out.” The court rejected the argument that the biological father’s untimely opposition to the adoption was relevant, noting that "the trial court's duty to appoint counsel for the minor child is triggered by 'receipt of the opposition.' The statutory language does not specify a 'timely opposition' and, thus, does not contain a temporal element. We will not read one into the statute … More importantly, a child's individual best interests warrant protection by independent legal representation. A child's fundamental right to independent counsel cannot be waived, see La. Ch.C. art. 1244.1(B), much less thwarted by any procedural technicality."