STATE IN INTEREST OF v. << (2025)

This matter is before us on appeal by M.B.,¹ the father of M.C., who appeals a judgment terminating his parental rights. For the reasons that follow, the appeal is dismissed.

FACTUAL AND PROCEDURAL HISTORY

The minor child M.C. was placed in the custody of the State of Louisiana, Department of Children and Family Services (“DCFS”) on October 1, 2022. On April 22, 2024, DCFS filed a petition to terminate the parental rights of M.B. and C.C., respectively, the father and mother of M.C., pursuant to La. Ch.C. art. 1015(4) and (5). The matter was heard on August 27, 2024.

On August 29, 2024, the trial court signed a judgment finding that DCSF proved by clear and convincing evidence that at least one year had elapsed since the minor child was placed in DCFS custody and there had been no substantial parental compliance with the court-approved case plan by M.B. and C.C. The court thus granted the petition, terminating the parental rights of M.B. and C.C. as they relate to the minor child, M.C., finding that DCFS has proven by clear and convincing evidence that it is in the best interest of M.C. that she be freed for adoption.

A judgment terminating the parental rights of C.C. and M.B. was signed by the trial court on August 29, 2024. Notice of the August 29, 2024 judgment was issued on September 1, 2024. An “Affidavit of Mailing” of the August 29, 2024 judgment was signed by a deputy clerk on September 25, 2024. Also on September 25, 2024, M.B. filed a motion to appeal the August 29, 2024 judgment terminating his parental rights.²

DISCUSSION

Appellate courts have the duty to examine their subject matter jurisdiction and determine sua sponte whether such subject matter jurisdiction exists, even when the issue is not raised by the litigants. Marrero v. I. Manheim Auctions, Inc., 2019-0365 (La. App. 1st Cir. 11/19/19), 291 So. 3d 236, 238. An appellant's failure to timely file an appeal is a jurisdictional defect, in that neither the court of appeal nor any other court has the jurisdictional power and authority to reverse, revise, or modify a final judgment after the time for filing an appeal has elapsed. State in the Interest of B.B.M., 2021-1359 (La. App. 1st Cir. 6/16/22), 2022 WL 2168939, *3 (unpublished), writ denied, 2022-0102 (La. 9/7/22), 345 So. 3d 431.

Courts shall avoid delays in resolving the status of the parent and in achieving permanency for the child. La. Ch.C. art. 1032. All phases of termination of parental rights proceedings are thus to be given priority. See La. Ch. C. art. 1001.1; State in the Interest of S.M., 98-0922 (La. 10/20/98), 719 So. 2d 445, 453. Consistent with the statutory scheme of expediency, the Louisiana Children's Code article 332 provides that appeals shall be taken within fifteen days from the signing of the judgment, or from the mailing of notice of judgment when required. See State ex rel. C.P., 2000-2703 (La. 1/17/01), 777 So. 2d 470, 471. Louisiana Children's Code article 337 provides that appeals of juvenile matters, particularly termination of parental rights cases, shall be accorded preference in the court of appeal and shall be determined at the earliest practicable time. State ex rel. C.P., 777 So. 2d at 471, n.2. Moreover, courts of appeal have consistently held that an appeal not timely filed in juvenile matters shall be dismissed. State ex rel. C.P., 777 So. 2d at 471.

Following the lodging of this appeal, this Court issued an interim order indicating that neither the September 1, 2024 notice of judgment nor the September 25, 2024 affidavit of mailing by the clerk of court indicate the date upon which the September 1, 2024 notice of judgment was mailed. This court thus remanded the matter to the trial court for the limited purpose of conducting an evidentiary hearing to determine when the September 1, 2024 notice of judgment was mailed in order to determine whether the instant appeal was timely.

On April 14, 2025, the trial court conducted a hearing. At the hearing, Chandra Gipson, the deputy clerk who signed the “Affidavit of Mailing,” testified that the September 1, 2024 notice of judgment was mailed around September 3, 2024. She was the only witness to testify. Ms. Gipson testified that following the mailing of the notice of judgment, she was subsequently contacted by M.B.’s attorney, Leroy J. Laiche, Jr., who alleged that he had not “received” the originally issued judgment and requested that she “send out” another copy of the notice of judgment.³ Ms. Gipson testified that on September 25, 2024, she issued a second notice of the August 29, 2024 judgment. M.B.’s motion for appeal was filed that same date.

As set forth above, La. Ch.C. art. 332(A) provides that the appeal of a judgment terminating parental rights “shall be taken within fifteen days from the mailing of the notice of judgment.” Louisiana Children's Code article 332(B) provides that notice of judgment shall be as provided in La. C.C.P. art. 1913. Louisiana Code of Civil Procedure article 1913 requires that notice of the signing of a final judgment shall be mailed to counsel of record for each party and the clerk of court shall file a certificate in the record showing the date on which the notice of judgment was mailed. La. C.C.P. art. 1913(A) and (D). In evaluating the timeliness of an appeal in a termination of parental rights case, this Court has interpreted these provisions to require that only the “mailing” of a notice of judgment is the determinative date - the date of service, delivery, or receipt of the notice is not determinative. See State in the Interest of J.P., 2021-1036 (La. App. 1st Cir. 12/22/21), 339 So. 3d 1187, 1189; State in Interest of L.S., 2012-0880 (La. App. 1st Cir. 11/2/12), 2012 WL 5387188, *1 (unpublished), writ denied, 2012-2574 (La. 1/18/13), 107 So. 3d 635; see also State ex rel. C.P., 777 So. 2d at 471-472 (where the Supreme Court found that the appellate court had no jurisdiction to hear an untimely appeal of a juvenile matter).

The record herein reflects that the September 1, 2024 notice of the August 29, 2024 judgment, was mailed September 3, 2024. Although Ms. Gipson testified that some of the notices sent to the “parent[s]” were “sent back” there was no argument that any of the notices were sent to the wrong address.⁴ Thus, pursuant to La. Ch.C. art. 332, M.B. had to file his motion for appeal within fifteen days of September 3, 2024, or by September 18, 2024. Because M.B. did not file his motion for appeal until September 25, 2025, his appeal was untimely pursuant to La. Ch.C. art. 332.

On review, the evidence established that the September 1, 2024 notice of judgment was mailed to M.B.’s counsel in compliance with La. Ch.C. art. 332 and La. C.C.P. art. 1913. Receipt of same is not determinative. This court lacks appellate jurisdiction to review this untimely appeal.

CONCLUSION

For the above and foregoing reasons, this appeal of the August 29, 2024 judgment is dismissed. All costs of this appeal are assessed to the appellant, M.B.

APPEAL DISMISSED.

I respectfully dissent from the majority opinion. In our March 31, 2025 Interim Order, this Court remanded this matter specifically for a hearing “to determine the date on which the notice of the August 29, 2024 judgment was mailed.” At a April 14, 2025 hearing, Ms. Gipson, a deputy clerk, was the sole witness. Ms. Gipson testified that she personally mailed a second notice of judgment on September 25, 2024, but that a previously-issued notice of judgment had been mailed “around September 3rd.” This testimony does not definitively establish that the notice of the August 29, 2024 judgment was actually mailed on September 3, 2024. Thus, absent definitive proof of when the notice was actually mailed, I do not think dismissal of the appeal is warranted.

FOOTNOTES

1.   In order to protect the identity of the minor child in this confidential proceeding, we refer to the child and parties by their initials. See Uniform Rules - Courts of Appeal, Rule 5-2.

2.   An appeal by C.C. was dismissed by order of this court based on her failure to file a brief.

3.   Ms. Gipson testified that the minute clerk mistakenly put the date of August 1, 2024, on the initial notice of judgment and that “some” of those notices that were sent to “the parent [s]” were returned. (There was no testimony that the notice was sent to an incorrect address.) However, the only notice of judgment contained in the record is dated September 1, 2024, and no evidence of a returned notice or a notice of judgment dated August 1, 2024, was introduced on remand at the evidentiary hearing. This court can only base its decision on what appears in the record. See State in the Interest of J.P., 2021-1036 (La. App. 1st Cir. 12/22/21), 339 So. 3d 1187, 1189.

4.   If the notice of judgment is not mailed as required by La. C.C.P. art. 1913, the delay for appealing the judgment does not commence to run. Kelly v. National Life and Accident Insurance Company, 393 So. 2d 128, 129 (La. App. 1st Cir. 1980).

MILLER, J.

GREENE, J., dissents and assigns reasons.