Louisa lives in Baton Rouge, LA. In 2002, her husband, Jacques, was killed in a boating accident. Because of this, Louisa became depressed and started drinking heavily. Unfortunately, there were several times that her drinking and depression got the better of her and she had a few incidents where she severely beat her two children, Marie and Pierre, aged 6 and 8 respectively.
Based on those incidents, the children were removed from Louisa's home and placed with a foster family in 2003, where they have lived for the past 3 years. The foster parents, the Smiths, later formally adopted the children.
After her children were taken away, Louisa realized that she'd better get her life in order. She started attending AA meetings and received anger control therapy. As of July, 2006, Louisa hasn't had a drink in 18 months and by all accounts, she no longer has an anger management problem.
She comes to you and asks if she can get her children back. After a little investigating, you learn that the children, now ages 10 and 12, are doing very well with their new family in New Orleans. The Smiths, when asked, say that they will allow Louisa some visitation, but that Marie and Pierre have become integral parts of their family, school and community and that they will not give up the children without a fight. Louisa asks you to research some Louisiana case law to determine what her chances of getting back custody of her children are.
Please draft an essay answering her question.

ISSUE:
May Louisa regain custody of her minor children after completing an anger management course and attending Alcoholics Anonymous meetings for 18 months?
Her children were removed from her care and placed with a foster family. They lived with that family for a period of 3 years before being formally adopted by them.
RULE:
The State of Louisiana has gone to great lengths to insure the safety and well-being of children in the state. From the states Civil Code to the Child Code, the state legislature has done much to insure that children are protected.
La. R.S. 9:362 (2012)
Definitions
As used in this Part:
(3) "Family violence" includes but is not limited to physical or sexual abuse and any offense against the person as defined in the Criminal Code of Louisiana, except negligent injuring and defamation, committed by one parent against the other parent or against any of the children. Family violence does not include reasonable acts of self-defense utilized by one parent to protect himself or herself or a child in the family from the family violence of the other parent.
(7) "Treatment program" means a course of evaluation and psychotherapy designed specifically for perpetrators of family violence, and conducted by licensed mental health professionals.

Louisiana Children’s Code Art. 1015. Grounds
(3) Misconduct of the parent toward this child or any other child of the parent or any other child in his household which constitutes extreme abuse, cruel and inhuman treatment, or grossly negligent behavior below a reasonable standard of human decency, including but not limited to the conviction, commission, aiding or abetting, attempting, conspiring, or soliciting to commit any of the following:
(h) A felony that has resulted in serious bodily injury.
(4) Abandonment of the child by placing him in the physical custody of a nonparent, or the department, or by otherwise leaving him under circumstances demonstrating an intention to permanently avoid parental responsibility by any of the following:
(b) As of the time the petition is filed, the parent has failed to provide significant contributions to the child's care and support for any period of six consecutive months.
(c) As of the time the petition is filed, the parent has failed to maintain significant contact with the child by visiting him or communicating with him for any period of six consecutive months.
(5) Unless sooner permitted by the court, at least one year has elapsed since a child was removed from the parent's custody pursuant to a court order; there has been no substantial parental compliance with a case plan for services which has been previously filed by the department and approved by the court as necessary for the safe return of the child; and despite earlier intervention, there is no reasonable expectation of significant improvement in the parent's condition or conduct in the near future, considering the child's age and his need for a safe, stable, and permanent home.

Art. 1208. Hearing; petition for agency adoption

A. The court shall sign the order setting the time and place for the hearing of the petition for agency adoption not less than thirty nor more than sixty days after the filing of the adoption petition. The court may extend this time for up to sixty additional days for good cause, which may include a showing by the department that it has been impossible to gather the necessary data within the time prescribed. The court may reduce the time to a minimum of fifteen days with written approval of the department and the petitioner. If an extension of time is granted, the court shall set a new hearing date and shall require the petitioner to report to the court, either at that hearing, or before, in detail concerning the progress of the child's adoptive placement.
B. At this hearing the court shall consider:
(1) Any motion to intervene which has been filed.
(2) Any other issues in dispute.
(3) The confidential report of the department.
(4) The report of any criminal records or validated complaints of child abuse or neglect concerning the petitioner.
(5) The testimony of the parties.
C. If the child to be adopted is twelve years of age or older, the court shall solicit and consider his wishes in the matter.
D. If not previously determined by the court in a separate hearing, the court shall also determine whether any proposed continuing contact agreement involving a child in the custody of the department is in the best interest of the child in accordance with Article 1269.4.
Art. 1209. Intervention
A. Intervention in agency adoption proceedings shall not be allowed except on motion to the court and a showing of good cause.
B. Such intervention shall be limited to persons having a substantial caretaking relationship with the child for one year or longer or any other person that the court finds to be a party in interest.
C. The intervention of a party in interest shall be for the limited purpose of presenting evidence as to the best interests of the child.
Art. 1211. Final decree at first hearing
Notwithstanding Article 1216, upon due consideration of the factors enumerated in Article 1208(B), the court may render a final decree of private adoption at the first hearing, without the necessity of first entering an interlocutory decree, if either:
(1) The child was placed in the petitioner's home by an agency and the child has lived in that home for at least six months prior to the hearing for adoption.
(2) The rights of the child's parents have been terminated pursuant to Titles X or XI and the child has lived in the petitioner's home for at least one year.

Art. 1216. Petition for final decree
A. The child shall have lived with the petitioner for at least one year and at least six months shall have elapsed after the granting of an interlocutory decree before the petitioner may file a petition for final decree of agency adoption.
B. The court shall set a time and place for the hearing of the petition for final decree. The petition for final decree need not be served upon anyone except the department.

Art. 1218. Effect of final decree
A. Except as otherwise provided in this Title, upon a final decree of agency adoption, the parents of the child whose rights have not been previously terminated by a surrender or a judgment of termination and all other blood relatives of the child are relieved of all their legal duties and divested of all their legal rights with regard to the adopted child, including the right of inheritance from the adopted child and his lawful descendants, and the adopted child is relieved of all of his legal duties and divested of all his legal rights with regard to the parents, except as provided in Paragraph B.
B. The right of the child to inherit from his parents and other blood relatives is unaffected by the adoption.
C. Under the circumstances and pursuant to the procedures authorized by Chapter 14 of this Title, grandparents may obtain limited visitation rights to the adopted child.
D. Parents, grandparents, siblings, or other relatives by blood, adoption, or affinity who have an established and significant relationship may be allowed continuing contact with an adopted child in accordance with Chapter 14-A of this Title.
Art. 1240. Effect of final decree
A. Except as otherwise provided in this Title, upon a final decree of private adoption, the parents of the child whose rights have not been previously terminated by a surrender or a judgment of termination and all other blood relatives of the child are relieved of all their legal duties and divested of all their legal rights with regard to the adopted child, including the right of inheritance from the adopted child and his lawful descendants, and the adopted child is relieved of all of his legal duties and divested of all his legal rights with regard to the parents, except as provided in Paragraph B.
B. The right of the child to inherit from his parents and other blood relatives is unaffected by the adoption.
Louisiana Civil Code
Art. 133. Award of custody to person other than a parent; order of preference
If an award of joint custody or of sole custody to either parent would result in substantial harm to the child, the court shall award custody to another person with whom the child has been living in a wholesome and stable environment, or otherwise to any other person able to provide an adequate and stable environment.
Art. 134. Factors in determining child's best interest
The court shall consider all relevant factors in determining the best interest of the child. Such factors may include:
(1) The love, affection, and other emotional ties between each party and the child.
(2) The capacity and disposition of each party to give the child love, affection, and spiritual guidance and to continue the education and rearing of the child.
(3) The capacity and disposition of each party to provide the child with food, clothing, medical care, and other material needs.
(4) The length of time the child has lived in a stable, adequate environment, and the desirability of maintaining continuity of that environment.
(5) The permanence, as a family unit, of the existing or proposed custodial home or homes.
(6) The moral fitness of each party, insofar as it affects the welfare of the child.
(7) The mental and physical health of each party.
(8) The home, school, and community history of the child.
(9) The reasonable preference of the child, if the court deems the child to be of sufficient age to express a preference.
(10) The willingness and ability of each party to facilitate and encourage a close and continuing relationship between the child and the other party.
(11) The distance between the respective residences of the parties.
(12) The responsibility for the care and rearing of the child previously exercised by each party. The Louisiana Supreme Court has weighed in on this issue of children who were removed from their parents care for abuse or neglect, with the concept that a decision must always be made in light of what is best for the child. For example in, Nethken v. Nethken, 307 So.2d 563 (La. 1975) the court stated,
When the trial judge has made a considered adjudication of permanent custody based upon these principles, even though such custody is subject to modification at any time when a change of conditions demands it, the party seeking the change bears a heavy burden of clearly proving that the continuation of the existing custody so adversely affects the child that the child's removal is justified. Upon appellate review, the determination of the trial judge in child custody matters is entitled to great weight, and his findings will not be disturbed in the absence of a clear showing of error.
The court reiterated its position from an earlier case, Abreo v. Abreo, 281 So. 2d 695, 697 (La. 1973) in which it held that, “Universal and fundamental principles of the law support the proposition that the paramount consideration in custody cases is always the welfare of the child.”
Stating further in its ruling,
In keeping with the law's aim to promote the child's welfare, the decisions have recognized that the child's best interest is served when custody is awarded to the mother, especially when the child is of tender years. Based upon this premise, the mother's right to custody is paramount. Thus custody should not be denied the mother unless she is morally unfit or otherwise unstable, and then only when the immorality or instability is such that these characteristics and her conduct adversely affect the child.
The court in Abreo v. Abreo, was again restating an earlier case, Estes v. Estes, 261 La. 20 (La. 1972) wherein it held that,
… even though such custody is subject to modification at any time when a change of conditions demands it, the party seeking the change bears a heavy burden of proving that the continuation of the present custody is so deleterious to the children as to justify removing them from the environment to which they are accustomed.
The Louisiana Supreme Court is supported in their decisions by the State Appellate Courts who have also been asked to decide on the issue of child placement.
The Third Circuit addressed the issue in, Gill v. Bennett, 82 So. 3d 383 (La.App. 3 Cir. 2011) wherein the court held that,
Before custody is awarded to a nonparent, the nonparent bears the burden of proving that a grant of custody to the parent would be detrimental to the child and that an award of custody to the nonparent is in the best interest of the child. Furthermore, where there is a conflict between parents and nonparents, the parent has a paramount right to custody of the child, and may only be deprived of that right for compelling reasons. The Second Circuit addressed the issue in, Jones v. Coleman, 18 So. 3d 153 (La.App. 2 Cir. 2009) wherein it stated in its opinion,
The overriding test for any determination of child custody in Louisiana is the best interest of the child, La. Civ. Code Ann. art. 131. Two of the many factors which the trial court considers for determining the best interests of the child are set forth in La. Civ. Code Ann. art. 134.
Further the court in its opinion held that,
Under La. Civ. Code Ann. art. 133, the important criteria are significantly highlighted for the measure of the nonparent recipient of the child's custody. The nonparent with whom the child has been living in a wholesome and stable environment or a nonparent who is able to provide an adequate and stable environment is expressly recognized as the proper recipient of the child's custody. These factors concerning a wholesome and stable environment for the child must also have particular importance in addressing a parent's later challenge to the nonparent's previously adjudicated custody award under art. 133. Even in the absence of any prior adjudication of custody in the nonparent, the Louisiana Supreme Court in early rulings elevated the best interest of the child test and these stable environmental factors in rejecting parental primacy claims against the nonparent with whom the child had resided.

ANALYSIS:
The Second Circuit Court of Appeals stated that, "The party seeking modification must prove that there has been a material change in circumstances since the original custody decree was entered, and that the proposed modification is in the best interest of the child." Jones v. Coleman, supra.
In an earlier case the court ruled in, Sheppard v. Hood, 605 So. 2d 708 (La.App. 2 Cir. 1992) the court ruled that,
Following a considered decree of permanent child custody, a party seeking a change in custody bears a heavy burden of proving that the continuation of the present custody is so deleterious to the child as to justify a modification of custody, or of proving by clear and convincing evidence that the harm likely to be caused by a change of environment is substantially outweighed by its advantages to the child.
The court stated further,
A parent seeking custody of a child awarded to a non-parent by an earlier considered decree bears the heavy burden of proving that the continuation of the present custody is so deleterious to the child as to justify a modification of the custody or of proving by clear and convincing evidence that the harm likely to be caused by a change of environment is substantially outweighed by the advantages a change affords to the child.
These rulings make it clear that the courts are loathe to uproot children who have become well established with an adopted family, even if it is to reunite them with a biological parent.
For as stated in, Sheppard v. Hood, supra. "Parents enjoy a paramount right to the custody of their children, which right may be outweighed only by a showing of sufficiently great detriment to the child's best interests to require that custody be awarded to a non-parent."
Further the court will have to decide if the program Louisa attended would qualify under, La. R.S. 9:362 (2012) (7). Before the court entertained any thoughts of custody modification.

CONCLUSION:
Custody of the minor children will remain with the Smith family, as the children are well adjusted and established there, also given the elapsed amount of time they have been a part of that family. It would be traumatic for them to be removed from that environment.