by Emily Gauthier & Henry S. Rauschenberger
Introduction: One of Many
When he was only eight years old, the State of Louisiana placed Rashaad Piper in foster care, removing him from an abusive home. From age 8 to 18, Rashaad remained under the care of multiple foster parents until he aged out of the foster care program. Rashaad is one of many Louisiana children who suffer abuse at the hands of his parents before the State is able to bring an action to terminate the parents’ rights. But, what if the State was not the party to bring the action to terminate parental rights? If Rashaad’s foster parents were the party to bring the original action, could the State intervene in the case as an interested party?
According to the Louisiana Children’s Code, the answer is a resounding “no.” Although the State and foster parents may bring actions to terminate parental rights, the Children’s Code suffers from an incomplete revision, which prevents foster parents and the State from intervening as parties for the termination of parental rights.
With approximately 4,500 Louisiana children in foster care, this issue remains salient for Louisiana attorneys and lawmakers. Moreover, this legislative session, the Louisiana Legislature will debate extending the state’s foster care program to children over the age of 18. The number of children in foster care could consequently see a significant uptick. Now, more than ever, the legislature must consider amending the Children’s Code to reflect uniform procedures for the termination of parental rights.
I. A History of Piecemeal Revisions to Title X
Under article 1029 of the Children’s Code, no party can intervene in proceedings brought under Title X of the Children’s Code, which includes proceedings to terminate parental rights. Generally, the State is the primary party to institute a proceeding to terminate parental rights. Yet, there are some instances where other parties—such as foster parents and, in limited circumstances, victims of sex offenses—may seek termination of parental rights.
Specifically, article 1004 permits foster parents who intend to adopt a child to petition for the termination of parental rights of the foster child’s parents. Foster parents can only bring their petition when adoption is the permanent plan for the child, the child remained in the foster parents’ care for 17 of the previous 22 months, and the State has failed to petition for termination. Originally, article 1004 only required that a child remained in the foster parents’ care for 15 of the previous 22 months, but the legislature amended the article in 1999. The legislature was apparently concerned that eager foster parents would file an action to terminate parental rights prematurely. The new law, therefore, provided a longer wait period. Although foster parents were authorized to file a termination action, the legislature sought to limit foster parents’ right to file, only allowing termination actions after a court determined that adoption was the most appropriate permanent plan for the child. In addition, the new time limitation was consistent with related federal legislation.
Prior to the legislature’s revisions to article 1004, the Louisiana Third Circuit Court of Appeal considered the issue article 1029 posed. In State ex rel. Stewart v. Stewart, the Third Circuit held that article 1029 prevented a child’s grandparents from intervening in a termination of parental rights proceeding. The court noted that although the child’s grandparents could not intervene in the termination proceeding, the grandparents were permitted to intervene in the dispositional review proceedings, which were required to be held after the termination of parental rights. At the time, article 1029 was settled law and fit within the Title X regime. No Louisiana appellate court has revisited the issue since the legislature amended article 1004. The legislature’s failure to update article 1029 poses a significant hurdle to achieving uniform procedures under Title X.
II. A Problem for the State and Foster Parents: Allowed to Bring an Action, Unable to Intervene
Under the relevant Children’s Code articles, only a few parties are permitted to institute termination of parental rights proceedings, but no one is permitted to intervene, including the State. After a court determines that parental rights should be terminated, custody is granted to another party. The other interested parties can only intervene once the post-termination proceedings begin, in either permanency or case review hearings—a result that is consistent with Stewart.
Following the logic of Stewart, this sequence would be permissible in situations where the non-parties are private individuals like grandparents, as opposed to the State, because those parties can assert their position by intervening in the post-termination hearings. Additionally, preventing non-immediate family members from intervening promotes the policy goals of focusing on the best interests of the child and the fitness of the parent, which an intervention by a more distant relative might confuse. These policy rationales, however, do not comport with the legislature’s revision of article 1004. As written, article 1029 creates a scenario that potentially leaves the State and foster parents out of proceedings to terminate parental rights. Applying the Stewart rationale to foster parents and the State would prevent interested parties with compelling positions from intervening to advocate for the best interest of a child.
These piecemeal revisions of the Children’s Code create an incoherent sequence, in which foster parents and the State are simultaneously permitted to begin an action to terminate parental rights, but unable to intervene in those proceedings once they have already begun. Before the legislature amended article 1004, the Louisiana Fourth Circuit Court of Appeal cogently noted that article 1029 only works if the State has the sole authority to instigate the termination of parental rights. The court opined that although it appeared reasonable for the legislature to prohibit intervention by a private individual in an action prosecuted by the State, it would not be wise to foreclose the possibility of intervention by the department or district attorney in a private proceeding. Thus, for the provisions to function properly, private individuals could not be authorized to prosecute an action to terminate parental rights.
Of course, in the years following the court’s decision, the legislature did amend article 1004 to allow private parties to bring actions for the termination of parental rights. Unfortunately, the legislature did not adjust article 1029 to comport with this change. Fortunately for the legislature, this inconsistency can be easily remedied.
III. Expanding the Right to Intervene under Article 1029
As the law currently stands, article 1029 is a broken link in the chain of more recently revised code articles surrounding proceedings for the termination of parental rights. The only rational solution is to revise article 1029 to comport with article 1004 and its policies. This change would allow parties who bring actions to terminate parental rights to also intervene in those proceedings. Specifically, the legislature must revise article 1029 to incorporate an exception for foster parents and the State.
The legislature could seamlessly integrate the old law with the new by allowing all parties authorized under article 1004 the opportunity to intervene in proceedings to terminate parental rights. Article 1029 should be amended as follows: “No person shall be allowed to intervene in a proceeding brought under this Title, except for those parties authorized by Article 1004 to file a petition for termination of parental rights.”
First, the amendment would remedy the obvious problem, which prevents the State and foster parents from intervening in termination actions. Moreover, should the legislature choose to allow additional parties to institute termination actions, this amendment achieves the secondary purpose of incorporating those additional parties by reference. Article 1029 is a problem with a simple solution—one that the legislature could easily resolve in future legislative sessions.
As the legislature considers changes to laws that could extend and increase the number of children in foster care, the legislature should take the opportunity to correct a related revision error in the Children’s Code. It is not too late for the legislature to amend article 1029 to align with article 1004, finally providing much needed clarity and uniformity to procedures under this body of law.
 Richard A. Webster, ‘They are dumping them’: Foster child sent to shelter on 18th birthday, now in prison, NOLA.com (Oct. 17, 2018), https://www.nola.com/expo/news/erry-2018/10/0edd6b617d1098/they-are-dumping-them-foster-c.html [https://perma.cc/4YU5-QZMD].
 See La. Child. Code art. 1029 (2019).
 See id.; id. art. 1004.
 In 2017, 4,460 Louisiana children were in foster care, a number which has remained fairly consistent over the past 10 years. U.S. Dep’t of Health and Human Servs., Admin. for Children and Families, Admin. on Children, Youth and Families, Children’s Bureau, Numbers of Children in Foster Care on September 30th, by State FY 2008–FY 2017 1, 3 (2018); see also U.S. Dep’t of Health and Human Servs., Admin. for Children and Families, Admin. on Children, Youth and Families, Children’s Bureau, Numbers of Children in Foster Care on September 30th, by State FY 2005–FY 2014 1, 1 (2015) (ranging from a little under 4,000 to a little over 5,000 children).
 See Katy Reckdahl, Meet the group of ex-Louisiana foster kids who are key players in debate around extending care, Advocate (Feb. 16, 2019), https://www.theadvocate.com/baton_rouge/news/article_cd6e7cb4-3185-11e9-84d3-073002927bd6.html https://perma.cc/3J65-NC83].
 See id.
 La. Child. Code art. 1029.
 See id. art. 1004. Under the prior law, only the district attorney—or his designee—acting as a representative of the state, could seek a termination of parental rights. See La. Child. Code Ann. art. 1004 cmt. b (1991). The Louisiana Supreme Court noted that the legislative history of article 1004 evinced the legislature’s intent to broaden the categories of people who could instigate a petition for the termination of parental rights. State ex rel. K.C.C., 188 So. 3d 144, 147, 152–53 (La. 2016).
 La. Child. Code art. 1004.
 Id. art. 1004(G).
 Id.; id. art. 702(D).
 La. Child. Code Ann. art. 1004 cmt. (1999).
 Id. art. 1004 cmt. (2001).
 Id. (making the article consistent with the Adoption and Safe Families Act of 1999).
 See State ex rel. Stewart v. Stewart, 723 So. 2d 1051 (La. Ct. App. 1998).
 See id. at 1054.
 Prior to more recent revisions to the Children’s Code, “dispositional review” hearings were the Louisiana equivalent to federal statute “permanency” hearings. La. Child. Code Ann. art. 702 cmt. a (1999). Today, the Children’s Code provisions refer to the hearings as permanency hearings. Id. These hearings serve the purpose of providing judicial review and oversight of the State’s decision-making on behalf of children removed from their parents’ custody. Id.
 Stewart, 723 So. 2d 1051; see also La. Child. Code arts. 707, 1042.
 La. Child. Code arts. 1004, 1029.
 See id. art. 1037.
 See id. arts. 697, 707, 1042. In addition, federal law requires that—in situations where a court disposition sanctioned removing a child from his family—the disposition is subject to both case review and permanency review proceedings. See La. Child. Code Ann. art. 1042 cmt. (1995).
 Stewart, 723 So. 2d at 1053–54.
 But see id.
 But see id.
 See La. Child. Code arts. 1004, 1029.
 In the Interest of D.G.C., 690 So. 2d 237, 242 (La. Ct. App. 1997).
 See discussion supra Part I.
 See La. Child. Code arts. 1004, 1029.
 Cf. id. art. 1029.
 See id. arts. 1004, 1029.
 See id.
 See Reckdahl, supra note 5.