Nathan Bass Nov. 2, 2012, 3:46pm

BATON ROUTE, La. (Legal Newsline) - The Louisiana Supreme Court has found that an alleged biological father had the right to bring a wrongful death and survival action for his illegitimate child, after finding the father had sufficiently avowed the child under Louisiana's "fact-pleading system."

Justice Jeannette Theriot Knoll wrote the opinion, reversing the Court of Appeal and remanding the case back to District Court for further proceedings.

In February of 2009, after ordering her son out of her vehicle, Sandra Joseph intentionally and repeatedly ran over her child, known in court documents as "S.U.," killing him.

Leading up to this tragic incident there were a number of disturbing events that the child's alleged father, Fidel Udomeh, would later assert made the State of Louisiana complicit with Joseph in his son's death.

In 2006, Joseph took S.U. to a tall building in Baton Rouge with the intent to commit suicide by jumping off the building with her son. S.U. persuaded his mother not to follow through and subsequently, she voluntarily checked herself into a psychiatric hospital but was released a few days later.

After this incident, Udomeh made a formal complaint to the Louisiana Department of Social Services, seeking an investigation and protection for S.U. LDSS issued a form letter in response to the complaint stating that it was "unable to investigate the situation because it does not meet the legal and policy definition of child abuse or neglect."

In January 2009, local police were called when Joseph experienced "another psychotic episode" in a restaurant while S.U. was in her custody. She was escorted to University Medical Center-Lafayette but was released shortly thereafter with S.U. in her custody.

Joseph was an employee of LDSS during these incidents and her strange behavior at work prompted several complaints and incident reports, as well. One coworker stated that Joseph's behavior needed to be addressed "as soon as possible, especially since she is the sole care-giver for a minor child."

After S.U.'s death, Udomeh filed a wrongful death and survival action against defendants, Sandra Joseph and the State of Louisiana. The State of Louisiana was named through the Louisiana Department of Social Services, Louisiana State University Health System, and University Medical Center-Lafayette.

More than a year after S.U.'s death, the state defendants filed a peremptory exception of "no right of action" because Udomeh had not brought an avowal action, establishing his paternity, within the time allowed under La. Civ. Code art. 198. The statue provides under relevant part - "In all cases, the action shall be instituted no later than one year from the day of the death of the child."

Under Louisiana law, when the decedent leaves no spouse or children, the proper beneficiaries to bring a wrongful death and survival action are the father and mother. However, paternity must be established.

Udomeh had submitted S.U.'s birth and death certificates, which listed Udomeh as his father as well as child support pleadings requiring Udomeh to pay child support for S.U., but the appellate court had granted defendants' motion to strike these documents.

In the pleadings, however, Udomeh had contended that he had maintained an active presence in S.U.'s life and that he held himself out to the community as his father. He also asserted that he "voluntarily paid child support until Joseph sought state-mandated child support in 2001."

The Supreme Court overruled the appellate court, finding, "Although Udomeh's petition does not specifically request a judgment of paternity, under Louisiana's fact-pleading system, we find Udomeh has pled the material facts necessary to state an avowal action, while giving fair notice to defendants that his paternity is at issue in this action... No technical forms of pleading are required... By alleging his biological paternity of the child in his wrongful death and survival petition, plaintiff provided the state defendants fair notice of the issue of paternity in this case."

The Court reversed the lower courts and remanded the case back to the trial court for further proceedings. "We note, however, our ruling is limited to the particular facts of the present case," the Court concluded.

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State of Louisiana
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Baton Rouge, LA 70802

Louisiana State University
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Baton Rouge, Louisiana 70803

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