State of Louisiana in the Interest of M.O. and B.O.

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA

COURT OF APPEAL

FIRST CIRCUIT

2019 CJ 0130

STATE OF LOUISIANA IN THE INTEREST OF M.O. AND B. O.

CONSOLIDATED WITH

2019 CJ 0131

V STATE OF LOUISIANA IN THE INTEREST OF D O AND D O

Un Judgment rendered: JUL 3 0 2019

On Appeal from the
Twenty -First Judicial District Court
In and for the Parish of Livingston
State of Louisiana
Nos. J- 009885 and J- 14065, Div. " I"

The Honorable Judge Zorraine Waguespack, Judge -Ad -Hoc, Presiding

Raveen A. Hills Attorney for Plaintiffs/Appellants
Child Advocacy Program D. O. and D. O.
Livingston, Louisiana

Leslie McAndrew Attorney for Mother/Appellee
Assistant Public Defender A.O.
Livingston, Louisiana

Mike Forbes Attorney for Appellee
Assistant District Attorney State of Louisiana
Hammond, Louisiana

Sherry Ann Powell Attorney for Appellee
Livingston, Louisiana Department of Children and Family
Services

Rebecca Lee Attorney for Father/Appellee
Assistant Public Defender M.O.
Livingston, Louisiana

BEFORE: McDONALD, CRAIN, AND HOLDRIDGE, JJ.

HOLDRIDGE, J.

This appeal is taken from a judgment that terminated the parental rights of

the parents, M.O. and A.O., of their two minor children, D. O. and D.O., and

certified the minor children as free and eligible for adoption.' For the reasons that

follow, we affirm.

FACTS AND PROCEDURAL HISTORY

M.O. and A.O. are the parents of D.O., born on February 15, 2010, and

D.O., born on June 18, 2014 ( the minor children). On January 24, 2017, the

Department of Children and Family Services for the State of Louisiana ( DCFS)

2
received a report of alleged neglect concerning the minor children. It was

reported that M.O. and A.O. were residing in a home that was unsafe for their

minor children and that the minor children were frequently found unkempt and

unsupervised. It was further reported that M.O. had previous substance abuse

problems and had been incarcerated for drugs.

As a result of the report, a DCFS investigator conducted an investigation,

and on January 27, 2017, questioned Laura Blackwell, the counselor where the

minor children attended school. Laura stated that the "[ minor] children appear[ ed]

unkempt and as if they [ were] not being cared for." That same day, the DCFS

investigator observed M.O. and A.O.' s home and found that it was inadequate for

the minor children to reside. Roaches were observed throughout the home, as well

as in the freezer, and there were holes in the bathroom wall, under the toilet, in the

walls throughout the home, and in the ceiling in the children' s room. The

bathroom sink was clogged with dirt and grime. Due to the numerous safety

The initials of the minor children, parents, and certain other adults will be used in this opinion
to protect the privacy of the parties involved. See Uniform Rules - Courts of Appeal, Rules 5- 1
and 5- 2.

2 The report of neglect included M.O.' s additional children, M.O. and B. O.; however, their
custodial status is not at issue in this appeal.
2

issues, a safety plan was implemented by DCFS for the family, which required

M.O. and A.O. to repair the bathroom faucet and wall, the floor around the toilet,

including the living room floor, and walls where there was molded sheetrock.

The DCFS investigator returned to M.O. and A.O.' s home for observation

on January 30, 2017. She reported that the bathroom wall and floor were fixed, the

sink was cleaned, new sheetrock was installed in the living room, and the holes

were fixed. The DCFS investigator requested that M.O. and A.O. submit to a drug

screen.
They submitted to drug test screenings, and both tested positive for

marijuana. Therefore, the DCFS investigator requested that M.O. and A.O. submit

to a substance abuse evaluation.

On February 23, 2017, the DCFS investigator observed the home again and

it was found to be in disarray. There had not been any further improvements on

the home since she observed it in January. The DCFS investigator gave M.O. and

A.O. directives on what needed to be repaired in the home and that their case

would be transferred to family services. On March 6, 2017, DCFS opened a

Family Services case to assist the family, wherein the DCFS investigator and

Family Services worker went to the home for observation and found that the home

remained in disorder. Additional holes throughout the home were found, and the

ceiling was caving into the minor children' s bedroom. There was also a broken

window with exposed glass. A.O. appeared to be under the influence, admitting to

the case worker that she had smoked marijuana earlier that day, and smoked

methamphetamines the previous night when the minor children were home. A.O.

further admitted to the Family Services worker that she would test positive for

adderall, methamphetamines, and marijuana if drug screened. Law enforcement

was then contacted due to M.O.' s anger outburst when he arrived at the home.

3

M.O. admitted to the Family Services worker that he had also used

methamphetamines the previous night while the minor children were home.

Consequently, DCFS sought and was issued a verbal instanter order, placing

the minor children in the temporary custody of DCFS. A custody hearing was held

on March 7, 2017. The minor children were drug -tested using hair samples, and

both tested positive for amphetamine, methamphetamine, and marijuana.

Thereafter, the trial court signed a judgment, finding that it was in the best interest

of the minor children to remain in the custody of DCFS.'

On April 19, 2017, DCFS developed a case plan for M.O. and A.O., wherein

the primary goal for the minor children was reunification and a concurrent case

plan with the goal of adoption. The case plan required M.O. and A.O. to comply

with the following: maintain a safe and stable home that met the needs of their

family, maintain regular contact with the minor children while in foster care in

accordance with the visitation plan, obtain and maintain a stable income, pay

100. 00 a month to the caretakers of the minor children, submit to and comply

with the recommendations of a substance abuse assessment, attend anger

management classes, submit to a mental health assessment, and participate in

marriage counseling. On September 5, 2017, the trial court held a case review

hearing. The trial court approved the case plan submitted by DCFS, finding that it

was in the minor children' s best interest to remain in the custody of DCFS. The

trial court further determined that the goal for the family was reunification.

DCFS developed a second case plan for the family.' In its plan, DCFS

reported that in June of 2017, M.O. and A.O. were intoxicated during their

visitation with the minor children at their home. Therefore, visitation with the

3 DCFS placed the minor children in the temporary custody of T.O.

This case plan required M.O. and A.O. to comply with the same obligations as the first case
plan.

4

minor children was moved to the caretakers' home for one hour a week. DCFS

further reported that M.O. and A.O. made minimal progress with their case plans.

M.O. informed DCFS that he was employed; however, he had not provided check

stubs to the case manager since April of 2017. DCFS further noted in its case plan

that M.O. participated in substance abuse classes; however, a drug test conducted

in July of 2017 revealed that he was still using methamphetamines, opiates, and

marijuana.' DCFS noted that A.O. did not have a job, had not paid her parental

contributions to the caretakers for the minor children, tested positive for

methamphetamines and marijuana, and failed to comply with her substance abuse

classes.'
On December 5, 2017, the trial court held a case review hearing, wherein

it ordered that the minor children remain in the custody of DCFS. The trial court

further ordered that the goal for the minor children remain reunification.

On January 23, 2018, DCFS developed a third case plan for the family.'

DCFS reported that M.O. made progress in completing his case plan by

maintaining a safe and stable home, participating in substance abuse classes, and

completing outpatient drug treatment, anger management classes, parenting

classes, and a domestic violence program. However, M.O. tested positive for

marijuana and methamphetamines in January of 2018. DCFS further reported that

A.O. failed to comply with any of her case plan. A.O. was allegedly working at

Waffle House; however, she did not provide DCFS with any check stubs and/or

employment verification. A.O. failed to pay any parental contributions to the

5 M.O. completed a substance abuse treatment in September of 2017 and an anger management
program in October of 2017.

6 DCFS reported that A.O. underwent inpatient treatment at the Serenity Center in April of 2017
for two weeks.

7 This case plan required M.O. and A.O. to comply with the same obligations as the first case
plan.

5

caretakers of the minor children, and failed to attend any parenting classes.' DCFS

also reported that in October of 2017, after completing inpatient treatment, A.O.

tested positive for THC' and tested positive for marijuana on January 8, 2018.

The trial court held a permanency review hearing on February 20, 2018.

The trial court ordered that the minor children remain in the custody of DCFS and

changed the goal from reunification for the minor children to adoption with a

concurrent goal of reunification. Thereafter, on May 31, 2018, DCFS filed a

petition for the termination of M.O. and A.O.' s parental rights of the minor

children for the grounds provided in La. Ch.C. art. 1015( 5) and ( 6). DCFS alleged

in its petition that M.O. and A.O. failed to substantially comply with any of the

three court -approved case plans. Specifically, DCFS alleged that A.O. failed to

make any financial contributions to the caretaker of the minor children, and M.O.

had not made any contributions since May of 2017. DCFS further alleged that

despite participation in substance abuse treatment, M.O. and A.O. failed to

demonstrate a substantive change in their addictive behaviors because they both

tested positive for substances after services. 10 The petition also alleged that M.O.

and A.O. failed to verify completion of mental health assessments, failed to

maintain sobriety, and did not submit payment stubs evidencing that they

maintained employment.

8 DCFS reported that A.O. attended Anger Management classes at Denham Springs Addictive
Disorders; however, the records could not be released until payment was made.

9 We note that although A.O. tested positive for THC using a urine sample, her hair sample
tested negative for all substances.

to On May 8, 2018, M.O. submitted to a urine screening and tested positive for THC; however,
his hair screening tested negative for all substances.

0

On December 12, 2018, the trial court held a termination of parental rights

hearing." After considering the evidence submitted and testimony from multiple

witnesses, including two teachers and the school counselor from the minor

children' s school, the caretaker for the minor children, and the case manager, the

trial court ruled from the bench. The trial court found that DCFS proved by clear

and convincing evidence two of the statutory grounds to terminate the parental

rights of M.O. and A.O., as provided in La. Ch.C. art. 1015( 5) and ( 6).

Specifically, the trial court determined that DCFS proved that M.O. and A.O.

failed to provide significant contributions to the minor children' s caretaker for a

period of six consecutive months and that they failed to substantially comply with

their case plan by failing to maintain sobriety. Therefore, the trial court found that

the termination of the parental rights of M.O. and A.O. was in the best interest of

the minor children. On December 23, 2018, the trial court signed a judgment in

accordance with its oral ruling. Subsequently, the minor children appealed 12 the

December 23, 2018 judgment, assigning as error the following:

1. The trial court erred when it failed to grant the motion to continue
made by counsel for the children and joined by counsel for the
father and mother.

2. The trial court erred when it found that the State of Louisiana had
proven by clear and convincing evidence that there were legal
grounds for terminating the parental rights of M.O. pursuant to La.
Ch. Code art. 10 15( 5) and La. Ch. Code art. 1015( 6).

3. The trial court erred when it found that the State of Louisiana had
proven by clear and convincing evidence that it was in the best
interest of the minor children ... that M.O.' s parental rights be
terminated.

11 We note that on June 26, 2018, the trial court held a case review hearing, approving the goal as
adoption for the minor children, and the matter was set for review on December 12, 2018.

12 We note that M.O. filed an appellate brief in support of the minor children' s appeal.

VA

APPLICABLE LAW

The permanent termination of the parent-child legal relationship is one of the

most drastic actions the State can take against its citizens. State ex rel. A.T.,

2006- 0501 ( La. 7/ 6/ 06), 936 So. 2d 79, 82. Parents have a natural, fundamental

liberty interest to the continuing companionship, care, custody and management of

their children, warranting great deference and vigilant protection under the law.

Due process requires that a fundamentally fair procedure be followed when the

State seeks to terminate the parent- child legal relationship. State ex rel L.B. v.

G.B.B., 2002- 1715 ( La. 12/ 4/ 02), 831 So. 2d 918, 921. However, a child has a

profound interest, often at odds with those of parents, in terminating parental rights

that prevent adoption and inhibit establishing secure, stable, long-term and

continuous relationships found in a home with proper parental care. In balancing

these interests, the interests of the child are paramount over that of the parent. Id.

Title X of the Louisiana Children' s Code governs the involuntary

termination of parental rights and the certification of children for adoption. The

grounds for which a court may involuntarily terminate the rights and privileges of a

parent, as applicable to this matter, are found in paragraph ( 5) and ( 6) of article

1015 as follows:

5) 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.

6) 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.

The method of proving the grounds set forth in La. Ch. C. art. 1015 is set forth in

La. Ch.C. art. 1036( C) and ( D), which provide, in pertinent part:

C. Under La. Ch. C. art. 1015( 6), lack of parental compliance with a
case plan may be evidenced by one or more of the following:

5) The parent' s repeated failure to comply with the required program
of treatment and rehabilitation services provided in the case plan.

6) The parent' s lack of substantial improvement in redressing the
problems preventing reunification.
4

7) The persistence of conditions that led to removal or similar
potentially harmful conditions.

D. Under Article 1015( 6),
lack of any reasonable expectation of
significant improvement in the parent' s conduct in the near future may
be evidenced by one or more of the following:

1) Any physical or mental illness, mental deficiency, substance
abuse,
or chemical dependency that renders the parent unable or
incapable of exercising parental responsibilities without exposing the
child to a substantial risk of serious harm, based upon expert opinion
or based upon an established pattern of behavior.

3) Any other condition or conduct that reasonably indicates that the
parent is unable or unwilling to provide an adequate permanent home
for the child, based upon expert opinion or based upon an established
pattern of behavior.

A two-pronged inquiry must be made in parental termination proceedings.

First, the State must establish by clear and convincing evidence every element of at

least one ground for termination under La. Ch.C. art. 1015. La. Ch.C. art.

1035( A); State ex rel. L.B., 831 So. 2d at 922. Second, but only after a ground for

termination is established, the trial court must determine whether the termination is

in the child' s best interest. State ex rel. L.B., 831 So. 2d at 922; see also La. Ch. C.

art. 1037( B).

6

An appellate court reviews a trial court' s findings as to whether parental

rights should be terminated according to the manifest error standard. State ex rel.

K.G., 2002- 2886 ( La. 3/ 18/ 03), 841 So. 2d 759, 762; State ex rel. B.J., 2000- 1434

La. App. 1 Cir. 7/ 27/ 00), 767 So. 2d 869, 872. Therefore, before the trial court' s

findings may be reversed, an appellate court must find from the record that a

reasonable factual basis does not exist for the court' s findings and the record

establishes they are clearly wrong ( manifestly erroneous). State ex rel. A.T., 936

So. 2d at 82- 83.

DISCUSSION

In their second assignment of error, the minor children argue that the trial

court erred in determining that DCFS proved by clear and convincing evidence that

there were legal grounds for terminating the parental rights of M.O. pursuant to La.

Ch.C. art. 1015( 5) and La. Ch. C. art. 1015( 6). Specifically, the minor children

argue that DCFS failed to prove that M.O. had not substantially complied with his

case plan and that he had no reasonable expectation of significant improvement in

the near future.

At the parental termination hearing, Suzanna Poche from DCFS testified that

she was the foster care case manager assigned to this case. According to her

testimony, she was assigned to this case on March 6, 2017, when DCFS obtained

custody of the minor children. Suzanna testified that DCFS obtained custody of

the minor children due to the parents' substance abuse problem and the parents'

inability to provide adequate shelter for the minor children, as their home appeared

to be in deplorable condition.

Suzanna provided testimony regarding the visitation schedule for M.O. with

the minor children. She testified that initially M.O. was allowed to have overnight

visitation until the minor children were not returned and law enforcement had to

10

get involved. After the trial court changed the goal for the minor children to

adoption in February of 2018, the trial court ordered that visitation be held at the

DCFS office. Suzanna testified that a visitation was scheduled for July 20, 2018;

however, M.O. did not attend. Suzanna further testified that M.O. had not returned

to the DCFS office for visitation until after the minor children were removed from

a relative' s home in November of 2018. Suzanna stated that she tried to contact

M.O. by phone, but was unable to reach him.

Additionally, Suzanna provided testimony regarding M.O.' s failure to

provide significant contributions to the caretaker of the minor children as required

by his case plan. The case plan directed M.O. to make a parental contribution of

100. 00 per month to the caretaker. Suzanna testified that the minor children

entered DCFS custody in March of 2017, and M.O. made payments to the

caretaker until May of 2017. However, M.O. failed to make any payments after

May until March of 2018, when he paid $ 1, 100. 00 in arrearages. Suzanna further

testified that M.O. did not make any additional payments to the caretaker since

March of 2018. No party submitted any evidence to contradict the assertions of

DCFS regarding this ground for termination of M.O.' s parental rights. See State

In Interest of J.J.S., 2014- 1574 ( La. App. 1 Cir. 7/ 7/ 15), 180 So. 3d 319, 324.

After reviewing the record, we find no manifest error in the trial court' s

determination that M.O. failed to substantially comply with his case plan. The trial

testimony of the case manager, as well as the numerous DCFS reports filed with

the trial court over the course of these proceedings, demonstrate a lack of

substantial compliance by M.O. Suzanna' s testimony established that for almost

two years, M.O. failed to successfully complete his case plan implemented by

DCFS. One of the primary conditions that led to the minor children' s removal in

this case was parental substance abuse. The record reveals that M.O. tested

11

positive for drugs at the time the minor children were removed in March of 2017.

Even more troubling is the fact that both of the minor children tested positive for

drugs. After the minor children were removed from M.O.' s custody, he had

multiple positive drug tests, despite his case plan requiring sobriety. M.O. tested

positive for methamphetamines, opiates, and marijuana in July of 2017;

methamphetamine and marijuana in January of 2018; and THC in May of 2018.

See State in Interest of A.L.D., 2018- 1271 ( La. 1/ 30/ 19), 263 So. 3d 860, 867- 68.

Accordingly, we agree with the trial court that DCFS has proven by clear

and convincing evidence that M.O. failed to make a substantial effort with his case

plans pursuant to La. Ch.C. art. 1015( 5) and ( 6). Although M.O. made some

efforts toward his case plan, such as completing outpatient drug treatment, anger

management classes, parenting classes, and a domestic violence program, the

record reveals that there was no reasonable expectation of improvement in the near

future given his multiple positive drug tests. Consequently, the conditions that led

to removal of the minor children have not been remedied. See State in Interest of

A.L.D., 263 So. 3d at 867; see also State In Interest of C. F., 2017- 1054 ( La.

12/ 6/ 17), 235 So. 3d 1066, 1073. The record further reveals that M.O. failed to

provide significant contributions for a period of six consecutive months for the

minor children, as mandated by La. Ch.C. art. 1015( 5)( b). Thus, a term that

exceeds six consecutive months was established by DCFS. Therefore, we find no

error in the trial court' s finding that M.O. failed to substantially comply with this

term of his case plan.

In their third assignment of error, the minor children argue that the trial court

erred in finding that DCFS proved by clear and convincing evidence that it was in

their best interest to terminate M.O.' s parental rights. A trial court may terminate

parental rights only if it finds that termination is in the best interest of the child.

12

See La. Ch.C. art. 1037( B); State in Interest of K.D. L., 2018- 188 ( La. App. 3 Cir.

10/ 31/ 18), 2018 WL 5779373 * 9. This analysis requires a balancing of the child' s

interests and the parent' s interests; however, it has been repeatedly held that the

interests of the child are paramount to that of the parent. State in the Interest of

G.E. K., 2014- 681 ( La. App. 3 Cir. 1/ 14/ 15), 155 So. 3d 713, 716.

Suzanna, several teachers, and the school counselor testified at the parental

termination hearing regarding their interactions and observations of the minor

children since they were placed in foster care by DCFS. Both of the minor

children' s teachers testified that they had concerns for the minor children at the

beginning of the school year. However, since the minor children were placed with

their new foster parent, D.V., the teachers had noticed significant positive changes

in their grades, their appearance, and their behavior. The school counselor

corroborated the teachers' testimony, stating that she has " seen a very big change

in them" since their placement with D.V.

In further support of DCFS' s position, Suzanna testified that she was

assigned to this case on March 6, 2017, when the minor children were placed in the

custody of DCFS. Suzanna testified that the minor children were placed with their

13
paternal cousin, T.G., in May of 2017. Suzanna further testified that DCFS

received reports that the minor children went " to school dirty and [ were] not doing

well grade wise" after being placed with T.G. Therefore, Suzanna testified that

DCFS recommended that it was in the best interest of the minor children to remain

in their placement with D.V. because they needed permanency and stability.

Based on the record before this court, we find no error in the trial court' s

finding that it was in the minor children' s best interest that M.O.' s parental rights

be terminated and that they be certified as eligible for adoption. The record reveals

13 The minor children were removed from T.G.' s custody and placed with D.V. in November of
2018.
13

that the minor children are thriving in their foster placement. Given that the minor

children are in a stable home together and doing well in their current placement, it

is in their best interest to terminate M.O.' s parental rights so that the minor

children can be eligible for adoption. See State of in Interest of B.R.C., 2016-

0273 ( La. App. 3 Cir. 12/ 21/ 16), 209 So. 3d 836, 842. Accordingly, we find no

manifest error in the trial court' s factual finding that terminating the parental rights

of M.O. is in the best interest of the minor children. 14

CONCLUSION

For the above reasons, the December 23, 2018 judgment of the trial court,

terminating the parental rights of M.O. and A.0.,15 and certifying the minor
children, D.O. and D.O., as free and eligible for adoption, is affirmed.

AFFIRMED.

14 The minor children' s first assignment of error alleges that the trial court erred in denying their
oral motion to continue, because the ad hoc judge presiding over the trial was unfamiliar with the
case. A denial of a motion for continuance will not be disturbed on appeal absent a showing of
an abuse of discretion by the trial court. Davis v. European Motors, 51, 522 ( La. App. 2 Cir.
8/ 9/ 17), 243 So. 3d 1100, 1107. Based on the record before us, we find no abuse of the trial
court' s discretion in denying the motion.

15 We note that A.O. did not appeal the instant matter. Therefore, the portion of the judgment
terminating her parental rights is final. See State in Interest of MTS, 49, 630 ( La. App. 2 Cir.
1/ 14/ 15), 161 So. 3d 1025, 1028 n. 3; State in Interest of BJ, 95- 1915 ( La. App. 1 Cir. 4/ 4/ 96),
672 So. 2d 342, 346 n.3, writ denied, 96- 1036 ( La. 5/ 31/ 96); 674 So. 2d 264/
14