State of Louisiana in the Interest of C.M., C.M., H.M., P.M., and J.M. .

STATE OF LOUISIANA IN * NO. 2021-CA-0353
THE INTEREST OF C.M., C.M.,
H.M., P.M., AND J.M. *
COURT OF APPEAL
*
FOURTH CIRCUIT
*
STATE OF LOUISIANA
*******

APPEAL FROM
ST. BERNARD 34TH JUDICIAL DISTRICT COURT
NO. 24-119-J, DIVISION “DIVISION D”
Honorable Darren M Roy,
******
Judge Joy Cossich Lobrano
******
(Court composed of Judge Joy Cossich Lobrano, Judge Sandra Cabrina Jenkins,
Judge Paula A. Brown)

JENKINS, J., CONCURS IN THE RESULT

Jane Hogan
310 North Cherry Street
Hammond, LA 70401

COUNSEL FOR APPELLANTS/P.S. AND C.M.

Katherine M. Dowling
State of Louisiana, Dept. of Children and Family Services
1450 Poydras St., Suite 1600
New Orleans, LA 70112

COUNSEL FOR APPELLEE/STATE OF LOUISIANA

AFFIRMED
August 4, 2021

JCL This matter involves the involuntary termination of parental rights. The State
PAB
of Louisiana through the Department of Children and Family Services (“DCFS”)

filed a petition for the termination of parental rights of the mother, P.S. (“Mother”),

and father, C.M. (“Father”) (together, “Parents”) as to their minor child, J.M.1

After a hearing, the juvenile court determined that DCFS proved by clear and

convincing evidence the statutory grounds for termination and that termination of

Parents’ parental rights was in the best interests of J.M. Parents now appeal the

juvenile court’s judgment terminating their parental rights. For the reasons that

follow, we find no manifest error in the juvenile court’s judgment, and we affirm.

On July 27, 2019, DCFS received a report alleging neglect, inadequate

shelter, and inadequate food. Following the initial report, DCFS received

additional information on August 1, 2019 concerning allegations of physical abuse

and sexual abuse. The report alleged that Father physically assaulted the children.

It was also reported that the youngest child, J.M., who was six years old, disclosed

that he was sexually abused by his nine-year-old brother, P.M., every night at

bedtime.

1
We use the initials of the minor child and the parent to protect the minor’s identity and ensure
the parties’ privacy. See Uniform Rules - Courts of Appeal, Rule 5-2.

During the investigation, the Child Protection Services (“CPS”) worker

observed the children sleeping in the home with no air conditioning. The living

conditions of the home were deplorable and unsafe for the children. There were

dog feces and food everywhere throughout the home, and the home smelled of

urine. There was no food in the home for the children to eat. Parents stated the air

conditioning had been inoperable for over a month and they had been living in the

camper on the side of the home while the children were sleeping in the house with

no air conditioning. During medical clearance, the doctor observed a bruise on

P.M.’s buttocks. The CPS worker addressed the sexual abuse allegation with P.M.

P.M. confirmed the sexual abuse perpetrated on J.M. and stated Parents were

aware of the abuse but did nothing about it. Based on the information gathered in

the course of the investigation, DCFS filed a request with the juvenile court for an

instanter order, which was granted on August 2, 2019, placing J.M. in the

temporary custody of DCFS.2

On August 20, 2019, DCFS filed a petition to have J.M. declared a child in

need of care.3 On October 23, 2019, the juvenile court held an adjudication hearing

on the petition. Based on the stipulation of all parties, the juvenile court rendered

judgment adjudicating J.M. a child in need of care and ordering that J.M. remain in

the custody of DCFS pending further orders of the court under the specified terms

and conditions set forth in an approved case plan. In addition, the juvenile court

approved a case plan for Parents to regain custody of J.M. and advised Parents of

2
Parents’ four older minor children, C.M., C.M., H.M., and P.M., were also placed in the
temporary custody of DCFS.
3
The petition further sought to have the other minor children to be declared children in need of
care.

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the case plan, case review, and permanency review procedures and compliance

requirements.4

On October 31, 2019, visitation between Parents and J.M. was suspended

due to J.M.’s psychological state. DCFS and Tulane Parenting Education

Program determined that it was in the best interests of the child to suspend

visitation until J.M. demonstrated progress in his trauma treatment.

On August 26, 2020, the juvenile court held a case review hearing. After

consideration of the case letter and attached case plan submitted by the State, the

juvenile court rendered judgment approving the permanent case plan of adoption

recommended by DCFS as being in the child’s best interests.

On November 6, 2020, DCFS filed a petition to terminate Parents’ parental

rights to J.M. and to declare J.M. eligible for adoption specifying two grounds for

termination: (1) abandonment pursuant to La. Ch.C. art. 1015(5) and (2) failure to

comply with the case plan pursuant to La. Ch.C. art. 1015(6). With regard to

abandonment, DCFS alleged Parents abandoned J.M. by leaving the child under

circumstances demonstrating an intention to permanently avoid parental

responsibility by failing to provide significant contributions to the child’s care and

support for a period of six consecutive months. With regard to the ground of failing

to comply with the case plan, DCFS alleged the following particulars to support

termination of Parents’ parental rights:

1) Parents have failed to contribute to the court ordered costs of the child’s
foster care;5

4
Further based on the stipulation of the parties, but over the objection of DCFS, the other four
children were not adjudicated in need of care, and the court ordered that these children be
returned to Parents and remain under the supervision of DCFS.
5
The juvenile court found that Parents failed to comply with the case plan on grounds other than
the alleged failure to contribute to the costs of P.M.’s foster care. We therefore express no
opinion as to whether the record supports this allegation of non-support.

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2) Parents have not maintained a safe, clean home;

3) Parents have repeatedly failed to comply with the required program of
treatment and rehabilitation services;

4) Parents’ visitation with the child has been suspended, but they failed to
actively participate in services in order to have visitation reinstated;

5) Parents submitted to a psychological evaluation, but failed to follow the
recommendations;

6) Parents failed to attend and complete parenting and anger management
treatment with Tulane Parenting Education Program (“T-PEP”);

7) Parents failed to seek mental health and OCDD services;

8) Parents lack substantial improvement in redressing the problems
preventing reunification;

9) The conditions that led to the removal or similar potentially harmful
conditions persist.

DCFS further alleged that, despite attempts at intervention, there was no

reasonable expectation of significant improvement in Parents’ conduct in the near

future, considering J.M.’s age and need for a stable and permanent home.

On April 21, 2021, the juvenile court held a hearing on the termination of

parental rights. After considering the evidence and testimony presented, the court

rendered judgment terminating the parental rights of Parents to J.M. and declaring

J.M. free and eligible for adoption. A written judgment was signed on May 27,

2021.

Parents now appeal the juvenile court’s May 27, 2021 judgment terminating

Parents’ parental rights.

LAW AND DISCUSSION

It is well-settled that a trial court’s findings on factually-
intense termination of parental rights issues -- including a
parent’s compliance with the case plan, a parent’s
expected success at rehabilitation, the expected
significant improvement in the parent’s condition or

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conduct, and whether termination is in the children’s best
interests -- are reviewed on appeal under a manifest error
standard of review.

State in Interest of T.M.P., 13-1006, p. 21 (La. App. 4 Cir. 10/23/13), 126 So.3d

741, 753-54 (citations omitted).

In a termination proceeding, “[t]he petitioner bears the burden of

establishing each element of a ground for termination of parental rights by clear

and convincing evidence.” La. Ch.C. art. 1035(A). In addition, the trial judge must

also find that termination of the parent’s rights is in the best interest of the child.

State in Interest of C.E.K., 17-0409, p. 14 (La. App. 4 Cir. 12/21/17), 234 So.3d

1059, 1068 (citations omitted).

The Louisiana Supreme Court has expressed its “unique concerns” regarding

termination of parental rights as follows:

In any case to involuntarily terminate parental rights, there are two
private interests involved: those of the parents and those of the child.
The 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, and due process requires that a fundamentally fair procedure
be followed when the state seeks to terminate the parent-child legal
relationship. However, the child has a profound interest, often at odds
with those of his 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 those interest, the courts of this state have consistently
found the interest of the child to be paramount over that of the parent.

State ex rel. H.A.S., 10-1529, pp. 11-12 (La. 11/30/10), 52 So.3d 852, 859

(emphasis added). The guiding principle that the child’s interest is paramount is

reflected in the Louisiana’s Children’s Code. For instance, Children’s Code article

1004.1 provides:

The department shall file and pursue to judgment in the trial court a
petition to terminate the parental rights of the parent or parents if the
child has been in state custody for seventeen of the last twenty-two

6

months, unless the department has documented in the case plan a
compelling reason why filing is not in the best interest of the child.

La. Ch.C. art. 1004.1 (emphasis added). At the time of the termination hearing,

J.M. had been in foster care for twenty months.

DCFS alleged grounds for the termination of Parents’ parental rights

under La. Ch.C. art. 1015(5) and (6), which provide in pertinent part 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.

In the first assignment of error, Parents argue that the juvenile court erred in

determining that DCFS satisfied its burden of proving by clear and convincing

evidence the elements of the grounds for termination under La. Ch.C. art. 1015(6),

as alleged in the petition. Specifically, Parents assert that DCFS failed to prove that

Parents had not substantially complied with their case plan and that there was no

reasonable expectation of significant improvement in the Parents’ conduct in the

near future. Based on our review of the record, we find no manifest error in the

juvenile court’s determination that DCFS established the statutory grounds for

termination under La. Ch.C. art. 1015(6) by clear and convincing evidence.

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Lack of parental compliance with a case plan may be evidenced by one or

more of the following, under La. Ch.C. art. 1036(C), pertaining to proof of parental

misconduct:

(1) The parent’s failure to attend court-approved
scheduled visitations with the child.

(2) The parent’s failure to communicate with the child.

(3) The parent’s failure to keep the department apprised
of the parent’s whereabouts and significant changes
affecting the parent’s ability to comply with the case plan
for services.

(4) The parent’s failure to contribute to the costs of the
child’s foster care, if ordered to do so by the court when
approving the case plan.

(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.

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

(8)(a) The parent’s failure to provide a negative test
result for all synthetic or other controlled dangerous
substances, except for any drug for which the parent has
lawfully received a prescription, at the completion of a
reasonable case plan.

(b) For purposes of this Article, “controlled dangerous
substance” shall have the meaning ascribed in R.S.
40:961.

The State is only required to establish one of these statutory grounds. State in

Interest of M.L., 95-0045, p. 4 (La. 9/5/95), 660 So.2d 830, 832.

Our review of the record reflects that following a hearing on October 23,

2019, the juvenile court adjudicated J.M. a child in need of care and approved a

case plan developed by DCFS for Parents to regain custody of J.M. The case plan

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required, inter alia, Parents to attend parenting education classes with T-PEP,

complete a psychological evaluation with Dr. Christine Powanda and follow all

treatment recommendations, maintain safe and adequate housing free of safety

hazards, demonstrate that the home was clean at all times, and make themselves

available for announced and unannounced home visits.6 Parents were warned by

the juvenile court that failure to complete the case plan could result in termination

of their parental rights.

At the termination hearing on April 21, 2021, Katina Price, the case manager

supervisor, and Dr. Charles Zeanah, director of T-PEP, provided testimony

supporting the grounds alleged for termination. Regarding the terms of the case

plan, Ms. Price testified that Parents failed to complete the T-PEP parenting

education program. Ms. Price stated that Parents did not maintain safe and stable

housing at all times. The case worker reported difficulties in gaining access to the

interior of the home during unannounced visits. On those occasions where the case

worker gained entry into the home, he observed trash, clothing, food, and dirty

dishes on the floor and dirty dishes in the bathroom sink and detected the strong

stench of dog urine throughout the house. Ms. Price stated that Parents did

complete psychological evaluations by Dr. Powanda but failed to follow Dr.

Powanda’s recommendations that they obtain mental health treatment through the

Metropolitan Human Service District and apply for Office of Citizens with

Developmental Disabilities (“OCDD”) services.

6
The case plan is not in the record. The terms and conditions of the case plan were established
through the testimony of Katina Price, the DCFS case manager supervisor, at the termination
hearing and are reflected in the DCFS report to the court dated October 15, 2019 and the T-PEP
progress report for the period of August 20, 2019 - October 15, 2019.

9

Dr. Zeanah, a psychiatrist and an expert in child psychology and infant

mental health, testified that Parents failed to complete the parenting education

program offered through T-PEP. Parents attended less than half of the sessions

they had scheduled. Parents attended every session of the introductory, six-week

parenting group sessions and actively participated in these sessions. However, their

attendance in the program thereafter tapered significantly. When they did attend

sessions, Parents stated that they had no problems with parenting and did not need

parenting services and failed to actively participate.

Dr. Zeanah stated that Parents failed to take J.M.’s allegations of abuse

seriously. Parents denied abuse had occurred and did not question why J.M. would

make allegations of abuse if the alleged abuse, in fact, did not occur. Dr. Zeanah

would not expect a six-year-old child who had not been sexually abused to have

any knowledge of the nature of sexual abuse alleged by J.M. In Dr. Zeanah’s

opinion, parents who do not believe their child’s claims of abuse are not likely to

protect the child from being abused in the future. Dr. Zeanah does not believe

Parents have the parenting skills to protect J.M. and provide him a safe

environment.

Reformation sufficient to prevent termination of parental rights requires that

the parent demonstrate substantial change, such as significantly altering or

modifying the behavior that resulted in the State’s removal of the child from the

parent’s home. State in Interest of H.D., 98-0953, pp. 6-7 (La. App. 4 Cir.

11/4/98), 721 So.2d 1045, 1048 (citation omitted). A reasonable expectation of

reformation or significant improvement in the near future exists if the parent has

cooperated with State officials and has shown improvement, although all of the

problems have not been eliminated. State in Interest of S.M., 98-0922, p. 10 (La.

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10/20/98), 719 So.2d 445, 450 (citation omitted). In Dr. Zeanah’s opinion, Parents

have not made significant progress in being able to safely parent J.M., and it is

highly unlikely they will rehabilitate in the near future, if ever.

Despite the fact that Parents assert that they want a continued relationship

with J.M., they have not demonstrated that they have the ability to safely care for

him. After thorough review and consideration of the record before us, as well as

the applicable jurisprudence, we agree with the juvenile judge that Parents did not

substantially comply with their case plan and there is no reasonable expectation of

significant improvement in the near future. Accordingly, the juvenile judge did not

err in finding that the State proved the ground for termination of parental rights set

forth in La. Ch.C. art. 1015(6) by clear and convincing evidence.

Parents argue DCFS failed to make reasonable efforts to assist them to

reunite with J.M., as required by State ex rel. A.T., 06-0501 (La. 7/6/06), 936 So.

2d 79.7 “Reasonable efforts” are defined as “the exercise of ordinary diligence and

care by department caseworkers and supervisors and shall assume the availability

of a reasonable program of services to children and their families.” La. Ch.C. art.

603(25).

The record supports a finding that DCFS undertook reasonable efforts to

assist Parents with reunification. For instance, DCFS referred Parents to services

aimed to assist them in learning how to maintain a clean home. After utilizing

these services, the cleanliness of their home improved, and their four older children

were returned to them. DCFS also referred Parents to parenting education classes,
7
In A.T., the Office of Community Services (now DCFS) made no effort to assist the mother in
obtaining housing even though lack of suitable housing was the major obstacle to reunification.
The Supreme Court held that the Office of Community Services had an obligation to make
reasonable efforts to assist a parent in finding suitable housing before it could seek to terminate
parental rights under La. Ch.C. art. 1015(5) (now art. 1015(6)). A.T., 06-0501, p. 1, 936 So.2d at
80.

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as well as provided them a referral to address their mental health concerns.

However, Parents failed to take full advantage of these services.

Parents assert that DCFS’s suspension of their visitation with J.M. “created

an insurmountable impediment to reunification and proves that DCFS did not make

reasonable efforts to help [Parents] achieve reunification.” Parents offer no

explanation as to how their inability to visit J.M. served as an impediment to

reunification.

Visitation was suspended on October 31, 2019 based on Dr. Zeanah’s

recommendation that it was in the best interest and well-being of the child to

suspend visitation until J.M. demonstrated progress in his trauma treatment. The

suspension of visitation and the reason for suspending visitation was brought to the

juvenile court’s attention at the next review hearing conducted on December 11,

2019. At the February 5, 2020 review hearing, Parents requested visitation, but

their request was denied. The juvenile court repeatedly found DCFS made

reasonable efforts towards the case plan goal of reunification throughout the

underlying child in need of care proceedings until the case plan goal was changed

to adoption on August 26, 2020.

In the third assignment of error,8 Parents argue that the juvenile court erred

in failing to determine that termination of Parents’ parental rights was in J.M.’s

best interest. Contrary to this assignment of error, the Judgment of Termination of

Parental Rights signed by the juvenile judge reflects that the court found that

“termination of parental rights is in the best interest of [J.M.].”

8
The second assignment of error is addressed below.

12

La. C.C. art. 134(A) provides factors to be considered by the trial court when

determining a child’s best interest. These non-exclusive factors include the

following:

(1) The potential for the child to be abused, as defined by Children’s
Code Article 603, which shall be the primary consideration.

(2) The love, affection, and other emotional ties between each party and
the child.
***
(5) The length of time the child has lived in a stable, adequate
environment, and the desirability of maintaining continuity of that
environment.
***
(11) The reasonable preference of the child, if the court deems the child to
be of sufficient age to express a preference.

Dr. Zeanah testified that Parents lack the parenting skills to protect J.M.

from abuse and provide a safe environment and that J.M. should remain with his

foster parents. He further testified that J.M.’s behavioral problems have

significantly improved during the time he has been in foster care, and he attributes

J.M.’s improvement to the foster parents. The Court Appointed Special Advocate

(“CASA”) volunteer testified that J.M. has been “thriving” during his placement

with his foster parents. She has observed a bond between J.M. and his foster

parents and believes that the foster parents have the capacity to provide a safe and

stable permanent home for him. Furthermore, the evidence is undisputed that J.M.

does not wish to return to the custody of Parents but would rather remain in the

custody of his foster parents. We cannot say that the juvenile court’s determination

of the best interests of the child is manifestly erroneous.

In the second assignment of error, Parents argue that the juvenile court erred

in determining that DCFS satisfied its burden of proving by clear and convincing

evidence the elements of the grounds for termination under La. Ch.C. art. 1015(5),

13

namely, that Parents abandoned J.M. by leaving the child under circumstances

demonstrating an intention to permanently avoid parental responsibility by failing

to provide significant contributions to the child’s care and support for a period of

six consecutive months. Having found that DCFS satisfied its burden of proving by

clear and convincing evidence the elements of the grounds for termination

under La. Ch.C. art. 1015(6), we need not address the alternate basis for

termination of parental rights by abandonment under La. Ch.C. art. 1015(5).

For the foregoing reasons, we find no manifest error in the juvenile court’s

May 27, 2021 judgment terminating the parental rights of Parents and declaring

J.M. eligible for adoption; and we affirm.

AFFIRMED.

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