State of Louisiana in the Interest of K.A.S. and D.R.S.

Judgment rendered September 21, 2022.
Application for rehearing may be filed
within the delay allowed by Art. 2166,
La. C.C.P.

No. 54,446-JAC

COURT OF APPEAL
SECOND CIRCUIT
STATE OF LOUISIANA

*****

STATE OF LOUISIANA
IN THE INTEREST OF
K.A.S. and D.R.S.

*****

Appealed from the
Eighth Judicial District Court for the
Parish of Winn, Louisiana
Trial Court No. J-3791

Honorable Anastasia S. Wiley, Judge

*****

WILSON & WILSON Counsel for Appellants-
By: Donald R. Wilson Intervenors, Larry Alan
Carpenter and Faith
Draper Carpenter

R. CHRISTOPHER NEVILS Counsel for Appellee,
District Attorney State of Louisiana

MATTHEW S. KELLEY
Assistant District Attorney

LEGAL SERVICES OF NORTHWEST Counsel for Appellees,
LOUISIANA K.A.S. and D.R.S.
By: Jacqueline C. Williams

STATE OF LOUISIANA, DCFS Counsel for Appellee,
By: Ruby Norris Freeman State of Louisiana, DCFS

OFFICE OF THE PUBLIC DEFENDER Counsel for B.N.S.,
By: James E. Calhoun Mother

HERMAN A. CASTETE Counsel for T.L., Father

*****

Before PITMAN, COX, THOMPSON,
HUNTER, and MARCOTTE, JJ.

HUNTER, J., dissents with written reasons.

PITMAN, J.

Foster parents and intervenors Larry and Faith Carpenter appeal

the judgment of the trial court which held, following a permanency

hearing, that a recommendation of adoption by the Louisiana Department

of Children and Family Services (“DCFS”) would be modified to

adoption/reunification with the biological mother. For the following

reasons, we reverse, modify the trial court’s judgment and remand for all

necessary proceedings consistent with this opinion.

FACTS

B.N.S. is the mother of the minor children, K.A.S. and D.R.S., who

are twins, born on June 1, 2016. Shortly after birth, the children were

placed in the care of the DCFS. They were eventually returned to their

mother in August 2018; but by September 2018, they were again placed

in the custody of the DCFS. That month, the children were placed in the

foster home of the Carpenters, with whom they have remained to this

date. When they were placed in the home, they were two years and three

months old. They are now over six years old.

The children were adjudicated in need of care in October 2018, and

the DCFS prepared a case plan for services for B.N.S., which was approved

by the court. B.N.S. failed to comply with the case plan and abandoned the

children by failing to pay the required parental contribution. In February

2019, the DCFS filed a petition for termination of parental rights. At the

termination hearing in November 2019, the children’s father stipulated to the

termination of his parental rights. The trial court heard testimony regarding

B.N.S.’s efforts under the case plan and her failure to make the parental

contributions to the children’s support. It also heard testimony of her failure

to attend appointments for substance abuse evaluations and positive drug

tests. The trial court concluded there was no reasonable expectation of

significant improvement in her conduct in the near future, terminated her

parental rights and certified the children for adoption.

B.N.S. appealed, complaining that the trial court had not considered

the steps she pursued to rehabilitate herself during the time subsequent to the

petition for termination of her parental rights and the time of the hearing at

which her rights were terminated.

On appeal, this court determined that the trial court was clearly wrong

in finding that the state proved by clear and convincing evidence that B.N.S.

had failed to substantially comply with the requirements of the case plan that

were necessary for the return of her children. See State in Int. of K.A.S.,

53,613 (La. App. 2 Cir. 9/23/20), 303 So. 3d 688. This court also found that

the trial court erred in finding clear and convincing evidence that there was

no reasonable expectation of significant improvement in her condition or

conduct in the near future and that the trial court disregarded the

rehabilitative acts that occurred after the filing of the petition to terminate

parental rights. Id. This court reversed the trial court’s judgment

terminating her parental rights and remanded for a “hearing to determine

whether reunification of the children with [B.N.S.] should be the goal . . .

based on the evidence of her current employment status and drug treatment

rehabilitation efforts.” The opinion stated that the trial court shall make this

determination after considering all of the evidence presented by B.N.S. and

the state.

2

The case was remanded, and the child in need of care proceedings

resumed. Involved in the case were B.N.S., the Winn Parish district attorney

on behalf of the DCFS, the DCFS and an attorney for the children.

A new case plan was prepared by the DCFS in October 2020, which

still recommended a case plan of adoption. The Carpenters filed a petition

of intervention on November 2, 2020, stating that they are the children’s

foster parents and are interested in the disposition, case plan and

permanency planning for them. B.N.S. objected to the intervention and filed

a motion to limit the foster parents’ involvement in the case review hearing,

citing the dispositive paragraph of this court’s opinion of September 23,

2020, but her motion was denied. A writ taken to this court seeking

supervisory review of the denial of the motion to limit the Carpenters’

involvement was denied.

The DCFS submitted a second report in November 2020 and, again,

recommended a case plan of adoption, stating B.N.S. “has shown her ability

to do well for short periods then revert to familiar unhealthy habits.” In

February 2021, the DCFS sought approval of the case plan recommending

adoption. A hearing was held February 8, 2021, and a case review judgment

was issued by the trial court. The judgment stated that the DCFS had made

reasonable efforts to achieve permanency and reunify the family unit since

the children had been placed in its custody. It also stated that the DCFS had

made reasonable efforts to finalize a permanent plan of adoption for the

children. After finding those facts, the trial court approved the case plan for

services and approved the goal of adoption; however, it, sua sponte,

modified the goal by adding in handwriting to the typed word ADOPTION

“& concurrent goal of reunification.” The judgment states:
3

[B.N.S.] tested positive for illegal substances in December 2020
and has not been compliant with mental health services with
Family New Life. Although [B.N.S.] has re-enrolled in mental
health services and substance abuse treatment she has not been
sober for a consistent period nor has she made progress with her
mental health services due to her being newly referred. [Her]
hair follicle was positive for Methamphetamine and
Amphetamine on December 17, 2020. [The DCFS] will
continue to assess and monitor the progress of services for
[B.N.S.].

The judgment also noted that B.N.S. had not successfully completed

all aspects of her case plan, and it recommended that the children remain in

the state’s custody and that the goal of adoption be maintained until the

proper provisions were made to secure permanency for them. It noted that

further orders include the modified/amended case plan order with the

reunification goal.

The Carpenters filed a motion for modification of the case plan and

for a judicial determination that reunification as a goal was not required

because B.N.S. had other children to whom her parental rights had been

terminated, but the trial court would not hear evidence regarding her history

with the DCFS. At the hearing on May 3, 2021, the trial court cited this

court’s opinion and stated that it limited the evidence presented that day to

that presented by B.N.S. and the state. It concluded that the current case

plan was to continue as reunification with a concurrent goal of adoption.

A permanency hearing was scheduled for June 14, 2021. The

Carpenters intervened again and notified the trial court of their desire to

facilitate and assist in the permanent plan for the children. The order

allowing them to intervene was signed on June 14, 2021.

The DCFS filed its report in open court that date. Under the heading

of “Safety and Risk Assessment,” the report contains information describing

4

current threats of danger to both parents and each child’s vulnerability. The

DCFS stated that B.N.S. was participating in services and making progress;

however, the department would require her to maintain her progress for an

extended period before initiating a transition. It also stated:

[B.N.S.] expressed experiencing night terrors and reported to
taking old medication to treat the terrors. [She] should address
her mental health issues with the mental health provider and
successfully complete a mental health program and follow the
recommendations of the provider.

In the report under the heading of “Conditions for Return to Parents’

Care/Custody,” the DCFS stated that B.N.S. needed to be sober and

substance-free for a minimum of six months before it would transition the

children. She also needed to continue her mental health treatment, maintain

compliance, and be open and honest with the provider.

The permanency hearing commenced with the testimony of Kiara

Chase with the DCFS, who supervises services for reunification or other

permanent plans. She was assigned to this case in December 2020, at which

time B.N.S. had been tested for drugs and was positive for amphetamine and

methamphetamine and was referred for mental health and substance abuse

services. In January 2021, her drug screen was negative, and she was

referred to Horizon Rehabilitation Center (“Horizon”) for substance abuse

and mental health treatment. While in treatment, she was not tested by the

DCFS until she went to court. In February 2021, she tested negative; but in

March 2021, she tested positive for alcohol and Seroquel. She had a

prescription for Seroquel, but it was an old prescription written by a provider

she had not seen in over a year. Her drug tests later in March, April and

May 2021 were negative. She successfully completed substance abuse

services with Horizon in April 2021.
5

Chase also testified that B.N.S. was assessed and referred for

counseling services. In the beginning there were issues with her cancelling

appointments and not rescheduling, but it was reported by Horizon that she

was participating, having missed 9 out of a total of 24 scheduled sessions.

Chase stated that mental health counseling is ongoing and that there is no set

time frame for completion of the services because situations arise which

might require an extension of counseling.

Chase further testified that the children were placed in the home of the

Carpenters and that she visits them twice a month. She stated that the

children are thriving, have bonded with their foster parents and are doing

very well in that setting. They had been living with the Carpenters for

almost three years and had just had their fifth birthdays at the time of the

hearing in June 2021. She testified that they are receiving some counseling

in preparation for transitioning (to reunification) if that is the trial court’s

decision. She stated that she has attended visitations between B.N.S. and the

children and that they seem to do well with her. She said the children do

have a bond with B.N.S., albeit not a very close one; and she believed their

bond with the Carpenters is stronger.

Chase also stated that there had been no changes in the situation since

the last hearing in May and that the DCFS requested that the goal of

adoption remain the same. She opined that B.N.S. was making progress but

that the DCFS would like to see continued progress after the positive drug

screen in March and wanted her to be able to continue with mental health

services before starting a transition of the children.

Chase further testified that at the current time, B.N.S. is living alone

in a two-bedroom, one-bathroom mobile home in Monroe. She inspected
6

the home and found it adequate, i.e., enough space, all utilities connected

and no safety hazards. Her mother intended to help her with the children,

but she now has obtained temporary employment elsewhere.

When asked about a timeline for continuing with concurrent goals and

perhaps transitioning, Chase stated that the DCFS would require six months

from the date of the last positive drug screen, or approximately September

2021, during which time B.N.S. should maintain sobriety and continue

mental health services. She stated that if transitioning began, it would start

with supervised visitation.

When questioned by the Carpenters’ attorney, Chase acknowledged

that the children had been with the foster family for almost three years and

that this is far beyond the time frame within which the agency keeps children

in foster care. However, because B.N.S. was making progress with her plan,

there was a possibility that they could start a transition at some point “soon.”

B.N.S.’s attorney called Dr. Kerry Scott, clinical director at Horizon,

as a witness. He testified that he is a professional therapist and licensed

addiction counselor but has never treated B.N.S. However, he supervised

the counselors who did treat her and was familiar with her treatment,

attendance and compliance. He reiterated and confirmed statements made

by Chase that B.N.S. initially missed 9 out of 24 appointments. He stated

that Horizon originally did not intend to provide her with any more services

but that she was reinstated and has been doing well with compliance since

then. He was questioned by the Carpenters’ attorney regarding her mental

health, and he verified that she had been diagnosed with “adjustment

disorder.” He stated that for some people it takes a year of treatment to be

able to cope with the stresses of life and that there is a chance of recidivism.
7

Lacey Jordan testified that she met B.N.S. at Second Chances, a

faith-based, 12-step program, and they have been friends for four months.

She stated that she and B.N.S. go to the meetings frequently (3 to 4 times a

week) and also attend church together.

In response to Horizon’s letter regarding her missed appointments,

B.N.S. testified that she tried to reschedule but was told that the computer

would not “reschedule” and would only make a new appointment. Her

explanation also included her inability to connect for the Zoom

appointments due to a lack of internet service or that her work schedule

prevented her from attending since she is working two jobs and Horizon’s

scheduling of appointments was never consistent. Regarding other missed

sessions, she stated that at the last hearing, she provided proof through text

messages that she and her counselor had been communicating with each

other.

B.N.S. also testified about the coping skills that she had learned

during therapy and how she would handle the situation if her children were

not returned to her. She stated she would rely on her coworkers at the

rehabilitation facility, her spiritual advisor and her sponsor. She reiterated

that she has two jobs and works seven days a week to ensure that she has the

means to care for her children; however, she has arranged to work only

morning shifts if her children are returned to her. She stated her bills are

paid, she has money in savings and a checking account, she has no

attendance problems at work and the DCFS told her they will help her find

day care for her children. Her mother, who is a radiology technician, has

agreed to help her with child care.

8

Larry Carpenter, foster parent to the children, testified that he lives in

Farmerville and is regional manager for Macs Fresh Market. He is married

to Faith Carpenter, who does not work outside the home. The children had

lived at their home for three years at the time of the hearing. When the

children came to live with them, there were no other children in their home,

but now they have two other foster children living with them—one 14 and

one 16 years old. He brought “life books” with him, which are records of

the children’s lives since the day they arrived at the Carpenter home through

the month of May 2021, the month before the hearing. The books included

pictures of everyday life, as well as special occasions. The Carpenters’

attorney offered the life books into evidence.

An objection of relevance was made, and the trial court stated that this

was a permanency hearing and that the concurrent goals would remain in

place. Because this was not the last hearing to be held in the matter, the trial

court denied submission of the evidence; however, the Carpenters’ attorney

proffered the life books.

The trial court pointed out that they could continue the permanency

hearing until the next day; but since the concurrent goal was

reunification/adoption, another permanency hearing would be held at a later

date. An objection was made by the Carpenters’ attorney, who argued that

the children had been in care for 34 months, longer than any prevailing

guideline suggests the children should be in care. He argued that foster care

is not a permanency goal and that this case is about the children, even if their

mother is improving, and that it is unfair to keep the children in limbo for

another 6-18 months. He asserted that adoption is still part of the dual goal

of reunification/adoption, that the foster parents are ready to adopt if allowed
9

to do so and that they should be heard too. The trial court stated that the

mother “still has rights” and then set another permanency hearing for

December 6, 2021.

The Carpenters filed a motion to appeal the judgment of the

permanency hearing, which continued the concurrent goal of

reunification/adoption. They asked that the permanency judgment be

modified to eliminate reunification as a goal. B.N.S. filed a motion to

appeal and to answer the Carpenters’ appeal; however, she failed to pay the

appeal costs and was denied pauper status. The children have now been

living with the Carpenters almost four years.

On October 28, 2021, while the matter has been pending on appeal,

B.N.S. filed a motion to dismiss the appeal, which was considered by this

court and referred to the merits of this appeal. After the first oral argument

in this case on June 21, 2022, B.N.S. filed a peremptory exception of no

right of action in this court claiming that the Carpenters have no right of

action to compel a judgment determining that adoption is the most

appropriate permanent plan for the children in need of care.

DISCUSSION

Peremptory Exception of No Right of Action
and Motion to Dismiss Appeal

B.N.S. filed a peremptory exception of no right of action and claimed

that the law does not grant to foster parents a right of action to petition the

court to enforce a goal change to make adoption the permanent plan for the

child in need of care, citing La. Ch. C. art. 1004(G). She argues that she is

able to file this exception in the appellate court at any time prior to

submission of the case for a decision, if proof of the ground of the exception

10

appears on the record. Hollingsworth v. Choates, 42,424 (La. App. 2 Cir.

8/22/07), 963 So. 2d 1089.

La. Ch. C. art. 1004(G) states as follows:

Foster parents who intend to adopt the child may petition for
the termination of parental rights of the foster child’s parents
when, in accordance with Article 702(D), adoption is the
permanent plan for the child, the child has been in state custody
under the foster parent’s care for seventeen of the last twenty-
two months, and the department has failed to petition for such
termination.

Under the circumstances of this case, the peremptory exception of no

right of action is denied. B.N.S.’s parental rights to these two children were

terminated by the trial court the first time in November 2019. After she

appealed, this court reversed and remanded in September 2020 for further

proceedings to determine if reunification should be attempted. The

Carpenters were allowed to intervene in these proceedings a year later in

November 2020. When the trial court modified the permanency plan to

include reunification with adoption, the children had been living with the

Carpenters for over three years. The Carpenters filed this appeal.

B.N.S. filed a motion to dismiss the appeal, but this court denied the

motion to dismiss pursuant to La. Ch. C. art. 710, which provides that any

person directly affected by a permanency plan may appeal. The motion to

dismiss was referred to the merits of this appeal.

Based on the factual situation before this court, we find that the

Carpenters have a right of action to appeal the permanency plan of June 14,

2021. As the children’s foster parents for almost four years now, willing to

adopt the children who have been in their care most of their lives, they are

persons directly affected by the permanency plan reinstating reunification as

a possible outcome. Proof of this exception of no right of action is not
11

apparent from the record and, thus, is denied. The motion to dismiss the

appeal is also denied.

Children in Need of Care

The Carpenters argue that the trial court erred in affirming a

permanency plan with concurrent goals of reunification and adoption and in

excluding evidence arising prior to the petition for termination. They

contend that the trial court considered only the rights of the mother when

taking new evidence regarding reunification and ignored that the concurrent

goal of adoption might still be in the best interest of the children despite the

progress the mother has made since 2018.

B.N.S. filed an answer to the appeal on November 15, 2021, and

claimed that the judgment was in contravention of this court’s order in the

first appeal. She argues that this court should order that the proper goal is

reunification and that the state’s case should be dismissed and the children

returned to her. She contends that the instructions from this court were to

hold a hearing determining whether reunification should be the goal of the

hearing and that only her evidence and that of the state should be considered.

The health, safety and best interest of the child is the paramount

concern in all child in need of care proceedings. La. Ch. C. art. 601; State in

Int. of Z.P., 52,354 (La. App. 2 Cir. 9/26/18), 255 So. 3d 727. To reverse a

trial court’s permanency plan determination, an appellate court must find

from the record that the trial court’s finding is clearly wrong or manifestly

erroneous. State in Int. of C.S., 49,955 (La. App. 2 Cir. 3/18/15), 163 So. 3d

193.

More than simply protecting parental rights, our judicial system is

required to protect the children’s rights to thrive and survive. State in Int. of
12

S.M., 98-0922 (La. 10/20/98), 719 So. 2d 445; State in Int. of C.S., supra. A

child has an interest in the termination of rights that prevent adoption and

inhibit that child’s establishment of secure, stable, long-term, continuous

family relationships. State in the Int. of S.M., supra. Children need

permanency and stability and forcing them to remain in foster care

indefinitely, when there is no hope of reunification, runs afoul of state and

federal mandates to further the best interests of the child. State in Int. of

Z.P., supra. While the interest of a parent is protected in a termination

proceeding by enforcing the procedural rules enacted to ensure that parental

rights are not thoughtlessly severed, those interests must ultimately yield to

the paramount best interest of the children. State in Int. of C.S., supra.

While adults can take years to improve their functioning, children are

not granted the same amount of time, and their lives are significantly

disrupted while the parents are attempting to deal with their own problems.

State in Int. of C.F., 17-1054 (La. 12/6/17), 235 So. 3d 1066. That children

have a need for permanency is well established in the jurisprudence, and it is

not the intent of either state or federal law that children remain in foster care

permanently. State in Int. of P.B., 49,668 (La. App. 2 Cir. 12/17/14),

154 So. 3d 806. Thus, the length of time a child has been forced to remain

in foster care is a factor the courts consider in the termination of parental

rights decision. Id.

Permanency Hearing, the Evidence,
and Possible Dispositions

La. Ch. C. art. 702 concerns permanency hearings and states, in

pertinent part, as follows:

B. The court shall conduct a permanency hearing within
nine months after the disposition hearing if the child was
13

removed prior to disposition or within twelve months if the
child was removed at disposition, but in no case more than
twelve months after the removal. Permanency reviews shall
continue to be held at least once every twelve months
thereafter until the child is permanently placed or earlier
upon motion of a party for good cause shown or on the
court’s own motion.

C. The court shall determine the permanent plan for the
child that is most appropriate and in the best interest of the
child in accordance with the following priorities of
placement:

(1) Return the child to the legal custody of the parents
within a specified time period consistent with the
child’s age and need for a safe and permanent home.
In order for reunification to remain as the permanent
plan for the child, the parent must be complying with
the case plan and making significant measurable
progress toward achieving its goals and correcting the
conditions requiring the child to be in care.

(2) Adoption.

***

D. (2)(a) In the case of a child under the age of six, the court
may find that continuation of the child’s placement with the
current caregiver is in the child’s best interest if the child is
in a stable home environment where the child’s physical and
emotional needs are met by a person who has a significant
relationship with the child, that no relative or other suitable
caregiver has been identified as a concurrent plan caregiver
as part of the child’s case plan or report submitted to the
court, and that it would be detrimental to the child’s well-
being if the child is removed from the current caregiver.
Upon such finding, the department shall not make any
change in placement absent prior written notice to the court.

***

(c) For the purposes of Subsubparagraph (a) of this
Subparagraph, a foster parent, relative, or other suitable
individual with whom a child under the age of six has
resided continuously for nine months or more is a person
who has a significant relationship with the child. Nothing in
this Subparagraph shall be construed to interfere with any
rights afforded to biological parents.

14

The comments to this code article from 1991 state that Paragraph B

provides for discretionary hearings when a child has been placed in long-

term foster care or in an adoptive home. The comments from 1999 state that

termination of parental rights proceedings must be initiated for any child

who has been in care for 15 of the last 22 months. Comments from 1999 to

La. Ch. C. art. 675 reiterate that termination of parental rights is warranted

when the child has been in foster care for 15 of the last 22 months.

La. Ch. C. art. 672.1 concerns reunification efforts determinations and

states, in part:

A. At any time in a child in need of care proceeding when a
child is in the custody of the department, the department
may file a motion for a judicial determination that efforts to
reunify the parent and child are not required.

B. The department shall have the burden of demonstrating
by clear and convincing evidence that reunification efforts
are not required, considering the health and safety of the
child and the child’s need for permanency.

C. Efforts to reunify the parent and child are not required if a
court of competent jurisdiction has determined that:

***
(4) The parental rights of the parent to a sibling
have been terminated involuntarily.

Whether a parent has complied with a case plan, the expected success

of rehabilitation and the expectation of significant improvement in the

parent’s condition or conduct are all findings of fact reviewed under the

manifest error standard. State in Int. of R.W.H.V., 53,065 (La. App. 2 Cir.

9/25/19), 281 So. 3d 800. To reverse a trial court’s permanency plan

determination, an appellate court must find from the record that the trial

court’s finding is clearly wrong or manifestly erroneous. Id. A child has an

interest in the termination of rights that prevent adoption and inhibit that

15

child’s establishment of secure, stable, long-term, continuous family

relationships. Id. The court is required to determine the permanent plan for

the child that is most appropriate and in the best interest of the child. Id.,

citing La. Ch. C. art. 702(C). The placement priorities include reunification,

or the return of the child to the legal custody of the parents within a specified

time period consistent with the child’s age and need for a safe and permanent

home, and adoption. Id. In order for reunification to remain the permanent

plan for the child, the parent must be complying with the case plan and

making significant measurable progress toward achieving its goals and

correcting the conditions requiring the child to be in need of care. Id., citing

La. Ch. C. art. 702(C)(1). Mere cooperation by a parent is not the sole focus

of the evaluation of a permanency plan. Id. Rather, the courts must assess

whether the parent has exhibited reformation, which is shown by “significant,

substantial indication of reformation . . . such as altering or modifying in a

significant way the behavior which served as a basis for the State’s removal

of a child from the home.” Id., quoting State in Int. of S.M., supra.

In the case at bar, B.N.S.’s parental rights to these children had

previously been terminated by the trial court, and this court reversed and

remanded with instructions to consider evidence of her progress after the

petition for termination. Due to these instructions, the trial court

recommended a modification of the case goal from adoption to

adoption/reunification. Further, the trial court chose only to accept

evidence related to the biological mother’s efforts to rehabilitate herself

and did not consider any evidence regarding the best interest of the

children, which is the paramount concern in Children in Need of Care

proceedings. At the time of the hearing, the DCFS still considered
16

adoption as the preferred placement and was reluctant to proceed with

reunification. In fact, the DCFS stated it would not consider reunification

unless B.N.S. maintained sobriety and met the requirements of the plan

for six more months. Unfortunately, the result of the remand by this court

was an even further delay in the permanent placement of these children,

who have now been in foster care most of their lives.

The DCFS has repeatedly suggested to the trial court that reunification

at the time of the hearings was not recommended because B.N.S., even

though she made progress, continued to have problems with her mental

health and substance abuse issues. She has been diagnosed with adjustment

disorder and requires ongoing care as necessary to deal with the stresses in

life. She missed various appointments with her counselors and had relapsed.

She has failed since 2018 to satisfy her case plan. Although she has made

efforts to get her life in order, her children have been living, growing and

thriving in the home of the Carpenters, who are the only parents they have

known since they were two years old. They are now over six years old. The

Carpenters have provided the children with a stable home environment where

their physical and emotional needs are met. They have the significant

relationship with the children envisioned by La. Ch. C. art. 702(D)(2)(a), and

it would be detrimental to the children’s well-being if they are removed from

their current caregivers.

For the foregoing reasons, we find the modification of the case goal

from adoption to adoption/reunification to be manifestly erroneous. The

well-being and best interest of the children should not be subservient to the

mother’s parental rights. The judgment maintaining the case goal as

adoption/reunification has erroneously and egregiously prolonged the tenure
17

of these children in foster care. The best interest of the children is not

served by the continual allowance of time for the mother to make progress in

her life choices.

This assignment of error has merit.

The “Life Books” Evidence

The Carpenters argue that the trial court erred in excluding the

children’s life books as evidence when the goal still included adoption as an

option for permanent placement of the children. The trial court interpreted

this court’s ruling on remand and limited the evidence presented on the date

of the hearing to B.N.S.’s progress. When the Carpenters attempted to enter

the life books that memorialized the children’s lives from the ages of two to

five years, B.N.S.’s attorney objected on the grounds of relevance, and that

objection was sustained. The trial court stated that B.N.S. “still has rights.”

The trial court allowed the life books to be proferred and stated that there

would be another permanency hearing at a later date.

La. C.E. art. 401 defines relevant evidence as evidence having any

tendency to make the existence of any fact that is of consequence to the

determination of the action more or less probable than it would be without

the evidence. La. C.E. art. 402 states that all relevant evidence is admissible,

except as otherwise provided by law.

The children’s life books are relevant and admissible evidence when

the paramount goal of the proceeding is a determination of their best interest.

Adoption is one of the goals, and the life books are evidence of the

suitability of the Carpenters’ home and their willingness to adopt the

children. For these reasons, the life books should be entered into evidence

and considered in the next permanency hearing.
18

This assignment of error has merit.

CONCLUSION

For the foregoing reasons, the judgment of the trial court modifying

the case plan goal to a dual goal of adoption/reunification is hereby reversed

and modified to that of a permanency plan of termination/adoption. The

matter is remanded for a termination trial with all relevant evidence to be

presented. These proceedings are to be held expeditiously as the children

have already been in foster care much longer than is appropriate. Costs of

this appeal are assessed against B.N.S.

JUDGMENT REVERSED AND MODIFIED; MATTER

REMANDED FOR FURTHER PROCEEDINGS, WITH

INSTRUCTIONS.

19

HUNTER, J., dissenting.

In balancing the best interests of the children with the interest of BNS

to be reunited with her children, I conclude the trial court’s judgment

correctly maintains reunification as a goal of the permanent case plan.

As stated by the DCFS witness at the permanency review hearing,

BNS has completed a substance abuse treatment program, maintained

employment and established a home suitable for her minor children. DCFS

has identified the mother’s addiction and mental health issues as the primary

impediments to starting the transition of the children to her care. At the

permanency plan review in June 2021, the director of the Horizon Rehab

Center, Dr. Scott, testified BNS has been diagnosed with “adjustment

disorder,” which he defined as an inability to cope with stressors that occur

in a person’s life. Dr. Scott stated adjustment disorder is treatable with

counseling.

As noted in the majority opinion, La. Ch.C. art. 702 provides the

return of a child to the legal custody of the parent is the first priority of

placement in the trial court’s determination of a permanent plan when

consistent with the child’s need for a safe and permanent home. The test

established to determine if a parent has shown sufficient reformation to

preserve family reunification and prevent termination of parental rights is

“reasonable expectation of reformation,” which exists when a parent has

cooperated with state officials and has shown improvement, although all

problems which exist have not been eliminated. State in Interest of J.B. v.

J.B., Jr., 35,846 (La. App. 2 Cir. 2/27/02), 811 So.2d 179. Reformation is

shown by modifying in a significant way the behavior which was the basis

for the child’s removal from the home. State in Interest of J.B., supra.
1

In this type of proceeding, the court must carefully balance the best

interest of the children with the interest of the parent. A parent has a natural,

fundamental liberty interest in the continuing companionship, care and

custody of her children. However, the children have a profound interest in

terminating parental rights which inhibit the establishment of a secure and

stable environment found in a home with proper parental care. State ex rel.

J.M., 02-2089 (La. 1/28/03), 837 So. 2d 1247.

In this case, appellants assert in their brief that if the mother is given

time to obtain mental health counseling, the children will continue to

“languish” in foster care. However, this assertion is not necessarily accurate

because the children could begin to transition through supervised visitation

with their mother while she continued receiving mental health counseling.

The DCFS prepared a permanency report finding that the mother “is

participating in services and making progress; however, the Agency would

like to see BNS maintain progress for an extended period of time before

initiating a transition. . . . BNS needs to be sober and substance free for a

minimum of six months before the Agency will transition the children” to

their mother’s home. The report further finds BNS needs to continue mental

health treatment and maintain compliance. The record demonstrates that the

mother, with some setbacks, is continuing her efforts to address these mental

health issues, which often require long-term treatment to achieve

improvement in the person’s condition.

During this interim period, BNS has had an opportunity to show she is

serious about her commitment to staying sober and obtaining mental health

counseling to be able to properly care for her children. The trial court will

2

need to assess whether the evidence demonstrates the mother is sincerely

seeking treatment of her mental health issues.

Based upon this record, I cannot say the trial court’s judgment

maintaining reunification as a goal of the case plan is inconsistent with the

best interests of the children. Consequently, I would affirm the judgment.

However, I agree that upon remand, it is important for the trial court to hear

any relevant evidence from all of the interested parties in determining a

permanent plan for the future of these children. Such an evidentiary review

should include, along with consideration of the “life books,” the trial court’s

evaluation of any impact to the interests of KAS and DRS caused by the

addition of two older foster children to the home of the foster parents.

3