State of Louisiana In the Interest of A.L. and K.L.

Judgment rendered January 25, 2023.
Application for rehearing may be filed
within the delay allowed by Art. 2166,
La. C.C.P.

No. 54,859-JAC

COURT OF APPEAL
SECOND CIRCUIT
STATE OF LOUISIANA

*****

STATE OF LOUISIANA
IN THE INTEREST OF
A.L. and K.L.

*****

Appealed from the
Fifth Judicial District Court for the
Parish of Richland, Louisiana
Trial Court No. J-2020-26

Honorable Clay Hamilton, Judge

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CINC APPELLATE PROJECT Counsel for Appellant,
By: Douglas Lee Harville F.H., Mother

SHIRLEY GUILLORY GEE Counsel for Appellee,
Assistant District Attorney State of Louisiana

LEGAL AID OF NORTH LOUISIANA Counsel for Children,
By: Elizabeth Clement Brown A.L. and K.L.

STATE OF LOUISIANA, DCFS Counsel for Appellee,
By: Keesha Mason Bordelon State of Louisiana, DCFS

VARHONDA EUGENIA BURRELL Counsel for D.L., Father

*****

Before STONE, COX, and HUNTER, JJ.

HUNTER, J., dissents with written reasons.

STONE, J.

This appeal arises from the Richmond Parish Juvenile Court, the

Honorable Clay Hamilton presiding. F.H., the mother of the minor children,

A.L. (born May 4, 2017) and K.L. (born August 13, 2018), appeals a

judgment terminating her parental rights. The trial court found F.H.’s failure

to address her mental health issue as required in the case plan demonstrated

her inability or unwillingness to provide proper care for the children in a safe

environment. For the following reasons, we affirm.

FACTS

On September 8, 2020, the Louisiana Department of Children and

Family Services (the “department”) received a report of neglect regarding

the minor children, A.L. (40 months old) and K.L. (23 months old), whose

parents were listed as F.H. and D.L. In its affidavit in support of an instanter

order placing the children in state custody, the department stated that F.H.

had been transported to Longleaf Mental Hospital under a Physician’s

Emergency Certificate after she began seeing demons, experiencing auditory

hallucinations, and threatening to kill herself and her children. The trial

court entered an instanter order placing A.L. and K.L. in the custody of the

state.

On October 19, 2020, the department filed a petition alleging AL and

K.L. were children in need of care due to neglect. The department alleged

F.H. had been diagnosed with Schizophrenia, but had refused to take her

prescribed medication, and that she had tested positive for

methamphetamine and marijuana when admitted to Longleaf. The

department alleged A.L. and K.L. had suffered neglect due to F.H.’s failure

to take the medication prescribed for her mental condition and her drug
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abuse, which constituted an unreasonable failure to provide the care

necessary for the health and safety of the children. The trial court found the

children were in need of care and maintained custody with the state through

the department.

On October 22, 2020, the department submitted a case plan, which

was approved by the trial court. The plan stated A.L. and K.L. had been

placed in foster care with a family friend and the case goal was reunification.

The case plan required F.H. to: (1) maintain safe housing with adequate

space for the children; (2) to have sufficient legal income to meet the needs

of the children and provide the department case worker, Jennifer Goldman

(“Goldman”), with proof of such income each month; (3) complete mental

health and substance abuse assessments and complete recommended

treatment, submit to random drug screens, maintain sobriety with no positive

drug screens for at least six months; and (4) attend parenting classes.

On March 3, 2021, the department filed a case report stating F.H. was

refusing to take her psychiatric medication and was smoking marijuana. The

department stated that although F.H.’s residence in Rayville was adequate,

the agency learned she had begun living in Monroe, but she did not provide

the address to the department worker. The agency reported F.H. had

completed the intensive outpatient treatment program at the Northeast

Louisiana Substance abuse facility, but had not attended her mandatory

Narcotics Anonymous meetings.

Later in March, F.H. fired a handgun outside of her residence in

Rayville, located next door to the home of her children and their foster

parent. F.H. then entered the foster residence with a loaded gun in hand and

threatened to kill the foster parent and the children. In April 2021, the
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department responded with a motion for a judicial determination that

reunification efforts were not required, and in October 2021, filed a petition

for termination of parental rights.1 Goldman and F.H. testified at the first

hearing. Thereupon, the trial court granted the motion obviating required

reunification efforts and ordered the case plan goal to be changed to

adoption in the best interest of the children. At the later hearing regarding

termination of parental rights, Goldman provided basically the same

testimony that she did in the earlier hearing on the motion for declaration

that reunification efforts are not required; however, F.H. did not testify in the

latter hearing. In the following paragraphs, the testimony from these two

hearings is summarized in globo.

F.H. testified that, at the time of the instanter order originally

removing the children from her custody, she was already under a family in

need of care case plan. She denied memory of the September 2020 event

prompting the entry of the instanter order, wherein she experienced

hallucinations and threatened to murder her children and commit suicide.

F.H. also initially denied her March 2021 incident wherein she illegally fired

a gun and, with gun in hand, threatened to murder the foster parent and the

children; however, upon having the fact that the incident was videotaped

called to her attention, she shifted to denying memory of the event and

speculated that she must have been “roofied.”2 Similarly, F.H. at first denied

1
The legal standards for termination of parental rights and obviation of required
reunification efforts are exactly the same.
2
F.H. pled guilty as charged in relation to the gun/murder threat incident a couple
months after this testimony.
Also, Goldman testified that on the night of the gun/murder threat incident, F.H.
was standing in the road screaming and cursing about her brother (allegedly) having
stolen and wrecked her car; however, her car was right there and had not been wrecked.

4

that she had failed to take her psychiatric medications. However, upon

realizing that pharmacy records showed she had not filled the prescriptions,

F.H. admitted to not taking her medications. She then shifted to blaming her

failure on her lack of a car, but then admitted that her social worker would

have brought the medication to her if she had asked. F.H. admitted that she

has been diagnosed with schizophrenia, but contends that the diagnosis is

incorrect; she insists that she is “normal.” She admitted to having a criminal

record for possession of marijuana.

Goldman testified that, under the case plan, she met with F.H.

individually once per month, and twice per month to chaperone F.H.’s

visitation with the children. During the visitations, Goldman observed that

the younger child, K.L., is bonded with F.H. Contrarily, the older child,

A.L., is not bonded with F.H. — but is bonded with the foster parent. At

the time she was taken into state custody, K.L. had not received any

vaccinations despite being nearly 2 years old. Goldman noted that F.H.

largely ignored A.L. (who has a host of serious medical conditions including

seizures, diabetes, hydrocephalus, cerebral palsy and the inability to speak or

walk) in favor of K.L., to whom F.H. referred as her “normal child.”

Goldman stated that, at the time the children were removed in fall 2020, they

were “severely underweight” and malnourished. In the nine months

following removal, A.L. gained 9 pounds; she went from 21 pounds to 30

pounds. This reflects nearly a 50% increase in body weight from the 40th

month of A.L.’s life to the 49th month of her life. Goldman further stated

that, at the time of removal, A.L.’s health was deteriorating and F.H. was

failing to bring A.L. to her prescribed physical therapy and occupational

therapy. Notably, F.H. objected to the children eating food provided by the
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foster parent on supposed nutritional grounds, despite the diet having been

prescribed by a physician.

In her conversations with Goldman, F.H. denied her diagnosis of

schizophrenia, denied needing her psychiatric medications, and claimed to

have been managing well without them. However, F.H. failed to attend most

of her required mental health counseling sessions. Additionally, F.H. failed

to comply with her substance abuse rehabilitation program by failing to

attend Narcotics Anonymous meetings and by testing positive for marijuana

on two occasions. On the positive side, she did complete intensive outpatient

treatment; one of her three drug tests were negative, and she attended

parenting classes as required up until the March 2021, incident wherein she

illegally fired a gun and threatened to murder the foster parent and the

children with gun in hand, whereupon she was expelled from the parenting

program. That incident additionally prompted the department to change the

case goal from reunification of F.H. with the children to the foster parent’s

adoption of the children. F.H. discontinued her case plan at that time. (In

late October 2021, F.H. pled guilty as charged to aggravated assault with a

firearm and unlawful use of a weapon in connection with the March 2021,

incident and was, in effect, given concurrent one-year sentences of hard

labor, with an additional three years suspended and subject to supervised

probation).

Goldman’s testimony indicates that the children are bonding with the

foster parent, are being well fed in the foster home, having their medical

needs met, and are pursuing age appropriate education. Finally, she also

testified that the only alleged father was incarcerated as of the time of the

hearing.
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The department’s petition for the termination of parental rights

asserted the same factual basis as the motion for declaration that

reunification efforts are not required, i.e., that F.H. had failed to complete

her case plan, refused to take her psychiatric medication as prescribed, and

credibly threatened to murder the children and foster parent with a firearm.

As previously mentioned, Goldman’s testimony at the hearing to terminate

parental rights is without any significant difference from her testimony in the

hearing on the motion for declaration that reunification efforts are not

required. The only major additions to the department’s evidence were the

sentencing minutes from F.H.’s criminal case relating to the March 2021

incident and a search certificate from the putative father registry.

In April 2022, the trial court rendered a judgment terminating the

parental rights of F.H. and the father, D.L. The trial court based that

judgment on La. Ch.C. art. 1015(6), finding the children have been in the

custody of the department for more than one year and cannot be safely

returned to either parent because neither the mother nor the father had

substantially completed the case plan or shown significant measurable

progress. F.H. appeals the judgment, urging that the trial court erred

manifestly in finding that the evidence satisfied the applicable legal

standards in finding reunification efforts were not required and in

terminating her parental rights to the children.

DISCUSSION

In particular, F.H. argues that the department failed to prove by clear

and convincing evidence that she had engaged in egregious conduct or that

there was no reasonable likelihood of improvement in her condition in the

near future.
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Law

In a child in need of care proceeding, when a child is in the custody of

the state, the department may file a motion for a judicial determination that

efforts to unify the parent and child are not required. La. Ch.C. art.

672.1(A). The department has 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. La.

Ch.C. art. 672.1(B). “Reunification efforts are not required if…the parent

has subjected the child to egregious conduct or conditions, including but not

limited to any grounds for certification for adoption pursuant to article

1015.” La. Ch.C. art. 672.1(C)(1). (Emphasis added).

La. Ch.C. art. 1015(6) includes among the grounds for certifying an

adoption (i.e., termination of parental rights) the following:

[The elapse of at least one year] 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.

This provision sets forth five essential elements for the termination of

parental rights and determination that reunification efforts are unnecessary:

(1) the removal of the child from the parent’s custody pursuant to a court

order; (2) the passage of at least one year thereafter without reunification;

(3) the department provision of a court-approved case plan to the parent; (4)

failure of the parent to substantially comply with the case plan; and (5) the

absence of a “reasonable expectation of significant improvement in the

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parent’s condition or conduct in the near future, considering the child’s age

and his need for a safe, stable, and permanent home.” To that end, in

relevant part, La. Ch.C. art. 1036(D) provides:

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…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 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
an established pattern of behavior.

Additionally, (6) the adoption must be in the best interest of the child for

parental rights to be terminated. La. Ch.C. arts. 1037(B) and 1039(A).

The state bears the burden of proving these elements by clear and

convincing evidence. La. Ch.C. art. 1035. A trial court’s factual findings

underlying a judgment terminating parental rights are subject to manifest

error review on appeal. State ex rel. DLF. v. Phillips, 34,645 (La. App. 2 Cir.

4/4/01), 785 So.2d 155.

Analysis

The first three elements of La. Ch.C. Art. 1015(6) are unquestionably

established: (1) the removal of the children from the parent’s custody

pursuant to a court order; (2) the passage of at least one year thereafter

without reunification; (3) the department provision of a court-approved case

plan to the parent. These elements are clearly proved and do not merit

discussion.

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Conversely, the latter two elements do merit discussion: (4) failure of

the parent to substantially comply with the case plan; and (5) the absence of

a “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.”

F.H. and her children were already under a family in need of case plan

when F.H. – because she was hallucinating and threatening to kill herself

and her children – was forced into hospitalization and diagnosed with

schizophrenia. Thereupon, her children were taken from her and placed in

state custody (foster care) pursuant to child in need of care proceedings.

With the goal of reuniting the children with F.H., the department filed a case

plan designed to provide F.H. with the resources to establish her fitness to

parent toddlers. The trial court approved the plan, and the department

assisted F.H. to help her comply with the requirements of the plan.

Nonetheless, F.H. denied her schizophrenia, refused to take her psychiatric

medications, refused to maintain attendance of her mental health counseling

sessions, and continued smoking marijuana as an admitted form of “self-

medication.” While under the case plan, F.H. went outside to her back porch

(of her home next door to the foster residence) and illegally fired a gun. She

then went to the foster residence with loaded gun in hand and threatened to

kill the foster parent and her own children. During the incident, she also

stood in the road screaming and cursing about her car having been stolen and

wrecked even though it was parked there in plain view and was not wrecked.

Three months later, law enforcement arrested F.H. for these acts; the delay

was due to their inability to find F.H. despite prompt reporting of the

incident.
10

She pled guilty to illegal use of a weapon and aggravated assault with a

firearm. Furthermore, her testimony at the hearing corroborated the

aforementioned indicia of her lack of fitness to parent her children. She

denied memory of the two occasions on which she threatened to murder her

children (in the first of which she also threatened suicide, and in the latter,

she threatened to kill the foster parent as well) and, multiple times, she

changed her story on the stand when confronted with objective proof that

she was incorrect in her testimony. F.H.’s testimony, overall, demonstrated

her lack of candor, her refusal to acknowledge that she is schizophrenic, and

refusal to take responsibility for her non-compliance with her case plan.

These facts clearly establish that F.H. substantially failed to comply

with her case plan and is a mortal danger to her children. They also amply

prove that there is no reasonable expectation of significant improvement in

F.H.’s condition in the near future, especially in light of La. Ch.C. art.

1036(D)(1), supra. Accordingly, the latter two elements of La. Ch.C. art.

1015(6) are clearly and convincingly established.

Finally, we hold that adoption is in the best interest of the children.

Their interest in not being in the custody of a drug abusing, unmedicated,

schizophrenic who severely underfed them, neglected their medical needs,

and has twice threatened to murder them is paramount. F.H. is incarcerated

and so is the childrens’ father. The children are flourishing in the foster

home and are bonded with the foster parent. The childrens’ needs are being

well satisfied there, and their need for safety, permanency, and stability

makes adoption the course of action that is in their best interest.

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CONCLUSION

For the reasons stated herein, the judgments of the trial court are

AFFIRMED. All costs of this appeal are taxed to the appellant.

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HUNTER, J., dissenting.

Considering the best interest of the children with the mother’s interest

in maintaining a meaningful relationship with her children, I conclude the

trial court’s judgments finding reunification efforts were not required and

terminating the parental rights of F.H. must be reversed. Therefore, I

respectfully dissent.

When the state seeks to terminate parental rights, it bears the burden

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

under La. Ch. C. art. 1015 by clear and convincing evidence. La. Ch. C. art.

1035; State ex rel. B.H. v. A.H., 42,864, (La. App. 2 Cir. 10/24/07), 968 So.

2d 881; State ex rel. S.C.M., 43,441 (La. App. 2 Cir. 6/4/08), 986 So. 2d

875. This heightened burden of proof requires the state to show not only

that the existence of the fact sought to be established is more probable than

not, but that the fact is highly probable or more certain. State ex rel. B.H.,

supra; Hines v. Williams, 567 So. 2d 1139 (La. App. 2 Cir.), writ denied,

571 So. 2d 653 (1990). Failure of the state to prove any of the statutory

elements for termination of parental rights is a failure of the state to meet its

burden of proof and termination of parental rights cannot be ordered. State

in Interest of JML, 540 So. 2d 124 (La. App. 3 Cir. 1989).

Although there are various grounds for termination of parental rights

set forth in La. Ch. C. art. 1015, only one ground need be established. State

ex rel. SNW v. Mitchell, 01-2128 (La. 11/28/01), 800 So. 2d 809. Once a

ground for termination has been established, the judge may terminate

parental rights if the termination is in the best interest of the child. La. Ch. C.

art. 1039. The trial court’s factual findings, including the finding that a

parent is unfit, and there is no reasonable expectation of reformation, will
1

not be set aside in the absence of manifest error. State ex rel. B.H., supra;

State ex rel. D.L.F. v. Phillips, 34,645 (La. App. 2 Cir. 4/4/01), 785 So. 2d

155.

A parent has a constitutionally protected liberty interest in

establishing and maintaining a meaningful relationship with his or her

children. State in the Interest of A.C., 93-1125 (La. 1/27/94), 643 So. 2d

719. Congruent with the parental interest, the state has a legitimate interest

in limiting or terminating parental rights under certain conditions. State in

Interest of A.C., supra. In an involuntary termination of parental rights

proceeding, courts must proceed with care and caution, as the permanent

termination of the legal relationship existing between natural parents and the

child is one of the most drastic actions the State can take against its citizens.

State ex rel. J.A., 99-2905 (La. 1/12/00), 752 So. 2d 806. Applying this

delicate balancing test with an eye toward the best interest of the child

coupled with ongoing efforts of the parent and potential foster parent, we

now plumb the depths of the current matter before the court.

In the present case, the record shows F.H. was making some progress

in complying with the requirements of her case plan. Her mental illness was

the primary obstacle to her efforts to complete her case plan. Despite her

mental health issues and past substance abuse, F.H. was able to maintain

employment, provide food and clothing for A.L. and K.L., participate in

visits with her children and attend parenting classes. However, her efforts

were interrupted by her incarceration as a result of her guilty pleas to

aggravated assault with a firearm and illegal use of a weapon. These

charges resulted from the incident in March 2021, when she threatened her

children and their foster parent with violence while armed with a handgun.
2

In her brief, F.H. contends this incident occurred within 70 days of a

change in her medication, which included the potential side effects of

suicidal or homicidal ideations. As explained by the state caseworker,

Jennifer Goldman, DCFS chose to use this incident absent any further

rehabilitative efforts as justification to cease services meant to prepare F.H.

for reunification with her children. We find this action by DCFS to be in

error.

The record shows F.H. was making serious efforts to comply with the

case plan and had completed an outpatient substance abuse program. This

progress was interrupted by her incarceration which was in effect at the time

of the hearing on termination of parental rights in February 2022. As a

result, the trial court relied on outdated information in determining whether

F.H. would be able to make substantial progress in improving her condition.

However, the assessment of whether there has been substantial

compliance with the case plan requirements and whether there is a

reasonable expectation of significant improvement in the parent’s condition

or conduct in the near future should be reevaluated after her release from

prison. This approach would allow F.H. the opportunity to demonstrate her

ability to address her mental health issue and complete the other case plan

requirements of employment, housing and sobriety. Such a reevaluation

should include reasonable efforts by DCFS to provide services to F.H. for

the purpose of assisting her to complete the requirements of a case plan with

the goal of reunification with her children.

Because the trial court was limited to considering the information as

to F.H.’s activities prior to her incarceration in June 2021, the evidence

considered at the termination of parental rights hearing was inadequate to
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support the trial court’s determination F.H. had not substantially complied

with the case plan and there was no reasonable expectation of significant

improvement in her condition in the future. Thus, I must conclude the trial

court erred in terminating the parental rights of F.H. on the basis of this

insufficient evidence.

Based on this conclusion, I would also reverse the judgment finding

reunification efforts were no longer required and changing the case goal to

adoption in order to give F.H. a fair chance at demonstrating her ability to

take the steps necessary to work toward the goal of reunification. This

matter should be remanded to provide all concerned with an opportunity to

reevaluate the current situation of F.H. and the foster parent, with an eye

toward the paramount concern of protecting the best interests of the children.

Reunification of a parent with a child and termination of parental

rights are both significant acts due to the repercussions on the child.

Weighing both those outcomes individually and collectively with the goal of

furnishing and perpetuating an atmosphere conducive to the best interest of

the children is the balancing test the lower court should administer.

For the foregoing reasons, I would reverse the trial court’s judgments

granting the motion for a determination that reunification efforts are not

required and terminating the parental rights of the mother, F.H., with regard

to the minor children, A.L. and K.L., and remand this matter for further

proceedings.

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