State of Louisiana v. in the Interest of J.C., J.C., J.R.

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

CA 07-807

STATE OF LOUISIANA

IN THE INTEREST OF J.C., J.C., J.R.

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APPEAL FROM THE
SIXTEENTH JUDICIAL DISTRICT COURT
PARISH OF IBERIA, NO. 06J71
HONORABLE CHARLES LEE PORTER, DISTRICT JUDGE

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BILLY HOWARD EZELL
JUDGE

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Court composed of Michael G. Sullivan, Glenn B. Gremillion, and Billy Howard
Ezell, Judges.

AFFIRMED.

Lewis H. Pitman, Jr.
Indigent Defender Board
110 West Washington Street
New Iberia, LA 70560
(337) 365-4006
Counsel for Defendants/Appellants:
L. R.
J. R., Jr.

Debra Keigh Basile
825 Kaliste Saloom
Brandywine I, Suite 218
Lafayette, LA 70508
(337) 262-5955
Counsel for Plaintiff/Appellee:
State of Louisiana Department of Social Services,
Office of Community Services

Ezell, Judge.

The mother and father appeal a trial court judgment terminating their parental

rights of three minor children. The youngest child was the father’s biological child,

another child’s father was unknown, and the third child’s father did not contest

termination of his rights. After reviewing the record, we affirm the trial court’s

judgment.

FACTS

On February 22, 2005, the State of Louisiana, Department of Social Services,

Office of Community Services (OCS) received a report of alleged neglect by

dependency and inadequate shelter concerning seven minor children ranging in ages

from sixteen to two. The three minor children at issue were placed in foster care, and

the other children were placed with relatives.

During the course of the OCS investigation from February 22, 2005, through

March 3, 2005, it obtained information that there was a domestic disturbance between

the mother and father. The Sheriff’s Department responded to a domestic disturbance

between the mother and father involving a knife and firearm. The mother was noted

to be hallucinating, stating that women were living in her sofa and under the floor and

the father admitted that both of them had been using crack cocaine that day. The two

youngest children were present at the time. Both parents tested positive for cocaine

on March 2, 2005. At the time, the family members were living in a two-bedroom

mobile home.

The children were adjudicated in need of care on May 17, 2005. A case plan

was developed which included parenting classes, substance abuse treatment, securing

and maintaining employment, and completion of their new four-bedroom home. The

parents were also supposed to complete psychological testing and attend a domestic

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violence intervention program. The case plan was in effect for six months. Three

more case plans went into effect in September 2005, March 2006, and September

2006.

On July 17, 2006, the OCS filed a petition to terminate parental rights and

certification for adoption of the three youngest children. A hearing on the matter was

held on January 29, 2007. The trial court agreed that termination was in the best

interests of the children stating:

From the evidence that the Court has heard, the Court, is of the opinion
that the State has proven it’s [sic] case for the termination of parental
rights . . . . I guess my comment at this point is that the evidence of the
State, as I said again, establishes by clear and convincing evidence that
the parental rights of these parents should be terminated and that it is in
the best interest[s] of the children to terminate the parental rights and set
them free for adoption.

In addition to the significant evidence and substantial evidence
that the State has produced showing that the children have been in
custody approximately two years and that the parents were given
opportunities to rehabilitate themselves with respect to substance abuse,
issues of domestic violence and non-able to do so and this time period
which makes it, for them, inconvenient, unfortunate and too late.

Judgment terminating the parental rights was signed on February 2, 2007. From this

judgment, both the mother and father appealed.

DISCUSSION

The parents claim that the trial court was too quick in terminating their parental

rights. They state that their drug problems are now under control and that it was their

problem with drugs that prevented them from complying with the case plan. They

argue that they should be given six additional months to prove themselves. On the

other hand, the OCS argues that its fundamental concern has been the inability of the

parents to protect their children by refraining from drug abuse, repeated

incarcerations and domestic violence, as well as their inability to provide their

children with a safe place to live.

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In termination proceedings, [the] court must carefully balance the
two private interests of the child and the parents. While the parents have
a natural, fundamental liberty interest in the continuing companionship,
care, custody and management of their children, 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 these interests, the courts of this state have
consistently found the interest of the child to be paramount over that of
the parent.

State ex rel. J.M., 02-2089, p. 8 (La. 1/28/03), 837 So.2d 1247, 1252 (citations

omitted).

A trial court’s findings on the factually-intense termination of parental rights

issues are governed by the manifest error standard of review. State ex rel. SNW v.

Mitchell, 01-2128 (La. 11/28/01), 800 So.2d 809.

The OCS sought termination based on La.Ch.Code art. 1015(5) which provides

as a ground for termination:

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.

Article 1015(5) provides a three-pronged requirement for termination: (1) lapse

of one year; (2) lack of substantial compliance with a court-approved case plan; and

(3) lack of a reasonable expectation of significant improvement in the near future.

State in the Interest of SNW, 800 So.2d 809. Obviously, the father and mother are

claiming that the OCS failed to prove the last requirement, that there is a lack of

reasonable expectation of significant improvement in the near future.

Louisiana Children’s Code Article 1036(D) provides that this requirement may

be proven by:

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(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.

(2) A pattern of repeated incarceration of the parent that has
rendered the parent unable to care for the immediate and continuing
physical or emotional needs of the child for extended periods of time.

(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.

The evidence at trial established that for the two years the case was under OCS

supervision, the parents failed to follow any of the requirements of the case plan.

Both the father and mother were arrested and served time in prison on several

occasions. It was not until they were in prison that they participated in drug abuse

programs.

In October 2005, the mother was sent to the Acadian Recovery Center for

substance abuse counseling. The OCS caseworker even brought her children to visit

her while she was there, but the mother left before she finished treatment. At this

point, the mother was referred to the Iberia Parish Addictive Disorder for help, but

she failed to appear. In November of 2005, the father was arrested for domestic abuse

battery. During that same month, the mother was also arrested for felony battery.

The mother was arrested again on May 16, 2006, when she tried to run over her

husband and crashed into the house. She was released in July 2006 after serving

fifty-nine days. When the OCS caseworker brought the children to visit the mother

in jail, she was informed that the mother was participating in the drug program KITE.

The father went to jail in February 2006 on drug charges and was released into

the drug court program in May 2006. However, in July 2006, the father was arrested

again because he was in violation of the drug court requirements. He served six

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months in jail and was released just prior to the termination hearing.

In August 2006, another OCS caseworker took over the case. She indicated

that the requirements of the case plans did not change, but still the mother and father

never attended any domestic violence programs or underwent psychological

evaluations. At the time of trial, the house was still not completed, continuing to lack

electricity, plumbing, air conditioning, and flooring.

The OCS caseworker scheduled a visit at McDonald’s for August 24, 2006.

The mother never showed up which upset the children. The OCS caseworker testified

that the mother has not attempted to visit the children since that time.

Both parents argue that the drug programs they participated in while in prison

helped them and that they are new people ready to proceed with the case plan

requirements. While the father had only been out of jail for about a month before

trial, the mother had been out for approximately six months and had not made any

efforts to complete any requirements of the case plan. During the month that the

father had been out of jail, he made no attempt to comply with the case plan or to visit

his child. The mother testified that she had been attending AA meetings at different

places but was not able to get in touch with the caseworker to let her know. She

offered no proof that she had been attending these meetings. The mother admitted

that she was familiar with the case plan objectives because she had dealt with the

agency on substance abuse claims resulting in her children being placed in foster care

in 2000 and 2001. Also, while the parents had reconciled a month before the trial,

they had not attended any domestic violence programs to help their relationship.

We cannot say that the trial court erred in finding that the evidence was clear

and convincing that there is a lack of reasonable expectation of significant

improvement on behalf of the mother and father. This case has been ongoing for two

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years, and the mother and father both testified that it was only after they had been

incarcerated that they now had the help they needed to reform. However, they failed

to offer any proof that after they were released from prison that they have made any

steps toward fulfilling the requirements of the case plan. There is no indication that

even given six months the parents would follow the requirements of the case plan.

It is in the best interests of these three minor children that the parents’ rights be

terminated.

For the foregoing reasons, the judgment of the trial court is affirmed

terminating the parental rights of the Appellants with cost of appeal assessed equally

between them.

AFFIRMED.

THIS OPINION IS NOT DESIGNATED FOR PUBLICATION. Rule 2-16.3
Uniform Rules, Court of Appeals.

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