State in the Interest of I. J. B.

DO NOT PUBLISH

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

11-586

STATE IN THE INTEREST OF I.J.B.

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APPEAL FROM THE
ELEVENTH JUDICIAL DISTRICT COURT
PARISH OF SABINE, NO. 2495
HONORABLE STEPHEN B. BEASLEY, DISTRICT JUDGE

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J. DAVID PAINTER
JUDGE

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Court composed of John D. Saunders, J. David Painter, and James T. Genovese,
Judges.

AFFIRMED.

D. Scott Kendrik
1762 Texas St.
Natchitoches, LA 71457
COUNSEL FOR APPELLANT:
O.S.

Brian C. McRae
P.O. Box 612
Mansfield, LA 71052
COUNSEL FOR APPELLEE:
I.J.B.

Kimberley S. Smith
1525 Fairfield Ave., 8th Fl.
Shreveport, LA 71101
COUNSEL FOR APPELLEE:
State of Louisiana

PAINTER, Judge

O.S. appeals the trial court’s termination of her parental rights with regard to

I.J.B. Finding no error in the trial court’s determination, we affirm.

FACTS

When I.J.B. was born on March 15, 2008, both she and her mother, O.S.,

tested positive for cocaine. I.J.B was removed from O.S.’s custody via an instanter

order. O.S. told a case worker from the Department of Social Services that two

older children had been removed from her custody by the State of Texas in 2007

because she failed a drug test. She further told the case worker that she had come

to Louisiana to give birth to I.J.B. because she thought the State of Texas would

take the child if she were born there.

A case plan was put into place whereby O.S. agreed to work towards

reunification, and the child was placed in foster care. I.J.B. was adjudicated a child

in need of care on June 30, 2008. The case plan was reviewed every six months

and included:

a. Attend and successfully complete Parenting Classes and
demonstrate knowledge learned during visits.

b. Attend and successfully complete Anger Management Classes and
demonstrate ability to control her anger.

c. Submit to a Psychological Evaluation and follow all
recommendations.

d. Visit the child in accordance with the visitation schedule.

e. Submit to a Substance Abuse Assessment and follow
recommendations.

f. Attend AA/NA meetings and provide verification to the
Department.

g. Inform the Department of her Whereabouts and her Circumstances.

h. Establish and Maintain a Home that is safe and stable and maintain
utilities.
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i. Financially Support her child by contributing gifts, clothes, and
child support for her child on a regular basis

A petition for termination of parental rights was filed on November 23,

2010, in which it was alleged that while she had attended parenting and anger

management classes, she had failed to visit the child regularly, consistently delayed

drug treatment, tested positive for alcohol, failed to attend AA/NA meetings or to

supply verification of attendance, had not consistently kept the Department

informed of her whereabouts, and failed to establish and maintain a safe home for

the child.

A hearing was held on March 28, 2011, and O.S.’s parental rights were

terminated in a judgment dated the same day. O.S. appeals.

DISCUSSION

The Louisiana Supreme Court in State ex rel. S.M.W., 00-3277, pp. 12-14

(La. 2/21/01), 781 So.2d 1223, 1232-33, explained the review of involuntary

termination of parental rights as follows:

Title X of the Children’s Code governs the involuntary
termination of parental rights. As applicable to this case, the grounds
for termination of parental rights are:

(5) 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.

La. Children’s Code Art. 1015(5). The method of proving these
elements is provided in La. Children’s Code Art. 1036. La. Children’s
Code Art. 1036(C) and (D) provide:

(C) Under Article 1015(5), lack of parental compliance with a
case plan may be evidenced by one of more of the following:
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(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.

(D) Under Article 1015(5), lack of any reasonable expectation
of significant improvement in the parent’s conduct in the near
future may be evidenced by one or more of the following:

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

(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 State must prove the elements of one of the enumerated
grounds by clear and convincing evidence to sever the parental bond.
La. Children’s Code art. 1035(A); Santosky v. Kramer, 455 U.S. 745,
102 S.Ct. 1388, 71 L.Ed.2d 599 (1982) (holding that the minimum
standard of proof in termination of parental rights cases in clear and
convincing evidence); State ex rel. J.A., supra at 811. The State must
only establish one statutory ground for termination, but the trial judge
must also find that termination is in the best interest of the child. La.
Children’s Code art. 1039; State ex rel. J.A., supra.
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“It is well-settled that an appellate court cannot set aside a
juvenile court’s findings of fact in the absence of manifest error or
unless those findings are clearly wrong.” In re A.J.F., 00-0948
(La.6/30/00), 764 So.2d 47, 61. “Where there is conflicting testimony,
reasonable evaluations of credibility and reasonable inferences of fact
should not be disturbed upon review, even when the appellate court
may feel that its own evaluations and inferences are as reasonable as
those of the trial court.” Id.; Rosell v. ESCO, 549 So.2d 840
(La.1989). “[I]f the trial court or jury findings are reasonable in light
of the record reviewed in its entirety, the court of appeal may not
reverse even though convinced that had it been sitting as the trier of
fact, it would have weighed the evidence differently.” Rosell, supra at
844. “Where there are two permissible views of the evidence, the fact
finder’s choice between them cannot be manifestly erroneous or
clearly wrong.” Id. “In its manifest error review, it is important that
the appellate court not substitute its opinion when it is the juvenile
court who is in the unique position to see and hear the witnesses as
they testify.” In re A.J.F., supra at 62. “The trier of fact is not
disadvantaged by the review of a cold record and is in a superior
position to observe the nuances of demeanor evidence not revealed in
a record.” Id.

The record in this case supports the trial court’s decision to terminate O.S.’s

parental rights. The reports from the Department reveal her continuing inability or

unwillingness to deal with her substance abuse problems. She tested positive for

drugs or alcohol at intervals throughout the three years prior to having her rights

terminated. At the hearing, she denied any use of drugs in spite of the positive drug

screenings. Further, she was unable to obtain or unwilling to verify steady

employment and never obtained a safe home for the child. Her record of visitation

was inconsistent, and she frequently went months without seeing her child.

Further, the record and the testimony at the hearing showed that I.J.B. is in a

loving home where she is well cared for. I.J.B. has severe allergies and asthma

that require extensive and regular treatment. All of her family members carry epi-

pens to be administered to the child in case of insect bites. She will require

injections for her severe allergies for the rest of her life: twice a week for six

months, then once a week for three years, then once a month for the rest of her life.

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Any injection missed during the first six months will require that the treatment be

re-started. Further, the child requires that regular breathing treatments be

administered in the home. Her foster parents are caring for I.J.B.’s health

problems and want to adopt her. She is happy and well adjusted.

After reviewing the record herein, we cannot say that the trial court erred in

terminating Somersall’s parental rights. The State established more than one

statutory ground for termination, and the record shows that termination is in the

best interest of the child.

CONCLUSION

For these reasons, the judgment of the trial court is affirmed.

AFFIRMED.

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