State of Louisiana in the Interest of F.A. and A.A.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

04-1046

STATE OF LOUISIANA IN THE INTEREST OF F.A. AND A.A.

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT,
JUVENILE COURT DOCKET
PARISH OF LAFAYETTE, NO. 2002-0091
HONORABLE HERMAN C. CLAUSE, DISTRICT JUDGE

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JOHN B. SCOFIELD
JUDGE

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Court composed of Billie Colombaro Woodard, Elizabeth A. Pickett, and John B.
Scofield,* Judges.

AFFIRMED.

John A. Hernandez III
Attorney at Law
321 W. Main, Suite 2-G
Lafayette, LA 70501
Counsel for Appellant:
J. A.

L. Antoinette Beard
825 Kaliste Saloom Road
Brandywine I, Room 218
Lafayette, LA 70508
Counsel for Appellee:
State of Louisiana, Dep’t of Social Servs.

*
Honorable John B. Scofield participated in this decision by appointment of the Louisiana Supreme Court
as Judge Pro Tempore.

SCOFIELD, Judge.1

J.G.A. (JGA), the mother of the minors, A.V.A. (AVA), and F.M.A. (FMA),

appeals a judgment of the trial court terminating her parental rights and certifying the

minors eligible for adoption. Both AVA and FMA have different biological fathers.

Neither the biological father of AVA nor the biological father of FMA, whose rights

were also terminated, appeals the judgment. We affirm the judgment of the trial

court.

FACTS AND PROCEDURAL HISTORY

The minors, AVA and FMA, first came to the attention of the Department of

Social Services on January 11, 2002, through the filing of a report by a third party of

the alleged medical neglect by JGA of FMA and the alleged neglect through

dependency by JGA of both children. FMA had been born with breathing problems

which necessitated her being placed on an apnea monitor. JGA impeded a respiratory

therapist’s attempts to visit FMA in order to obtain readings from the monitor and,

finally, admitted to the therapist that she had removed the monitor because she could

not stand the monitor’s beeping. FMA was transported by Social Services to

University Medical Center and was kept overnight so that tests could be performed

to determine if FMA’s breathing problems were persisting.

Investigation by Social Services at that time revealed that JGA had been

unemployed for some time and that she and the children had not had stable living

conditions since the utilities in their trailer had been cut off the month before. The

three of them were, at that time, living with JGA’s mother in a small apartment. The

1
Honorable John B. Scofield participated in this decision by appointment of the Louisiana Supreme Court
as Judge Pro Tempore.

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apartment was cramped as JGA’s sister and her two small children were also living

there. Because FMA had no bed, she was sleeping on pillows in a closet.

When the tests at the medical center revealed no abnormalities in FMA’s

breathing, she was returned to her mother’s care. Social Services provided JGA with

a bed and diapers for FMA and arranged protective daycare for both children so that

JGA could have time to seek employment.

In the weeks following the previously described incidents, JGA did not find

employment and had to discontinue sending the children to daycare because she was

unable to pay for the necessities required by the daycare center. Additionally, during

this period of time, JGA and her sister were involved in a number of physical

altercations, at least two of which required police intervention. Following a fight on

February 7, 2002, JGA was arrested and incarcerated in the Lafayette Parish

Correctional Center. During the altercation which led to her arrest, JGA sustained a

fractured bone in her right hand.

During this period of time, it was also discovered that JGA had been previously

diagnosed as suffering from bipolar disorder and placed on medication, but that she

had not taken the prescribed medication for the last two years.

Based upon the foregoing facts, the trial court issued an Instanter Order on

February 8, 2002, placing the children in the custody of Social Services. At a hearing

on February 13, 2002, all parties agreed that the children should remain in the custody

of Social Services pending further adjudication. A Court Appointed Special

Advocate was named to represent the best interest of the children. A “Child In Need

Of Care” hearing was held on March 19, 2002. As a result thereof, the children were

adjudicated in need of care, and were continued in the custody of Social Services.

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Also, a visitation schedule was established and a case plan was instituted for JGA.

A disposition hearing was held on August 20, 2002, wherein custody was

continued in Social Services. At the January 21, 2003 disposition hearing, the goal

of Social Services, in respect to the children, was changed to adoption.

Thereafter, Social Services filed a petition for termination of parental rights.

The parents answered the petition, and after several delays, a hearing on Social

Services’ petition to terminate parental rights was held on April 27, 2004. At the

conclusion of that hearing, the court took the case under advisement, announcing that

the decision would be made the following day. The court terminated parental rights

and declared the children free for adoption. JGA appeals.

LAW AND DISCUSSION

Both the United States Supreme Court and the Louisiana Supreme Court have

recognized that the termination of parental rights is the most serious interference the

State can take in regard to a family unit. In State ex rel. J.M., 02-2089, p. 7 (La.

1/28/03), 837 So.2d 1247, 1251-52 (footnote omitted), our supreme court discussed

in detail the law applicable to termination of parental rights stating the following:

In Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388,
1394-95, 71 L.Ed.2d 599 (1982), the United States Supreme Court
recognized that natural parents have a fundamental liberty interest in the
care, custody, and management of their child and that the natural
parents' interest does not "evaporate simply because they have not been
model parents or have lost temporary custody of their child to the State."
The Court went on to acknowledge that, while the State has an "urgent
interest" in a child's welfare and in providing the child with a permanent
home, as long as there is reason to believe that a positive, nurturing
parent-child relationship exists, the State's interest must favor
preservation over severance of natural familial bonds. Id. at 766, 102
S.Ct. at 1401 (quoting Lassiter v. Department of Soc. Servs., 452 U.S.
18, 27, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981)). Thus, the Court found
that parents who are faced with the possibility of forced dissolution of
their parental rights must be provided with fundamentally fair

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procedures in order to ensure that children's legal bonds are not
erroneously severed from fit parents. Id. at 753-54, 102 S.Ct. at 1395.

The supreme court in J.M. also recognized that the gravity of terminating

parental rights requires our courts to impose a stricter standard of proof in these cases.

Rather than utilizing the preponderance of the evidence standard, the State must

prove by clear and convincing evidence that the natural parents cannot or will not

provide a normal family home for the children.

Although the fundamental rights of the parents to keep and care for their

children are to be scrupulously maintained, the rights of the children to a secure,

stable, long term relationship are crucial to the equation. “In balancing these

interests, the courts of this state have constantly found the interest of the child to be

paramount over the parent.” Id., at 1252.

In order to terminate parental rights, La.Ch.C. art. 1015(5) requires the

following:

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.

Even fulfilling the requisites of article 1015 will not allow the termination of

parental rights if doing so is not in the best interests of the children.

As stated, in the case at hand, the State had established a court-approved case

plan for JGA to follow. Louisiana Children’s Code art. 1036(C) enumerates as

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follows the substantive elements necessary for the State to prove lack of compliance

with the case plan:

(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.

As indicated, La.Ch.C. art. 1036(C)(6) requires the parent to demonstrate “substantial

improvement in redressing the problems preventing reunification.” Louisiana

Children’s Code art. 1036(D) follows up by setting forth as follows the substantial

elements to be considered in determining the lack of such improvement:

(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.

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In addition to these rigorous statutory requirements, our courts exercise

extreme care and caution in addressing the grave prospect of terminating parental

rights. The supreme court in J.M. expressed it well:

This court has always recognized, however, that great care and
caution must be exercised in these proceedings because the permanent
termination of the legal relationship existing between children and their
biological parents is one of the most severe and drastic actions the State
can take against its citizens. State in the Interest of G.J.L. and M.L., 791
So.2d at 85; State in the Interest of J.A., 752 So.2d at 811. Parents have
a natural, fundamental liberty interest in the continuing companionship,
care, custody and management of their children, which warrants great
deference and vigilant protection under the law. Id. Thus, we recognize
that the potential loss to parents is grievous, "perhaps more so than the
loss of personal freedom caused by incarceration." Id. Because due
process requires that a fundamentally fair procedure be followed when
the State seeks to terminate the parent-child legal relationship, actions
to terminate must be scrutinized very carefully. Id.

....

Permanent termination of the legal relationship existing between
natural parents and children is one of the most drastic actions the State
can take against its citizens. However, as noted previously, the primary
concern of the courts and the State remains to determine and insure the
best interest of the child, which includes termination of parental rights
if justifiable statutory grounds exist and are proven by the State. State
in the Interest of S.M.W., 00-3277 (La.2/21/01), 781 So.2d 1223.

Id., at 1252-54.

In the case sub judice, the record shows that Social Services proved the

following by clear and convincing proof : (1) that JGA failed to contribute to the

costs of the children’s foster care, (2) that her lack of substantial improvement in

redressing the problems prevents reunification, and (3) that there is a lack of a

reasonable expectation of significant improvement in the near future as demonstrated

by JGA’s failure to secure adequate independent housing or stable employment. The

record is also replete with evidence that it would be in the best interests of the

children to terminate JGA’s parental rights and free the children for adoption.

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Social Services’ first witness was Dr. Ed Bergeron, a licensed psychologist

who evaluated JGA on two separate occasions. Dr. Bergeron also scheduled sixteen

counseling sessions, but JGA only kept five. He stated that JGA admitted that she

has a temper control problem and that her housing situation is unstable. JGA related

that she had an abusive, alcoholic father and that she had been raped at the age of

fifteen. Her medical history revealed that she had a psychiatric episode in 1998

which required hospitalization and that she had been diagnosed as having bipolar

disorder and placed on Paxil and lithium. She quit taking her medications when she

first became pregnant and never resumed taking them.

Testing revealed JGA has an IQ of eighty-seven and, according to Dr.

Bergeron, the results of her MMPI test revealed “severe emotional problems,

depression, inability to modulate her emotions in an adaptive fashion; in other words,

she tends to overreact to things, little things provoke some rather dramatic responses.

And also, there’s a great deal of mood swings.” Dr. Bergeron also administered a

Formal Assessment of Personality test. In his opinion, the results of that test

“showed essentially a lot of instability, very similar to the personality test; that she

was generally unstable; that she was characteristically, you know, immature, moody,

restless, and overreactive, irritable, [and] having a low frustration tolerance.”

Finally, Dr. Bergeron administered the Child Abuse Potential Inventory test.

He believed this test showed JGA in need of counseling, anger management and

further indicated that she should resume some form of psychiatric medication. In

sum, he concluded that in addition to her bipolar disorder, JGA suffered from both

post-traumatic stress disorder and borderline personality disorder.

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As stated earlier, Dr. Bergeron began counseling sessions with JGA, but she

only came to the first five sessions, those that were scheduled between September 4,

2002 and October 10, 2002. She failed to attend the next eleven scheduled sessions.

Dr. Bergeron again saw JGA on December 12, 2002. At that time, she admitted

that after she quit coming to counseling, she had another fight with her sister and that

she “gave up on her life.” JGA told Dr. Bergeron that she stopped working on her

treatment plan, started smoking marijuana, and had self-medicated herself. She stated

that she had come to realize she loved her children and wanted another chance. Dr.

Bergeron agreed to help her and set up an appointment with a physician so that she

could be prescribed medication for her psychiatric condition. JGA failed to keep the

appointment with that doctor.

Dr. Bergeron re-evaluated JGA on December 8, 2003. During that visit JGA

admitted that the odds on reunification with her children were slim because “she had

not really established a pattern of stability. . . . had not maintained steady employment

and . . . . had not secured her own residence.” Additionally, she had never resumed

her psychiatric medications. As a result of that examination, Dr. Bergeron concluded

that JGA was not ready to be reunited with her children and that she was still in need

of “some rather extensive psychotherapy.”

Ms. Asia Jones was the Social Services case worker on this case for the first

eighteen months. She explained that JGA’s case plan called for her to obtain stable

employment and independent living conditions, to complete parenting classes, to

obtain psychological help, to visit regularly with her children, and to pay child

support of fifty dollars per month. Ms. Jones explained that while JGA made

sporadic attempts at working on her case plan, she simply failed to meet any one of

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the goals. JGA was unable or unwilling to keep a job for any length of time; she

never managed to find a residence of her own; she never paid child support; her visits

with the children were sporadic and, at times, disruptive; and although she was

evaluated by Dr. Ed Bergeron, she failed to follow up for the counseling he found she

needed. Ms. Jones also testified that JGA refused some of the services offered to her,

such as enrolment in the New Life Center. On two separate occasions JGA just

disappeared for weeks at a time. The record shows that between the opening of the

case by Social Services and the termination hearing, JGA had six residences, all

provided by third parties, and five jobs. According to JGA, she was supposed to start

her sixth job later in the week. In sum, Ms. Jones testified as follows:

I mean, I think - - you know, the Agency and myself, I think we
went above and beyond. I mean, we worked with J[. . . .]. We offered
her different services. Family visits, we transported her. It was to the
point where if her mom was sick I would take the children to the
hospital to visit. We were more accommodating. J[. . . .] had - - J[. . .
.] showed no stability. She showed no responsibility as a parent for the
kids, by not showing up for family visits, for not trying to stay at job for
longer than what she was. Every job she worked she would say that it
was the job that caused her to leave or to be fired. She never took
responsibility for her actions, and I feel like the Agency, we walked her
hand-in-hand through her case plans. I always made sure that she had
what she needed. If she needed a ride, we would either transport or set
transportation up. We even got bus tokens for her to accommodate her
to get to visits and everything. But, I mean, at this point, I mean, I think
the Agency has exhausted every possible thing they can do to reunify
her with her kids ro to help her in that manner.

On cross-examination Ms. Jones was questioned about her investigation of

“any problems that might have existed” in the foster home. She recounted one

incident where, following a visit, JGA reported bruising on AVA’s hands. Ms. Jones

investigated and found out AVA had self-inflicted the bruises and a large blister by

repeatedly hitting herself with a scrubbing brush. This behavior was consistent with

the findings of Ms. Christine Dugas, a clinical social worker, who started seeing AVA

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in September of 2003. Ms. Jones suggested that, in the future, the foster mother use

sponges for cleaning.

Bernadette Viltz, who succeeded Ms. Jones, took over the case in August of

2003. During most of that time JGA had been living with her boyfriend and the

boyfriend’s mother and sister. She is currently pregnant by that boyfriend with her

third child. Approximately a week and a half before the trial, because of continuing

conflicts with her boyfriend’s mother and sister, JGA moved in with her aunt in

Abbeville.

Ms. Viltz verified that JGA has failed to attend mental health counseling and

that in both August 2003 and January 2004, JGA did not show up for scheduled visits

with her children. She also verified that while some visits were “good,” others were

disruptive. Ms. Viltz stated that it is Social Services’ position that termination would

be in the best interest of the children. She testified that the children have been in the

same “adoptive resource home” since they came into the agency’s care on February

7, 2002, that the children are doing well in that home, and that the foster parents

wished to adopt the children should they become free for adoption.

When Ms. Viltz was asked if she thought there was anything more that she

could have done for JGA, Ms. Viltz replied, “Well, I think I [went] above and beyond

for her, and if she had asked for assistance I would have been there for her.”

The trial court also heard testimony from Ms. Christine Dugas, a clinical social

worker, who was called in to work with AVA in September 24, 2003. Ms. Dugas

stated that AVA had begun experiencing sleep disturbances and nightmares; that she

had become physically aggressive toward FMA and her foster mother; that she had

begun smearing feces, destroying toys and house-hold items; and that she exhibited

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prolonged temper tantrums. The behavior was so disruptive that the child had to be

medicated. Ms. Dugas commented that AVA would do well up until a visit with

JGA, then would regress. In her opinion AVA is torn by having two mother images

and needs resolution to the current situation. Ms. Dugas recounted the following:

I think this would be of interest to the Court - - at her session last week,
which was held on April 21st, she was playing with some miniatures, an
angel, a mermaid and a fairy figure, and she asked that I hand her a snow
globe that was up on top of the shelf which contains an angel and some
little children. So I gave that to her, and she took the small angel figure
and she began kind of beating the head of the angel against the snow
globe. And at first I wasn’t sure, you know, what this was all about, and
then she explained to me that the angel could not live with her mother.
And then she took the angel and she began to walk it away from the
snow globe, and she said, “So she’s going to find another mother.”

Out of the mouths of babes.

Considering the foregoing, and the record as a whole, we cannot say that the

trial court was clearly wrong in terminating JGA’s parental rights. The record

demonstrates that Social Services carried its burden of proving by clear and

convincing evidence that JGA cannot or will not provide a normal family home for

AVA and FMA; that it is in the best interests of the children to terminate her parental

rights; and that justifiable statutory grounds exist and were proven by the State.

Accordingly, for the reasons stated, the judgment of the district court is

affirmed. Inasmuch as JGA is indigent, we pretermit the assessment of costs.

AFFIRMED.

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