State of Louisiana, in the Interest of D.H. & E.G.F. v. A.E.F.

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

06-1041

STATE OF LOUISIANA,
IN THE INTEREST OF D.H. AND E.G.F.

VERSUS

A.E.F.

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APPEAL FROM THE
THIRTIETH JUDICIAL DISTRICT COURT
PARISH OF VERNON, DOCKET NO. J-1434-03
HONORABLE VERNON B. CLARK, DISTRICT JUDGE

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SYLVIA R. COOKS
JUDGE
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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Sylvia R. Cooks and
Elizabeth A. Pickett, Judges.

AFFIRMED;
MOTION TO WITHDRAW GRANTED.

Robert J. Elliott
Department of Social Services
P.O. Box 832
Alexandria, Louisiana 71309
(318) 487-5218
COUNSEL FOR APPELLEE:
State of Louisiana

D. Wayne Bush
S. Christie Smith, IV
The Smith Law Firm, LLP
300 Courthouse Street
P.O. Drawer 1528
Leesville, Louisiana 71496
(337) 239-2244
COUNSEL FOR APPELLANT:
A.E.F.

COOKS, Judge.

STATEMENT OF THE CASE

A.E.F. appeals the judgment of the trial court terminating her parental rights

based on La.Ch.C. art. 1051(5). Her attorney filed a motion on appeal to withdraw as

counsel of record. For the reasons assigned below, we affirm the decision of the trial

court terminating A.E.F.’s parental rights. We grant the motion of S. Christie Smith,

IV to withdraw as counsel for A.E.F

STATEMENT OF THE FACTS

A.E.F. is the mother of D.H., age six and E.G.F., age four. The events leading

to the termination of A.E.F.’s parental rights began in November 2003 when an

investigation was initiated by the Department of Social Services, Office of

Community Services of Vernon Parish, concerning a report of alleged sexual abuse

of D.H., then age three, by her stepfather. The child was examined by a physician and

the Department requested a meeting with D.H.’s mother to discuss the alleged

incident. When the mother failed to appear as requested, considering the seriousness

of the allegations, the Department began to inquire as to her whereabouts. She and

her two children were eventually located by the Rapides Parish Sheriff’s Department

in the home of an individual who operated a methamphetamine lab. When she was

discovered by deputies, A.E.F. was in the process of cooking methamphetamines.

A.E.F. was arrested and jailed. On November 26, 2003, an Instanter Order was issued

removing the children from the custody of their mother and placing them in the

temporary custody of the State of Louisiana (State). Thereafter, the children were

adjudicated children in need of care and D.H. was placed in a foster home.

The State developed several case plans for the children with input from all

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interested parties including A.E.F.1 The initial goal was reunification of D.H. with

her mother. However, because there was no substantial compliance by A.E.F. with

the case plans submitted by the State, and considering the fact that D.H. had been in

foster care for two years, the State filed a petition for termination of parental rights

on October 19,2005. Following a hearing, the trial court terminated A.E.F.’s parental

rights. We have reviewed the testimony of the witnesses presented at the hearing and

find no error in the judgment of the trial court.

LAW AND DISCUSSION

The grounds for termination of parental rights are provided for in La.Ch.Code

art. 1015(5) which provides, in relevant part:

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 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.

The intervention of the State in the parent/child relationship is only justified

under serious circumstances. In order to sever the legal relationship between parent

and child, the State has an onerous burden of proof. The State must establish each

element of the grounds for termination of the parental relationship by clear and

convincing evidence. State ex rel. D.R.B. 00-1321 (La.App. 3 Cir. 12/6/00), 777

So.2d 508. In an involuntary termination proceeding, there are two interests at stake

- those of the child and those of the parent. However, “[i]n balancing the parents’ and

the child’s interests, the courts of this state have consistently found the interests of

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Upon investigation A.E.F. revealed her son’s legal father was not his biological father.
DNA testing confirmed J.P. was the biological father of E.G.F. J.P. has custody of his son and
therefore E.G.F.’s placement is not an issue in this proceeding. D.H.’s biological father did not
appeal the decision of the trial court terminating his parental rights.

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the child . . . [is] paramount over those of the parents.” State ex rel. L.B. v. G.B.B.,

02-1715, p. 4 (La. 12/4/02), 831 So.2d 918, 921. The Louisiana Supreme Court

explained:

The fundamental purpose of involuntary termination proceedings is to
provide the greatest possible protection to a child whose parents are
unwilling or unable to provide adequate care for his physical, emotional,
and mental health needs and adequate rearing by providing an
expeditious judicial process for the termination of all parental rights and
responsibilities and to achieve permanency and stability for the child.
The focus of an involuntary termination proceeding is not whether the
parent should be deprived of custody, but whether it would be in the best
interest of the child for all legal relations with the parents to be
terminated.(Citations omitted.) As such, the primary concern of the
courts and the State remains to secure the best interest for the child,
including termination of parental rights if justifiable grounds exist and
are proven.

State ex rel. J.A., 99-2905, pp. 8-9, (La. 1/12/00), 752 So.2d 806, 811.

The child, D.H., was three when the State obtained an Instanter Order removing

her from A.E.F.’s custody and placing her in foster care. Her foster family, the

Dauzats, seek to adopt her. During the two year interim, the State prepared several

case plans, which were approved by the court, with the goal of reunification. A case

plan assessment, prepared shortly after the children were removed, reflect A.E.F.’s

pattern of behavior with regard to D.H. The reports states, in part:

Mrs. F. visited with the children twice weekly since the last FTC until
January 29. She was out of contact with the office from January 29-
February 19. No family members seemed to know where she was. On
February 19, she contacted the worker and asked to visit with the
children, stating that she has been psychiatrically hospitalized in
Lafayette. She failed to produce any documentation of this
hospitalization and subsequently did not appear for the February 23
Adjudication Hearing. She has not been in contact with this office since
February 19. Reports from law enforcement indicate that she has missed
other court hearing[s] and there are warrants for her from Leesville City
Police; and Vernon, Rapides, and Lafayette Parish Sheriff’s offices.
Mrs. F. has completed none of her case plan[s] other than the visits
described above.
....

Mrs. F. has made no progress on her case plan. Psychological

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evaluation shows that she will need very long term treatment and her
prognosis is very poor.

Sharon Lewis, a child counselor with the Allen Parish Mental Health Clinic,

testified at the hearing. Ms. Lewis held a team conference and presented a case plan

to A.E.F. with the goal of unification. D.H.’s father was incarcerated and did not

attend. Another conference was called several months later to discuss A.E.F.’s

noncompliance. Ms. Lewis’ records reflect A.E.F. attended only eleven of the thirty-

eight scheduled visits with her child and was out of contact with the agency for six

months in 2004. A.E.F. began substance abuse evaluations, but failed to make

follow-up appointments. Ms. Lewis stated when she left the agency, Ila Cook took

over A.E.F.’s case.

Ms. Cook testified she had limited contact with both parents in the fall of 2004.

She scheduled a team conference in October 2004 to discuss a case plan. However,

neither parent attended because both were back in jail. A.E.F. was subsequently

released but in late January 2005, she was again incarcerated on a drug conviction.

D.H.’s father was also incarcerated. During this time, Ms. Cook requested home

studies on several family members, but there were no family members willing to take

D.H. or the home was rejected as a possible placement. Ms. Cook testified both

parents were in and out of jail during the time she handled the case file. The last case

plan was prepared by Ms. Cook in October 2005. The goal was changed from

reunification to adoption.

Dr. John Simoneaux, a licensed psychologist, testified at trial. He saw A.E.F.

on two occasions and conducted clinical interviews, personality testing and a mental

status exam. In the first examination, he found A.E.F. had a very serious drug

problem and would need very long-term treatment. Dr. Simoneaux found “she was

irresponsible, immature and deceptive. . . . she told me things that contradicted herself

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and contradicted other reports, minimized her drug problems. . . .she clearly had

serious problems, that her judgment was deplorable and there had been no apparent

improvement from the time the children were removed because at - by the time I saw

her she was in terrible shape.” Dr. Simoneaux testified A.E.F. had “no insight into

the concerns regarding parenting. . . .I suggested therapy, but I thought it was going

to be very, very long-term and I said the prognosis would be very poor.” During the

second evaluation, Dr. Simoneaux indicated he saw some change, but concluded: “I

thought it was primarily due to the fact that she had been in jail. . . . because, of

course, she didn’t have access to drugs. I said her need for substance abuse treatment

was still ‘profound’, was the word I used. Personality problems were still very

evident.” With the level of drug use involved, Dr. Simoneaux stated A.E.F. would

need a complete lifestyle change and a lifetime commitment to sobriety which,

realistically, he did not see happening in the future.

Terri Theaux, a licensed professional counselor with the Psychology Clinic in

DeRidder, was called to testify. When allegations of sexual abuse occurred, D.H. was

brought to Ms. Theaux for counseling. In the course of her treatment of the child, she

saw A.E.F. Ms. Theaux described an early visit with A.E.F., as follows:

I had one in particular in 2004 that I was very concerned about. It was -
[A.] had probably been released from an incarceration maybe a day or
two. That first went okay. The second one I was really concerned about
[A.] She was full of bruises and marks. Her eyes were glazed over. Her
speech was slurred. She indicated to me that she had taken Loritab for
a back problem and that the person that she was staying was probably
not the best person for her to be around and I was really concerned for
her safety.
....
Well, it was difficult for her to attend to the child and I had to encourage
the child to come near her mother to engage in an activity with her, one
that I chose to structure so that the child would be safe and she was very
reluctant to do that at first but she did warm up to her.

During the time Ms. Theaux was counseling D.H., A.E.F. was again jailed on drug

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related charges. D. H. knew her mother was in jail and expressed fear of going to

visit her in that setting. Consequently, Ms. Theaux had to arrange to have A.E.F.

transported for visits with her child. Ms. Theaux testified when D.H. was initially

evaluated there were substantial difficulties with her behavior. She would hit and

kick her younger brother. She was aggressive, had nightmares, would scream for

hours, and throw temper tantrums. “She was inconsolable, couldn’t stop her crying,

became hysterical, would resist even the most simple of commands. . . . There were

problems with bowel control. She would wet the bed and she was basically just very,

very anxious and miserable.” Since being placed with the Dauzat family Ms. Theaux

testified her behavior has dramatically improved. When questioned as to reasons for

the change in her behavior, Ms. Theaux stated:

Her stability and predictability of life. She gets up at a certain time,
goes to school, knows when she’s coming home, knows who is going to
drop her off, pick her up, is told in advance of doctors appointments and
therapy appointment, just – her life is very orderly and predictable for
her and we know that young children who have a very predictable
lifestyle that they tend to adjust quite well and do very well and I believe
that really has contributed to her stability.
....
I believe at this point in her life that the Dauzats are really her
psychological parents. That she has bonded with them.
....
I think the reunification issue has certainly been complicated by – as
previously noted, her drug use and her frequent incarcerations. I don’t
have a date of when this current stint will end. The child is five and a
half, will be six in October of this year.
....
I think she’s an anxious enough child she needs for that to be settled so
that she can have a sense of direction and a sense of belonging. . . . She
has some future direction and plans and some hopes in her life and, and
she’s really in a, in a good place right now.

A.E.F. testified at the hearing. She was twenty-six years old and was currently

in the Simmesport Correctional Facility for possession of cocaine. She had been in

jail for seventeen months. While in prison, A.E.F. stated she attended parenting,

anger management, AA, NA, life skills and freedom classes. She had contacted

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Claire House, a half-way house for mothers and their children. She believes she will

be paroled in September 2006 and, if released, plans to seek residency in Claire

House with her child, D.H. However, Oliver Michael Medina, an officer with the

Department of Public Safety and Corrections, Division of Probation and Parole, stated

her full-term release date is not until March 2010 and she has been convicted of a

probation violation and there is another probation violation pending. Additionally,

D.H.’s counselor, Ms. Theaux, was specifically questioned about whether a half-way

house setting would be beneficial for D.H. She responded:

I think the child has made so much progress in foster care and in the
Dauzat home that I think there are potentially more risk to her if she
were to be removed from that home and placed in the setting that you
and I are discussing. I think potentially there, there is harm to the child.

In reviewing the testimony, we find there was no substantial compliance with

the case plan for reunification by A.E.F. from the time the instanter order was issued

until the time of trial. Prior to her second incarceration she made no effort to improve

her situation or seek treatment for her drug dependency. It was only after she was

incarcerated the last time that she expressed an interest in changing her life. D.H. was

only three when she was placed in foster care and was experiencing severe emotional

trauma. Since that time the Dauzat family has provided a stable, secure environment

for her and they seek to adopt her. We find the State has carried its burden of proving

there is no reasonable expectation of significant improvement in the A.E.F.’s

condition or conduct in the near future. We conclude, considering the child’s age and

her need for a safe, stable, and permanent home, the best interest of D.H. is served by

terminating the parental rights of A.E.F. and releasing her for adoption. Therefore,

we affirm the decision of the trial court.

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DECREE

Based on the foregoing review of the record, we affirm the decision of the trial

court termination the parental rights of A.E.F. We grant the motion of S. Christie

Smith IV to withdraw as counsel of record.

AFFIRMED;
MOTION TO WITHDRAW GRANTED.

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