State in the Interest of S.R.W. & F.M.W.

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

JAC 07-795

STATE IN THE INTEREST OF S.R.W. & F.M.W.

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APPEAL FROM THE
THIRTY-THIRD JUDICIAL DISTRICT COURT
PARISH OF ALLEN, NO. J-2005-081
HONORABLEPATRICIA C. COLE, DISTRICT JUDGE

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ELIZABETH A. PICKETT
JUDGE

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Court composed of Oswald A. Decuir, Elizabeth A. Pickett, and J. David Painter,
Judges.

REVERSED AND RENDERED.

Nicholas Pizzolatto Jr.
Attorney at Law
P. O. Box 1487
Lake Charles, LA 70602
(337) 491-2963
Counsel for Appellant:
State of Louisiana, Office of Community Services

Kenneth Ray Rush
Attorney at Law
P. O. Box 704
Oakdale, LA 71463
(318) 335-2759
Counsel for Appellee:
A. M.

Errol David Deshotels Jr.
Attorney at Law
P. O. Box 399
Oberlin, LA 70655
(337) 639-4309
Counsel for Appellees:
S. W.
F. W.

PICKETT, Judge.

The appellant, the State of Louisiana, appeals the judgment of the trial court

denying their Petition for Termination of the Parental Rights of A.M.

STATEMENT OF THE CASE

On July 27, 2005, the Allen Parish Office of Community Services (OCS)

received a report of neglect regarding S.W., born November 21, 1996, and F.W., born

December 30, 1998. The report suggested that S.W. was sexually acting out and that

their caretaker was using charms and exorcisms on the girls in an effort to cure

physical and psychological problems of both girls. These sisters were in the custody

of their maternal grandmother, M.M., pursuant to a New Jersey court order. The New

Jersey court had issued a consent order on January 5, 2000, granting custody to M.M.

and her former husband G.M. because the children’s mother, A.M., and father, M.W.,

were incarcerated.

According to information provided to OCS from the New Jersey State Parole

Board, A.M. had been arrested on October 12, 1999, on charges of Aggravated

Assault and Endangering the Welfare of a Child. She pled guilty to Endangering the

Welfare of a Child on December 4, 2000, and was sentenced to four years in prison

on January 19, 2001. These charges were the result of injuries sustained by F.W.

while in the custody of A.M. As a result of these injuries, F.W. has been diagnosed

with Shaken Baby Syndrome, with spastic quadriplegic cerebral palsy, mental

retardation, and a history of subdural shunt.

OCS investigated the complaints against M.M., and on August 16, 2005, M.M.

contacted OCS to relinquish custody of the girls. The trial court issued an Instanter

Order the same day, and OCS took custody of the girls. The children were

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adjudicated children in need of care on January 5, 2006. Both S.W. and F.W. have

been in state custody since August 16, 2005.

OCS attempted to contact A.M. and M.W. to inform them that their children

were in state custody and to devise a case plan for reunification. In September 2005,

A.M. contacted Anita Artis, the OCS caseworker assigned to this case. She explained

that she had been released on March 7, 2003, and that she was on parole until March

7, 2006. A.M. explained that she was not ready to work on a case plan because two

of the conditions of her parole were that she could not leave the state of New Jersey

and she could not have unsupervised contact with children under the age of twelve.

Ms. Artis discussed the case plan that OCS had prepared for her, and urged her to

contact OCS when she completed parole. The case plan dated September 14, 2005,

included the following: (1) notify OCS upon release from parole, (2) obtain and

maintain employment/income, (3) procure a safe, clean, stable domicile with enough

room for A.M. and both children, (4) set up and maintain a visitation schedule, (5)

notify OCS of any change in status, and (6) provide a list of relatives for possible

placement. This case plan, however, was not approved by the trial court until January

5, 2006.

On March 3, 2006, the trial court approved a case plan dated February 24,

2006, with the goal of reunification. This case plan omitted the requirements of the

first case plan, and required little affirmative action on the part of A.M. It stated only

that she was to contact OCS to begin work on a case plan upon her release from

parole, and that OCS would find a case worker in New Jersey to devise a case plan

and monitor her progress. On March 31, 2006, A.M. contacted OCS and explained

that she was ready to work a case plan. Ms. Artis sent a copy of the case plan to A.M.

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Ms. Artis also tried to contact the New Jersey Division of Youth and Family Services

(DYFS) to have them assign a case worker for A.M. in New Jersey. A.M. testified

that she also sought help from DYFS, even visiting the offices in Camden, New

Jersey and Trenton, New Jersey, to find out why a case worker had not been assigned.

In August 2006, DYFS ultimately declined to assign a case worker because there was

not an open file on A.M. in New Jersey. A.M.’s welfare case manager, Terri Fox,

agreed to monitor A.M.’s OCS case plan compliance. The case plan at that time was

the same as in March 2006. In fact, the trial court approved the same case plan, dated

February 24, 2006, at a July 17, 2006, hearing.

On August 25, 2006, OCS created a new case plan for the family. The goal of

this case plan continued to be reunification of the family. However, in her letter to the

trial court dated December 20, 2006, Ms. Artis states that the OCS met on August 21,

2006, and changed the permanent goal from reunification to adoption. This case plan

required the following from A.M.: (1) acknowledgment of the impact of neglect in

the family, (2) maintain income to support the family for six consecutive months, (3)

maintain safe housing adequate for the entire family for six consecutive months, (4)

set up and maintain a visitation schedule with her children, and (5) inform OCS of

any change in circumstance. OCS was required to assess A.M.’s history of substance

abuse, mental health, parental abilities, ability to care for a child with special needs,

and ability to maintain housing and income. The trial court did not approve this case

plan until a hearing held on January 4, 2007, though in its order the court stated that

the permanent goal was adoption rather than reunification. Ms. Artis, in her letter

to the court, also notified the court for the first time that A.M. was in treatment for

substance abuse and had tested positive for illicit drugs as recently as November

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2006. Nevertheless, the case plan approved by the court makes no mention of the

substance abuse of A.M.

On February 19, 2007, the state filed a Petition for Termination of Parental

Rights and Certification for Adoption, alleging abandonment pursuant to La.Ch.Code

art. 1015(4) and that the children had been in the custody of the state at least one year

and the parent failed to follow a case plan pursuant to La.Ch.Code art. 1015(5). The

petition named both A.M. and M.W. as defendants. A trial was held on May 8, 2007.

Following the trial, the trial court took the matter under advisement.

On May 11, 2007, the trial court issued a written opinion and judgment. The

trial court found service was not properly made on M.W., and thus the termination

petition was continued as to him. As to A.M., the trial court found that the state had

not proven by clear and convincing evidence that A.M. had abandoned her children

under La.Ch.Code art. 1015(4). While the trial court found that “it does not appear

to be in the best interest of the children that the parental rights of the mother not be

terminated,” she found that the state had not met its burden of proving that A.M. had

not substantially complied with the case plan. Thus, the termination petition against

A.M. was dismissed. The state now appeals that judgment.

ASSIGNMENTS OF ERROR

The state asserts three assignments of error:

1. The trial court committed manifest error by finding that the appellant
had not proven that abandonment pursuant to Children’s Code Article
1015(4) applied in this case for the termination of appellee’s parental
rights by clear and convincing evidence.

2. The trial court committed manifest error by finding that the appellant
had not proven that the mother’s parental rights should be terminated
based upon Children’s Code Article 1015(5).

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3. The trial court committed manifest error by not terminating appellee’s
parental rights after finding that it was not in the best interest of the
minor children to NOT terminate appellee’s rights without giving or
setting forth any exceptional reason or reasons why it was not in the
children’s best interest to terminate appellee’s parental rights.

DISCUSSION

In State ex rel A.T., 06-501, p. 4-5 (La. 7/6/06), 936 So.2d 79, 82, the supreme

court stated:

Title X of the Louisiana Children’s Code governs the involuntary
termination of parental rights. 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, 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 ex rel. S.M.W., 00-3277 (La.2/21/01), 781 So.2d 1223.

....

In order to terminate parental rights, the court must find that the State
has established at least one of the statutory grounds by clear and
convincing evidence. State ex rel. J.A., 99-2905 (La.1/12/00), 752
So.2d 806, 811 (citing La. Ch. C. Art. 1035(A); Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982)). Further, even
upon finding that the State has met its evidentiary burden, a court still
must not terminate parental rights unless it determines that to do so is in
the child’s best interests. La. Ch. C. Art. 1039; State ex rel. G.J.L.,
00-3278 (La.6/29/01), 791 So.2d 80, 85.

Furthermore, a trial court’s findings of fact in a termination of parental rights case

will not be reversed on appeal unless they are clearly wrong or manifestly erroneous.

State ex rel. A.T., 936 So.2d 79.

We will address the appellant’s third assignment of error first. The supreme

court has made it clear that the trial court must find both a statutory ground for

termination of parental rights and the termination is in the best interest of the child

in order to terminate parental rights. A finding that termination is in the best interest

of the child, as the court ruled in this case, is not dispositive of the issue of

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termination. The state still must prove a statutory ground by clear and convincing

evidence to justify termination. Thus, we find the state’s third assignment of error

lacks merit.

Nevertheless, we note that we find no manifest error in the trial court’s finding

that the termination of A.M.’s parental rights are in the best interest of S.W. and F.W.

The evidence introduced at trial shows that while in foster care, S.W. has stopped

sexually acting out, her lying has decreased, and her grades have improved. Overall,

her situation is now less stressful, which has improved her behavior, according to Ms.

Ann Landry, a counselor who has treated S.W. While the record suggests that she

may wish to be reunited with her mother, Ms. Landry explained that S.W. has an

idealized view of A.M. It is also clear from the record that A.M. is not capable at this

time of providing the stability necessary in her children’s life, which would increase

S.W.’s stress and possibly cause regression of her behavior. Finally, she is in a foster

care placement which could become permanent if she is freed for adoption. As for

F.W., she is a special needs child who does not recognize her mother. Her special

care needs have been met in foster care. A.M. has not shown that she is interested in

or capable of caring for F.W. Furthermore, this court cannot overlook the fact that

the record before us shows that A.M. was convicted of a felony which resulted in

F.W.’s gravely disabling physical or psychological injury.1

In its first assignment of error, the state argues the trial court erred in not

finding that it proved that A.M. abandoned her children pursuant to La.Ch.Code art.

1015(D), which states:

1
We note that the state did not include in the petition for termination facts which would
support termination under La.Ch.Code art. 1015(2)(i), and this issue was not litigated in the trial
court, thus we cannot consider termination under this section. See La.Ch.Code art. 1019(C).

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The grounds for termination of parental rights are:

....

(4) Abandonment of the child by placing him in the physical
custody of a nonparent, or the department, or by otherwise leaving him
under circumstances demonstrating an intention to permanently avoid
parental responsibility by any of the following:

(a) For a period of at least four months as of the time of the
hearing, despite a diligent search, the whereabouts of the
child’s parent continue to be unknown.

(b) As of the time the petition is filed, the parent has failed
to provide significant contributions to the child’s care and
support for any period of six consecutive months.

(c) As of the time the petition is filed, the parent has failed
to maintain significant contact with the child by visiting
him or communicating with him for any period of six
consecutive months.

The children came into the custody of the state on August 16, 2005. Ms. Artis

sent a letter notifying A.M. in August 2005. A.M. contacted Ms. Artis in September

2005, when she explained that she could not work a case plan because of her parole

restrictions. Even though she could not leave New Jersey and could not have

unsupervised contact with children under the age of twelve, she made no effort to

keep in contact with her daughters, either by phone or mail. She had no contact with

anyone at OCS until March 31, 2007, twenty-three days after she was released from

parole. Even assuming Ms. Artis did not contact A.M. until the end of September,

this is a period of greater than six months in which A.M failed to have any contact

with her children, and as long as seven months since she found out they were in the

custody of the state. We find the trial court erred in finding that the state did not

prove by clear and convincing evidence that A.M. abandoned S.W. and F.W. While

A.M. could not visit her children because of her parole restrictions, the evidence is

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clear that she had no contact with them in any way, and nothing prevented her from

sending letters or arranging phone calls with the girls through OCS.

As we find the state has proved a statutory ground for termination of parental

rights, and the termination is in the best interest of S.W. and F.W., we therefore

terminate A.M.’s parental rights. Because we find merit in the state’s first assignment

of error, we do not need to address the state’s second assignment of error.

CONCLUSION

The judgment of the trial court is reversed and the parental rights of A.M. are

hereby terminated.

REVERSED AND RENDERED.

This opinion is NOT DESIGNATED FOR PUBLICATION.
Rule 2-16.3, Uniform Rules, Courts of Appeal.

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