State in the Interest of D.H.L.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

08-39

STATE IN THE INTEREST OF D. H. L.

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APPEAL FROM THE
JENNINGS CITY COURT
PARISH OF JEFFERSON DAVIS, DOCKET NO. J-116-96-E
HONORABLE C. STEVE GUNNELL, CITY JUDGE

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JAMES T. GENOVESE
JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Jimmie C. Peters, and
James T. Genovese, Judges.

REVERSED.

Robert J. Lounsberry, Sr.
214 E. Nezpique Street
Post Office Box 1351
Jennings, Louisiana 70546
(337) 616-3888
COUNSEL FOR DEFENDANT/APPELLANT:
D.B.

Nick Pizzolatto, Jr.
Louisiana Department of Social Services
Office of Community Services
1919 Kirkman Street
Lake Charles, Louisiana 70601
(337) 491-2963
COUNSEL FOR APPELLEE:
State of Louisiana

David Emile Marcantel
302 E. Nezpique Street
Post Office Box 1366
Jennings, Louisiana 70546
(337) 824-7380
COUNSEL FOR MINOR/APPELLEE:
D.H.L.

Charles Bull, Jr.
206 South Adams Street
Post Office Box 400
Welsh, Louisiana 70591
(337) 734-2811
COUNSEL FOR DEFENDANT/APPELLEE:
K.L.

GENOVESE, Judge.

D.B.,1 the biological father of the minor child, D.H.L., appeals a judgment of

the trial court terminating his parental rights and certifying D.H.L. eligible for

adoption. For the following reasons, we reverse the judgment of the trial court.

PROCEDURAL HISTORY

The minor child, D.H.L., was born on August 26, 2003. D.H.L., whose mother

is K.L., was placed into the custody of the State of Louisiana, Department of Social

Services (DSS), on April 13, 2004, when she was only seven months old. The

incident triggering D.H.L.’s placement into the custody of DSS occurred on April 10,

2004. The Jennings Police Department responded to a complaint at K.L.’s home

wherein it was determined that K.L.’s live-in boyfriend,2 E.O., had allegedly beaten

K.L.’s five-year-old son, D.L., on his back with a large belt . It was also alleged that

during the beating, K.L. held her son down while E.O. beat him. DSS removed both

D.L. and D.H.L. from K.L.’s custody pursuant to an oral instanter order granted by

the trial court on April 13, 2004. On April 15, 2004, a written instanter order

temporarily placing D.L. into the custody of his biological father, D.B., was signed

by the trial court; however, the same instanter order placed D.H.L. into the custody

of DSS since her paternity had not yet been determined. Both D.L. and D.H.L. were

adjudicated children in need of care pursuant to La.Ch.Code art. 6663 on June 17,

1
Pursuant to Uniform Rules–Courts of Appeal, Rules 5-1 and 5-2, the initials of the parties
will be used to protect and maintain the privacy of the minor child involved in this proceeding.
2
On April 10, 2004, K.L. and E.O. were living together; however, K.L. and E.O have since
married.
3
Louisiana Children’s Code Article 666 provides, in pertinent part, “Following the
adjudication hearing, the court shall immediately declare whether the evidence warrants a child in
need of care adjudication.”

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2004. On October 19, 2004, the results of the DNA test established that D.B. was

also D.H.L.’s biological father. D.H.L. has remained in the custody of a non-related

foster family selected by DSS, continuously, since April 13, 2004.

On January 20, 2006, DSS filed a Petition for Certification for Adoption and

Termination of Parental Rights.4 The petition alleged, in relevant part:

5.

As to the mother, [K.L.], and the father, [D.B.,] the Louisiana
Department of Social Services, Office of Community Services,
represents that their parental rights be terminated under [La.Ch.Code
art.] 1015, Sections (4)[5] and (5).[6]
6.

[D.H.L.] has been in the State’s custody since April 13, 2004 and
[sic] where she remains.

4
Though the State’s petition also sought to terminate the parental rights of K.L., evidence at
the termination hearing was only received relevant to the termination of the parental rights of the
father, D.B.
5
The grounds for termination of parental rights due to abandonment according to La.Ch.Code
art. 1015(4) are:

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.
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The grounds for termination of parental rights according to La.Ch.Code art. 1015(5) are:

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.

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7.

Despite the interventions attempted, there is no reasonable
expectation of significant improvement in the parents’ condition or
conduct in the near future, and considering the child’s age and her need
for a stable and permanent home, the parental rights of the mother and
the father must be permanently terminated, for the following
nonexclusive reasons, to-wit:

1. The parents have failed to avail themselves of
services offered.

2. The mother and father have not done their case plan.

3. The parents’ [sic] smoke and the child is allergic to
cigarette smoke. The parents do not stop smoking
when they visit the child[,] and the child needs
medical attention as a result of allergic reactions
after visiting with her parents.

4. The child is two years old [and] has been in the
State’s custody for over one year. She needs a stable
and permanent home and cannot wait any longer for
her parents to rehabilitate.

5. There has been no significant parental compliance
with the case plans for services approved by the
court as necessary for the safe return of the child.

6. There is no reasonable expectation of significant
improvement in the parents’ condition or conduct in
the near future, considering the child’s age and her
need for a safe, stable, and permanent home.

8.

It is in the child’s best interest that all parental rights be
terminated and [that] she be certified available for adoption.

Hearings on DSS’s petition to terminate the parental rights of D.B. were held

on May 12, 2006, February 1, 2007, and February 2, 2007. At the conclusion of the

hearings, the trial court took the matter under advisement. On October 11, 2007, the

trial court issued written reasons for judgment wherein the parental rights of D.B.

were terminated, and D.H.L. was certified eligible for adoption. In its written

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reasons, the trial court declared that it based its ruling on its findings that: (1) D.B.

had failed to provide significant contributions to D.H.L.’s care and support for a

period of six consecutive months pursuant to La.Ch.Code art. 1015(4)(b); (2) D.B.

had failed to maintain significant contact with D.H.L. for a period of six consecutive

months pursuant to La.Ch.Code art. 1015(4)(c); and (3) D.B. had established “a

pattern of behavior” whereby he had to be “constantly forced” to comply with the

court-ordered case plan. On November 7, 2007, the trial court issued an amended

version of its written reasons for judgment wherein it declared, “No evidence was

introduced regarding the parental rights of the mother of [D.H.L.]; therefore, the

parental rights of [K.L.] are not terminated.” The trial court signed a judgment to this

effect on December 6, 2007. The father, D.B., appeals the trial court’s termination

of his parental rights.

ASSIGNMENTS OF ERROR

D.B. asserts four assignments of error:

1. [T]he trial court erred by finding the State of Louisiana had
proved by clear and convincing evidence that [D.B.] abandoned
his child by not supporting his child for any six month
consecutive period and not maintaining contact with her for any
[six] consecutive months.

2. [T]he trial court erred by finding [D.B.] did not substantially
comply with his case plan.

3. [T]he trial court erred by failing to appoint an attorney to
represent [D.B.] for the first fifteen months that the minor child
was in custody.

4. [T]he trial judge erred by finding it was in the minor child’s best
interest that [D.B.]’s parental rights be terminated.

LAW AND DISCUSSION

Our supreme court has recognized that the gravity of terminating parental rights

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requires our courts to impose a stricter standard of proof than the preponderance of

the evidence standard; rather, the State must prove by clear and convincing evidence

at least one of the statutory grounds contained in La.Ch.Code art. 1015 in order to

terminate a parent’s rights. See State ex rel. J.M., 02-2089 (La. 1/28/03), 837 So.2d

1247; La.Ch.Code art. 1035(A).7 “Further, even upon finding that the State has met

its evidentiary burden, a court still should not terminate parental rights unless it

determines that to do so is in the child’s best interests.” State ex. rel. J.M., 837 So.2d

at 1253; see also La.Ch.Code art. 1037(B).8

An appellate court cannot set aside a juvenile court’s findings of fact regarding

the termination of parental rights unless it is manifestly erroneous or unless those

findings are clearly wrong. In re A.J.F., 00-948 (La. 6/30/00), 764 So.2d 47; Rosell

v. ESCO, 549 So.2d 840 (La.1989). We conclude that the factual findings of the trial

court are clearly wrong and manifestly erroneous. We, therefore, conduct a de novo

review of the record.

Grounds for Involuntary Termination of Parental Rights

The trial court’s written reasons for judgment state that the six-month time

period upon which it concluded that D.B. neither supported nor contacted D.H.L. was

from April 13, 2004 through December 31, 2004. In fact, D.B. admitted at the trial

of this matter that he did not begin to pay child support for D.H.L. until January of

7
Louisiana Children’s Code Article 1035(A) provides that “[t]he petitioner bears the burden
of establishing each element of a ground for termination of parental rights by clear and convincing
evidence.”
8
Louisiana Children’s Code Article 1037(B) provides:

When the court finds that the alleged grounds set out in any Paragraph of
Article 1015 are proven by the evidentiary standards required by Article 1035 and
that it is in the best interests of the child, it shall order the termination of the parental
rights of the parent against whom the allegations are proven. The court shall enter
written findings on both issues. The consideration of best interests of the child shall
include consideration of the child’s attachment to his current caretakers.

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2005. However, it was not proven that D.B. was D.H.L.’s biological father until the

results of the DNA test were obtained on October 19, 2004. We find that the trial

court erred in holding D.B. legally responsible for the support of D.H.L. prior to his

paternity being established. The trial court’s reliance upon this six month period to

conclude that the State had proven by clear and convincing evidence that D.B. had

abandoned D.H.L. pursuant to La.Ch.Code art. 1015, sections (4) and (5) was legally

incorrect.

Next, D.B. contends that the trial court erred in finding substantial non-

compliance with his case plan. Louisiana Children’s Code Article 1036(C) sets forth

the evidence which may be considered in proving the lack of substantial parental

compliance with the case plan as required by La.Ch.Code art. 1015(5):

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

(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.

(7) The persistence of conditions that led to removal or similar
potentially harmful conditions.

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On October 19, 2004, DSS provided D.B. with a case plan which identified

goals that he would be expected to achieve before he could obtain custody of D.H.L.

According to the DSS case plan dated October 19, 2004, which is the first case plan

adopted after D.B.’s paternity was established, the goals were identified as: (1) D.B.

and M.P.9 were to secure a home large enough for placement of D.H.L. and free of

pets, smoke, and clutter; (2) D.B. was to seek and maintain employment; (3) D.B. and

M.P. were not to allow anyone with a history of physical abuse to reside in their

home; (4) D.B. and M.P. were to provide to DSS the names of individuals who reside

with them in order for a criminal background check to be performed; (5) D.B. was to

submit to random drug screens; (6) D.B. and M.P. were to submit to psychological

evaluations with Dr. Alfred Buxton; (7) D.B. was to attend and successfully complete

an anger management counseling program; and (8) D.B. and M.P. were to attend

scheduled visits with D.H.L.

D.B. testified that he and M.P. complied with their case plan by: (1) moving

out of their small apartment and into a larger, smoke-free, and pet-free home in June

of 2005; (2) submitting to psychological evaluations; (3) completing an anger

management program; and (4) maintaining employment. D.B. also testified that he

began paying child support for D.H.L. in January of 2005 and, in fact, has paid in

excess of the ordered amount.

At the trial of this matter, the crux of the State’s case dealt with D.B. and

M.P.’s defiance of the DSS directive that they keep D.H.L. away from smoke and pets

due to her allergies. The State presented testimony regarding D.B. and M.P.’s alleged

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On October 19, 2004, D.B. and M.P. were living together; however, D.B. and M.P. have
since married. Due to their co-habitation, M.P. was included in the DSS case plans formulated with
regard to D.B.

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non-compliance with the directive that they not smoke or allow pets around D.H.L.

According to Ms. Jessica Frey (Ms. Frey), the DSS foster care case manager, there

were occasions that D.H.L. smelled of smoke upon her return from visitation with

D.B. and M.P. Ms. Frey also testified that she is certain that on at least one occasion,

September 5, 2005, she witnessed M.P. smoking while driving with D.H.L. in the

vehicle. M.P. was again seen by Ms. Frey smoking while driving on September 10,

2005; however, Ms. Frey could not positively ascertain whether D.H.L. was in the

vehicle.

Our review of the record reveals that a large amount of testimony was devoted

to the issue of whether D.B. and M.P. smoked in D.H.L.’s presence and/or allowed

pets near D.H.L. Aside from the conflicting testimony of the interested parties, i.e.,

the biological father who wants custody, the biological mother who desires that the

foster family be allowed to adopt D.H.L., and, of course, the foster family who desires

to adopt D.H.L., what is critical and crucial to this case are the progress reports

rendered by the DSS foster care case workers assigned to this case. While the

testimony at trial focused on whether or not D.H.L.’s allergies were exacerbated by

D.B. and M.P.’s alleged smoking and the presence of pets near D.H.L., there is also

evidence and testimony that D.H.L.’s foster mother, C.M., also smoked and had a pet

in her home. On April 29, 2005, Ms. Candace Kelly, supervisor of Child Protection

Services in Jennings, authored a letter to the trial court wherein she wrote:

[D.H.L.] suffers from allergies and the home [of the foster parents] is
kept free of cigarette smoke although the foster parents do have a dog
in their home. [C.M.] stated that [D.H.L.] is not allergic to the dog and,
in fact, she does not appear to have any allergic reaction when seen by
OCS personnel.

With such incriminating evidence as to all of the interested parties, we find that the

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State has failed to meet its legal burden of proof, by clear and convincing evidence,

that there was substantial non-compliance on the part of D.B. warranting a

termination of his parental rights.

D.B.’s Right to Counsel

Louisiana Children’s Code Article 608 provides that a parent is entitled to a

court-appointed attorney. D.B. asserts that he was unfairly disadvantaged throughout

the progression of this matter because counsel was not appointed to represent him

until approximately fifteen months after D.H.L. was placed into the custody of DSS.

We find no indication in the record that D.B. ever waived his right to counsel. The

trial court’s minute entry from a review hearing held on June 16, 2005 indicates that

it was D.B. who ultimately requested that an attorney be appointed to represent his

interest in this matter.

When D.H.L. was placed into the custody of DSS on April 13, 2004, counsel

was appointed to represent D.H.L.’s mother, K.L.; however, D.B. was not afforded

the same protection. Even though D.B. had yet to be confirmed as the biological

father of D.H.L., he was clearly entitled to representation as the biological father of

D.L., the minor whose physical abuse at the hands of K.L.’s boyfriend triggered these

proceedings. Based on the facts set forth in the record of these proceedings, we find

that the trial court’s failure to afford D.B. legal representation prior to his request in

June of 2005 is considerably consequential and a clear violation of the legal rights

afforded D.B. as set forth in La.Ch.Code art. 608.

DECREE

Based on our comprehensive examination of the record, we find that the State

has failed to prove by clear and convincing evidence the elements alleged in its

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Petition for Certification for Adoption and Termination of Parental Rights pursuant

La.Ch.Code art. 1015, sections (4) and (5). For these reasons, we reverse the trial

court’s judgment terminating the parental rights of D.B.

REVERSED.

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