State in the Interest of S.D.G.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

08-154

STATE IN THE INTEREST OF S.D.G.

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. 20030738
HONORABLE THOMAS R. DUPLANTIER, DISTRICT JUDGE

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ULYSSES GENE THIBODEAUX
CHIEF JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, John D. Saunders, and
Marc T. Amy, Judges.

REVERSED AND REMANDED.

Lloyd Dangerfield
703 East University Avenue
Lafayette, LA 70503
Telephone: (337) 232-7041
COUNSEL FOR:
Appellee - C.T.

L. Antoinette Beard
825 Kaliste Saloom Road
Brandywine I, Room 218
Lafayette, LA 70508
Telephone: (337) 262-1555
COUNSEL FOR:
Appellee - State of La. Dept. of Social Serv., Off. of Comm. Services

Vivian Veron Neumann
730 Jefferson Street
Lafayette, LA 70501
Telephone: (337) 232-5170
COUNSEL FOR:
Appellee - S.D.G.

Allyson M. Prejean
P. O. Box 3862
Lafayette, LA 70502-3862
Telephone: (337) 291-9444
COUNSEL FOR:
Appellant - D.G.

Michelle Breaux
Assistant District Attorney - 15th Judicial District Court
P. O. Box 3306
Lafayette, LA 70502
Telephone: (337) 232-5170
COUNSEL FOR:
Appellee - State of Louisiana

Mitzi Duhon
1319 West Pinhook Road
Lafayette, LA 70508
COUNSEL FOR:
Appellee - Casa of Acadiana Association

THIBODEAUX, Chief Judge.

D.G. appeals the judgment that terminated her parental rights to her

daughter, as petitioned for by the Louisiana Department of Social Services, Office of

Community Services (DSS). D.G. argues that DSS failed to prove by clear and

convincing evidence that she satisfied the grounds for termination as set forth in

La.Ch.Code art. 1015(5). We agree and find the judgment of the trial court to be

manifestly erroneous. Accordingly, the judgment of the trial court is reversed and

this case is remanded to the trial court for further proceedings consistent with this

opinion.

I.

ISSUE

Did DSS establish by clear and convincing evidence
that D.G. failed to “substantially comply” with her case
plan and that there was no “reasonable expectation of
significant improvement” in D.G.’s condition and/or
conduct in the near future, as required by La.Ch.Code art.
1015(5)?

II.

FACTUAL AND PROCEDURAL BACKGROUND

The child at issue, S.D.G., was removed from her mother’s custody by

DSS in October of 2003 at the age of three months, after a report of child neglect due

to drug dependency was validated by DSS. DSS’ investigation of the mother had

been instituted a few months earlier in July of 2003. At that time, D.G. was the

domiciliary parent of her two other minor children and was in the last days of her

pregnancy with S.D.G. D.G., who was twenty-nine years old at the time, was

unmarried to the father of her three children, although she and the father, C.T., had

maintained a decade-long relationship. D.G. is deaf and almost completely mute1.

She receives SSI disability benefits because of her hearing impairment. She has some

college education.

The investigation determined that D.G. had been using cocaine and

marijuana during her pregnancy. DSS also established that she was homeless. The

two children were placed with their father, C.T.2 Through DSS’s Family Services

Program, D.G. was required to seek adequate housing and was required to participate

in substance abuse treatment. No action was taken by the agency regarding unborn

S.D.G. at the time.

S.D.G. was born on July 31, 2003, and there were no drugs detected in

her system at the time of her birth. The child remained in her mother’s care as DSS

monitored and attempted to provide services to them. Nevertheless, during the next

few months, D.G. failed to cooperate with the program’s requirements for drug

treatment and screening or to obtain her own permanent housing, although assistance

was being offered to her in this regard. In October, she tested positive for cocaine

use. Consequently, DSS obtained an Instanter Order from the trial court, gaining

temporary custody of S.D.G. S.D.G. has remained in DSS’s custody, and has resided

with and remained in the care of one foster family since that time.

S.D.G. was four years old at the time of the parental termination hearing

and in good health. She was developmentally-delayed in speech and motor skills as

a toddler, but by the age of three had made significant improvements in “catching up”

1
Communications between D.G. and DSS case workers consisted mostly of the exchange of
writings. The record reflects that DSS provided interpreters at case review meetings and at court
appearances; however, D.G. disputes whether all interpreters were certified as required and made
available to her in all necessary instances. No ruling was made by the trial court on this issue by the
trial court and this issue was not preserved for appellate review.
2
C.T. and D.G. were not married or living together. C.T. is also the father of S.D.G. C.T.
acquiesced in the termination of his parental rights to S.D.G. and has not appealed the trial court’s
judgment.

2

with her peer group, according to DSS. S.D.G.’s maternal family line contains

genetic hearing loss (D.G., D.G.’s brother, and D.G.’s son), and S.D.G. was

diagnosed with auditory neuropathy, a condition which causes inconsistent levels of

hearing loss throughout the day. Consequently, S.D.G. wears a hearing aid, is

learning sign language and other communication skills, and is placed in a public

program with other children of similar needs. As of trial time, she was thriving in her

classroom environment.

In November 2003, the first Family Case Plan was developed. It

required the mother, D.G., to participate in further substance abuse evaluations and

treatment; participate in a required mental health assessment and any subsequent

recommended treatments; obtain safe and stable housing; demonstrate the ability to

provide for the care and needs of her children3; and maintain her parental bond with

S.D.G. by participating in regularly scheduled visitation. She was also assessed a

monthly parental contribution in the amount of $25.00. The Child’s Case Plan set

forth a permanent plan goal to reunify S.D.G. with her parents. The deadline for

meeting this goal was April 2004.

The goals were not achieved by the April 2004 deadline. According to

the testimony of Nichelle Milburn Frank, the case worker assigned to this family

during that period, the primary concern continued to be D.G.’s drug use. Although

D.G. had enrolled in the Lafayette Addictive Disorders Clinic’s (LADC) programs,

she missed and rescheduled some appointments and tested positive for drug use

during random screenings in November 2003, January 2004, February 2004, and

March 2004.

3
Although the initial case plan references “children,” this appeal involves only D.G.’s case
plan compliance as it applies to S.D.G.

3

Ms. Frank, however, testified that D.G. complied with some aspects of

the plan during that initial case plan period. She testified that D.G. succeeded in

obtaining her own housing, although DSS deemed it inadequate. This is because the

home being rented by D.G. was a two-bedroom house, and she lived there with her

brother, his girlfriend, and their infant child. DSS concluded there was not adequate

space for S.D.G. under these circumstances. D.G. also failed to provide verification

of paid monthly expenses as requested by DSS. Notwithstanding this, according to

Ms. Frank, D.G. complied with the majority of the visitation schedule, although she

missed three of the twenty-five scheduled visits with S.D.G. and was late for two

visits.

Regarding D.G.’s mental fitness at the time of S.D.G.’s removal from her

custody, the record reflects that D.G. participated in—as was required by the case

plan—an initial psychological evaluation with psychologist, Ed Bergeron, Ph.D., in

December of 2003. Notably, at that visit, D.G. admitted to having a cocaine addiction

and acknowledged this as the reason for her loss of custody of her children. Dr.

Bergeron’s diagnostic tests revealed an “average” IQ. His concluding diagnostic

impression was that D.G. suffered from a generalized anxiety disorder, cocaine

dependence, and a personality disorder with poor coping skills, i.e., her mood was

dysphoric, she had low self-esteem, and suffered from self-doubt. Dr. Bergeron

recommended against reunification of S.D.G. and D.G. at the time, advising that D.G.

needed to be able to exhibit a pattern of stability before S.D.G. was returned.

Moreover, he advised that D.G. needed to be provided, and required to participate in,

additional substance abuse treatment, mental health services and/or medication, and

parenting training.

4

As a result, S.D.G. remained in her current foster placement and a second

case plan was timely approved approximately six months later in April 2004.

Reunification with the parents was still the goal. According to the case worker, Ms.

Frank, DSS’s main concern during the period of the second case plan continued to be

drug usage. Because of D.G.’s recent positive drug test results and her failure to

comply with the LADC outpatient program’s twice-weekly meeting requirements,

D.G. was referred to the LADC inpatient substance abuse treatment program at the

Pines facility in Shreveport, Louisiana. D.G. attended from July 1-29, 2004, but soon

after her release, she relapsed and again failed to remain drug free. Specifically, DSS

reported that D.G. admitted to having used cocaine on or about August 21, 2004, as

well as to obtaining and using the narcotic, Lortab. In its October 7, 2004, report to

the trial court, the DSS case worker reported that this prescription drug usage

indicated that D.G. still “d[id] not fully understand the nature of [her] addiction and

the need for constant vigilance to remain drug free.” Moreover, as of September

2004, D.G. was consistently missing her weekly aftercare service appointments with

the LADC.

Consequently, the third family case plan, approved by the trial court in

October 2004, set forth a new permanent placement plan goal of adoption. DSS

asserted that change of the goal from reunification to “Termination of Parental

Rights/Adoption,” as to both parents, was necessary because S.D.G. had been in DSS

custody for over one year and there was a need to establish permanency for her.

D.G. was still required to work towards acquiring and maintaining a

drug-free lifestyle that would enable her to responsibly care for S.D.G. The

subsequent case plans required that D.G. achieve this goal by complying with the

LADC substance abuse treatment and screenings, and “avoid[ing] the use of all

5

prescribed or over the counter medications that can be habit forming and . . . be[ing]

honest with any treating physician about her addiction, and history of substance

abuse.” Secondly, the case plan required D.G. to follow through with the

recommendations of her psychological evaluation, which included participating in

counseling and/or medicinal therapeutic services.

She was also required to maintain “safe and stable” housing and to

“demonstrate her ability to care for her children and effectively meet their needs.”

According to the case plan, this meant that D.G. was to independently maintain a

home environment that is “free and safe from violence, drugs or unsafe persons.”

D.G. was directed in the plan to “not have any one with violence and/or substance

abuse issues residing in or visiting the home.” She was also ordered to refrain from

contact with known substance abusers, and was to give her case worker verification

of her paid monthly expenses.

Finally, D.G. was ordered to maintain her parental bond with S.D.G.

through visitation and appropriate interaction and to continue to assist DSS in

achieving a permanent plan for S.D.G. D.G. was to do so by keeping DSS informed

of all of her pertinent life changes, providing names of suitable relatives for the

possible placement of S.D.G., providing consent forms for the release of information

from her landlord and service providers, providing DSS with verification of her

receipt of SSI benefits, and cooperating with services to be provided to S.D.G. by the

DEAF Action Center, Village du Lac, and LADC.

For the following three years, from October 2004 – October 2007, these

goals and action plans remained unchanged. The assigned DSS case worker from

October 2004 – September 2006 was Angela Broussard. In late 2004 and early 2005,

Ms. Broussard expressed concern that there was excessive and/or abusive use of

6

cocaine and Lortab by D.G. D.G. tested positive for cocaine use in November 2004,

January 2005, and February 20054 and her aftercare treatment with LADC was

inconsistent over these months. Additionally, Ms. Broussard contends that even

though D.G. had been counseled against the use of any drugs after her completion of

inpatient treatment, she obtained multiple prescriptions for Lortab for a myriad of

physical complaints, including an injured toe, migraine headaches, back injury, and

an ovarian cyst, which signaled likely abusive use of the medication. In January

2005, LADC considered D.G.’s use of Lortab as noncompliance with treatment and

advised her that she could not continue treatment if she continued use of the Lortab.

D.G. commenced regular and consistent involvement in LADC’s Aftercare Program

shortly thereafter, in April 2005.

On July 18, 2005, DSS moved forward with the filing of a Petition for

Termination of Parental Rights and Certification for Adoption as to both parents,

pursuant to the provisions of La.Ch.Code art. 1015(4)(b)5 and (5). In the meantime,

case plans continued to be established and worked by D.G. and a second

psychological evaluation of D.G. was performed by Dr. Bergeron. Notably, during

this time, Dr. Bergeron reported the results of his April 2005 evaluation of D.G. He

re-administered the Personality Assessment Inventory, which he found “remarkable”

because it was severely elevated on the drug abuse scale, although D.G. denied that

she was using drugs, and there had been no positive drug test results since February

2005. He concluded that, at the very least, D.G. was at a “very high risk” of

relapsing. She also was significantly elevated on the stress/anxiety scale. Dr.

4
D.G. filed a police report in March 2005, claiming that C.T. had come to her home and
attempted to rape her and that he forced her to use cocaine on that occasion. No evidence of the
outcome of this complaint was provided in the record.

This ground, alleging termination for failure to contribute to the support to the child, was
5

abandoned at the hearing.

7

Bergeron, again, did not recommend reunification, stating that D.G. needed

medication for her stress/anxiety, needed to exhibit a strong support system to prevent

a relapse, and needed to obtain six months, completely drug free.

Despite D.G.’s apparent struggles in the early months of 2005, DSS

recorded in its reports and testified through its case workers that D.G. began to make

improvements and achieved more compliance with the case plans later in 2005 and

throughout 2006. DSS and CASA workers observed that D.G. had visited with

S.D.G. for twelve months, from February 2005 to February 2006, without absence,

for their allotted twice-monthly visitations and that she often included S.D.G.’s two

siblings. They also reported that in February 2006, D.G. had gained brief

employment at the Holiday Inn, but she resigned to do independent housekeeping

work. She continued to receive SSI disability and was able to verify payment of

monthly rent and utilities with her case worker during that time.

In early 2006, D.G. had maintained continuous housing in her two-

bedroom home for two years. Her brother continued to live there with her, as well as

his girlfriend, child, and D.G.’s other two children. The children, ages twelve and

thirteen, had been returned to her care by their father, C.T. in June 2005, although he

maintained legal custody. The two children were sleeping in bunk beds in the middle

room of the house, formerly the dining room; a toddler bed was in place there for

S.D.G. as well. DSS took no action to remove the children from D.G.’s care.

According to Ms. Broussard, despite the limited bedroom space available, D.G. had

provided adequate care and parenting to the two older children for the eight months

they had been there.

Additionally, as of early 2006, D.G. had remained drug free since

February 2005, as confirmed by random drug testing being performed by LADC,

8

where she still regularly attended weekly aftercare sessions. According to case

worker, Angela Broussard, the September 2005 trial on DSS’s petition to terminate

parental rights was ultimately continued twice upon the motion of DSS, “due to the

significant compliance from Ms. Guidry” over a period of ten months, December

2005 - September 2006.

In DSS’ February 2006 status report to the trial court, Ms. Broussard

wrote that “with the significant progress made by [D.G.] on her case plan, and the

need to reconsider termination of [D.G.’s] parental rights,” visits were moved back

to the OCS office (from McDonald’s playground) so that D.G. and S.D.G. could be

more closely observed in a structured setting without distractions. The foster care

worker noted that S.D.G. was a “very shy, reserved child, and very attached to her

foster mother,” and that, essentially, efforts needed to be made to assist her in

bonding with D.G.

Consequently, supervised outings and more lengthy visitations between

S.D.G. and D.G. were allowed. DSS reported to the trial court through Ms. Broussard

that there had been success with a recent visit to a photography studio by S.D.G., her

siblings, and D.G., during which S.D.G. was relaxed and comfortable for the two

hours she was alone with her mother and siblings. The apparent progress being made

during these visits, consequently, led to DSS’ recommendation for a referral of S.D.G.

to Early Childhood Supports and Services (ECSS) to assist her and D.G. in improving

and solidifying their parent-child bond. The therapy included the foster mother to

assist with S.D.G.’s bonding and transition from the foster family to D.G.’s home.

Despite the apparent optimism presented by DSS during the dispositional

review hearing and in the subsequent report issued to the trial court in February 2006,

the next case plan report submitted to the trial court by DSS in May 2006 was less

9

optimistic and requested that the parental rights termination hearing be placed on the

court’s docket for resolution. DSS wrote in its report to the trial court that “[D.G.’s]

case plan goal of ‘participating in permanency planning for [S.D.G.]’ had not been

met” because D.G. failed to inform the case worker that she was expecting her fourth

child. Ms. Broussard discovered the pregnancy in April of 2006, shortly before D.G.

gave birth later that month. She believed the additional child posed considerable

problems for S.D.G.’s return.

Ms. Broussard contended that D.G. failed to “maintain a safe and stable

housing adequate for her family” and that she failed to “demonstrate her ability to

provide care for her children and effectively meet their needs.” In support of this

assertion, Ms. Broussard stated that she observed inadequate sleeping arrangements

for the infant child, noting that there was not a proper crib set up, but that the child

was sleeping in a king-sized bed with D.G. In addition, Ms. Broussard reiterated

concern that the two bed-room home was not of an adequate size for D.G. and the

children. According to Ms. Broussard, D.G.’s brother had “only recently moved out

of the home” in April, after repeated unsuccessful requests had been made over the

past few years that he and his family move out to ensure adequate space for D.G.’s

children in the home.

Once D.G.’s brother moved out, D.G.’s oldest daughter occupied the

second bedroom, which she would share with S.D.G. D.G. had purchased a toddler

bed and dresser for S.D.G., which were located in the sister’s bedroom. D.G.’s son

was attending the Louisiana School for the Deaf in Baton Rouge at the time and was

not regularly at the home. Ms. Broussard expressed DSS’ continued concern with the

size of the home, however, speculating that D.G.’s boyfriend, D.T., and his son had

moved in. DSS later confirmed, however, that D.T., who is also deaf and is the father

10

of D.G.’s youngest child, lived and worked in Baton Rouge, but was at D.G.’s home

every weekend to be with D.G. and his daughter. He often brought along his son for

the visits. After the child’s birth, DSS was informed that D.G. and D.T. intended to

marry and relocate to Baton Rouge, but were awaiting the resolution of the placement

of S.D.G.

The birth of the fourth child in early 2006 led the DSS case worker to

become increasingly concerned with D.G.’s purported ability to provide care for her

children and effectively meet their needs. Case worker Broussard expressed to the

court DSS’s concerns about D.G.’s failure to work since the birth of her youngest

child and her possibly limited ability to pay her rent and utilities as needed. In this

regard, and despite contrary claims by D.G. and D.T. that he had taken responsibility

for financially providing D.G. with her living expenses, Ms. Broussard noted only

that D.G.’s telephone had been disconnected “on more than one occasion,”

questioning the consistency and amount of financial support being provided. She,

however, noted in her May 2006 report to the court, as she did in the February 2006

report, that she had observed D.G. provide adequate care to the children that were in

her care. She also noted that the family received food stamps and that adequate food

was available in the home. Cleanliness of the home was not an issue. Nevertheless,

she reiterated the agency’s concern for the safety of the two youngest children,

stating: “[t]he agency is very concerned about how [D.G.] will meet S.D.G.’s needs

if she is returned to her care, especially as a speech/language delayed child returning

to the care of a non-hearing parent with a new baby.”

A new case worker, Jenee Broussard, was assigned to the family from

November 2006 to July 2007. The case plans remained unchanged and the permanent

placement goal continued to be adoption, although efforts at reunification continued.

11

In January of 2007, after a DSS Regional Level Staffing review, the decision was

made to further continue reunification efforts. Particularly, more frequent visits were

initiated and family therapy was commenced with social worker, Christine Dugas.

Extended visitation with S.D.G. in D.G.’s home each weekend began

that summer as well, under DSS’s direction. D.G. picked up S.D.G. on Thursdays at

11:45 a.m. from her summer program, and S.D.G. spent Thursday night through

Monday afternoon with D.G. She spent Monday night through Wednesday night with

the foster family.

Ms. Dugas had positive reactions to the progress made. In July 2007,

joint therapy, followed by a period of individual therapy with D.G. only, had been

“productive.” In May of 2007 when the joint therapy resumed after a month of

individual therapy, Ms. Dugas acknowledged receiving reports that S.D.G. had begun

to exhibit some day and night-time wetting, behavioral problems at school, loss of

appetite, and had induced vomiting on at least one occasion, which was all likely

related to the extended visitation that had commenced with D.G. and the separation

from her foster family. However, Ms. Dugas reported that the behaviors subsided as

she worked with S.D.G. Ms. Dugas reported a resolution of these issues as also being

related to S.D.G.’s attendance at a summer sign language program at a local public

school. Ms. Dugas said the class allowed her to be able to communicate her wants

and needs more effectively for the first time. S.D.G. was also able to communicate

more effectively with D.G. as a result. As was made clear by Ms. Dugas and CASA

workers, however, the custody issue was in need of resolution due to the emotional

strain it was clearly causing the three-year-old child. The foster parents were

distressed as well, Ms. Dugas wrote in her report, about the possible change in

custody and were seeking to adopt S.D.G., to whom they were very attached.

12

Jenee Broussard oversaw the family visitations. She stated initial

disapproval in the level of interaction between S.D.G. and D.G., stating that on one

occasion, D.G. had to be “coaxed” to play with S.D.G. She also testified to an

incident during which S.D.G., her toddler sister, and the other children were present

and D.G. was unaware of the fact that the younger child had become stuck between

the sofa and playpen. D.G. had been engaged with the caseworker and other children

at the time.

Ms. Broussard testified that she perceived a lack of sufficient

involvement on the part of D.G. She explained that she received a report that D.G.

had failed to assist the foster mother in restraining S.D.G. during a hearing screening,

when the child had a negative reaction to a medication she had been given and began

to act uncontrollably. The foster mom and nurse advised that D.G. left the room to

get something to eat and returned later. D.G. testified that there was a

misunderstanding because an interpreter was not present, and she thought she was

told that she was not needed. Of concern to DSS was also S.D.G.’s possession at

school of an unopened Nyquil packet of medication. There was no explanation

provided in the record of how, or why, the child was in possession of the medication.

There was also a complaint made by the foster mother that D.G. did not make S.D.G.

wear her hearing aids while in her care. D.G. denied this, stating that this occurred

on an occasion when the hearing aids were not working properly and needed repair.

During this time, however, Ms. Dugas noted progress and a “dramatic

change” for the better in S.D.G.’s overall demeanor as the sessions continued. S.D.G.

was now being allowed to transition for a few hours with D.G. before sessions, and

she arrived at the therapy sessions “happy, relaxed, playful and responsive to [D.G.]”

They were now more able to communicate using sign language according to Ms.

13

Dugas, as well. Additionally, in July 2007, Ms. Dugas reported that D.G. had gained

greater insight and acceptance into the impact of lengthy separations on S.D.G. and

was seeking to strengthen the bond between she and S.D.G. Ms. Dugas noted that

S.D.G. referred to D.G. as “momma” and willingly allowed her to comfort and hold

her.

On July 7, 2007, the extended visitation was terminated when DSS

removed S.D.G. from D.G.’s home after a report was received that C.T. was at the

home, in violation of the case plan orders, prohibiting “unsafe persons” from being

there. S.D.G. was asleep in a bedroom while he was there by all accounts. DSS also

received a report from the foster mom that C.T. had been at the home on July 2, 2007,

as well. D.G. testified that she was not informed that C.T. could not come to the

home to visit his other children who lived there and were also present on that

occasion. She testified that she did not consider him to be a threat.

Megan Callais, the case worker assigned to the case for the two months

preceding the termination hearing, testified that monthly visitation between S.D.G.

and D.G. was continuing. She stated that S.D.G. was usually hesitant at the

beginning of the visits, but soon “warms up.” Ms. Callais testified that she observed

appropriate behavior and interaction from both D.G. and S.D.G. She also testified

that D.G. moved to Baton Rouge, Louisiana in September 2007, and was living in a

three-bedroom home with D.T. and her other children. Ms. Callais stated that she had

not visited the home to evaluate the living circumstances.

The trial court granted the termination of S.D.G.’s parental rights. In its

Reasons for Judgment, the trial court reasoned that the grounds to satisfy La.Ch.Code

art. 1015(5) were met by DSS’s presentation of evidence. The trial court wrote in its

Reasons for Judgment that “[t]his [c]ourt’s main concern with [D.G.] regaining

14

custody of [S.D.G.] is her lack of parenting skills and inability to care for a special

needs child.” The trial court wrote that DSS established that S.D.G. has auditory

neuropathy, a condition that causes the child’s hearing abilities to fluctuate

throughout the day; however, when the child is in D.G.’s care, D.G. does not make

her wear the hearing aids, which are designed to assist in preventing total hearing

loss. The court further wrote that D.S.S. established that S.D.G. “acts out” at school

when she is aware that D.G. will be picking her up after school, rather than the foster

mom. Moreover, noted the court, the evidence presented established that S.D.G. has

suffered “severe physical and emotional setbacks” during overnight visits with D.G.,

including not using her voice, day and night-time wetting, loss of appetite, and self-

induced vomiting.

We find that the trial court manifestly erred in concluding that DSS

proved by “clear and convincing evidence” the grounds of La.Ch.Code 1015(5).

III.

LAW AND ANALYSIS

Involuntary Termination Pursuant to
Louisiana Children’s Code Article 1015(5)

The supreme court has stated the following regarding proceedings to

involuntarily terminate parental rights:

Title X of the Children’s Code governs the
involuntary termination of parental rights. To assist the
court in determining whether a parent is unwilling or
unable to adequately care for a child’s physical, emotional,
and mental health needs, La.Ch.Code art. 1015 provides
the specific grounds for involuntary termination of parental
rights. The State must only establish one ground under
La.Ch.Code art. 1015, but the judge must also find that the
termination is in the best interest of the child. La.Ch.Code
art. 1039. Additionally, the State must prove the elements
of one of the enumerated grounds by clear and convincing
evidence to sever the parental bond. La.Ch.Code art.

15

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 is
clear and convincing evidence).

State ex rel. C.J.K., 00-2375, p. 8 (La. 11/28/00), 774 So.2d 107, 113.

In this case, DSS asserts that it satisfied the grounds for termination

pursuant to Louisiana Children’s Code article 1015(5). That article states:

Art. 1015. Grounds

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.

As is set forth in La.Ch.Code art. 1036(C), a finding of a lack of parental

“substantial compliance” with the required case plan may be made by establishing the

following acts or omissions of the parent:

Art. 1036. Proof of parental misconduct

....

C. 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.

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(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.

The “lack of reasonable expectation of significant improvement”

component of Article 1015(5), is established by satisfying one or more of the

components of La.Ch.Code art. 1036(D), which states:

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.

(Emphasis added).

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DSS argued at trial that S.D.G. failed to substantially comply with the

case plan for services because of (1) drug abuse: the lack of resolution of her drug

abuse issues evidenced by S.D.G.’s use of hydrocodone after the birth of her youngest

child in 2005; (2) housing: S.D.G.’s occupation of a two-bedroom home for the four

years of the agency’s involvement, in the case; (3) therapeutic services: D.G.’s

unilateral discontinuation of the use of prescribed anti-anxiety and depression

medication and S.D.G.’s continuing primary bond with her foster mother, despite

several months of therapy to promote bonding with D.G.; and, (4) visitation: D.G.’s

five-weeks of missed visits with S.D.G. after the birth of her youngest child; S.D.G.’s

regressive behavior expressed in anticipation of and after extended home visits with

D.G.; and, D.G.’s difficulties, as a deaf person, in caring for a toddler and infant child

simultaneously.

The facts presented by DSS to the trial court in testimony and reports

covering the four-year span of providing services to this family reveal marked

improvement in, and apparent resolution of, the issues of drug abuse and

homelessness that caused the loss of D.G.’s custody of S.D.G. in the first place. D.G.

achieved sobriety in early 2005. She successfully completed Aftercare Therapy with

LADC, and no evidence of a relapse was presented at the termination hearing.

Although DSS reported concerns about a relapse because of D.G.’s apparent receipt

of a prescription for hydrocodone from her dentist in 2005, nothing more was

presented to the court to establish that this, or any other drug, had become an issue.

To the contrary, DSS continued with reunification efforts and instituted extended,

unsupervised visitations with S.D.G. in D.G.’s home. This court also notes that DSS

observed D.G.’s full-time care of her three other children, at least from 2005 through

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the trial, and DSS took no actions regarding their removal from the home due to any

issues, including drug abuse.

It is undisputed that D.G. has maintained a home since 2004. DSS case

workers reported that D.G. succeeded in making the second bedroom in the home

available to S.D.G. and her older sister and that D.G. purchased a bed and a dresser

for S.D.G. for the bedroom. The occupation of the second bedroom by D.G.’s

brother, his girlfriend, and child, was the main concern with D.G.’s home situation;

this issue was resolved.

After the birth of D.G.’s youngest child, the issue of D.G.’s hearing loss

and her capacity to parent the two, young children became a dominant issue of

concern for DSS. We note, however, that D.G.’s deafness was not the reason S.D.G.

was removed from D.G.’s custody. Moreover, there was no expert opinion offered

or pattern of established behavior presented to the trial court, regarding the effect of

her hearing loss on the parenting of her children. See La.Ch.Code art. 1036(D)(3).

All extended visitation efforts and provision of counseling and therapy

services to assist in transitioning S.D.G. to D.G.’s home, were abruptly ended as a

result of C.T.’s presence in D.G.’s home in July 2007. Although DSS asserts that this

constituted a violation of the court’s order, substantiation of the allegations in DSS’

reports to the court regarding C.T.’s alleged criminal and/or drug use history were not

made a part of the record in these proceedings. Moreover, it was admitted by DSS

at the hearing that they had not advised D.G. of how to handle C.T.’s visitation with

his other children, who were living with D.G. as well. This court also finds that

C.T.’s apparent continued access to and maintenance of legal custody to C.T. of the

other two children, which was known by DSS, is irreconcilable with DSS’s actions

as to S.D.G.

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Accordingly, this court finds that considering the evidence presented and

the law governing involuntary termination proceedings, the trial court committed

manifest error in determining that DSS established by clear and convincing evidence

the grounds set forth in La.Ch.Code art. 1015(5). Namely, it was not established

according to this standard that there had been no substantial compliance with the case

plan by D.G. as necessary for the safe return of D.G., nor was it established that

despite earlier intervention, there was no reasonable expectation of significant

improvement in the near future, considering S.D.G.’s age and her need for a safe,

stable, and permanent home.

Regarding whether reformation in the near future can be reasonably

expected, the supreme court has written:

The jurisprudence indicates to us that there is no
expectation of reformation and no likelihood of
reformation when the parent exhibits prolonged and
consistent abusive or negligent behavior or a long history
of substance abuse. Furthermore, conduct such as mental
or behavioral disorders which cause a parent to refuse to
cooperate with the authorities in addressing the needs of
the child would also suggest that no reasonable expectation
of reformation exists and that it is unlikely that the parent
will reform. However, a reasonable expectation of
reformation is found to exist if the parent has cooperated
with state officials and has shown improvement, although
all of the problems that exist have not been eliminated.

State in Interest of L.L.Z. v. M.Y.S., 620 So.2d 1309, 1317 (La.1993). Moreover,

“[r]eformation sufficient to prevent termination of parental rights requires that the

parent demonstrate substantial change, such as significantly altering or modifying the

behavior that resulted in the State’s removal of the child from the parent’s home.”

State in the Interest of D.T., L.T., and M.T., 29,796, p. 9 (La.App. 2 Cir. 6/18/97), 697

So.2d 665, 670. In this case, as recited herein, the facts do not reasonably support the

conclusion that there is no reasonable expectation of significant improvement in the

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near future. Accordingly, this matter is remanded to the trial court for reinstitution

of Child in Need of Care proceedings, pursuant to La.Ch.Code art. 1039(B)(3).

IV.

CONCLUSION

The judgment of the trial court is manifestly erroneous and is reversed.

We remand this matter to the trial court for further proceedings consistent with this

opinion.

All costs are assessed to the Louisiana Department of Social Services.

REVERSED AND REMANDED.

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