State in the Interest of H.G. and C.G.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

08-657

STATE IN THE INTEREST OF H.G. AND C.G.1

**********

APPEAL FROM THE
THIRTY-THIRD JUDICIAL DISTRICT COURT
PARISH OF ALLEN, NO. JV-2006150
HONORABLE JOEL GERARD DAVIS, DISTRICT JUDGE

**********

ULYSSES GENE THIBODEAUX
CHIEF JUDGE

**********

Court composed of Ulysses Gene Thibodeaux, Chief Judge, Oswald A. Decuir, and
Marc T. Amy, Judges.

AFFIRMED.

John Erwin Demoruelle
Allen Parish District Attorney Office
P. O. Box 839
Oberlin, LA 70655
Telephone: (337) 639-2641
COUNSEL FOR:
Appellee - J.G.

E. David Deshotels
Deshotels, Mouser & Deshotels
P. O. Box 399
Oberlin, LA 70655
Telephone: (337) 639-4309
COUNSEL FOR:
Appellee - T.R.

1
The child, K.G., was erroneously designated as “[C.G.]” in the Department of Social
Services’ initial pleadings filed with the trial court. The child’s birth certificate and the final
judgment rendered by the trial court, accurately indicate that the child’s initials are “K.G.”
Accordingly, “K.G.” will be used throughout this opinion.

Nicholas Pizzolatto, Jr.
827 Pujo Street
Lake Charles, LA 70601
Telephone: (337) 439-9866
COUNSEL FOR:
Appellant - State of Louisiana, Department of Social Services

Chad Guidry
P. O. Box 447
Kinder, LA 70648
Telephone: (337) 738-2280
COUNSEL FOR:
Appellee - H.G. and K.G.

THIBODEAUX, Chief Judge.

The Louisiana Department of Social Services (DSS) has appealed the

trial court judgment that dismissed its petition for the involuntary termination of the

parental rights of appellees, T.R. and J.G., to their two minor children. DSS contends

that it established by clear and convincing evidence that termination of the father’s

parental rights was warranted based on his statutory abandonment of the children

under La.Ch.Code art. 1015(4). DSS also contends that the trial court erred in failing

to find that involuntary termination of the parental rights of both appellees was

warranted by La.Ch.Code art. 1015(5) because it was established at trial that there is

no reasonable expectation of significant improvement in either parent’s condition or

conduct in the near future. DSS claims this was established via evidence of the

children having been in DSS’ custody for approximately seventeen months as of the

termination hearing date, as well as the parents’ failure to ever substantially comply

with the court-approved case plan for services during that period.

We conclude that DSS failed to prove by clear and convincing evidence

that there is no reasonable expectation of significant improvement in the parents’

conditions in the near future. Therefore, the trial court’s findings are not manifestly

erroneous and the judgment is affirmed.

I.

ISSUES

1. Did the trial court commit manifest error by finding
that the father had not missed a sufficient number of
visits with the children to constitute abandonment
pursuant to La.Ch.Code art. 1015(4)?

2. Did DSS prove by clear and convincing evidence
that there is no reasonable expectation of significant
improvement in the parents’ conduct or condition in
the near future, considering the ages of the children
and their need for permanent placement, via its proof

that the parents had failed to substantially comply
with the case plan during DSS’ custody of the
children in excess of one year?

II.

FACTUAL BACKGROUND

The appellees in this case are T.R., the twenty-five year-old mother, and

J.G., the twenty-six-year-old father, of a six-year-old boy, K.G., and a seven-year-old

girl, H.G. The parents are unmarried and were not living together when DSS

responded to the report that forms the basis of this case.

DSS’ Allen Parish Office of Community Services (OCS) received a

report on the evening of September 18, 2006, stating that the mother, T.R., had left

her children, who were ages four and five at the time, at her Kinder, Louisiana

apartment in the care of two babysitters, ages twelve and fourteen, for about thirty-six

hours. The reporter complained that the condition of T.R.’s apartment was not fit for

children to live in and that T.R. could not be located when it was time for the

babysitters to return home.

A Kinder Police Department officer, Corporal Nick Lafleur, conducted

a “welfare check” at T.R.’s apartment shortly after the complaint was received and

opined that the home was not in a suitable living condition for children. He

accompanied the local OCS worker, Melissa Beach, back to the home that evening,

and she arrived at the same conclusion. In her Affidavit in Support of Instanter Order

that was subsequently submitted to the trial court, Ms. Beach attested to having made

the following observations while at the apartment:

Upon entering the apartment, a foul odor could be detected.
Upon entering the bedroom, Melissa Beach observed
clothes covering the floor. Ms. Beach could not tell if the
clothes were dirty or clean. On the mattress where [K.G.]
sleeps, there were urine stains. On the floor above the

2

mattress, Ms. Beach observed a dirty diaper filled with
urine. Upon entering the bathroom, Ms. Beach observed
feces along with used toilet paper in the sink and along the
sink counter. On the floor of the bathroom there was blood
and toilet paper. In the bathtub, there were dirty towels
and a dirty diaper with what looked like feces in it. Upon
entering the kitchen, Ms. Beach observed dirty dishes with
old food on them stacked next to the sink. In one half of
the sink were dirty dishes in water. The water looked like
it had been in the sink for a few days. It had white stuff
floating in the sink among the dishes. In the refrigerator,
there was an open pack of ground meat. There were open
cans of chili and beef ravioli in the refrigerator. Melissa
Beach took pictures of the apartment on 9/19/2006.

On 9/18/2006 9:25 pm, Melissa Beach interviewed
[T.R.]. She stated that the apartment was not in this
condition when she left yesterday, Sunday, September 17,
2006 around 5:00 pm or 6:00 pm. She left a fourteen-year-
old and a twelve-year-old babysitting [H.G.] and [K.G.].
She stated that she went to Lake Charles to see her
boyfriend. She sent back an eighteen-year-old friend
named Sam to come to the apartment around 9:00 pm or
10:00 pm on September 17, 2006 to babysit [H.G.] and
[K.G.] for the night. [T.R.] did not know the last name of
Sam, her address, or phone number. Sam was supposed to
send the fourteen-year-old and the twelve-year-old home.
Sam never showed up at [T.R.]’s apartment on September
17, 2006 or September 18, 2006.

Based on these observations, an Oral Instanter Order was issued that

night, granting temporary custody of the children to DSS. The children were

subsequently adjudicated as children in need of care and placed in foster care due to

inadequate shelter and lack of adequate supervision.

Prior to the parental rights termination hearing, approximately seventeen

months passed and four family case plans were approved by the trial court. The plans

were all substantively the same and initially set forth the goal of reunification of the

children with the parents. However, it was noted in the family’s initial case plan that

in the event reunification was not achieved by the end of the following year—

3

December 2007—the permanent placement goal would be changed to adoption and

a termination of parental rights action would be instituted.

The case plans required the parents to do the following: (1) participate

in family and/or psychological assessments to determine each of the parents’ ability

to provide a “safe, stable, and nourishing” home environment; (2) participate in

Nurturing Parent classes, after mental health or substance abuse treatment plans are

instituted, if any, and are followed successfully;2 (3) for six months, maintain a

residence with adequate space for the children and adequate furniture to

accommodate the entire family; (4) for six months, maintain employment/income

sufficient to provide for the family’s needs; (5) maintain the court-approved visitation

contract; and, (6) within five days, give case workers notice of changes in living

arrangements, employment, marital status, and arrests or incarcerations.

In October 2007, after twelve months of the children’s placement in

State care, DSS filed a petition seeking to terminate both parents’ parental rights. It

was undisputed at the trial that neither parent had complied with all aspects of the

case plan prior to the termination hearing.

The mother, T.R., remained unemployed and had not maintained her own

residence with adequate space and furnishings to accommodate the children for a

consistent six-month period, as the case plan required. As of trial time, she testified

that she and her fiancé, J.L. (whom she began dating in the months following the

children’s placement in State custody), were temporarily living with a family, who

had three children themselves, in their three-bedroom trailer. T.R. testified that she

and J.L. planned to move into a one-bedroom duplex apartment, which she admitted

did not have a separate bedroom space for her children. She claimed that when her

2
The record does not contain any evidence of substance abuse by either parent during DSS’
involvement with this family.

4

fiancé was able to earn more money,3 they would move to a larger home that could

accommodate her children as well; however, she did not give a certain date for such

a move.

T.R. attended the majority of scheduled visits with her children. She

attended twenty-seven of a total of forty scheduled visits with her children; she

missed thirteen. Her excuse for the missed visits was primarily lack of transportation.

At the termination hearing, although she stated that she had purchased a car, she

continued to assert her lack of transportation for her failure to seek and/or obtain

employment.

T.R. was also not compliant with the case plan’s requirements for

completion of a mental health evaluation and a substance abuse evaluation and any

necessary treatment. In January 2007, shortly after the children were removed from

her care and custody, T.R. participated in an initial psychological evaluation designed

to assess her ability to properly parent her children. However, during the following

year, she failed to comply with DSS’ requirement that she also participate in a

substance abuse assessment with one of two recommended sources and to undergo

a mental health evaluation. These assessments and any possible subsequent

treatments were prerequisites to T.R. receiving a referral to attend parenting classes.

Consequently, none of these conditions had been met as of the date of trial.

She expressed a desire to have her children returned to her, but told the

trial court that she needed additional time of approximately six months to further

prepare. She explained to the trial court that her difficulties in complying with the

case plan in the past had been caused by her “depression” and need to “get back on

her feet” after finding herself single and responsible for the care of two children for

3
Although J.L. did not testify at the trial, T.R. testified that he supported the couple with his
earnings of approximately $400.00 per week doing construction work.

5

the first time in her adult life. She and J.G. had their first child when she was

eighteen years old, and she stated that she had relied on him for financial support

during their years of intermittent cohabitation; she considered herself a stay-at-home

mother.

The children’s father, J.G., was also not in substantial compliance with

the case plan. J.G., who quit high school in the eleventh grade, was self-employed

and claimed to have maintained employment intermittently over the year, performing

carpentry and other odd-jobs for a living. J.G., however, never provided proof of his

income to DSS during the children’s time in State custody. Notably, he also testified

that he did not provide financial support to T.R. or the children during their two-

month separation immediately prior to the children being removed from T.R.’s

apartment by DSS.

J.G., like T.R., also failed to maintain a stable home that would meet the

requirements for the return of his children. Prior to and after the children’s placement

in foster care, he lived with his mother and other family members in a Federal

Emergency Management Agency-issued (FEMA) trailer. It was filled to capacity and

there were no sleeping accommodations for the children. He testified that he now

lived in his father’s three-bedroom home alone. He stated that the home had been

visited by DSS workers and was suitable for the children. He further emotionally

testified that he wanted to regain custody of his children and have them live with him.

At the time of the termination hearing, J.G. was awaiting a criminal trial,

scheduled for September 2008, on unrelated felony charges. He was incarcerated on

September 5, 2007, and released on February 21, 2008. During this approximate five-

month period, he missed all scheduled visitations with his children. Prior to his

incarceration, he attended 13 visits.

6

J.G. completed his psychological assessment and substance abuse

assessment, but had not yet completed the eight-week drug treatment program that he

was recommended to undergo. The substance abuse assessment consisted of a

meeting with an employee of the Office of Addictive Disorders, but J.G. was not

drug-tested; he admitted to having using drugs in the past, however. J.G.’s

subsequent incarceration prevented him from enrolling in the eight-week program.

Further, J.G. has not completed the mental health assessment required by the case

plan as well. He blamed this delay on having to wait to receive a voucher for the cost

of the assessment from DSS, which was never made available to him.

The social workers on this case described both parents as expressing love

for their children and interacting appropriately with them during visits. The children

were also described as “thriving” in their respective foster care placements. Both

children exhibited aggression when initially placed in foster care homes, but by all

accounts, those issues had resolved for both children as of the time of the termination

hearing. The children also both exhibited certain developmental delays, but were

receiving appropriate assistance in their pre-school class settings. No explanation for

the cause of the delays was offered in the record. The foster care workers also

testified that there had been no prior reports to DSS regarding inadequate care of

these children prior to the report that led to their removal in 2006.

DSS claims that the placement of the children in foster care for more

than one year and the lack of substantial compliance by either parent with the case

plans for reunification signified that there was no reasonable expectation of

significant improvement in the parents’ condition in the near future. Consequently,

DSS argued that it had established by clear and convincing evidence that involuntary

termination of their parental rights was justified pursuant to La.Ch.Code art. 1015(5).

7

Moreover, DSS asserted that the parents’ visitation records met the requirements for

abandonment sufficient to justify the involuntary termination of parental rights as

well, pursuant to La.Ch.Code art. 1015(4).

The trial court found that DSS had established by clear and convincing

evidence that the children had been in State custody for more than one year and that

the parents had not substantially complied with the court-approved case plans.

However, the trial court found that DSS failed to prove that there was no reasonable

expectation of significant improvement in the parents’ condition or conduct in the

future. The trial court also found that DSS failed to prove that the parents’ visitations

met the standard for abandonment pursuant to La.Ch.Code art. 1015(4). Accordingly,

DSS’ petition was dismissed, and DSS appealed.

III.

LAW AND ANALYSIS

Proof of Abandonment

Appellant, DSS, has only appealed the trial court’s finding that the

father, J.G., had not statutorily abandoned the children pursuant to La.Ch.Code art.

1015(4)(c). That article states:

Art. 1015. Grounds

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:

....

8

(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.

According to DSS, it established that the father, J.G., had only appeared

for fourteen out of forty scheduled visits with his children since their placement in

foster care. The father was incarcerated for five and one-half months beginning in

September 2007, and during that time missed all scheduled visits with the children.

DSS argues that this compliance rate is “not significant contact with the child[ren] for

any period of six consecutive months” and that the father’s absence constitutes

abandonment.

We disagree. The record does not clearly show that the father failed to

visit with or communicate with the children for six consecutive months. He visited

the children on the following dates: 10/11/06, 10/30/06, 11/20/06, 11/29/06,

12/18/06, 12/27/06, 2/09/07, 2/22/07, 3/08/07, 3/20/07, 5/31/07, 6/14/07, and on two

additional dates thereafter, the dates of which are not documented in the record.

Although it is undisputed that J.G. was incarcerated and unable to attend visits of the

children for a five and one-half month period, the record is not clear as to when his

last visits prior to his September incarceration occurred. Without this information,

it is not established by clear and convincing evidence that J.G. “failed to maintain

significant contact with his children by visiting or communicating with them for any

period of six consecutive months.” La.Ch.Code art. 1015(4)(c). Accordingly, the

trial court’s ruling in this regard is not manifestly erroneous.

Reasonable Expectation of Significant Improvement

The grounds for termination of parental rights according to La.Ch.Code

art. 1015(5) are:

9

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.

(Emphasis added). Article 1036(D) of the Children’s Code clarifies the assessment

of the reasonable expectation of significant improvement factor:

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.

As the supreme court stated in State in the Interest of S.M.W., C.D.W.,

C.N.W., and E.S.W., 00-3277, p. 14 (La. 2/21/01), 781 So.2d 1223, 1233, the standard

of review applicable to these cases is the manifest error standard:

It is well-settled that an appellate court cannot set
aside a juvenile court’s findings of fact in the absence of
manifest error or unless those findings are clearly wrong.
In re A.J.F., 00-0948 (La.6/30/00), 764 So.2d 47, 61.
Where there is conflicting testimony, reasonable

10

evaluations of credibility and reasonable inferences of fact
should not be disturbed upon review, even when the
appellate court may feel that its own evaluations and
inferences are as reasonable as those of the trial court. Id.;
Rosell v. ESCO, 549 So.2d 840 (La.1989). [I]f the trial
court or jury findings are reasonable in light of the record
reviewed in its entirety, the court of appeal may not reverse
even though convinced that had it been sitting as the trier
of fact, it would have weighed the evidence differently.
Rosell, supra at 844. Where there are two permissible
views of the evidence, the fact finder’s choice between
them cannot be manifestly erroneous or clearly wrong. Id.
In its manifest error review, it is important that the
appellate court not substitute its opinion when it is the
juvenile court who is in the unique position to see and hear
the witnesses as they testify. In re A.J.F., supra at 62. The
trier of fact is not disadvantaged by the review of a cold
record and is in a superior position to observe the nuances
of demeanor evidence not revealed in a record. Id.

In this case, we cannot find that the trial court committed manifest error

by ruling that DSS did not prove by clear and convincing evidence that there was no

reasonable expectation of significant improvement in the parents’ condition or

conduct. None of the statutory criteria set forth in La.Ch.Code art. 1036(D) are

clearly satisfied under the facts of this case. Additionally, as the supreme court stated

in State in the Interest of L.L.Z. v. M.Y.S., 620 So.2d 1309, 1317 (La.1993), “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.” The facts as presented in this record show that

although there has been less than substantial compliance with the case plan, certain

requirements of the plan have been undertaken by both parents and/or completed.

Accordingly, under the facts of this case, the trial court’s findings are not clearly

wrong or manifestly erroneous.

11

IV.

CONCLUSION

The judgment of the trial court, dismissing the Petition for Certification

for Adoption and Termination of Parental Rights, is affirmed.

All costs are assessed to the State of Louisiana, Department of Social

Services.

AFFIRMED.

12