State of Louisiana in the Interest of Cad

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

08-1118

STATE OF LOUISIANA
IN THE INTEREST OF C.A.D.

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APPEAL FROM THE
KAPLAN CITY COURT
PARISH OF VERMILION, STATE OF LOUISIANA
JUVENILE CITY COURT DOCKET NO. J-3353
HONORABLE FRANK E. LEMOINE, CITY COURT JUDGE

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OSWALD A. DECUIR
JUDGE

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Court composed of Oswald A. Decuir, J. David Painter, and James T. Genovese,
Judges.

AFFIRMED.

Jo Ann Nixon
Attorney at Law
129 W. Pershing Street
New Iberia, La 70560
(337) 369-7437
Counsel for Appellant:
A. D.

Debra K. Basile
Attorney at Law
825 Kaliste Saloom Road
Brandywine I, Room 218
Lafayette, LA 70508
(337) 262-5955
Counsel for Appellee:
State of Louisiana, Department of Social Services

DECUIR, Judge.

C.A.D. is the eight-year-old daughter of A.D. and B.L. In January of 2006,

C.A.D. was removed from the home of her mother, A.D., after allegations of sexual

abuse by the mother’s boyfriend arose. C.A.D. was adjudicated a child in need of

care and has been in the custody of the State of Louisiana, Department of Social

Services, Office of Community Services since that time. The State filed a petition to

terminate the parental rights of A.D. and B.L., which the trial court granted, freeing

the child for adoption. A.D. now appeals the judgment of the trial court terminating

her parental rights. B.L. neither appealed nor answered the appeal, and the judgment

is now final against him. For the following reasons, we affirm.

STANDARD OF REVIEW

A parent’s right to the care, custody, and management of his or her children is

a “fundamental liberty interest warranting great deference and vigilant protection

under the law.” State ex rel. Q.P., 94-609, p. 4 (La.App. 3 Cir. 11/2/94), 649 So.2d

512, 515. The evidentiary standard governing termination cases requires the State to

present proof by clear and convincing evidence of each element of the specific

grounds for termination as specified in La.Ch.Code art. 1015 before a court may

proceed with terminating a parental relationship. State ex rel. D.H., 06-1041

(La.App. 3 Cir. 3/7/07), 953 So.2d 992, writ denied, 07-673 (La. 4/27/07), 955 So.2d

698. An appellate court must review the record for manifest error in determining

whether the lower court properly applied the clear and convincing evidentiary

standard. State in the Interest of J.K., 97-336 (La.App. 3 Cir. 10/29/97), 702 So.2d

1154.

A.D. argues that the trial court erred in terminating her parental rights because

she was in substantial compliance with the case plan and because termination of her

rights is not in the best interests of the child. Conversely, the State contends the

grounds for termination set forth in La.Ch.Code art. 1015(5) have been proved with

clear and convincing evidence and the best interests of the child require termination.

After a thorough review and evaluation of the record, we are convinced that the

evidence supports the findings of the trial court with regard to each element of Article

1015. The trial court provided extensive written findings which we excerpt and adopt

as our own:

A. Article 1015 Findings-Mother:

1. Lapse of One Year.

The minor child, [C.A.D.’s] custody was removed from the
mother and placed with the Department by oral instanter order of this
court on January 19, 2006. On August 30, 2007, the date of filing of the
petition for termination of parental rights, the child remained in custody
of the Department, continuously, since her removal January 19, 2006,
more than one year. Sworn evidence of record clearly establishes this
necessary finding, and such evidence is otherwise un-contradicted.

2. Approved Case Plan-Substantial Parental Compliance.

On June 9, 2006, this Court, on its own motion, issued a rule for
constructive contempt to the father and mother. The rule alleged that the
mother was failing to work toward correcting conditions requiring the
child to be in care, provide financial support to the child, maintain
employment to provide financial support and a stable and safe
environment for the child to facilitate reunification; and regularly visit
with the child and to interact appropriately at visits.

The contempt rule was set for hearing on June 15, 2006, the same
date earlier set for a review hearing. At the hearing, the court advised
the mother and father that the rule for contempt had issued by the court
for what appeared to be several areas of non-compliance, and rendered
an admonition, concerning the consequences of non-compliance, that is,
the potential consequences of being held in contempt, as well as,
termination of parental rights, and further, ordered that they take steps
necessary to comply with the case plan, and continued the contempt
hearing for 90 days, allowing sufficient time to purge themselves of any
contempt and correct any non-compliance.

On September 21, 2006, the matter again came up for review and
on rule for constructive contempt for non-compliance with the case plan.
After hearing the evidence, both the mother and father were held in
constructive contempt. The Court found a knowing and willful failure
on the part of the mother to keep the Department apprised of her

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whereabouts, cooperate with recommended psychological evaluation
and treatment, failure to cooperate by not allowing her case worker to
view and evaluate her living accommodations for suitability, and failure
to maintain support payments, which were in arrears in excess of two
months without cause. The mother was sentenced to imprisonment on
a work release basis, to pay all arrearages within 60 days, and further,
attend a psychological evaluation and care, if found necessary, by a
mental health professional; and upon payment of at least one half of the
arrearages and once she had secured an appointment and proof provided
of her attendance for psychological evaluation, thereby purging herself
of contempt, she would be paroled upon specified conditions.

Despite strong admonitions and written conditions of parole, on
October 13, 2006, the court issued a rule to revoke the mother’s parole
for failure to comply with the case plan, and specifically, for failure
since her parole to attend her second appointment with her psychologist,
set for October 12, 2006.

On October 19, 2006, the mother appeared in court with new
representation; evidence was adduced that the mother had been
reminded October 9, 2006 by the Department of her appointment, which
she missed and was set for October 12, 2006. Court advised the mother
that her parole would not be revoked, but again, admonished her that it
was her responsibility to comply with the case plan, and the result of her
continued failure to comply may be termination of her parental rights.

Article 1036C (1-7) of the Louisiana Children’s Code proscribes
seven (7) examples of the lack of parental non compliance, within the
purview of Article 1015(5). The mother repeatedly failed to keep the
department apprised of her whereabouts and significant changes
affecting her ability to comply with the case plan for services.
Louisiana Children’s Code, Article 1036C (3). The mother’s obligation
to keep the department informed of her whereabouts is one of the court’s
routine admonitions given the mother at her periodic appearances before
this court, during the pendency of the CINC proceedings. In particular,
when the mother’s parole came up on a rule to revoke October 19, 2006,
mentioned above, the mother complained that she was at work, when the
state’s worker arrived at her last known address to pick her up for her
second mental health appointment, and that no one advised her where
she would be picked up for transport to her appointment. Although the
court did not revoke her parole, the court found, and so advised, that it
was [A.D.’s] responsibility to advise the Department of her whereabouts
and to confirm time and place of transport. The court advised that her
failure to do so, was a failure to comply with her case plan, and the
result of her continued non-compliance may be termination of her
parental rights.

At the trial, the case manager testified that [A.D.] moved her place
of residence on a least five occasions, without informing her, the case
manager, of the moves. As well, the mother carried on a ruse

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throughout the pendency of these proceedings that she was neither
living with nor maintaining a relationship with [S.S.], who is the
mother’s paramour and C.D.’s alleged abuser. Under cross examination
by the Department at the hearing for termination of parental rights,
however, she admitted living with [S.S.] during the time her child has
been in the Department’s custody, which continued through the date of
hearing.

Under the case plan, the mother was to have no contact with her
paramour, [S.S.], who had been accused by the minor child of acts of
sexual abuse, and as such, until this circumstance was ameliorated,
reunification could not be undertaken.

The Court finds that the mother’s actions in this regard, a
knowing and willful violation of the case plan. Particularly, this is
clearly a circumstance “... affecting the parent’s ability to comply with
the case plan for services...” [Article 1036C(3)] and a circumstance
which demonstrates “[t]he parent’s lack of substantial improvement in
redressing the problems preventing reunification...” [Article 1306C(6)],
and further evidences, “[t]he persistence of conditions that led to
removal or similar potentially harmful conditions” [Article 1036 C(7)].

Concerning “the persistence of conditions ...” as it relates to the
mother, at the outset of the child in need of care proceeding, when the
verbal instanter order was sought, since there was no evidence of any
complicity by the mother, pursuant to Article 617, 618 and 619 of the
Louisiana Children’s Code, the Court ordered that the mother be offered
a restraining order against the subject paramour, which if accepted
would avoid the necessity [of] the child’s continued custody with the
Department and facilitate return of the child to the mother, the least
restrictive placement. The mother rebuffed the Department’s attempt in
this respect, maintaining her belief in her paramour’s innocence, her lack
of belief in her child’s complaints, and refusal to give her child the
benefit of any doubt. (Affidavit in Support of Instanter Order, 01-20-
06).

Therefore, it is clear to this court, that the conditions of the
mother that lead to the removal of the child, i.e. the mother’s
unwillingness to assure her child’s safety and protection against any
potential risk or threat of abuse, by subordinating her own self interest
in maintaining and assuring a continuing dependent relationship with
[S.S.], has persisted throughout the pendency of these proceedings,
including the CINC proceeding. Louisiana Children’s Code, Article
1036C(7).

Based on the same evidence and reasons, the mother has not
demonstrated “substantial improvement” (herein any improvement)
toward achieving independence, such as acquiring her own housing,
without the presence of [S.S.], a critical step in redressing the problems
preventing reunification. Louisiana Children’s Code, Article 1036C(6).

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In fact, the testimony at the hearing is that during this period the mother
became pregnant and had given birth to [S.S.’s] child, a circumstance
which further complicated the mother’s ability to comply with the case
plan in this respect.

The court approved case plan, orders that the mother make
monthly monetary contributions of $100.00 per month for support of the
minor child. The record evidence, including testimony of the case
worker and mother establishes that the mother has made no monetary
contributions toward the support of her child since 2006, which shows
further lack of parental compliance with the case plan herein. Louisiana
Children’s Code, Article 1036C(4).

The record evidence shows the mother has failed on more than
one occasion to comply with the required program of treatment and
rehabilitation services proscribed by the case plan, Louisiana Children’s
Code, Article 1036C(5). After the mother attended her initial evaluation
with Dr. Ed Bergeron, April 13, 2006, a program of treatment and
rehabilitation was recommended and outlined in the case plan, in 2006
which among other things required that the mother undergo substance
abuse evaluation, attend a support group held by Stuller Place for non
abusing parents of sexually abused children, and parenting classes. Dr.
Bergeron testified that recommended therapy with him was terminated
by him for non compliance with attendance.

At the time of trial herein January 18, 2008, the mother by her
own admission testified that she had not attended the support group,
because she had tried on several occasions to schedule this by phone,
but she was never able to have anyone answer the phone at Stuller Place,
as well as, because the Department had not scheduled an appointment
for her with Stuller Place. The case manager testified that it was the
mother’s responsibility to do so.

In this respect, this Court does not find the mother’s testimony
credible. In as much as it is not inconceivable that one may experience
some difficulty in making telephone contact with such an agency, but
considering the period of time the mother has had to make contact, even
if it ultimately would have required an in person appearance by her to
make first contact, considering what was at stake and the gravity of the
situation, it is not sufficiently convincing to suggest that one had not
undertaken this critical step toward reunification, because a local agency
would not answer their phone, particularly considering the possible
consequences, termination of parental rights. This is not significantly
different than the excuse of the mother for missing one of her earlier
appointments with Dr. Bergeron, “the Department failed to let her know
where the state-provided transportation would be picking her up,” and
at which time the Court again admonished the mother, that it was her
responsibility to attend to such matters. The Court finds this consistent
with the mother’s dependent personality traits, unwillingness and/or
inability to assume responsibility for her duties and obligations as a

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parent, and a failure to comply with the required program of treatment.

The same is true of her expectation that she receive full credit for
attendance of parenting classes with “Extra Mile” that she did not
complete, opting instead to leave employment and take a month’s
vacation to Virginia with friends, of which her caseworker testified.

For the foregoing reasons stated, this Court finds that the State
has satisfied its burden to show by clear and convincing evidence there
has been no substantial parental compliance with the case plan for
services which has been previously filed by the Department and
approved by the Court herein as necessary for the child’s safe return.

3. Reasonable Expectation of Improvement in Condition/Conduct-
Mother’s.

When the ground for termination of parental rights is as
proscribed by Article 1015(5) of the Louisiana Children’s Code, the
Department must prove by clear and convincing evidence that despite
earlier intervention, there is no reasonable expectation of significant
improvement in the parent’s condition or conduct in the near future,
considering both the age of the child and the child’s need for a safe,
stable and permanent home.

As to “earlier intervention,” C.D. was placed in state custody
January 19, 2006, by oral instanter order. On March 16, 2006, this
Court approved the case plan dated March 8, 2006, which established a
plan goal of reunification of the minor child with the mother, and which
plan goal continued, until a termination of parental rights staffing was
held February 14, 2007, and the child’s goal was changed to adoption.
By order of this Court’s case review of July 19, 2007, adoption as the
plan for permanent placement of the child was approved.

Article 1036D of the Louisiana Children’s Code proscribes three
sets of circumstances which may evidence a lack of “any reasonable
expectation of significant improvement in the parent’s conduct in the
near future,” under Article 1015(5). Applicable herein is Article
1036D(3), which provides, “[a]ny other condition or conduct that
reasonably indicates that the parent is unable or unwilling to provide an
adequate permanent home for the child, based on expert opinion or
based upon an established pattern of behavior.”

At the trial, the Department’s psychologist, Dr. Bergeron testified
that he had diagnosed the mother with a Personality Disorder, with
Borderline Dependent traits, that in his opinion, such a disorder left
untreated, without proper therapy, faced with a choice between her
paramour and her child, she would not choose her child over her
paramour. This is consistent with the circumstances of this case since
its outset. As mentioned earlier, at the time the Department sought a
verbal instanter order, the Court insisted that the mother be offered a

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less restrictive alternative, particularly, as a non offending parent, she
was offered and refused the alternative of keeping custody of the subject
child, but with a restraining order against the paramour. This position
was maintained throughout the pendency of these proceedings.
Knowing that one of the conditions that had to be corrected, before
reunification could occur was to provide a home and a safe environment
for the child, free of any contact with her paramour, yet the mother
continued her dependent relationship with her paramour, under the same
roof.

The Court did not have the opportunity to decide the factual issue
of whether the mother’s paramour molested the subject child. This,
however, is not necessary to reach a decision in this case, and
apparently, is what the mother has been unable or unwilling to
understand. Her duty and obligation is first and foremost to her child.
In this regard the Court questioned Dr. Bergeron, with respect to what
adverse impact might there be caused to the child by the mother’s failure
to err on the side of caution to protect her child, without regard to
whether the allegations against the paramour were true. Dr. Bergeron
felt that the mother’s failure to protect the child could impair the child’s
ability to trust her mother with her safety. It is well known that the basis
of the bond, between a child and their primary caregiver for which a
child depends for their perception of safety, love and healthy emotional
growth is trust.

Dr. Bergeron felt that the mother would require at least 24 weeks
of therapy with her hard work to realize improvement. This of course
assumes the mother’s active participation and desire to improve. Herein,
Dr. Bergeron had to terminate the mother’s therapy on two occasions,
at the very beginning of therapy.

The mother started individual psychotherapy with Jerelyn Miles,
LCSW on January 22, 2007, more than a year after her child had been
removed and placed in the custody of the Department. By April, 2007,
the mother had completed seven of eight sessions of the first part of her
treatment plan, but then requested that treatment be suspended, until the
birth of the child she and her paramour were expecting that month.
According to Ms. Miles’ testimony, the mother was supposed to contact
her for another appointment after the birth of her child, but had not done
so at the time of the trial of this matter.

C.D. was eight years of age (D.O.B.: 7-11-99) at the time of trial,
and has been in a safe, stable and loving environment for two years,
having been placed with her maternal aunt.

Considering both the expert opinion in this case and the mother’s
established pattern of dependent behavior, particularly the mother’s
ongoing dependency on her paramour, and the birth of a child of her
paramour, as well as, the subject child’s age and having established a
close bond with her current caregivers over the past two years, and the

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mother’s failure to show any significant improvement over the past two
years, this Court is unable to find any real likelihood, and particularly,
from the child’s perspective, no reasonable expectation, of significant
improvement in the mother’s condition or conduct in the near future,
considering she has been in the care of her aunt for one fourth of her
young life, as well as, her need for a safe, stable and permanent home.
Not only would it not be in the child’s best interests, but allowing the
mother further time necessary to put her life in proper order, so as to
facilitate re-unification or any other alternative, except termination,
would be detrimental to the health and welfare of this child.

Therefore, it is the finding of this Court, as provided by Article
1015(5) of the Louisiana Children’s Code, there is no reasonable
expectation of significant improvement in the mother’s condition or
conduct in the near future, considering the child’s age and her need for
a safe, stable, and permanent home, within the parameters of Articles
1036D, and for the foregoing reasons, this Court finds that the
Department has proved the grounds set forth at Article 1015(5) by clear
and convincing evidence.

4. Child’s Best Interests-Termination Mother’s Parental Rights.

Where the court has found a ground under Article 1015 proved by
clear and convincing evidence, before it may grant the relief sought,
herein termination of [A.D.’s] parental rights, it must also determine
whether such termination is in the child’s best interests. LA-Ch.C.
Article 1037B. Thus, under the law applicable at present, the Court is
now mandated to terminate parental rights, unless based on all the
evidence, the Court finds that the child’s best interest would not be
served.

As recognized by this state’s highest court in State ex. rel. A.T.,
936 So.2d 79 (La. 2006), “Permanent termination of the legal
relationship existing between natural parents and their children is one of
the most drastic actions the State can take against its citizens.” The
Supreme Court went on the conclude, “[h]owever, the primary concern
of the Courts and the State remains to secure the best interests for the
child, including termination of parental rights if justifiable statutory
grounds exist and are proven.”

This Court finds, just as a parent’s own selfish wants and desires
must give way to the paramount interests and needs of their child in
matters of the child’s health, safety and well being, so shall it be in
deciding whether to terminate the mother’s rights to her child, herein.
The child’s best interests are paramount.

Herein, eight year old C.D. has been in the physical custody of
her maternal aunt and uncle by marriage over the past two years, with
whom she has apparently developed a close and loving relationship.
The child’s caseworker, Ms. Raguelle Hughes, testified that C.D. is

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bonded to her maternal aunt and expresses the desire to be adopted by
her. Ms. Hughes also testified that C.D. has indicated she does not want
to return to her mother due to her fear of her mother’s paramour.
Furthermore, the child’s maternal aunt and her husband, [V. and A.M.]
are interested in adopting C.D. Therefore, inasmuch as the child’s
expressed desires are certainly not dispositive of the issue, the court has
considered the child’s wishes and found her best interests would be
served by a judgment which has the effect of granting her wishes.

Considering C.D.’s best interests, including her tender age, the
safe, stable and bonded attachment to [V. and A.M.] she has developed
over the past two years, as well as, her stated fears and desires and need
for a safe, stable, and permanent home, this Court can not say that based
on all the evidence that termination of [A.D.’s] parental rights would not
serve C.D.’s best interests. This Court finds instead that the contrary in
supported by such termination.

Therefore, this Court finds that termination of [A.D.’s] parental
rights is necessary to secure C.D.’s best interests, to include certification
of C.D. for adoption and her continued custody with [V. and A.M.].
Furthermore, termination is in the child’s best interests for reasons set
forth in the immediately preceding subsection A.3. of these reasons.

DECREE

The judgment of the trial court in favor of the State is affirmed at appellant’s

costs.

AFFIRMED.

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

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