State in the Interest of Lw, Jw & Lw

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

09-243

STATE IN THE INTEREST OF L.W., J.W. & L.W.

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APPEAL FROM THE
THIRTY-FIFTH JUDICIAL DISTRICT COURT
PARISH OF GRANT, NO. J-2125
HONORABLE WARREN DANIEL WILLETT, 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
Jimmie C. Peters, Judges.

AFFIRMED.

Robert J. Elliott
Department of Social Services
P. O. Box 832
Alexandria, LA 71309-0832
Telephone: (318) 487-5227
COUNSEL FOR:
Appellee - State of Louisiana, Department of Social Services

Robert L. Kennedy
352 2nd Street
Colfax, LA 71417
Telephone: (318) 627-3255
COUNSEL FOR:
Appellees - J.W., L.W., and L.W.

James F. Slaughter
403 Second Street
Colfax, LA 71417
Telephone: (318) 627-2240
COUNSEL FOR:
Appellant - J.M.W.

James Patrick Lemoine
District Attorney, 35th Judicial District Court
Renee W. Dugas
Assistant District Attorney, 35th Judicial District Court
P. O. Box 309
Colfax, LA 71417-0309
Telephone: (318) 627-3205
COUNSEL FOR:
Appellee - State of Louisiana

Joseph P. Beck, III
5527 Monroe Highway
Ball, LA 71405
Telephone: (318) 640-9202
COUNSEL FOR:
Appellant - A.W.R.

THIBODEAUX, Chief Judge.

Defendants-appellants, A.W.R. and J.M.W., appeal the trial court

judgment that terminated their parental rights to their three minor children and

certified the children for adoption. Defendants allege the judgment should be

reversed because the plaintiff-appellee, State of Louisiana, Department of Social

Services (DSS), failed to prove by clear and convincing evidence the grounds for

termination as set forth in La.Ch.Code arts. 1015(4)(b) and (5). Defendants also

allege the trial court erred in accepting psychologist, David G. Adkins, Ph.D., as an

expert witness qualified to offer opinions regarding termination in this case since he

only interviewed the defendants once and his examination methodologies were

unreliable.

We affirm.

I.

ISSUES

1. Did the trial court err in accepting David G. Adkins,
Ph.D., as an expert qualified to offer an opinion in
this case?

2. Did the DSS prove by clear and convincing evidence
the parents’ failure to provide significant
contributions of care and support to the children for
at least six consecutive months as required by
La.Ch.Code art. 1015(4)(b)?

3. Did the DSS prove by clear and convincing evidence
the grounds for termination set forth in La.Ch.Code
art. 1015(5), which include: (a) the children being
in DSS custody for a period of one year; (b) no
substantial parental compliance with the case plans
for services; and (c) no reasonable expectation of
significant improvement in the parents’ conditions
or conduct in the near future?

II.

FACTUAL BACKGROUND

The DSS confirmed a report of neglect, drug dependency, and inadequate

housing on July 12, 2007, when they responded to a complaint alleging the

defendants’ three minor children (who were then ages one, five, and six) were

unexpectedly left for three days in the care of their aunt by their mother, A.W.R., who

could not be located. The mother left under the false pretense of going to the store

for diapers and failed to return. The children were left with only the clothes they

were wearing. It was also reported that it was not A.W.R.’s first time leaving her

children unexpectedly for an extended period of time. The case worker was advised

that A.W.R. had left her children with another acquaintance for two days, during

which time she could not be contacted.

The children’s father, J.M.W., was incarcerated at the time the report was

made to DSS. Consequently, the aunt placed the children with their paternal

grandmother, but the DSS case worker investigating the complaint found the

grandmother’s home unsuitable for the young children. The home lacked sufficient

food, was without electricity, had little or no furniture, and was in a physical state

deemed unsafe for the children’s ages.

The case worker’s investigation also revealed the defendants’ inadequate

housing situation and their possible drug abuse problems. The home the defendants

lived in with their children was a small, one-bedroom house. There was no running

water in the home at the time of the investigation, and there was a lack of adequate

space or beds for the three children. The mother’s and father’s drug abuse became

a concern during the investigation when the DSS social worker investigating the case

stated that multiple “collaterals” voiced concerns of illicit drug abuse by both of the

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defendants. In addition, a former babysitter for the children reported having

witnessed the five-year-old child mimic drug use by placing a straw in his nose and

attempting to sniff baby powder. The mother’s drug abuse was confirmed in July,

shortly after the investigation had begun, when she consented to a drug test, which

returned with positive results for opiate use.

On September 26, 2008, DSS filed a Petition for Termination of Parental

Rights and Certification of Minor Children for Adoption, alleging termination was

justified due to the parents’ failure, during the year their children had been in State

custody, to substantially comply with the case plans for services that sought to reunify

the family. It was further alleged that neither of the defendants had contributed any

significant contributions to the care and support of the children during the children’s

entire time in State custody. DSS asserted there was no reasonable expectation of

significant improvement in the near future in the behaviors, conditions, or conduct

of the defendants.

The trial on termination of the parental rights of the defendants was

heard on November 12, 2008, approximately one year and four months after the

children were placed in State custody. After testimony was provided, the trial court

granted the termination. The mother and father have both appealed the judgment.

III.

LAW AND DISCUSSION

Dr. Adkins as an Expert Witness

The defendants argue that Dr. David Adkins, the clinical psychologist

who evaluated the defendants as a requirement of the case plans for reunification of

the family, was erroneously allowed to testify as an expert about their suitability for

regaining custody of, and parenting, their children. Their arguments do not challenge

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Dr. Adkins’ qualifications as an expert in the field of clinical psychology. The

opposition to his testimony is based on his limited interaction with the defendants and

challenges to the reliability of the data he obtained through his testing of the

defendants.

During Dr. Adkins’ April 22, 2008, evaluation of the defendants, he

reviewed their social histories, which had been obtained by a member of his staff, and

performed a clinical interview with each defendant. He also conducted some

psychological testing, which consisted of a “brief” intelligence test, as requested by

DSS; a parenting inventory; and a personality assessment inventory, which was

administered to the mother, A.W.R., only. According to Dr. Adkins, it was

determined that the father, J.M.W., had a learning disability and was unable to read

and understand the personality assessment inventory. Consequently, he did not

complete this portion of the evaluation.

Based on the results obtained, Dr. Adkins opined that the defendants

both exhibited factors that led him to believe the children were at substantial risk for

maltreatment in their home and should not be in the custody or care of their parents

under the circumstances. He testified at trial that his primary concerns were the lack

of stable housing and income for the family and drug abuse by the defendants. He

advised the court that he had no new information about the defendants’ status in these

regards, but stated if they had shown no improvement during the six months since his

April 2008 evaluation, he would continue to recommend that the children not be

returned to the care of their parents.

Dr. Adkins based his conclusions on specific findings drawn from his

conversations with the defendants and their test results. He testified that the mother,

A.W.R., had an average I.Q. but exhibited signs of a double depression, consisting

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of dysthymia (mild but ongoing, chronic depression) overlaid with a major depressive

episode (acute but shorter term depression). Moreover, he stated that A.W.R.

presented signs of post-traumatic stress syndrome, possibly related to alleged multiple

episodes of childhood abuse she reportedly suffered. He recognized passive-

aggressive personality traits in her and stated that she scored extremely poorly (16th

percentile) on the scale measuring her ability to relate with empathy to children. He

explained that this means a child’s value and importance is less to the parent than is

normal and that she has problems helping children or finding ways to meet their

needs. He added that the normal developmental demands of children typically seem

bothersome to persons with low empathy scores such as A.W.R.’s. Also, he

diagnosed poly-substance abuse in partial remission. Dr. Adkins explained that the

partial remission portion of the diagnosis was based on A.W.R.’s admission to him

of her history of drug use and her claims to have stopped using many of those drugs

taken in her past. Prior to any attempts to reinstate custody to A.W.R., Dr. Adkins

recommended clinical mental health treatment for the depression; in-house

rehabilitation for the apparent drug-dependency; and, that A.W.R. obtain employment

and complete a parenting program.

According to Dr. Adkins, the father, J.M.W., exhibited characteristics

of an adjustment disorder with depressed mood, a learning disability for which further

testing was needed, and anti-social personality tendencies, manifested as “trouble

with authorities,” a “headstrong” attitude, and non-conformist behaviors. Dr. Adkins

also made a provisional diagnosis of poly-substance abuse in partial remission. He

labeled the drug abuse as provisional because J.M.W. stated he took opiates to treat

residual pain from past hip and/or back injuries. These injuries were verified. Dr.

Adkins did not have information to verify if the narcotics were necessary to treat

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residual pain or were being used excessively. Dr. Adkins recommended further

evaluation of this drug use by a medical doctor. He further recommended that to

address these concerns, J.M.W. should be required to submit to random drug tests,

complete a parenting program, and maintain employment or seek disability assistance

through the Social Security Administration (if his physical condition necessitated

this).

Both defendants cite Louisiana Code of Evidence Article 702, regarding

testimony by experts, in support of their argument:

If scientific, technical, or other specialized
knowledge will assist the trier of fact to understand the
evidence or to determine a fact in issue, a witness qualified
as an expert by knowledge, skill, experience, training, or
education, may testify thereto in the form of an opinion or
otherwise.

The defendants contend Dr. Adkins’ testimony should not have been relied upon in

this case because he did not spend sufficient time with them to gain accurate or

reliable information about their abilities to serve as suitable parents. Moreover, they

argue the data upon which he based his opinions—test scores from the parental and

personality assessments—were not established as being accurate. Finally, they assert

that during the formulation of the opinions Dr. Adkins rendered at the trial, he failed

to consider any changes in the defendants’ circumstances that may have occurred

during the six months that had passed since his assessment of them.

This court has recognized “the qualification of an expert witness rests

within the sound discretion of the trial court, and its determination will not be

disturbed on appeal except upon a showing of manifest error.” Succession of

Launius, 503 So.2d 682, 683 (La.App. 3 Cir. 1987) (citing Richardson v. Continental

Ins. Co., 468 So.2d 675, (La.App. 3 Cir. 1985), writ denied, 474 So.2d 1304

(La.1985)). “The weight to be accorded to the testimony of experts depends largely

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on their qualifications and the facts on which they base their opinions.” Oliver v.

Oliver, 95-1026, p. 19 (La.App. 3 Cir. 3/27/96), 671 So.2d 1081, 1092 (quoting

Durkee v. City of Shreveport, 587 So.2d 722, 728 (La.App. 2 Cir.), writ denied, 590

So.2d 68 (La.1991)). Consequently, expert testimony is to be weighed in the same

manner as any other evidence presented at trial. Lanasa v. Harrison, 02-26 (La.App.

4 Cir. 8/7/02), 828 So.2d 605, writ denied, 02-2512 (La. 11/27/02), 831 So.2d 286.

That is, the trial court may exercise its broad discretion and accept or reject, in whole

or in part, an expert’s testimony. Id. The court of appeal is not to disturb the trial

court’s actions in this regard unless it determines the trial court has committed an

abuse of discretion. Id.

While on the witness stand, Dr. Adkins was questioned about the

thoroughness and reliability of his evaluations of the defendants. He rejected the

notion that the period of the evaluation was too short or that the information elicited

could not accurately be relied upon. He testified that the length of the evaluations of

the defendants was slightly longer than is typical. In addition, he stated that the

evaluation of the defendants was conducted according to the standard procedure he

used in performing an average of 250 to 300 such parental evaluations per year.

According to Dr. Adkins, the tests administered, in addition to the social histories and

interviews conducted, are clinical standards used in his field of clinical psychology

to formulate opinions about the persons being interviewed.

Dr. Adkins further explained that he earned his Ph.D. in clinical

psychology in 1996 and had been licensed in Texas since then. He became a

Louisiana licensed clinical psychologist in 2003. He attested to being qualified as an

expert in the field of clinical psychology in various courts approximately two to three

times per month, on average, in his capacity as a medical consultant performing

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disability determinations and also due to his regular performance of parental

evaluations for DSS’ Office of Community Services.

Accordingly, we find no merit to the defendants’ argument that the trial

court abused its discretion by allowing Dr. Adkins to provide expert testimony in this

case. Considering Dr. Adkins’ experience and qualifications, he clearly possesses an

expertise in providing assessments in cases involving parental fitness. He testified

that the tests used by him to obtain the personality and parenting information on

which he relied in formulating his opinions were routinely used and accepted as

clinically standardized methods in his field of clinical psychology. This testimony

was not refuted. Further, he adequately qualified his testimony regarding the

defendants, stating that his opinion was based on the information provided to him

during his April assessment of the defendants and revealing that he did not have any

knowledge of any changed circumstances since then. The trial court did not indicate

in its oral ruling what, if any, weight it gave to the testimony offered by Dr. Adkins

and we cannot speculate as to this factor. Regardless, the trial court possessed the

discretion to consider this information, and we find no abuse of the trial court’s

discretion to allow Dr. Adkins to offer this testimony for the court’s consideration.

Termination of Parental Rights

Before a court can involuntarily terminate an individual’s rights and

privileges as a parent, the State must establish at least one of the statutory grounds set

forth in La.Ch.Code art. 1015 by clear and convincing evidence. State ex rel. A.T.,

06-501 (La. 7/6/06), 936 So.2d 79. An appellate court cannot set aside the trial

court’s findings of fact unless the trial court’s findings are manifestly erroneous. Id.

(citations omitted).

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During the trial in this case, the State sought to establish that the

defendants satisfied the grounds that would allow for involuntary termination of their

parental rights pursuant to La.Ch.Code arts. 1015(4)(b) and (5). Those sections state:

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:

....

(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.

....

(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.

The defendants contend the State did not establish by clear and

convincing evidence the grounds of La.Ch.Code art. 1015(4)(b)—the parents’ failure

to provide significant care for the children for six consecutive months. We disagree.

The record reflects unrefuted proof that during the more than one-year

period of the State’s custody of the children, neither defendant ever provided any

assistance, monetary or otherwise, for the care of the children as they remained in

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foster care. Consequently, we find that the grounds for termination set forth in

La.Ch.Code art. 1015(4)(b) were established by clear and convincing evidence.

The State also established that involuntary termination of the defendants’

parental rights was warranted pursuant to La.Ch.Code art. 1015(5). Article 1015(5)

states that each of the following be established: (1) at least one year has elapsed since

the children entered State custody; (2) there is no substantial parental compliance

with the case plan for services; (3) and there is no reasonable expectation of

significant improvement in the parent’s condition or conduct in the near future. The

first element of Article 1015(5) is clearly established based on facts in the record

revealing that the children were in State custody for more than one year when the

termination trial was held and the judgment granting the involuntary termination was

rendered.

The second element—requiring clear and convincing evidence of the

lack of “substantial parental compliance” with the family’s case plan—is established

in the record as well. According to La.Ch.Code art. 1036(C), the lack of parental

compliance with a case plan can be proven by showing 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.

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(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.

In this case, multiple instances of the defendants’ failure to comply with these

conditions, which were all a part of the case plan for reunification of the family, exist.

Specifically, the case plan required the parents to do the following:

participate in substance abuse evaluations, which includes providing honest

information regarding drug abuse history and following any recommendations as a

result of the evaluations; submit to random drug testing; participate in psychological

evaluations and follow resulting recommendations, which were included in the case

plan (seek mental health and medical follow-up examinations, complete parenting

classes, and maintain a stable income and home environment); exhibit ability to

maintain adequate housing and food in the home for a minimum period of six months;

demonstrate the ability to maintain a stable income sufficient to care for the children;

visit regularly with the children according to the agreed-upon schedule; and, notify

DSS of any changes in address, telephone number, employment, and household

composition.

The record reflects the unrefuted evidence of both defendants’ failure to

complete any of these requirements. Neither defendant fully completed substance

abuse evaluations and treatment. A.W.R. completed ten days of a detoxification

program, but did not complete the recommended in-house substance abuse treatment

program that followed. In addition, she, thereafter, tested positive on a few other

occasions for opiate use. J.M.W. did not submit to a substance abuse evaluation, but

he contends the evaluation was unnecessary because it was never established that he

abused drugs. All of his tests resulted in negative results. However, the record

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contains J.M.W.’s admission to having taken illegally obtained narcotics, such as

Lortab and Vicodin, albeit to treat allegedly legitimate pain even after the children

were in State custody. In addition, according to the testimony of case worker, Chris

Koehler, the drug testing that J.M.W. submitted to that resulted in the negative

results, did not constitute random testing. Koehler testified that both defendants

refused requests for drug tests on multiple occasions and would submit themselves

for testing at later times of their own choosing.

The record further establishes that the defendants were both incarcerated

on multiple occasions during the more than one year period the children were in State

custody prior to the termination hearing, and they never maintained a stable address

for a minimum of six months. The defendants lived at different locations, with

multiple relatives, for various periods during the time the case plans seeking

reunification of the family were in effect. According to the case worker, Koehler,

often these relatives would not have knowledge of the defendants’ whereabouts when

contacted. Moreover, the defendants never kept DSS regularly apprised of their

changing addresses or other contact information.

The defendants never provided verifiable proof of incomes that were

stable and suitable to provide the necessary care for their three children. A.W.R. did

not obtain any employment during the children’s tenure in State custody. J.M.W.

testified at trial that he historically worked at random jobs, when not incarcerated, to

obtain income and testified that he was employed at the time of trial. However, he

did not offer any testimony of the amount of his income or how long he could expect

to be employed.

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We find that all of these failures to comply with the statutorily defined

measures of compliance, constitute a lack of “substantial” parental compliance with

the case plan.

Finally, the record supports a finding, by clear and convincing evidence,

of a “lack of a reasonable expectation of significant improvement” in the defendants’

conduct or conditions in the near future. Louisiana Children’s Code Article 1036(D)

explains that this component of La.Ch.Code art. 1015(5) may be established by proof

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.

The State’s expert, Dr. Adkins, provided his unrefuted opinion that the

children were at risk for harm based on the mother’s, and possibly father’s, drug

abuse problems. Moreover, both parties were revealed to be unreliable sources of

stability for the children, based on their repeated episodes of abandonment and

incarceration for criminal activity. In addition, the parents’ pattern of conduct

revealed either an inability or unwillingness to establish a stable home environment

and income suitable for the care of three children. Accordingly, we find that the

grounds for termination of parental rights pursuant to La.Ch.Code art. 1015(5) were

established by clear and convincing evidence set forth in the record.
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IV.

CONCLUSION

The judgment of the trial court, involuntarily terminating the parental

rights of A.W.R. and J.M.W. to their three children, J.M.W., Jr., L.W., and L.W., is

affirmed. All costs are assessed to A.W.R. and J.M.W.

AFFIRMED.

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