State in the Interest of H.M.D. & J.J.W.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

09-0508

STATE IN THE INTEREST OF
H.M.D. AND J.J.W.

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APPEAL FROM THE
JENNINGS CITY COURT, WARD TWO
PARISH OF JEFFERSON DAVIS, NO. J48-06-1 AND J-48-06-2
HONORABLE STEVE GUNNELL, CITY COURT JUDGE AD HOC*

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JIMMIE C. PETERS
JUDGE

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Court composed of John D. Saunders, Jimmie C. Peters, and James T. Genovese,
Judges.

REVERSED AND REMANDED.

Nick Pizzolatto, Jr.
Louisiana Department of Social Services
Office of Community Services
4250 5th Avenue
Lake Charles, LA 70607
(337) 475-3037
COUNSEL FOR PLAINTIFF/APPELLEE:
Louisiana Department of Social Services

Robert J. Lounsberry, Sr.
Attorney at Law
P. O. Box 1351
Jennings, LA 70546
(337) 616-3888
COUNSEL FOR DEFENDANT/APPELLANT:
J.D.

*
By order of February 11, 2009, Judge Steve Gunnell was assigned as judge ad hoc by the
supreme court to hear and dispose of this case after Judge Daniel Stretcher recused himself from this
matter.

PETERS, J.

J.D.1 appeals a judgment terminating her parental rights to her minor children,

J.J.W. (born January 24, 2005) and H.M.D. (born November 30, 2005).2 For the

following reasons, we reverse the trial court judgment and remand this matter to the

trial court for further proceedings consistent with this opinion.

The record establishes that the State of Louisiana through the Department of

Social Services, Office of Community Services (referred to hereafter as “the state” or

“OCS”) first became involved with J.D. and her children on May 15, 2006, and that

trial on the termination issue occurred on February 12, 2009. For the reasons

explained herein, J.D. did not attend the termination hearing. Upon completion of the

evidence, the trial court rendered judgment terminating J.D.’s parental rights.

In her appeal, J.D. asserts that (1) the trial court erred in proceeding with the

termination hearing in her absence, (2) the trial court erred in concluding that she had

not substantially complied with the requirements of her case management plan, and

(3) that the trial court erred in concluding that there was no reasonable expectation

of future significant improvement. Because we find merit in the first assignment of

error, we need not consider the remaining two.

This litigation has a long and convoluted history which need not be set forth

herein. It is sufficient to say that the state filed its petition for termination of J.D.’s

parental rights on January 7, 2008, and the matter was continued at least six times

before going to trial on February 12, 2009. The final motion for continuance came

on November 24, 2008, when OCS sought and received a continuance of the trial date

1
The initials of the children and their parents are used to protect the identity of the minor
children. Uniform Rules—Courts of Appeal, Rules 5-1, 5-2.
2
The children’s mother and father were never married. The father, M.W., was also named
as a defendant in the termination proceedings, but consented to his parental rights being terminated
and has not appealed that determination. Thus, we address only the termination of J.D.’s parental
rights.

from January 29, 2009, to February 12, 2009. Serving instructions on this motion

included a request for service by mail on J.D.’s counsel and personal service on J.D.

at a St. Martinville, Louisiana address.

When the matter was called for trial on February 12, 2009, J.D.’s attorney

orally moved for a continuance based on lack of timely notice to his client.

Specifically, he stated that J.D. had only been served with notice of the hearing two

days before, and then through domiciliary service.3 The trial court denied his motion,

and the correctness of this ruling forms the basis of J.D.’s first assignment of error.

We find merit in this assignment of error.

The procedure for termination of parental rights is found in Title X of the

Louisiana Children’s Code. Louisiana Children’s Code Article 1001 provides that

the purpose of termination proceedings “is to protect children whose parents are

unwilling or unable to provide safety and care adequate to meet their physical,

emotional, and mental health needs, by providing a judicial process for the

termination of all parental rights and responsibilities and for the certification of the

child for adoption.” Additionally, “[t]he procedural provisions of [Title X] shall be

construed liberally,” and “[t]he proceedings shall be conducted expeditiously to avoid

delays in resolving the status of the parent and in achieving permanency for children.”

Id.

The Louisiana Children’s Code specifically addresses the procedure for service

of the initial petition to terminate parental rights. With regard to an in-state resident

parent, which J.D. is, La.Ch.Code art. 1021(emphasis added) provides that “service

of citation shall be made either personally or by domiciliary service not less than five

3
The hearing was held on a Thursday, and J.D.’s attorney asserted that J.D. had only been
served the Tuesday before.

2

days prior to commencement of the hearing on the matter.” At the same time,

La.Ch.Code art. 1025.1 requires the parent whose rights are sought to be terminated

to “appear in person to answer the petition within fifteen days after the filing of the

petition.” Furthermore, La.Ch.Code art. 1020 requires that the clerk of court prepare

a notice to be served on the defendant parent with the original petition. The text of

the notice, which is set forth in La.Ch.Code art. 1020, advises the defendant parent,

among other things, of the specific date set for the answer hearing required under

La.Ch.Code art. 1025.1.

Thus, in the context of service of the initial petition to terminate parental rights,

the five-day requirement of La.Ch.Code art. 1021 must be reconciled with the fifteen-

day requirement of La.Ch.Code art. 1025.1 and the notice setting the answer hearing

required of La.Ch.Code art. 1020. That is to say, the answer hearing must be held no

less than five days after service of citation and no more than fifteen days after filing

of the petition.

With regard to the failure of a defendant parent to appear at a termination

hearing, La.Ch.Code art. 1033 provides:

If it appears from the record that the parent has been served in
accordance with Article 1021 or 1022[4] or has been located and notified
in accordance with Article 1020 and the parent fails to appear at the
hearing, then the hearing shall be held in the parent’s absence and the
petitioner shall be required to establish prima facie proof of the
allegations contained in the petition.

Thus, trial court’s authority to hold a termination hearing in J.D.’s absence is

dependant on compliance with the service requirements of La.Ch.Code art. 1021.

4
Louisiana Children’s Code Article 1022 relates to out-of-state defendants and is not
applicable to this litigation.

3

Although J.D. may have been aware that the termination hearing was scheduled

for February 12, 2009, the supplemental record filed with this court, at the court’s

request on August 27, 2009, shows that J.D. was not served with notice of that trial

date until two days before the hearing. The state argues that the two-day notice was

sufficient because the five-day notice referred to in La.Ch.Code art. 1021 relates only

to service of citation. However, interpreting La.Ch.Code art. 1033 in such a manner

would render it inapplicable to termination hearings because citation is not required

when giving a party notice of a trial date.

We conclude that La.Ch.Code art. 1033 should be interpreted to allow the trial

court to proceed with a termination hearing only upon proof that an absent parent was

served with notice of the trial date in the same timely manner as with the original

petition. That is to say, J.D. was entitled to service at least five days before the

hearing. Because La.Ch.Code art. 2021 uses the word “shall” when referring to

service, failure to comply prohibits proceeding with the termination hearing.

This interpretation is supported by reference to other provisions of the

Louisiana Children’s Code. We note that this matter arose as a Child in Need of Care

proceeding under Title VI of the Louisiana Children’s Code. Were it still in that

posture, it is clear that service on J.D. would be required for most proceedings. See

La.Ch.Code art. 679(A) (emphasis added), which provides that “[w]ritten notice of

the date, time, and place of the disposition hearing shall be served and a return made

in the same manner as a petition on all parties and also counsel of record at least

fifteen days prior to the hearing unless the parties have been previously notified in

open court at a prior hearing;” La.Ch.Code art. 693 (emphasis added), which provides

that “[w]ritten notice of the date, time, and place of the case review hearing shall be

served and a return made in the same manner as a petition on all parties and counsel
4

of record at least fifteen days prior to the hearing, unless the parties have been

previously notified in open court at a prior hearing;”and La.Ch.Code art. 703

(emphasis added), which provides that “[w]ritten notice of the date, time, and place

of the dispositional hearing shall be served and a return made in the same manner as

a petition on all parties and counsel of record at least fifteen days prior to the hearing,

unless the parties have been previously notified in open court at a prior hearing.”

In this matter, the last order setting the ultimate trial date for the termination

proceedings was executed by the trial court on November 24, 2008. The state

provided service instructions requesting service by mail on J.D.’s counsel and

personal service on J.D. at her St. Martinville, Louisiana address. However, the

notice of trial found in the supplemental record filed in this court shows that J.D.

received domiciliary notice of the trial date on February 10, 2009 – only two days

before the termination hearing. Given the serious and consequential nature of a

termination hearing, we can find no reason to allow less notice than that given for a

disposition hearing, and conclude that service on the court-appointed counsel is not

sufficient to constitute service on the defendant parent.

The trial court erred in not continuing the matter absent timely service on J.D.

DISPOSITION

For the foregoing reasons, we reverse the trial court judgment and remand the

matter to the trial court for further proceedings. We assess all costs of this appeal to

the State of Louisiana through the Department of Social Services, Office of

Community Services. Pursuant to La.R.S. 13:5112(A), we set those costs at

$2,244.50.

REVERSED AND REMANDED.

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