State in the Interest of M. R. v. S.F.H. - Natural Mother

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

09-889

STATE OF LOUISIANA,
IN THE INTEREST OF M. R.

VERSUS

S. F. H. - NATURAL MOTHER

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APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, JUV NO. 18182
HONORABLE GUY E. BRADBERRY, DISTRICT JUDGE

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MARC T. AMY
JUDGE

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Court composed of Jimmie C. Peters, Marc T. Amy and Michael G. Sullivan, Judges.

REVERSED IN PART; AFFIRMED IN PART; REMANDED.

Nicholas Pizzolatto, Jr.
State of Louisiana
Department of Social Services
Post Office Box 1867
Lake Charles, LA 70602-1867
(337) 475-3037
COUNSEL FOR APPELLEE:
State of Louisiana, Department of Social Services

Edward M. Nichols, Jr.
827 Pujo Street
Lake Charles, LA 70601
(337) 439-8587
COUNSEL FOR APPELLEE:
M. R.

D. Bruce Jones
700 First Avenue
Sulphur, LA 70663
(337) 528-3314
COUNSEL FOR APPELLANT:
S. F. H.

AMY, Judge.

M.R. was placed into state custody on February 9, 2004. The State filed a

petition to terminate the biological mother’s rights, and the petition was denied. After

efforts at reunification, the State again brought a petition to terminate the biological

mother’s rights, and the trial court terminated the biological mother’s rights. The

mother appeals. Finding the State did not meet its burden of proof of clear and

convincing evidence for the termination of parental rights, we reverse in part, affirm

in part, and remand.

Factual and Procedural History

S.F.H.1 is the biological mother of the minor, M.R. On February 9, 2004, the

Office of Community Services (OCS) received a report that S.F.H was allegedly

neglecting M.R. based on alcohol or substance abuse dependency and unspecified

physical abuse. The report indicates that the allegations came from concerned

neighbors who witnessed erratic and abusive behavior by S.F.H. and D.B.R.2 OCS

investigated the allegations, interviewing several neighbors and S.F.H., and

subsequently sought an Instanter Order that M.R. be removed from custody of the

parents pending further investigation. It was at this time, that OCS learned that

S.F.H’s. parental rights to her seven-year-old daughter, B.F., had been terminated in

Texas following allegations that S.F.H. was neglecting B.F., leaving her without

adequate supervision and severely in need of medical care. The Instanter Order was

granted on February 16, 2004. On February 20, 2004, OCS filed a petition requesting

M.R. be adjudicated a child in need of care. OCS had cause to suspect M.R. was in

1
Pursuant to the Uniform Rules-Courts of Appeal, Rules 5-1 and 5-2, the initials of the
parties will be used to protect and maintain the privacy of the minor child involved in this
proceeding.
2
D.B.R. is the biological father of M.R.; parental rights were terminated on December
20, 2006, and are not at issue in this appeal.

need of care after S.F.H. stated that D.B.R. had been picked up for several

outstanding warrants in Mississippi and Arkansas and, after talking to authorities in

Texas, receiving information that S.F.H. was wanted in Texas in conjunction with the

allegations of child abuse. Judgment was rendered adjudicating M.R. a child in need

of care on March 5, 2004.

Termination of S.F.H.’s parental rights was denied on December 20, 2006, and

OCS was ordered to work with S.F.H. for six months to reunify. However, on

January 7, 2008, the State filed a Second Petition for Certification for Adoption and

Termination of Parental Rights. The trial court issued a judgment terminating

S.F.H.’s parental rights on November 30, 2008.

S.F.H. now appeals asserting that the trial court “erred in finding by clear and

convincing evidence that attempts to rehabilitate the parent have been unsuccessful”

and “erred in finding it was within the Child’s best interest to terminate Mom’s

parental rights.” S.F.H. also assigns as error, that La.Ch.Code art. 1015(3)(k) is

unconstitutional as interpreted by the trial court.

Discussion

The termination of parental rights is a two-pronged inquiry. First, the State

must prove by clear and convincing evidence the existence of, at least, one ground for

termination under La.Ch.Code art. 1015. La.Ch.Code art.1035(A); Santosky v

Kramer, 455 U.S. 745, 102 S.Ct. 1388 (1982). Only after the ground for termination

is found, the trial court must determine whether the termination is within the best

interest of the child. La.Ch.Code art. 1039. On review of a termination of parental

rights, an appellate court cannot set aside a trial court’s finding of fact in the absence

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of manifest error or unless the findings are clearly wrong. State in the Interest of K.G.

& T.G., 02-2886, 02-2892 (La. 3/18/03), 841 So.2d 759.

Burden of Proof

S.F.H. asserts that the State failed to prove a ground for termination by clear

and convincing evidence, specifically, the ground provided in La.Ch.Code art.

1015(3)(k), which reads:

The parent’s parental rights to one or more of the child’s siblings have
been terminated due to neglect or abuse and prior attempts to rehabilitate
the parent have been unsuccessful.

The trial court, in its written reasons for judgment, found the State met its burden of

proving one ground for termination by entering into evidence a Texas judgment

terminating S.F.H.’s parental rights to B.F., the sibling of M.R. Further, the trial

court dismissed S.F.H.’s argument that progression in her case plan demonstrates that

she is reformed. The trial court reasoned:

At trial, evidence presented was that the mother still had not addressed
the abuse of [B.F.] and the termination of her rights to that child, even
though this case has been going on for 56 months. In fact, for the first
time in 56 months, the mother said she did not have to address the prior
termination because “I was told the charges were dropped and my rights
were terminated for abandonment.”

Here, the State bears the burden of proving each element of a ground for

termination. For termination under La.Ch.Code art. 1015(3)(k), the State must prove:

(1) that S.F.H.’s parental rights to B.F. were terminated due to neglect or abuse and

(2) that prior attempts to rehabilitate S.F.H. have been unsuccessful. See La.Ch.Code

art. 1035(A); State ex rel. L.B. v. G.B.B., 07-1715 (La. 12/4/02), 831 So.2d 918.

S.F.H.’s parental rights to B.F. were terminated in 2003 by a Texas order of

termination. A review of the record reveals that B.F. went into custody with the State

of Texas after allegations that B.F. was a victim of abuse and medical neglect. The

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order of termination was introduced into the record and revealed the grounds for

termination of S.F.H.’s parental rights as to B.F. as follows:

6.2.1 knowingly placed or knowingly allowed the child to remain in
conditions or surroundings which endanger the physical or
emotional well-being of the child;

6.2.2 engaged in conduct or knowingly placed the child with persons
who engaged in conduct which endangers the physical or
emotional well-being of the child;

6.2.4 constructively abandoned the child who has been in the
permanent or temporary managing conservatorship of the
Department of Protective and Regulatory Services or an
authorized agency for not less than six months; and (1) The
Department or authorized agency has made reasonable efforts to
return the child to the mother; (2) the mother has not regularly
visited or maintained significant contact with the child; and (3)
the mother has demonstrated an inability to provide the child with
a safe environment;

S.F.H. testified that at the time B.F. was taken into custody, she was homeless and

unable to support herself or her child.

It is clear from the record that S.F.H.’s parental rights were terminated due to

“neglect or abuse” and, thus, the first requirement of La.Ch.Code art. 1015(3)(k) is

satisfied.

The second inquiry is whether the State established the prior attempts to

rehabilitate S.F.H. were unsuccessful. OCS issued its initial case plan involving

S.F.H. on August 24, 2004. The initial case plan goal was reunification finding that

S.F.H. had made “significant progress towards completing her plan” in successfully

completing parenting classes, submitting to psychological evaluations, initiating her

substance abuse assessment, submitting to unexpected drug tests which all tested

negative for drugs, and promptly attending every visit with M.R. The case plan stated

that S.F.H. was working part-time while looking for more permanent employment and

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was living with her boyfriend, T.H., in a mobile home found to be above minimal

standards. S.F.H. and T.H. both provided the agency information in order to conduct

a criminal background investigation which revealed that T.H. had been previously

charged with contributing to the deliquency of minors and one charge of indecent

behavior with a juvenile. OCS was concerned with T.H.’s criminal background and

informed him that he must undergo a sexual offender risk level assessment before it

could consider returning M.R. to their home. The case plan also stated that S.F.H.,

in order to complete the case plan, needed to successfully complete substance abuse

assessment and acquire any recommended treatment, obtain verifiable employment,

and verifiable housing.

In an April 6, 2005 judgment, case plans for February and March were

accepted by the trial court. Both of these plans maintained the goal of reunification

and stated that S.F.H. had made significant progress. OCS stated that S.F.H., in order

to complete the case plan, needed to attend family assessments with a psychologist,

Dr. Post, attend group meetings about domestic violence, and continue to submit to

random drug screens. The family assessments were to be attended by T.H. also, in

addition to T.H. completing the previous sexual offender assessment.

In July 2006, the State filed a petition for certification of adoption and the

termination of parental rights. The State alleged that although S.F.H. had almost

completely worked her case, “there [was] no reasonable expectation of significant

improvement” because S.F.H. had previously had her parental rights terminated in

Texas, T.H. only completed one of the two sex offender assessments, and the medical

experts involved opined that parental rights should be terminated.

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In December 2006, a trial was held. At trial Dr. Jerry Whiteman, a

psychologist who evaulated S.F.H., testified as a expert witness. When asked about

S.F.H.’s and T.H.’s ability to parent, Dr. Whiteman testified:

I would - - I have reservations, and I would think that they would need
some parent education, some supervision, especially of their potential
for anti-social behaviors or drug use, [S.F.H.] especially, but I think that
both, as I understood, they were gainfully employed at the time of my
assessment. They were attempting to have a responsible lifestyle, and
I believe with - - you know, with caution and help, they could proceed
with being parents.

Dr. Jodie Guth, a clinical psychologist, also testified as an expert at trial. Dr. Guth

advised against reunification, stating:

A. At the time of the first evaluation in March of [2005], [S.F.H.]
and [T.H.] had been together only for a short period and they
were not married, and because of the history of previous problems
in relationships for both of them, there was a concern about the
stability of their relationship.

Q. And I believe you indicated that reunification was not advised at that
time?

A. It was not.

Dr. Guth testified about other reasons she did not recommend reunification, stating:

A. The issue of the previous termination in the State of Texas was
one that could not be minimized, in my opinion. The child was
five years old. [S.F.H.] did not appear to have a strong attachment
with the child. The information that was available to us
suggested that she had a very passive attitude toward the incident,
that it was the fault of others and not herself, that the child was
harmed and so that her account of the incident as well as the
records provided to us related to the previous termination was a
significant factor but not the only factor.

Q. Okay. What were the other factors?

A. I was looking for a sense that through completing the case plan,
she had recognized the error of her ways with [B.R.] and had
acknowledged that there was abuse and that she had learned to
better regulate her emotions and her behavior so that another

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child would not be harmed, and I was not clear on whether that
degree of maturity had occurred.

When asked if S.F.H.’s commitment to the case plan indicated that she was maturing,

Dr. Guth responded “Yes. It gives the appearance of some progress.” The trial court

questioned Dr. Guth, asking:

THE COURT:
Is it possible in this situation we have at hand for a reformation
sufficient enough to warrant reunification?

[Dr. Guth]:
Assuming that medical interventions would be in place and
supervision would be available and in-home monitoring of parenting
would be in place, okay.

After hearing testimony from the experts, the case worker, and the parties, the

trial court dismissed the State’s petition for certification of adoption and the

termination of parental rights for lack of sufficient evidence that S.F.H. was not

making steps toward rehabilitation.

A review hearing was held six months after trial on August 15, 2007, and

again, the State expressed concerns over S.F.H.’s previous termination of parental

rights in Texas. Dr. Guth, who had testified at the previous trial, refused to continue

with the case because she disagreed with the court’s goal of reunification. S.F.H.

began seeing another psychologist, Dr. Charlotte Butler. The State requested ninety

days to implement Dr. Butler’s recommended plan for gradual reunification. That

request was granted and primary care was given to S.F.H.

On December18, 2007, another review was held. The State requested to

change the plan to termination after receiving Ms. Butler’s testimony. The exchange

was as follows:

Q. I also asked you whether or not you could tell the court whether
you would feel comfortable telling it that you would return - - if

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M.R. were returned to the foster parent full time 100 percent and
the State was out of it. You gave me an answer to that question.
And what was your answer?

A. I would feel comfortable with that.

MR. PIZZOLATTO: And, Your Honor, based on what
she said, the State cannot in good conscious not change the goal
back to adoption and ask - - and file another petition to terminate.
Because almost after four years, we still do not have a
professional that would recommend that [S.F.H.] and her husband
take the child.

MS. BUTLER: I’d like to clarify that if I could, Judge.

THE COURT: Please.

MS. BUTLER: I don’t feel that I can make the
recommendation, partly because I did
not do a custody evaluation. That was
not the role I was brought into. And I
made it clear to all parties that I was
not going to be giving an opinion on
placement.
The question that Mr. Pizzolatto
asked me had to do with my feelings
about that. It’s not a professional
opinion that I feel ethically I can give
because I did not do the work that
would be required to come to court and
make a professional recommendation
about that.

The trial court granted the State’s request to change the case plan to

termination and set the matter for trial. Because the goal was changed to termination,

primary care of M.R. was given to the foster mother, and S.F.H. was allowed only

monthly visitation.

The second petition for termination and adoption was filed in January of 2008.

In that petition, the State alleged that termination was proper under La.Ch.Code art.

1015(3)(k) because S.F.H.’s parental rights were terminated in Texas and S.F.H. “did

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not work a case plan for the return of her child, and did not attend the trial to

determine whether her parental rights should be terminated.”

The final trial was held on May 21, 2008. The trial court took the matter under

advisement, and on December 5, 2008, signed a written judgment immediately and

irrevocably terminating S.F.H.’s parental rights to M.R. The trial court found:

Therefore, since the parental rights of S.F.H. was terminated to a
sibling of M.R., the State of Louisiana Department of Social Services
has met its burden of proving at least one ground for termination of
parental rights as outlined in the Louisiana Children’s Code. In the
present case, it was pursuant to Children’s Code Article 1015(3)(k).

....

The mother argues she has reformed, worked the majority of her
case plan and under 1015(3)(k), this child should be returned.

This court is called upon to decide if the mother’s reformation and
efforts to complete a case plan should place the rights and desires of a
parent over those of a child. This court finds that jurisprudence
demands a child’s best interest is controlling.

....

A very disturbing trend has developed in this case, and that is the
emphasis has been placed too heavily on the mother, [S.F.H.]. That emphasis
is misplaced. The overriding consideration is what is in the best interest of
[M.R.]. No other person’s feelings, thoughts or lifestyle controls this situation
other than those of [M.R.]

On review, we may not set aside any of the trial court’s factual findings unless

those findings are manifestly erroneous, in other words, clearly wrong. State v. F.Y.

05-920 (La.App. 3 Cir. 3/1 06), 924 So.2d 1164, writ denied, 06-932 (La. 5/26/06),

930 So.2d 35. The present case is dealing with whether the State carried its burden

of proof for a second petition for adoption and termination of S.F.H.’s parental rights.

The first petition for termination and adoption was denied on the ground that the State

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failed to carry its burden of proof regarding efforts at S.F.H.’s rehabilitation. In the

first judgment, the trial court stated:

[M]uch of the evidence adduced today and the testimony adduced
and the pleadings reflecting the same suggest that mom’s rights should
be terminated as a result of a termination of a prior child in Texas. It
apparently has been the Court’s impression that’s the single most
important motivating factor in determining the case at bar.

The Court wants to share language in the [Louisiana Children’s
Code] comments of [article 1015] that seem to share the Court’s
concerns, and I’m going to quote:

“This ground” - - in this case [La.Ch.Code art. 1015(3)(k)]. “This
ground is worrisome because conceivably in a particular case,” such as
the case at bar, “a parent may have reformed, especially if a substantial
period of time has elapsed since the prior judgment. Similarly, despite
earlier failures, the family dynamics may have changed to the extent that
children presently in the home are no longer in an environment
producing a high risk of danger. The purpose of authorizing court
intervention to consider termination of parental rights is to ensure that
the pattern of prior abuse has indeed been broken,” my own emphasis
added. “And if the Court also finds in [La.Ch.Code art. 1037(A)] [sic]
that would permit the Court to find the best interest of the child will not
be served by termination of parental rights,” which I think is clear in this
case.

It talks about other notes and the type of other evidence that’s
needed and specifically attempts at rehabilitation have been
unsuccessful. While the Court recognizes that the State’s experts
suggest that mom fails to recognize or realize the failures historically,
her failures as a parent historically in this case, I don’t think sufficient
evidence was presented to suggest that she has not made considerable
steps in rehabilitation.

....

The Court at this time feels as though that with the mother’s
apparent willingness to continue to work her case plan, and has
demonstrated the same, this Court finds at this time that it would be in
the best interest of this child that the State’s termination request for the
mother be denied and that this Court’s going to order that there be a plan
of reunification, and that plan is to be no less than six months and that
the State is to prepare a plan to be submitted to this Court[.]

....

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Mom and dad, more specifically mom, congratulations, but the
job’s not over. I do feel in my heart that you’re going to be in the right
direction, and I applaud you for that. Continue your work, and this
child, in a matter of a few months, should be where it belongs. That’s
with you.

A review of the record reveals that the State offered no further evidence

regarding S.F.H.’s rehabilitation between the first trial and the present case. In fact,

the record reveals that S.F.H. and T.H. completed those items OCS requested. There

is no indication that OCS required S.F.H. to attend counseling to specifically address

the previous termination of her parental rights in Texas. It appears that S.F.H.

completed all other counseling requested. No case plan or testimony from case

workers in Texas was admitted. The trial court, in its written reasons for terminating

S.F.H.’s parental rights, discussed that S.F.H.’s rehabilitation was not the issue before

the court, instead, the relevant inquiry was related to M.R.’s best interest. There is

no doubt that M.R.’s best interests are relevant in this case, however, a justifiable

ground for termination must be proven first. Our supreme court has explained this

in G.B.B., 831 So.2d at 926 (citations omitted), stating:

[P]ermanent termination of the legal relationship existing between
natural parents and children is one of the most drastic actions the State
can take against its citizens. However, the primary concern of the courts
and the State remains to secure the best interest for the child, including
termination of parental rights if justifiable statutory grounds exist and
are proved by clear and convincing evidence.

The record before us does not provide support in finding that the State met its

burden by clear and convincing evidence. The State offered no additional negative

evidence regarding S.F.H.’s rehabilitation between the first termination, which was

denied for lack of evidence, and the present termination. In fact, much of the

evidence revealed that S.F.H. was making significant progress in her rehabilitation.

Termination may be appropriate in this situation after looking at M.R.’s best interest,

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but the State must prove a statutory ground for termination first, and it cannot be said

that this was done here.

Accordingly, we find that it is appropriate to reverse the trial court’s judgment

terminating parental rights and declaring M.R. eligible for adoption. We remand this

case for further proceedings insofar as the judgment maintains the State’s custody of

M.R.

We do not reach S.F.H.’s alternative assignment of error regarding the

constitutionality of La.Ch.Code art. 1015(3)(k). In addition to our ruling above, we

note that this issue was not raised below. See Boutte v. Jefferson Parish Hosp. Serv.

Dist. No. 1, 99-2402 (La. 4/11/00), 759 So.2d 45; State in the Interest of J.W., 01-500

(La.App. 1 Cir. 11/14/01), 801 So.2d 1182.

DECREE

For the foregoing reasons, we reverse that portion of the trial court’s judgment

terminating S.F.H.’s parental rights of M.R. and declaring him eligible for adoption.

That portion of the judgment maintaining the State’s custody of the child is affirmed.

We remand for further proceedings.

REVERSED IN PART; AFFIRMED IN PART; REMANDED.

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