State in the Interest of A.A.M.B.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

10-1498

STATE OF LOUISIANA

IN THE INTEREST OF

A.A.M.B.

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APPEAL FROM THE
CITY COURT OF KAPLAN,
PARISH OF VERMILION, NO. J-3595
HONORABLE FRANK E. LEMOINE, CITY COURT JUDGE

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J. DAVID PAINTER
JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, J. David Painter, and
Phyllis M. Keaty, Judges.

AFFIRMED.

Nicole Guidry, Attorney at Law
2 South Magdalen Square
Abbeville, LA 70510
Counsel for S.E.B.

Jo Ann Nixon, Attorney at Law
129 West Pershing Street
New Iberia, LA 70560
Counsel for Appellant:
H.L.T.

Julie Rosenzweig, Attorney at Law
P.O. Box 9588
New Iberia, LA 70562
Counsel for A.A.M.B.

Tamara D. Rahim, Attorney at Law
825 Kaliste Saloom Road
Brandywine I, Suite 208
Lafayette, LA 70508
Counsel for State of Louisiana, Department of Children
and Family Services

PAINTER, Judge.

H.L.T., the biological father of A.A.M.B., appeals the judgment of the trial

court terminating his parental rights and certifying the minor child to be eligible for

adoption. We affirm the trial court’s judgment.

FACTUAL AND PROCEDURAL BACKGROUND

The child, A.A.M.B., was born on September 13, 2008. When the child was

three weeks of age, the Department of Children and Family Services (DCFS) received

a report stating that the child’s mother, S.E.B., was in a treatment facility, that the

child’s father, H.L.T., was incarcerated, and that the child was not being fed properly

and was starving. A.A.M.B. was adjudicated a child in need of care and was taken

into state custody on October 9, 2008. The child was placed in the custody of her

paternal aunt and uncle. DNA testing confirmed that H.L.T. is the biological father

of A.A.M.B. Reunification efforts were made, but S.E.B. ultimately voluntarily

executed an act of surrender on August 13, 2010. H.L.T. filed a written notice of

opposition; however, following a hearing on October 21, 2010, the trial court

approved the surrender of S.E.B.’s parental rights and terminated H.L.T.’s parental

rights.

H.L.T. now appeals the termination of his parental rights. He argues that the

trial court erred in terminating his parental rights where he was a non-offending

parent and had completed several requirements outlined in the case plan. He further

argues that the voluntary surrender by S.E.B. is an absolute nullity. Finally, H.L.T.

argues that the termination of his parental rights while he was incarcerated and unable

to make bail is tantamount to a termination based on his poverty. Finding all of these

assignments of error to be without merit, we affirm the termination of H.L.T.’s

parental rights.

DISCUSSION

In his first assignment of error, H.L.T. argues that the State has not made

reasonable efforts to reunite the family. He asserts that he was without fault in

causing the situation that led to the placement of A.A.M.B. in State custody.

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H.L.T. was incarcerated at the time A.A.M.B. was taken into State custody. He

was released from jail on March 20, 2008, but re-arrested on July 24, 2009. He

remained in jail from July 24, 2009, to January 29, 2010. He was again arrested on

May 25, 2010, and was incarcerated from that time through the time that his parental

rights were terminated. The State contends that during the time when H.L.T. was not

incarcerated, it made reasonable efforts at reunification. It offered parenting classes,

anger management classes, and individual counseling. The State contends that H.L.T.

failed to substantially comply with the requirements of the case plan in that he failed

to obtain and maintain suitable housing, failed to provide verification of employment,

failed to demonstrate adequate parenting skills, failed to attend anger management

and individual counseling, failed to proved parental contribution for the child, and

failed to bond with A.A.M.B. during visitation and attendance at parenting class.

Louisiana Children’s Code Article 1138 provides:

A. At the hearing of the opposition, the alleged or adjudicated
father must establish his parental rights by acknowledging that he is the
father of the child and by proving that he has manifested a substantial
commitment to his parental responsibilities and that he is a fit parent of
his child.

B. Proof of the father's substantial commitment to his parental
responsibilities requires a showing, in accordance with his means and
knowledge of the mother's pregnancy or the child's birth, that he either:

(1) Provided financial support, including but not limited to the
payment of consistent support to the mother during her pregnancy,
contributions to the payment of the medical expenses of pregnancy and
birth, or contributions of consistent support of the child after birth; that
he frequently and consistently visited the child after birth; and that he
is now willing and able to assume legal and physical care of the child.

(2) Was willing to provide such support and to visit the child and
that he made reasonable attempts to manifest such a parental
commitment, but was thwarted in his efforts by the mother or her agents,
and that he is now willing and able to assume legal and physical care of
the child.

C. The child, the mother of the child, and the legal custodian may
offer rebuttal evidence limited to the issues enumerated in Paragraphs
A and B of this Article. However, the primary consideration shall be,
and the court shall accept evidence concerning, the best interests of the
child.

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D. If the court finds that the alleged or adjudicated father has
failed to establish his parental rights, it shall decree that his rights are
terminated.

E. If the court finds that the alleged or adjudicated father has
established his parental rights, the court shall declare that no adoption
may be granted without his consent. The court may also order the
alleged or adjudicated father to reimburse the department, or the
licensed private adoption agency, or other agency, or whoever has
assumed liability for such costs, all or part of the medical expenses
incurred for the mother and the child in connection with the birth of the
child.

The trial court found that H.L.T. had not frequently and consistently visited

with the child after birth and that he was not able to assume legal and physical care

of the child as required by La.Ch.Code art. 1138(B)(1).

H.L.T. has the burden of proof in this case, and the required elements must be

shown by a preponderance of the evidence. In re R.E., 94-2657 (La. 11/9/94), 645

So.2d 205. We review the trial court’s finding in this regard under the manifest error

standard of review. In re H.M.M., 33,766 (La.App. 2 Cir. 3/7/00), 754 So.2d 425,

writ denied, 00-797 (La. 5/12/00), 762 So.2d 14. “Substantial commitment and

parental fitness are factual findings that are entitled to deference unless the trial court

is clearly wrong.” In re Adoption of J.L.G., 01-269, p. 10 (La.App. 1 Cir. 2/21/01),

808 So.2d 491, 498. Our review of the record reveals no manifest error in the trial

court’s findings.

H.L.T. next argues that the surrender of parental rights by S.E.B. was an

absolute nullity because it was confected contrary to the statutory provisions of

La.Ch.Code art. 1112, specifically in that no contradictory hearing was held.

Louisiana Children’s Code Article 1112 provides that:

A. Except as provided herein, a parent may not execute a private
surrender once custody of that child has been removed from the parent
by order of a juvenile court and the child has been placed in the legal
custody of any person or agency or if the child is the subject of a
pending termination of parental rights proceeding.

B. Upon notice to the department and after a contradictory
hearing, if requested by the department, a parent may, with approval of
the court, execute a private surrender of a child in the legal custody of
the department to the foster parent with whom the child was placed by
the department.

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The State contends that it did not have to request a contradictory hearing

because S.E.B.’s act of surrender was in favor of the DCFS, not a private party, and

because the State had not commenced a termination hearing prior to the execution of

the act of surrender. The State further contends that no action to annul the surrender

was properly brought by H.L.T. within ninety days of the act of surrender as required

by La.Ch.Code art. 1148.

We agree with the State and find that no action to annul the act of surrender

was filed by H.L.T. Therefore, the act of surrender cannot now be nullified by this

court.

In his final assignment of error, H.L.T. argues that the termination of his

parental rights amounted to a termination based on his poverty because he remained

incarcerated while awaiting trial because he was unable to make bail. The State

argues that the basis for the termination of H.L.T.’s parental rights was not the

periods of time that he was incarcerated but because he failed to show that he

manifested a substantial commitment to his parental responsibility and that he was a

fit parent for the child as required by La.Ch.Code arts. 1137 and 1138. We agree with

the State’s assertion.

The record shows that H.L.T. failed to make consistent contributions to the care

and support of A.A.M.B. The case plan required a $10.00 per month parental

contribution. Even though H.L.T. testified that he brought diapers when he visited

A.A.M.B., H.L.T. failed to make the required $10.00 per month parental

contributions. The record is also clear that even though H.L.T. visited with A.A.M.B.

during the periods when he was not incarcerated, case workers observed that H.L.T.

failed to establish a bond with A.A.M.B. H.L.T. could not show that he could obtain

and maintain adequate housing for A.A.M.B. H.L.T. failed to provide verification of

employment. H.L.T. did not follow the recommendations from his psychological

evaluation by attending anger management classes and individual counseling.

As we discussed above, the standard of review is manifest error. Although we

may be sympathetic with H.L.T.’s plight and in no way condone a termination of

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parental rights based on a parent’s poverty alone, we find no manifest error in the trial

court’s judgment terminating H.L.T.’s parental rights under the facts of this case.

DECREE

For all of the foregoing reasons, we affirm the judgment of the trial court which

terminated H.L.T.’s parental rights and certified A.A.M.B. to be eligible for adoption.

AFFIRMED.

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