State in the Interest of P.A.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

11-54 consolidated with 11-55

STATE OF LOUISIANA IN THE INTEREST OF C.M.

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. JC20080997
HONORABLE THOMAS R. DUPLANTIER, DISTRICT JUDGE

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MARC T. AMY
JUDGE

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Court composed of John D. Saunders, Oswald A. Decuir and Marc T. Amy, Judges.

AFFIRMED.

Saunders, J., dissents and assigns written reasons.

Lloyd Dangerfield
703 E. University Avenue
Lafayette, LA 70503
(337) 232-7041
COUNSEL FOR APPELLANT:
N. M. M.

Vivian Neumann
115 West Main Street, Suite 7
Lafayette, LA 70501
(337) 501-6782
COUNSEL FOR APPELLEE:
J. A.

Allyson Prejean
Post Office Box 3862
Lafayette, LA 70502
(337) 288-4028
COUNSEL FOR APPELLEE:
C. M.

Tamara Rahim
State of Louisiana, Department of Social Services
825 Kaliste Saloom Road, Room 218
Lafayette, LA 70508
(337) 262-2250
COUNSEL FOR APPELLEE:
State of Louisiana, Department of Social Services

Michelle Breaux
Assistant District Attorney
Post Office Box 3306
Lafayette, LA 70502
(337) 232-5170
COUNSEL FOR APPELLEE:
State of Louisiana

AMY, Judge.

The State sought termination of parental rights of the appellant’s two minor

children, alleging that she failed to substantially comply with the assigned case plan

in a number of respects. The trial court granted the termination, finding both a failure

to substantially comply with the case plan and that the termination was in the best

interests of the children. The mother appeals. For the following reasons, we affirm.

Factual and Procedural Background

This case involves the termination of parental rights of the two minor children

of the appellant, N.M.M.1 and the children’s father, J.A. The record indicates that

N.M.M.’s daughter, A.A., died nineteen days after her birth.2 The State of Louisiana,

through the Department of Children and Family Services,3 took N.M.M.’s older child,

C.M. (born in November 2007), into custody the following day. The associated

instanter order reported that “the agency was already working with [N.M.M.] due to

an earlier report at which time she used cocaine and admitted to having thoughts of

wanting to harm [C.M.] because she could not handle his crying.” On January 13,

2009, C.M. was adjudicated a child in need of care.

Thereafter, on September 3, 2009, N.M.M. gave birth to a daughter, P.A. The

State took P.A. into custody on September 16, 2009. The related instanter order

reported that the State received information from personnel at the hospital where P.A.

was receiving treatment for a breathing problem that N.M.M. had displayed poor

parenting techniques, had not taken an active role in the child’s care at the hospital,

failed to participate in the child’s feeding, and was “very rough with the infant[.]”

1
The initials of the minor children and the parents are used herein pursuant to Uniform
Rules—Courts of Appeal, Rule 5-2. See also Uniform Rules—Courts of Appeal, Rule 5-1.
2
The record indicates that the cause of death was not determined.
3
Formerly the Department of Social Services. See La.R.S. 36:471.

The personnel also reported to the State that N.M.M. left the hospital for an extended

period. P.A. was adjudicated a child in need of care on December 15, 2009.

In July 2010, the State filed a Petition for Termination of Parental Rights and

Certification for Adoption regarding both children. The State alleged that termination

of the parents’ parental rights to both children was appropriate pursuant to

La.Ch.Code art. 1015(4) and La.Ch.Code art. 1015(5) and, further, that termination

of those rights was in the best interests of the children. After a September 2010 trial,

the trial court determined that the State satisfied its burden and entered judgment

terminating the parents’ rights and certifying the minor children free and eligible for

adoption.

N.M.M. appeals the judgment as to both children4, although J.A. has not done

so. N.M.M. assigns the following as error:

1. The trial court erred in terminating the rights of N.M.M. for
substantial non-compliance when she had completed several
components of the case plan and OCS failed to prove by clear and
convincing evidence there was no reasonable expectation for
further improvement in N.M.M.’s condition or conduct.

2. The trial court erred in terminating the rights of N.M.M.
regarding P.A., the younger child, when she had not been in
OCS’s care for more than one year at the time of filing the
petition for termination.

3. The trial court erred in finding that termination was in the best
interest of the children when considering the relationship with
N.M.M.

4
We discuss both matters herein. For the decree regarding this court’s ruling as to P.A., see
the companion case in State of Louisiana in the Interest of P.A., 11-55 (La.App. 3 Cir. __/__/11),
__ So.3d __.

2

Discussion

Termination of Parental Rights

In considering a case involving the termination of parental rights, a court

considers two elements pertinent to the termination analysis. First, pursuant to

La.Ch.Code art. 1015, the State must prove one of the enumerated grounds for

termination contained within that provision. The State must do so by clear and

convincing evidence. La.Ch.Code art. 1035. Thereafter, the court determines if

termination is in the best interests of the child pursuant to La.Ch.Code art. 1037(B).5

On appeal, we review the trial court’s findings as to whether a parent’s rights should

or should not be terminated pursuant to the manifest error standard. State in the

Interest of K.G. and T.G., 02-2886 (La. 3/18/03), 841 So.2d 759.

Louisiana Children’s Code Article 1015(5)

N.M.M. first contests the trial court’s determinations regarding the grounds for

termination. Her argument in this regard is comprised of two aspects of Article

1015(5), one of the grounds for termination included in the judgment. First, she

argues that the trial court erred in finding substantial noncompliance with the case

plan. She asserts that, instead, she completed several requirements of the case plans.

Further, she contests the determination that there was no reasonable expectation of

significant improvement in her condition or conduct.

5
La.Ch.Code art. 1037(B) provides that:

When the court finds that the alleged grounds set out in any Paragraph of
Article 1015 are proven by the evidentiary standards required by Article 1035 and
that it is in the best interests of the child, it shall order the termination of the parental
rights of the parents against whom the allegations are proven. The court shall enter
written findings on both issues. The consideration of best interests of the child shall
include consideration of the child’s attachment to his current caretakers.

3

As it relates to this assignment, La.Ch.Code art. 1015 instructs that:

The grounds for termination of parental rights are:

(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.

(Emphasis added.)

Lack of Substantial Parental Compliance

On the issue of a lack of parental compliance with the case plan, La.Ch.Code

art. 1036(C) provides that:

Under Article 1015(5), lack of parental compliance with a case
plan may be evidenced by 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.

(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.

4

The case plans throughout these proceedings required N.M.M. to: maintain a

safe and stable home for herself and her family; demonstrate proof of income;

contribute $50 per month to support the children while in foster care; demonstrate

self-awareness of her mental health issues6, including following all recommendations

of the doctor and taking medications as appropriate; attend substance abuse support

meetings on a regular basis; submit to random drug screens by the State; demonstrate

what she learned in her parenting classes; and attend all visits with the children and

be on time. By August 2009, N.M.M.’s case plan also required that she attend and

complete anger management class through the Family Violence Intervention Program.

In its reasons for ruling, the trial court addressed the parents’ compliance with

the case plans, stating:

The parents have both failed to provide adequate housing for the
children and have both failed to address their substance abuse issues.
The mother continues to abuse prescription medication while pregnant
[with] another child. The father has failed to attend an alcohol abuse
treatment program. The mother still struggles with mental issues and
has failed to attend her appointments regularly. The father has not
addressed his anger management problems.

The record supports the trial court’s determination that the State presented clear and

convincing evidence that she failed to substantially comply with her case plan.

N.M.M. contends that she demonstrated compliance with the case plan in a

number of areas, particularly early in these proceedings when C.M. was initially

placed in the State’s custody. However, the record demonstrates that N.M.M.’s

compliance, such as it was, deteriorated thereafter and left only sporadic compliance

with elements of the case plan.

6
The record demonstrates that N.M.M. has been diagnosed as having bipolar disorder.

5

Notably, N.M.M. failed to supply adequate housing for herself and for her

family as was required. Instead, she and J.A. lived in her mother’s two bedroom

apartment. She and J.A. slept in one bedroom, while her mother slept in the

remaining bedroom. N.M.M.’s case worker, Christopher Simmons, explained that the

home had “some debris around it” and that it is “just not safe for young children.”

Additionally, there was no room for the children in the event they were returned.

Also, when asked whether N.M.M. demonstrated an ability to provide income

as was required by the plan. He stated that, while N.M.M. had indicated that she was

employed, she never offered proof or verification of that work. Instead, testimony,

including that of N.M.M., indicted that J.A. provided the couple’s financial support.

The record lacks other proof of N.M.M.’s compliance with this aspect of her plan.

Turning to the requirement that N.M.M. make a monthly $50 contribution to

support her children while they were in foster care, the evidence indicates that she

consistently failed to do so. Instead, Mr. Simmons reported that N.M.M. had failed

to financially contribute to the costs of care.7 He had, however, observed her present

the children with gifts during her visits with them. The nature of these gifts was not

explained in the record nor proven to be a meaningful contribution to the children’s

care.

Further, the State also demonstrated lack of substantial compliance with its

requirements that N.M.M. follow physician recommendations regarding her mental

health issue and that she take prescribed medications. Instead, the record indicates

that, after an initial psychological assessment, N.M.M. began receiving treatment at

the Dr. Joseph Henry Tyler, Jr. Mental Health Care Center and did so sporadically.

7
Reports to the trial court contained in the record indicate that she had “not made any
parental contributions since June 29, 2009.”

6

At trial, N.M.M. testified that she complied with her recommended mental health

treatment. However, she explained that she could not do so while she was pregnant,

as she was at trial, because “they don’t allow you to be on medication.” She further

admitted to missing “one or two” appointments at the health center.

However, the Tyler Mental Health records, admitted into evidence under seal,

indicated that medications were prescribed to her during her pregnancy and that she

had taken them at times. By her appointment in July 2010,8 N.M.M. reported that she

was taking her medications routinely before she ran out of them. At that time, she

admitted to taking more than prescribed. During that appointment, she expressed her

preference for a particular medication. The clinic’s record from that visit indicated

that she was advised to continue her medications and that N.M.M. expressed a desire

“to continue meds during pregnancy.” This evidence, as well as evidence of

inconsistent medical health treatment throughout, indicates that N.M.M. failed to

demonstrate self awareness of her mental health condition and that she further failed

to follow the recommendations of her physician regarding use of medication.

As for those aspects of her case plan regarding substance abuse, N.M.M.

admitted that she had not continued to attend substance abuse support meetings. This

was confirmed by Mr. Simmons who testified that N.M.M. attended “a couple of NA

classes, but there was no verification that was ever produced to the agency that she

had attended those classes.” N.M.M. explained that she became uncomfortable with

the location for her preferred meeting. Yet, it is unquestioned that she did not resume

her classes or find an alternative location. Mr. Simmons also confirmed that N.M.M.

had two drug tests that were considered positive. The first, in January 2010, was

8
The trial at issue was conducted on September 9, 2010.

7

considered positive because she “did not go” and that “[s]he had informed the agency

that she would test positive for Lortabs.” Thereafter, in July 2010, N.M.M. again

failed to arrive for the drug screen, resulting in the State’s consideration of the screen

as a positive. Finally, at trial, N.M.M. admitted taking non-prescribed Xanax and

Soma during the two days preceding trial. While N.M.M. points to the instances in

which she sporadically attended substance abuse meetings and had negative drug

screens, the record clearly supports a determination that she failed to substantially

comply with this aspect of the case plan.

As for the components addressing N.M.M.’s development of her parenting

skills, it is uncontested that she completed her parenting class. However, Mr.

Simmons testified that N.M.M. only complied “somewhat” with her scheduled

visitations with the children. He reported that there were “several missed visits in

which [N.M.M. and J.A.] did not show at all, and the kids were at the office.” He

later testified that she only attended about half of the visits. Again, this evidence

supports the determination that N.M.M. failed to substantially comply with her case

plan insofar as she did not regularly attend her scheduled visitation.

Finally, the case plan required N.M.M. to attend anger management classes.

Neither N.M.M. nor J.A. did so. Mr. Simmons testified that this was of particular

concern with regard to N.M.M. because of her bipolar diagnosis and due to a medical

report indicating that she had thoughts of harming C.M. while he was still in her care.

Mr. Simmons confirmed that, despite the State having made between four and six

agency referrals for anger management, N.M.M. failed to attend. Thus, the record

indicates full noncompliance with this final component of the case plan.

8

In sum, the State presented evidence that N.M.M. failed to fulfill numerous

components of the case plan. While La.Ch.Code art. 1036(C) indicates that

substantial compliance can be demonstrated through proof of one of its enumerated

factors, it is clear that, in this case, the State proved by clear and convincing evidence

that N.M.M. failed to substantially comply with the case plan in numerous respects.

Reasonable Expectation of Significant Improvement

N.M.M.’s remaining argument under this assignment is that the trial court erred

in finding that the State proved La.Ch.Code art. 1015(5)’s requirement that “there is

no reasonable expectation of significant improvement in the parent’s condition or

conduct in the near future[.]”

In this regard, La.Ch.Code art. 1036(D) explains that:

D. Under Article 1015(5), lack of any reasonable expectation
of significant improvement in the parent’s conduct in the near future
may be evidenced by one or more 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.

Certainly the record supports a view that N.M.M.’s pattern of behavior

evidences a lack of reasonable expectation of improvement pursuant to Article

1036(D)(3). In short, N.M.M.’s pattern of behavior has demonstrated that she has

been either unable or unwilling to progress in various components of her case plan

9

so as to indicate that she will be able to provide an adequate permanent home for the

children. Instead, her compliance with the case plan was consistently deficient.

This assignment lacks merit.

Custody of Less than One Year

In her second assignment, N.M.M. asserts that termination was inappropriate

as to her parental rights of P.A., because the child had not been in custody for more

than one year when the petition to terminate parental rights was filed.9

This argument focuses on termination under La.Ch.Code art. 1015(5), which

requires that, in addition to the other elements, the State prove that: “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[.]” However, we note that the judgment

terminated parental rights pursuant to La.Ch.Code art. 1015(4) in addition to

termination pursuant to La.Ch.Code art. 1015(5). Paragraph (4) does not require that

one year has elapsed since a child was removed from the parent’s custody. Instead,

La.Ch.Code art. 1015(4) provides the following ground for termination:

Abandonment of the child by placing him in the physical custody
of a nonparent, or a 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.

It is clear that N.M.M. failed to provide significant contributions to P.A.’s care and

support, despite the case plan’s requirement that she make $50 contributions while

9
The record indicates that P.A. was taken into custody on September 16, 2009. The petition
for termination was filed on July 26, 2010.

10

the children were in foster care. Instead, the record indicates that N.M.M. made no

contributions in this regard.10 Although Mr. Simmons testified that he had seen

N.M.M. provide the children with gifts, there is no indication that these gifts were in

the nature of significant contributions to the child’s care.

Accordingly, we find no merit in this assignment.

Best Interest

As stated, in addition to the State being required to prove at least one ground

for termination, it was also required to prove that termination was in the best interest

of the children. La.Ch.Code art. 1037(B). N.M.M. challenges the trial court’s

determination in this regard.

In ruling, the trial court noted that “the children are bonded with their foster

parents, and termination of parental rights would be in their best interests.” The

record supports this finding. In addition to Mr. Simmons’ testimony regarding

N.M.M.’s failure to substantially comply with the components of the case plan, he

further testified that he had observed the children in their foster placement. He

explained that: “They are real [sic] bonded to the foster parents. You can tell there’s

a huge attachment between the kids and the foster parents.” He confirmed, too, that

C.M. and P.A. were bonded with the foster parents’ biological child as well. He

explained that the foster parents met all of the children’s needs and that, in his

opinion, their continued custody in that environment was in their best interest.

Similarly, CASA volunteer Nicole Holmes explained that she had observed the

children in their foster home and during their meetings with N.M.M. and J.A. She

10
Instead, the State’s report to the trial court indicated that N.M.M. had made no parental
contributions since June 29, 2009. As P.A. was not born until September 2009, it is clear these
earlier contributions were not related to P.A., but were related to C.M. instead.

11

testified that she had witnessed the children become less bonded to their biological

parents and that they have become more timid in their interactions with them. She

stated that the increase in bonding with the foster parents “has been tremendous.”

Ms. Holmes stated that the children “feel very securely bonded in that home.” Ms.

Holmes also expressed concern regarding several aspects of N.M.M.’s conduct,

including a recent missed drug screen, a lapse in mental health treatment, a recent

domestic dispute between N.M.M. and J.A., and N.M.M.’s failure to attend an anger

management program. Like Mr. Simmons, Ms. Holmes opined that termination

would be in the children’s best interest.

In light of the evidence in the record, we find no manifest error in the trial

court’s determination that termination was in the best interests of the children. This

assignment lacks merit.

DECREE

For the foregoing reasons, the judgment of the trial court is affirmed. All costs

of this appeal are assessed to the appellant, N.M.M.

AFFIRMED.

12

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

11-54 cw 11-55

STATE IN THE INTEREST OF C.M.
cw
STATE IN THE INTEREST OF P.A.

SAUNDERS, Judge, dissents and assigns written reasons.

The record, as I read it, does not support the conclusion that there is no

reasonable expectation of significant improvement in the mother’s condition or

conduct. Accordingly, I do not believe that the State has met its burden of proof, and

I respectfully dissent.

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