State in the Interest of E.R.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

11-0065

STATE OF LOUISIANA

IN THE INTEREST OF E.R.

************

APPEAL FROM THE
ELEVENTH JUDICIAL DISTRICT COURT
PARISH OF SABINE, NO. 2498-JAC
HONORABLE STEPHEN B. BEASLEY, DISTRICT JUDGE

************

JIMMIE C. PETERS
JUDGE

************

Court composed of Jimmie C. Peters, Marc T. Amy, and Phyllis M. Keaty, Judges.

AFFIRMED IN PART AND REVERSED IN PART.

Don M. Burkett
District Attorney
Eleventh Judicial District Court
P. O. Box 1557
Many, LA 71449
(318) 256-6246
COUNSEL FOR APPELLEE:
State of Louisiana

Kimberly S. Smith
State of Louisiana
Department of Children and Family Services
1525 Fairfield Avenue, 8th Floor
Shreveport, LA 71101
(318) 676-7347
COUNSEL FOR APPELLEE:
State of Louisiana

D. Scott Kendrick
1762 Texas Street
Natchitoches, LA 71457
(318) 354-9146
COUNSEL FOR DEFENDANT/APPELLANT:
Mother of Minor Child, E.R.

Brian C. McRae
Post Office Box 612
111 N. Washington Avenue
Mansfield, LA 71052
(318) 872-2973
COUNSEL FOR APPELLANT:
Minor Child, E.R.

Jason Waltman
551 Kings Highway
Shreveport, LA 71104
(318) 861-4394
COUNSEL FOR APPELLANT:
Fathers of Minor Child, E.R.

PETERS, J.

The mother and her minor daughter both appeal a trial court judgment rendered

in favor of the State of Louisiana through the Department of Children and Family

Services (referred to as the “state” or “DCFS”) terminating the parental rights of the

parents to the minor daughter. For the following reasons, we affirm in part and

reverse in part.

DISCUSSION OF THE RECORD

The minor child at issue in this litigation, E.R., was born on March 17, 2007,

during the marriage of her mother, K.R. and her legal father, Eu.R.1 However,

Eu.R.’s brother, C.R., is E.R.’s biological father. This litigation has as its beginnings

three emergency room visits over a four-day period in early April 2008.

The first emergency room visit was to the Rapides General Hospital Emergency

Room in Rapides Parish, Louisiana. On that day, K.R. brought E.R. to the hospital

after learning that Eu.R. had choked the child. On the next day, when E.R. began

experiencing breathing difficulties and would not quit crying, K.R. took her to the

Sabine Medical Center Emergency Room in Sabine Parish, Louisiana. Two days

later, on April 11, 2008, K.R. and E.R. were again at the Sabine Medical Center

Emergency Room because K.R. believed that Eu.R. had sexually assaulted E.R.2 This

particular event was so traumatic that K.R. caused she and E.R. to be transported by

ambulance to the hospital.

These hospital visits were called to the attention of the State of Louisiana,

Department of Social Services, Office of Community Services3 in Sabine Parish on

1
The initials of the child and her parents are used to protect the identity of the minor child.
Uniform Rules—Courts of Appeal, Rules 5-1, 5-2.
2
The sexual abuse assertion proved to be unfounded.
3
Pursuant to La.R.S. 36:471, the Department of Children and Family Services (DCFS) was
created in place of the Department of Social Services, effective July 1, 2010. All references to the

April 11, 2008, and the state’s subsequent investigation revealed not only the

particulars of the three emergency room visits, but a history of abuse to both E.R. and

her half-brother, C.V., Jr.—all at the hands of Eu.R.4

Initially, DCFS allowed E.R. and C.V., Jr. to remain in their mother’s home.

However, on May 1, 2008, after learning that K.R. refused to enforce a restraining

order against Eu.R., DCFS sought and was granted a temporary custody order from

the trial court. A May 2, 2008 hearing resulted in a judgment granting DCFS

continued custody of both E.R. and C.V., Jr. Thereafter on May 16, 2008, the state

filed a petition seeking to have the children adjudicated as children in need of care.

Following a hearing on June 30, 2008, the trial court adjudicated E.R. and C.V., Jr.

as children in need of care and continued their custody in the care of the state.5

Even before the trial court adjudicated E.R. a child in need of care, DCFS had

already begun to formulate a plan to address the issues raised by taking her into

custody. On May 28, 2008, DCFS and K.R. entered into a case plan wherein the

principal goal was stated as K.R.’s reunification with E.R., with a secondary goal of

E.R.’s placement with a relative. As part of this initial case plan, K.R. agreed to

participate in substance abuse evaluations and/or treatments, psychological

evaluations and/or treatments, parenting and nurturing classes, and domestic violence

and women’s support groups. Additionally, she committed herself to obtaining and

state agency will be to its new designation, DCFS.
4
DCFS learned from C.V., Jr., E.R.’s half brother, of other instances of physical abuse by
Eu.R. toward E.R., and from K.R. that Eu.R. had beaten E.R. so severely two months before that the
child had begun to suffer seizures. In coordinating its investigation with the Rapides Parish DCFS
office, the Sabine Parish DCFS officials discovered that Rapides Parish DCFS had concluded on
February 12, 2008, that a valid case existed for neglect/dependency by Eu.R. on C.V., Jr., but that
it closed that case after transferring K.R. and her children to her parents’ home in Sabine Parish on
April 8, 2008.
5
The custody of C.V., Jr. was eventually given to his father, C.V., Sr. Thus, his custody is
not at issue in this litigation.

2

maintaining employment, to provide financial support to her children if called upon

by the state, to provide transportation for herself and the children, and to cooperate

with DCFS.6 The trial court approved this case plan.

Thereafter, DCFS continued to maintain E.R.’s physical custody and provided

the trial court with progress reports and proposed changes of the case plan. When

DCFS provided the trial court with its case plan review prepared on November 19,

2008, K.R. had undergone a psychological evaluation by Dr. Daniel J. Lonowski, an

Alexandria, Louisiana psychologist, and counseling sessions with Dr. Carol Jannick,

a family counselor with Green Acres Counseling Services in Natchitoches, Louisiana,

had completed her parenting class obligations, and was then attending her nurturing

parenting classes. Despite this apparent progress, DCFS informed the trial court that

while its primary goal remained reunification, its secondary goal had become

adoption. DCFS’s conclusions that K.R. continued to have problems with her mental

and emotional health, her inability to understand the effect substance abuse has on her

parenting abilities, her inability to understand the effect violence has had in her home,

and in her lack of day-to-day parenting skills were based on the reports provided by

Drs. Lonowski and Jannick and her instructor in the parenting class. With regard to

Eu.R.’s participation in the reunification process, DCFS reported to the trial court that

he had not attended any of the family team conferences and, at the time the report was

prepared, his whereabouts were unknown.7

6
A similar case plan was compiled for Eu.R., but he did not attend the family team conference
where the particulars were discussed, and he never agreed to the terms of the plan.
7
A progress report submitted to the trial court on August 15, 2008, noted that Eu.R. had been
in contact with DCFS on May 28, 2008. On that day, he notified DCFS that he had just been
released from the Rapides Parish General Hospital after attempting to commit suicide, that he was
in the process of obtaining cheaper housing, and that he required transportation to visit E.R.

3

When DCFS submitted its next case plan review to the trial court on July 21,

2009, its goal had changed to take the steps necessary to make E.R. available for

adoption. This change in direction was caused by K.R.’s continued lack of progress

in rehabilitating herself. A February 6, 2009 progress report submitted to the trial

court had noted that while K.R. had completed her participation in a women’s support

group for domestic violence, the class instructor was of the opinion that K.R. “did not

comprehend what was needed to make a safe environment for her and her child.”

Additionally, although K.R. had completed her nurturing parenting class obligation,

she demonstrated nothing to suggest that she comprehended or could demonstrate any

of the skills learned in her classes. In the case plan review, DCFS requested a follow-

up evaluation with Dr. Lonowski. Additionally, it noted that Eu.R. continued to be

a non-participant in the case plan. The trial court subsequently accepted the new case

plan goal of adoption and ordered a follow-up evaluation by Dr. Lonowski.

On May 21, 2010, DCFS submitted an updated case plan review to the trial

court wherein it asserted that nothing had changed to alter its adoption goal, as K.R.

had made little or no progress toward strengthening her argument for reunification

with her daughter. On October 19, 2010, DCFS filed its petition seeking termination

of the parental rights of K.R., Eu.R., and C.R. After a trial on the merits, the trial

court rendered judgment terminating the parental rights of all three parties,

maintaining E.R.’s custody in the state and freeing her for certification for adoption.

The trial court signed a judgment to this effect on December 17, 2010, and both K.R.

and E.R. have appealed. Both appellants raised the same two assignments of error:

(1) that the state failed to establish by clear and convincing evidence that there was

no reasonable expectation of reformation in the foreseeable future for K.R. [or in the

4

case of E.R.’s appeal, for Eu.R. and C.R. as well], and (2) that the state failed to prove

by clear and convincing evidence that there has been no substantial parental

compliance with the case plan.

OPINION

In State in the Interest of J.A., 99-2905, pp. 7-9 (La. 1/12/00), 752 So.2d 806,

810-11, the supreme court summarized the general rules governing suits seeking the

termination of parental rights as follows:

In any case to involuntarily terminate parental rights, there are
two private interests involved: those of the parents and those of the
child. The parents have a natural, fundamental liberty interest to the
continuing companionship, care, custody and management of their
children warranting great deference and vigilant protection under the
law, Lassiter v. Department of Soc. Servs., 452 U.S. 18, 101 S.Ct. 2153,
68 L.Ed.2d 640 (1981), and due process requires that a fundamentally
fair procedure be followed when the state seeks to terminate the
parent-child legal relationship, State in Interest of Delcuze, 407 So.2d
707 (La.1981). However, the child has a profound interest, often at odds
with those of his parents, in terminating parental rights that prevent
adoption and inhibit establishing secure, stable, long-term, and
continuous relationships found in a home with proper parental care.
Lehman v. Lycoming County Children’s Serv.’s Agency, 458 U.S. 502,
102 S.Ct. 3231, 73 L.Ed.2d 928 (1982); see also State in the Interest of
S.M., 98-0922 (La.10/20/98), 719 So.2d 445, 452. In balancing these
interests, the courts of this state have consistently found the interest of
the child to be paramount over that of the parent. See, e.g., State in the
Interest of S.M., 719 So.2d at 452; State in the Interest of A.E., 448
So.2d 183, 186 (La.App. 4 Cir.1984); State in the Interest of Driscoll,
410 So.2d 255, 258 (La.App. 4 Cir.1982).

The State’s parens patriae power allows intervention in the
parent-child relationship only under serious circumstances, such as
where the State seeks the permanent severance of that relationship in an
involuntary termination proceeding. The fundamental purpose of
involuntary termination proceedings is to provide the greatest possible
protection to a child whose parents are unwilling or unable to provide
adequate care for his physical, emotional, and mental health needs and
adequate rearing by providing an expeditious judicial process for the
termination of all parental rights and responsibilities and to achieve
permanency and stability for the child. The focus of an involuntary
termination proceeding is not whether the parent should be deprived of
custody, but whether it would be in the best interest of the child for all

5

legal relations with the parents to be terminated. LA. CHILD. CODE art.
1001. As such, 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 grounds exist and are proven. Nonetheless, courts
must proceed with care and caution as the permanent termination of the
legal relationship existing between natural parents and the child is one
of the most drastic actions the State can take against its citizens. The
potential loss to the parent is grievous, perhaps more so than the loss of
personal freedom caused by incarceration. State in the Interest of A.E.,
448 So.2d [183] at 185.

Title X of the Children’s Code governs the involuntary
termination of parental rights. LA. CHILD. CODE art. 1015 provides the
statutory grounds by which a court may involuntarily terminate the
rights and privilege of parents. The State need establish only one
ground, LA. CHILD. CODE art. 1015, but the judge must also find that the
termination is in the best interest of the child. LA. CHILD. CODE art.
1039. See State in Interest of ML & PL, 95-0045 (La.9/5/95), 660 So.2d
830, 832. Additionally, the State must prove the elements of one of the
enumerated grounds by clear and convincing evidence to sever the
parental bond. LA. CHILD. CODE art. 1035(A); Santosky v. Kramer, 445
U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982) (holding that the
minimum standard of proof in termination of parental rights cases is
clear and convincing evidence).

The arguments on appeal are resolved by determining whether the state has

proven by clear and convincing evidence, the grounds for termination of parental

rights pursuant to La.Ch.Code art. 1015(5), which provides:

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.

Lack of substantial compliance with a case plan is proven by:

(1) The parent’s failure to attend court-approved scheduled
visitations with the child.

(2) The parent’s failure to communicate with the child.

6

(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
programs 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.

La.Child.Code art. 1036(C).

In addressing the evidentiary question, we will address K.R.’s and E.R.’s appeals

separately.

K.R.’S APPEAL

The state asserts that more than one year has elapsed since E.R.’s removal

frOm K.R.’s custody, that K.R. has failed to substantially comply with the case plan

goals for reunification, and that there is no reasonable expectation of significant

improvement in the near future. We find that the state has overcome its burden on

these issues by clear and convincing evidence.8

As previously stated, very early in the reunification process, K.R. underwent

a psychological evaluation by Dr. Lonowski. The doctor conducted his initial

evaluation on June 9, 2008, and authored a report concerning his findings on June 11,

2008. In that report, Dr. Lonowski stated:

The results of the psychological evaluation of [K.R.] support a primary
clinical impression of antisocial personality traits. Profiles generated by

8
Obviously, the one year period is not in dispute.

7

the various psychometric tests also support this impression. Her
responses to the three psychometric tests showed that [K.R.] was
unwilling or unable because of personality dynamics to disclose
pertinent personal information. Such a pattern suggests that she is a
distrusting individual who exhibits poor social judgment because of
simplistic reasoning and borderline verbal intelligence, and therefore,
she engages in repeated periods of self-defeating behavior. Her overall
intellectual functioning is in the range of mild mental retardation.
Because of her personality orientation, the examiner believes that [K.R.]
cannot be trusted to do what she asserts that she will to comply with her
case plan. Accordingly, she requires very close casework supervision,
and even then, the [DCFS] can probably expect no more than marginal
cooperation from [K.R.] While, theoretically, she might benefit from
mental health counseling to help her develop better insight into her
psychological dynamics, it is unlikely she would cooperate with such
services, and therefore, no such recommendation is made at this time.

One year later, Dr. Lonowski’s basic conclusions had not changed. In his June 7,

2009 report, Dr. Lonowski stated that his more recent testing revealed that K.R. had

the intellectual capacity to raise children, but that she continued “to hold to rigid

views and simplistic concepts that suggest that her social judgment and decision

making could be compromised despite sufficient intellectual capabilities.” He

concluded that K.R. basically blamed the authorities for not giving her the appropriate

consideration for having simply completed the courses despite the fact that she

seemed not to benefit at all from the lessons presented. He further noted that when

he last evaluated her, K.R. was in another relationship, was attempting to become

pregnant, and that her “ ability to responsibly take care of her children independently

is questionable,” but that “[i]f she had a responsible partner, the probability that she

could engage in responsible parenting behavior would improve.” Dr. Lonowski

suggested that it might be beneficial for DCFS to develop a profile on her current

8

paramour to determine whether he would be a sufficiently responsible partner in

raising children.9

Dr. Jannick began her counseling activities with K.R. not long after K.R. was

first seen by Dr. Lonowski. In her August 5, 2008 outpatient treatment report, she

stated that:

Due to [K.R.’s] limited thought processing ability coupled with her
antisocial personality traits, it is doubtful [she] will be able to change
her belief that her son, [C.V., Jr.], is responsible for the children entering
foster care. Even when confronted and presented with facts, she
manages to “reassemble” them and conform them to her beliefs. In
addition, if, on the outside chance, that she verbalizes a fact accurately,
the next minute she reverts back to her original thought indicating no
internalization of the thoughts/facts at hand. It is also doubtful [K.R.]
understands the long-term consequences of the situation and I cannot
predict she will ever comprehend past and future events associated with
her case. She demonstrates very little insight in spite of the efforts by
service providers to keep her advised and aware of the facts in her case.

As late as early 2010, Dr. Jannick was still working with K.R., but with little positive

results. Although Dr. Jannick found that K.R. obviously cared for E.R. deeply, and

was actually generally receptive to feedback, she was of the opinion that K.R. would

require considerable supervision to meet the safety needs of E.R. According to Dr.

Jannick, K.R. was still having difficulty transferring the knowledge or suggestions

she received in her training sessions to real life situations. Dr. Jannick was of the

opinion that K.R. is normally at a loss in addressing novel situations absent specific

coaching on that situation.

Lindy Branch, a former employee of DCFS, was the original case worker on

E.R.’s case when it began in May 2008, and was the person who collected the initial

information concerning the three emergency room visits as well as the prior history

9
At some point after Dr. Lonowski’s second evaluation, K.R. and her latest companion
separated and she reestablished her relationship with Eu.R.

9

of abuse giving rise to E.R.’s subsequent seizures. Additionally, Ms. Branch directly

participated in the development of the rehabilitation case plans. According to Ms.

Branch, K.R. attended all the required substance abuse and psychological evaluations.

Additionally, K.R. met the attendance requirements at the parenting classes, nurturing

parenting classes, women’s support group for abuse, and weekly visitation with E.R.

However, Ms. Branch testified that merely attending the assigned evaluations and

classes did not equate to successfully completing the requirements of the programs.

That is to say, despite being exposed to these core values, K.R. demonstrated no

behavioral changes.

Ms. Branch testified that DCFS attempted to assist K.R. by providing

additional parenting demonstrations, coaching, and interactions with the assistance

of Dr. Jannick. However, according to Ms. Branch, K.R. still could not demonstrate

a change in her behavior. As an example, Ms. Branch testified that while the assistant

was in the room with her and E.R., K.R. would demonstrate the skills taught to her,

but when the assistant left the room, K.R. would not interact or communicate with

E.R. Instead, she would just sit on the couch and watch her.

With regard to visitation itself, Ms. Branch testified that although K.R. initially

visited E.R. regularly, she made no visits between April 2010 through August 2010,10

and other than two or three small gifts, she failed to provide any support for E.R. Ms.

Branch further testified that K.R. failed to maintain a stable residence during her case

plan in that K.R. had at least four residences. Some of these residences were shared

with her paramour (with whom DCFS was unable to conduct home studies), and

when that relationship ended, K.R. resumed her relationship with Eu.R.

10
Ms. Branch’s employment with DCFS ended in August 2010.

10

According to Ms. Branch, E.R. is thriving in foster care. She explained that

E.R. is a very active three-year-old, that she is talking more than previously, and that

she appears to be on target both medically and physically.

LaJuana Williams Mosley, the supervisor of K.R.’s women’s support group,

parenting classes, and family visits, testified that she provided sixteen weeks of

women’s support group involvement to K.R. and that she supervised thirteen visits

between K.R. and her children between May 2008 and September 2009. Ms. Mosley

testified that the support group discusses domestic violence, how the participants can

protect themselves and their children, lifestyle changes, and how to spot abusers.

Although K.R. attended all sixteen weeks of the support group, she did not participate

in the classes or volunteer any information. When questioned about K.R.’s mental

ability, Ms. Mosley stated that her impression was that K.R. wanted people to believe

that she was limited, but she stated that K.R. could spell really well and that she was

able to comprehend what she wanted to comprehend.

In describing the interaction between K.R. and E.R., Ms. Mosley testified that

if C.V., Jr. was present, K.R. would pay attention to him until E.R. arrived, then she

would ignore him. According to Ms. Mosley, on one occasion when C.V., Jr. told

K.R. three times that he wished to go home with her, K.R. responded by telling him

it was his fault he was in the custody of the state and he should learn to deal with the

situation.

Ms. Mosley testified that when the subject of protecting her children would

arise, K.R. never verbalized how she would protect her children. Instead, K.R. would

simply copy the language in a handbook addressing the definition of safety. Ms.

11

Mosley expressed concern that if K.R. insisted on reuniting with Eu.R., her priority

would remain with that relationship rather than her relationship with her children.

Dr. Jannick testified she provided eight sessions of personal counseling to K.R.

between July 2008 through September 2009, with a goal of improving K.R.’s ability

to recognize safety concerns, address anger management and domestic violence

issues, and improve her parenting skills. With regard to K.R.’s parenting skills, Dr.

Jannick testified that she provided her reading material and watched and discussed

videos with her. She opined that K.R. was conscientious during the counseling while

she thought she would be reunited with E.R. However, she stated that once K.R.

knew this would not occur, she became less cooperative in that she did not complete

her assignments or interact during her counseling sessions.

According to Dr. Jannick, K.R. met the specific goals set for her during her

interaction with E.R., but she only did what was expected of her. If something

unexpected occurred, K.R. was at a loss as to how to deal with the situation. In fact,

according to Dr. Jannick, K.R. has difficulty dealing with anything out of the ordinary

and, since her experience with children is that most days are out of the ordinary, she

would be concerned with K.R.’s ability to deal with anything unexpected. Finally,

Dr. Jannick testified that she would be concerned if K.R. was reunited with E.R.

because of K.R.’s inability to recognize dangerous situations or conditions. Nor did

she feel that any amount of counseling would improve K.R.’s ability in this area.

K.R.’s nomadic life style and poor choice of companions was also a concern

to all who testified. When the state took custody, K.R. was residing with her parents

in the Pleasant Hill community of Sabine Parish. By November 2008, she had moved

to a one-bedroom apartment in Zwolle, Sabine Parish, Louisiana. By June 2009, she

12

had moved from her apartment and was sharing a two-bedroom home with her new

paramour. Sometime thereafter, she left her latest companion and reunited with Eu.R.

C.R. testified at trial that as far as he knew, K.R. and Eu.R. were back together and

residing in either Cheneyville (Rapides Parish) or Bunkie (Avoyelles Parish),

Louisiana.

Shirley Conley, a foster care worker for DCFS who was assigned E.R.’s case

in August 2010, stated that K.R. had visited E.R. five times since she became

involved in this matter. While she had the opportunity to see all three parents, she did

not become aware that K.R. had returned to Eu.R. until C.R. told her. When she

confronted K.R. concerning this issue, K.R. admitted that she was living with Eu.R.

in Avoyelles Parish. Ms. Conley testified that because K.R. had not volunteered the

fact that she and Eu.R. had resumed their relationship, no home study had been

performed.

In terminating K.R.’s parental rights, the trial court stated that the principal, but

not exclusive, reason for rendering its judgment was the lack of substantial

improvement on her part in that she failed to exhibit or demonstrate behavior changes

even after participating in the required classes and working her case plan. After

considering the entire record, we find no error in the trial court’s finding in this

regard. While on the surface it may appear that K.R. has complied with the majority

of her case plan, we find that substantively, she has failed to comply with the case

plan as there has been no improvement in the behavior which led to her losing

custody of E.R. in the first place. Both Dr. Jannick and Ms. Mosley opined that K.R.

is incapable of providing a safe environment for E.R. This is based on her inability

to recognize dangerous conditions or situations confronting her or E.R. This has been

13

borne out by K.R. reuniting with Eu.R., despite the abuse Eu.R. meted out to E.R.

Moreover, K.R. is incapable of extrapolating knowledge learned from her sessions

and applying it in situations not specifically covered. This is despite receiving

additional help through parenting demonstrations, coaching, and interaction with Dr.

Jannick. As pointed out by Dr. Jannick, parenting constantly involves dealing with

extraordinary situations. An inability to cope with situations out of the ordinary does

not bode well for a parent. Accordingly, we find that DCFS proved by clear and

convincing evidence that grounds exist for terminating K.R.’s parental rights pursuant

to La.Child.Code art. 1015(5) and that it is in E.R.’s best interest that K.R.’s parental

rights are terminated. The trial court’s judgment on this issue is affirmed.

E.R.’S APPEAL

This appeal presents an unusual situation in that neither Eu.R. nor C.R. have

appealed to preserve their parental rights. However, we will address the merits of

E.R.’s arguments.

K.R.’s Parental Rights

For the reasons previously stated in considering K.R.’s appeal on this issue, we

reject this portion of E.R.’s argument and affirm the trial court’s termination of K.R.’s

parental rights.

Eu.R.’s Parental Rights

The evidence in the record establishes without dispute that Eu.R. failed to

attend court-approved visitations with E.R., failed to communicate with E.R., failed

to keep the state apprised of his whereabouts; failed to contribute anything to the

costs of E.R.’s foster care, failed to comply with the required programs provided for

in the case plan, failed to show any substantial improvement in redressing the

14

programs preventing reunification with E.R., and continued conditions that led to the

removal in the first place. In other words, Eu.R.’s failures meet every condition set

forth in La.Child.Code art. 1036(C).

Based on the record before us, we find that the state proved by clear and

convincing evidence the grounds for termination of Eu.R.’s parental rights pursuant

to La.Child.Code art. 1015(5) and that it is in the best interest of E.R. that Eu.R.’s

parental rights be terminated. We affirm the trial court’s judgment on this issue.

C.R.’s Parental Rights

Ms. Branch testified that she first learned of C.R.’s involvement in this matter

after she was contacted by Eu.R. in March 2010. She testified that when she

contacted C.R., he admitted that he was aware of the possibility that he was E.R.’s

father because K.R. told him from the beginning that he might be the child’s father.

Although DNA testing confirmed that C.R. was E.R.’s biological father, Ms. Branch

testified that he was not a placement resource for E.R. because his parental rights to

another child had previously been terminated in Rapides Parish, Louisiana.

According to Ms. Branch, DCFS developed a case plan for C.R. similar to that

developed for K.R. and Eu.R., but that he did nothing to comply with the case plan.

However, she admitted that she never scheduled a psychological evaluation, parenting

classes, or a substance abuse evaluation for C.R. before her employment ended and

she had no idea whether any DCFS representative did so after she left. Ms. Branch

testified that she spoke to C.R. four or five times after she learned of his possible

involvement in this matter and that he voluntarily participated in the DNA testing and

even attended the family team conference held after it was learned that he was E.R.’s

biological father.

15

According to Ms. Branch, when the DCFS office became aware that C.R.’s

parental rights had been terminated as to his child in Rapides Parish, he was told that

he would not be considered a placement source for E.R. However, she did inform

him that he could comply with the case plan if he wished, and she suggested that he

schedule his parenting and nurturing parenting classes and substance abuse

counseling in Rapides Parish as that was where he worked. According to Ms. Branch,

C.R. never expressed a wish to visit with E.R. from the time she was taken into

custody, despite knowing that she might be his child.

Ms. Conley testified that once C.R. was notified that he was E.R.’s biological

father, he attended and participated in the family team conference, was given a case

plan, twice visited E.R., and called DCFS seeking a referral for the services

associated with his case plan. Ms. Conley testified that she provided him the phone

number for the Alexandria substance abuse clinic and that she personally contacted

the Rapides Parish DCFS to inquire about parenting and nurturing parenting classes

for him. According to Ms. Conley, C.R. had provided her with documentation

showing that he had completed a substance abuse evaluation with no recommendation

of treatment. However, she said this information has not yet been verified. Finally,

she testified that he has been persistent in his dealings with DCFS since the last court

hearing.

C.R. testified that he was told by K.R. when she first became pregnant that he

might be E.R.’s biological father. However, he stated that after she told him he was

not the father, he left the matter alone. C.R. testified that he did not become aware

that E.R. was in the state’s custody until after the DNA testing when he was contacted

by DCFS. At that point, he informed DCFS that he would do anything required in

16

order to get custody of E.R. Unfortunately, according to C.R., he received mixed

information from DCFS when he delivered that message. At first, he was told not to

contact DCFS, that the office would contact him. When he began attending meetings,

he was told by Ms. Branch that he could follow his case plan but that regardless of

his participation, DCFS would not consider him for placement of E.R. Further, C.R.

stated that he was told by the Rapides Parish DCFS that he could not participate in

any parenting classes until the Sabine Parish DCFS transferred his paperwork.

However, he stated that he did undergo a substance abuse assessment on his own.

C.R. testified that he has visited E.R. twice since April 2010, after receiving

permission from DCFS, and he said that his wages are being garnished for child

support. C.R. stated that he has been employed as a bus driver for six years, that he

lives by himself, but that he has three sisters who could assist him with E.R. if

necessary. Finally, he stated that he wants to remain involved in E.R.’s life and that

he does not want his parental rights terminated.

C.R. admitted that his parental rights to another child were terminated and that

the child was removed from his house because of physical abuse. He further admitted

that he did not work a case plan in that instance.

Louisiana Children’s Code Article 1015(3) provides an additional ground for

the termination of a parent’s rights:

Misconduct of the parent toward this child or any other child of
the parent or any other child in his household which constitutes extreme
abuse, cruel and inhuman treatment, or grossly negligent behavior below
a reasonable standard of human decency, including but not limited to the
conviction, commission, aiding or abetting, attempting, conspiring, or
soliciting to commit any of the following:

....

17

(k) 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.

In order to satisfy the burden under Article 1015(3)(k), the state must prove two

things by clear and convincing evidence: (1) that C.R.’s parental rights to a sibling

of E.R. were terminated due to neglect or abuse and (2) that prior attempts to

rehabilitate C.R. have been unsuccessful. State ex rel. L.B. v. G.B.B., 02-1715 (La.

12/4/02), 831 So.2d 918.

After reviewing the record, we find that the state has failed to prove by clear

and convincing evidence, the second prong of La.Child.Code art. 1015(3)(k): that

prior attempts to rehabilitate C.R. have been unsuccessful. Although C.R. testified

that K.R. informed him of the possibility that he was E.R.’s father, he stated that she

later told him that Eu.R. was her father. Thus, he did not know he was E.R.’s father

until it was confirmed by the DNA testing. Once that occurred, C.R. complied with

his case plan to the best of his ability, despite being told by DCFS that he would

never be considered as a placement resource for E.R. Although the state has proven

that C.R.’s parental rights to another child were previously terminated in Rapides

Parish, this, in and of itself, is insufficient to prove that termination is proper under

Article 1015(3)(k). DCFS has not given C.R. a chance to comply with his case plan

as he has only been involved in this matter for a mere eight months. Accordingly, we

find that the state failed to prove by clear and convincing evidence the grounds for

termination of C.R.’s parental rights exist pursuant to Article 1015(3)(k).

Furthermore, we find that it has failed to prove that it would be in the best interest of

E.R. that his parental rights be terminated. The trial court’s judgment on this issue

is reversed and the matter is remanded to the trial court for further proceedings.

18

DISPOSITION

For the foregoing reasons, we reverse the trial court judgment terminating the

parental rights of C.R. and remand the matter to the trial court for further proceedings

on that issue. We further affirm the trial court judgment terminating the parental

rights of K.R. and Eu.R. The costs of this appeal are assessed to K.R.

AFFIRMED IN PART AND REVERSED IN PART.

19