State in the Interest of P.M. & H.M.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

11-1362

STATE IN THE INTEREST OF P.M. & H.M.

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF ACADIA, NO. 4654
HONORABLE KRISTIAN DENNIS EARLES, DISTRICT JUDGE

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JOHN D. SAUNDERS
JUDGE

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

REVERSED.

Annette Fuller Roach
15th Judicial District Public Defenders Office
P. O. Box 1747
Lake Charles, LA 70602-1747
(337) 436-2900
COUNSEL FOR APPELLANT:
D. A.

Diane Elaine Cote
825 Kaliste Saloom Road
Brandwine I, Room 218
Lafayette, LA 70508
(337) 262-1555
COUNSEL FOR APPELLEE:
State of Louisiana, Department of Children andFamily Services

Brett Anthony Stefanski
Attorney at Law
P. O. Dreawer 730
Crowley, LA 70527-0730
(337) 783-7000
COUNSEL FOR APPELLEE:
P. M.
H. M.

Scott J. Privat
Privat & Privat
P. O. Box 449
Crowley, LA 70527
(337) 783-7142
COUNSEL FOR APPELLANT:
R. M.

SAUNDERS, Judge.

This case involves the involuntary termination of parental rights of a mother

and father of two children under La.Ch.Code art. 1015(5). The trial court found

that neither parent substantially complied with the case plan nor was there any

reasonable expectation that either parent’s conduct would significantly improve in

the near future. Further, the trial court found that termination of each parent’s

parental rights was in the best interest of the children. As such, the trial court

terminated the mother and father’s parental rights and certified the children for

adoption. We reverse.

FACTS AND PROCEDURAL HISTORY:

The Department of Children and Family Services (DCFS) became involved

with a cohabiting family composed of mother, D.A., father, R.M., and two children,

P.M. and H.M., following an incident where R.M. whipped P.M. with a belt. The

DCFS created a safety plan and D.A. attended domestic violence counseling. The

safety plan provided that R.M. was permitted only supervised visits with the

children.

Thereafter, R.M. and D.A. apparently reconciled and R.M. requested that a

new safety plan be enacted. The following day, the DCFS received an anonymous

call that R.M. was with D.A. and the children at the house of D.A.’s sister. Upon

arriving, the workers observed the four family members sleeping on an air mattress

on the living room floor. The children were removed from the home and placed in

the State’s custody on December 8, 2008.

A petition was filed on December 12, 2008, to adjudicate the children as in

need of care. On January 5, 2009, the parties agreed that the children be

adjudicated as such. A case plan wherein, inter alia, D.A. and R.M. would obtain

steady housing and employment, seek mental health treatment, and attend

parenting classes was established.

On August 20, 2010, a petition for termination of parental rights and

certification for adoption was filed. A trial was held on May 6, 2011, wherein

judgment was reached by the trial court that terminated the parental rights of D.A.

and R.M. and certified the children for adoption. D.A. and R.M. have timely

appealed.

ASSIGNMENTS OF ERROR D.A. AND R.M.:

1. The trial court erred in terminating the parental rights of D.A. and R.M. via

concluding that her failure to more timely seek mental health treatment was

sufficient to prove by clear and convincing evidence that she has not

substantially complied with their case plan and that there was no reasonable

expectation for further improvement in their condition or conduct in the near

future nor reasonable expectation that they would complete the case plan as

deemed necessary for the safe return of the children.

2. The trial court erred in finding that termination was in the best interest of the

children.

ASSIGNMENT OF ERROR NUMBER ONE:

D.A. contends in her first assignment of error that the trial court erred in

terminating her parental rights. We find merit in this contention.

The trial court’s factual findings regarding involuntary termination of

parental rights are reviewed under the manifest error/clearly wrong standard. State

ex rel. H.M.D., 09-508 (La.App. 3 Cir. 4/7/10), 35 So.3d 426.

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
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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 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 at 185.

State in the Interest of J.A., 99-2905, pp. 7-9 (La. 1/12/00), 752 So.2d 806, 810-11.

The trial court terminated D.A.’s parental rights under La.Ch.Code art.

1015(5), which states:

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
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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.

In this case, there is no dispute that the children have been removed from

D.A.’s custody via court order for at least a year. The dispute is whether the State

carried its burden to prove, by clear and convincing evidence, that D.A. has not

had some substantial compliance with her case plan and that one cannot reasonably

expect D.A. to show significant improvement in her conduct or condition presently.

D.A.’s case plan was dated December 31, 2008. It required of her the

following: establish and maintain housing; obtain employment; attend parenting

classes; pay twenty dollars monthly of parental contributions to social services;

undergo psychological evaluation and obtain an assessment with Crowley Mental

Health and follow-through with any recommendations they make; complete

substance abuse treatment; attend counseling at Faith House for battered women;

and participate in home visits and visitation with the children.

In a report dated April 29, 2009, it was noted that D.A. did not establish

housing or obtain employment. However, D.A. had applied for work at two

different businesses. Further, D.A. attended five of six sessions in parenting

classes, three of which D.A. participated extensively. Additionally, D.A. applied

for and was placed on a waiting list to attend another parenting class to improve

her mothering skills. D.A. also has attended several sessions at Faith House for

battered women and substance abuse treatment wherein she was administered

several urine drug screens. D.A.’s results were negative on all administered

screens.

As of the April 2009 report, D.A. failed to contribute the twenty dollars

monthly. However, according to the report, she brought snacks for the visits with

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the children as well as presents for holidays and birthdays. Further, D.A. attended

all visits during the supervision period, demonstrated attempts to utilize alternative

discipline methods when the children misbehaved, showed appropriate affection

for the children, and read books and colored with the children. Finally, D.A.

assisted in changing H.M’s diapers and helping P.M. in using the restroom.

On May 11, 2009, the trial court issued a judgment that reunification was not

possible at that time, but that reunification was still the goal. On November 23,

2009, a second report noted that D.A. still failed to establish housing or obtain

employment. However, the report noted that D.A. had placed applications at

multiple businesses to no avail.

D.A. was involved with a mentoring program from May 2009 to November

2009. The goals of that program were to assist D.A. with finding a job and

housing and discussion of anger management and parenting issues. D.A. was

reportedly cooperative with this program.

D.A. attended a psychological evaluation with Dr. Bergeron on June 11,

2009, wherein she admitted to depression due to separation from her children. Dr.

Bergeron recommended mental health services. Due to D.A.’s housing location,

she was only able to attend one appointment at Crowley Mental Health, as her

location disqualified her for their services. She was then referred to Lake Charles

Mental Health. D.A. contacted Lake Charles Mental Health about services, but

was told she did not meet its criteria for services.

As of the November 2009 report, D.A. has failed to contribute the twenty

dollars monthly. However, according to the report, she brought snacks for the

visits with the children as well as presents for the holidays and birthdays. Further,

D.A. attended all visits during the supervision period, demonstrated attempts to

utilize alternative discipline methods when the children misbehave, showed
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appropriate affection for the children and assisted the children by changing H.M.’s

diapers and helping P.M. in using the restroom. It was noted that D.A. struggled to

discipline P.M. However, most parties have reported that P.M. has been difficult

to discipline, including P.M.’s foster parents and therapist. Since, P.M. has been

diagnosed with ADHD and been reacting favorably to the prescribed medication.

On December 7, 2009, the trial court issued a judgment that reunification

was not possible at that time, but that reunification was still the goal. In March of

2010, D.A. completed an anger management course. On June 1, 2010, another

report was issued. Its contents were identical to the November 2009 report. On

June 1, 2010, the trial court issued a judgment that reunification was not possible at

that time, but that adoption was now the goal.

On August 20, 2010, a petition was filed to terminate D.A.’s parental rights.

On April 19, 2011, a report was issued on this matter. In that report, it noted that

D.A. had obtained housing with the children’s father, R.M. Although D.A. had

attempted to get a job previously, she no longer intended to do so due to

reunification with the children’s father who had a steady income.

After a thorough review of the record, we find that the trial court

erroneously terminated D.A.’s parental rights. She has substantially complied with

her case plan for services. The areas in which she lacked were due to economic

difficulties that hindered her attempt to obtain appropriate housing. Because she

lacked a consistent housing location, she has failed to fully complete the mental

health treatment portion of her case plan due to failing to meet the criteria for the

services. The record indicates that she has reunited with the children’s father who

has a steady income. This steady income has helped D.A. obtain housing. This

fact leads one to reasonably expect D.A. to show significant improvement in her

conduct or condition and should help D.A. completely comply with her case plan.
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Accordingly, we reverse the trial court’s judgment terminating D.A.’s parental

rights.

D.A. ASSIGNMENT OF ERROR NUMBER TWO:

In her second assignment of error, D.A. asserts that the trial court erred in

finding that termination was in the best interest of the children. This assignment of

error is pretermitted.

Prior to termination of parental rights, the grounds for termination must be

established, and, thereafter, the trial court may terminate parental rights if

termination is in the best interest of the child. La.Ch.Code art. 1037(B). We

reversed the trial court’s judgment terminating D.A.’s parental rights in her

assignment of error number one because the State failed to establish the grounds

necessary to terminate D.A.’s parental rights under La.Ch.Code art. 1015(5).

Therefore, any discussion of this issue is extraneous.

R.M. ASSIGNMENT OF ERROR NUMBER ONE:

R.M. contends in his first assignment of error that the trial court erred in

terminating his parental rights. We find merit in this contention.

Again, in this case, there is no dispute that the children have been removed

from R.M.’s custody via court order for at least a year. The dispute is whether the

State carried its burden to prove, by clear and convincing evidence, that he has not

had some substantial compliance with his case plan and that one cannot reasonably

expect R.M. to show significant improvement in his conduct or condition in the

near future.

R.M.’s case plan and compliance mirrors that of D.A. His case plan

included the following: stable, independent housing; obtaining and maintaining

income; meeting with a case worker three times a month; obtaining mental health

treatment; attending a psychological evaluation; working with mentoring mom
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program budgeting; applying for housing assistance/vocational assistance; paying a

parental contribution; and visiting with his children.

During the time the children were placed in the State’s custody, R.M.

worked odd jobs with a neighbor and applied for jobs with local businesses and

oilfield employers. Since, he completed five of six sessions of parenting classes

and has been steadily employed. He has improved his living situation to where he

and D.A. are living in a home together that is appropriate for the children. Both

D.A. and R.M. reported no domestic altercations since the children were placed in

the State’s custody. R.M testified that he completed anger management classes

and parenting classes.

Finally, the primary concern with R.M.’s parenting skills to help him gain

control of his anger in correcting his children. His testimony at the hearing was

that he understood alternative methods of discipline and intended to use those

rather than physical methods.

After a thorough review of the record, we find that the trial court

erroneously terminated R.M.’s parental rights. He has substantially complied with

his case plan for services. Much like D.A., the lack of a consistent location for

housing has been the source of his failure to complete the mental health aspect of

his case plan. The record indicates that he now has a more stable housing situation

and also has a stable income. This fact leads one to reasonably expect R.M. to

comply fully with his case plan. Accordingly, we reverse the trial court’s

judgment terminating his parental rights.

R.M. ASSIGNMENT OF ERROR NUMBER TWO:

R.M.’s second assignment of error is the trial court erred in finding that

termination was in the best interest of the children. This assignment of error is

pretermitted for the reasons stated in D.A.’s assignment of error number one.
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CONCLUSION:

D.A. and R.M. each raise two assignments of error. Both assert that the trial

court erroneously terminated their parental rights. We find merit to these

assignments. These findings pretermit the remaining assignments of error. There

are no court costs to assess in this matter.

REVERSED.

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