State in the Interest of D.P.M.

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

JAC 12-595 consolidated with JAC 12-596

STATE IN THE INTEREST OF D.P.M., ET AL.

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APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 23336 C/W 24283
HONORABLE LILYNN ANNETTE CUTRER, DISTRICT JUDGE

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BILLY HOWARD EZELL
JUDGE

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Court composed of Sylvia R. Cooks, Billy Howard Ezell, and J. David Painter, Judges.

AFFIRMED.

Evelyn M. Oubre
522 Clarence Street
Lake Charles, LA 70602
(337) 436-0337
COUNSEL FOR APPELLANT:
A. M. M.

James Wade Smith
P. O. Box 1706
Lake Charles, LA 70602
(337) 436-8424
COUNSEL FOR APPELLEE:
M. W.

Thomas Walter Sanders Jr.
Louisiana Department of Children and Family Services
4250 5th Avenue
Lake Charles, LA 70607
(337) 475-3032
COUNSEL FOR APPELLEE:
State of Louisiana Department of Children and Family Services

Amy E. McGray
One Lakeshore Dr., Suite 1585
Lake Charles, LA 70601
COUNSEL FOR APPELLEE:
D. P. M.

EZELL, Judge.

A.M.M. appeals the decision of the trial court terminating her parental rights

and certifying her child, D.P.M, for adoption. For the following reasons, we affirm

the decision of the trial court.

D.P.M. was born on February 28, 2008, to A.M.M. The child was removed

from his mother’s care on May 28, 2010, pursuant to an order issued by the trial court

below. That day, A.M.M. left D.P.M. at daycare and was subsequently hospitalized

pursuant to a Physician’s Emergency Commitment for mental health issues. A

Petition for Certification for Adoption and Termination of Parental Rights was filed

by the Department of Children and Family Services (DCFS) on August 30, 2011,

alleging that the mother had substantially failed to comply with her case plan for

reunification with the child. Namely, the petition alleged that A.M.M. failed to

establish safe housing for D.P.M.; that she did not have sufficient income to support

D.P.M. and has failed to pay court-ordered child support for more than six months;

that she tested positive for cocaine and failed to complete substance abuse services

provided to her; and that A.M.M. failed to obtain the required mental health care and

parenting education. Trial was held on March 12, 2012. The trial court found that

A.M.M. had failed to comply with her case plan and that there was no reasonable

expectation of improvement. Finding that termination was in the best interest of

D.P.M., the trial court terminated A.M.M.’s parental rights to the child. From that

decision, A.M.M. appeals.

A.M.M. asserts as her sole assignment of error that the trial court erred in

finding that the DCFS had met its burden of proof for termination. We disagree.

Louisiana Children’s Code Article 1015 provides the grounds for termination of

parental rights. DCFS’s petition for termination of parental rights alleged that

termination was appropriate pursuant to La.Ch.C. arts. 1015(4), 1015(5), and 1036.

The portion of La.Ch.C. art. 1015 relevant to this matter lists the following as grounds

for termination:

(4) Abandonment of the child by placing him in the physical
custody of a nonparent, or the department, or by otherwise leaving him
under circumstances demonstrating an intention to permanently avoid
parental responsibility by any of the following:

(a) For a period of at least four months as of the time of the
hearing, despite a diligent search, the whereabouts of the child’s parent
continue to be unknown.

(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.

(c) As of the time the petition is filed, the parent has failed to
maintain significant contact with the child by visiting him or
communicating with him for any period of six consecutive months.

(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.

Louisiana Children’s Code Article 1036 provides, in pertinent part:

C. 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.

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(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.

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.

The Louisiana Supreme Court has stated the following relative to the

termination of parental rights:

An appellate court reviews a trial court’s findings as to whether
parental rights should be terminated according to the manifest error
standard. State ex rel. K.G. 02–2886, p. 4 (La.3/18/03), 841 So.2d 759,
762. This court has repeatedly set forth the concerns regarding the
involuntary termination of parental rights by OCS, 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, and due process requires that a fundamentally
fair procedure be followed when the state seeks to terminate
the parent-child legal relationship. However, the child has a
profound interest, often at odds with those of his parents, in

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terminating parental rights that prevent adoption and inhibit
establishing secure, stable, long-term, and continuous
relationships found in a home with proper parental care. 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.

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. 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.

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 privileges 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. 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).

Id. at 4–5, 841 So.2d at 762–63 (citing State in the Interest of J.A., 99–
2905 (La.1/12/00), 752 So.2d 806, 810–811; State ex rel. C.J.K., 00–
2375 (La.11/28/00), 774 So.2d 107) (citations omitted).

As revealed by the above quotation, a court considering a petition
to terminate parental rights must make two findings: (1) that OCS
established one of the enumerated grounds for termination set forth in La.
Ch.Code art. 1015 by clear and convincing evidence, and (2) that
termination is in the best interest of the child.

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State ex rel. D.L.R., 08-1541, pp. 11-12 (La. 12/12/08), 998 So.2d 681, 687-88.

In this case, we find that the trial court below properly made the two required

findings. A.M.M. had roughly twenty-two months from the time her child was taken

to the date of trial to comply with her case plan, almost twice the amount of time

listed under La.Ch.C. art. 1015(5). And yet, even with the near extra year, she has

failed to complete any of her plan, except for obtaining employment. A.M.M. never

maintained housing stability, having at least six addresses since D.P.M. was removed

from her custody. She has not completed any of the substance abuse treatment

required of her. She has not shown that she has addressed her mental issues, failing to

take medications for diagnosed bipolar disorder. Because she has not completed her

mental health or drug therapy, she could not even begin the parenting classes that

were required of her. She has not paid any child support for D.P.M. in the time he has

been out of her care. She was arrested in Texas in 2011 for identity fraud and

incarcerated there for roughly one month. Most damningly, from the time of her

arrest in July 2001 until trial in February 2012, she had not seen or communicated

with D.P.M. at all. Moreover, she was unable to provide a reason for the lack of

communication.

The record before this court is filled with a pattern of behavior which indicates

A.M.M.’s inability to comply with the requirements of her case plan, and A.M.M. has

offered nothing to indicate that this pattern could be reasonably expected to change. It

is clear that the DCFS has established grounds for termination, and the trial court did

not err in finding termination to be appropriate. Moreover, D.P.M. has been placed

with A.M.M.’s sister and, by all accounts, was doing very well in his new home.

A.M.M.’s sister and her husband have indicated a desire to adopt the child. It is clear

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from the record that D.P.M.’s best interest lies in termination. We can find no error in

the trial court’s determination.

For the above reasons, the decision of the trial court is hereby affirmed. Costs

of this appeal are assessed against A.M.M.

AFFIRMED.

This opinion is NOT DESIGNATED FOR PUBLICATION. Uniform
RulesnCourts of Appeal. Rule 2-16.3.

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