State in the Interest of C.M.C. & J.T.D.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

12-600

STATE IN THE INTEREST OF C.M.C. & J.T.D.

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APPEAL FROM THE
THIRTY-FIRST JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON DAVIS, NO. J-54-10
HONORABLE C. STEVE GUNNELL, DISTRICT JUDGE

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SHANNON J. GREMILLION
JUDGE

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Court composed of Jimmie C. Peters, James T. Genovese, and Shannon J.
Gremillion, Judges.

AFFIRMED.

David E. Marcantel
Marcantel, Marcantel, Wall, Pfeiffer and Stretcher
P. O. Box 1366
Jennings, LA 70546
(337) 824-7380
COUNSEL FOR APPELLANT:
M.J.C. (mother)

Nicholas Pizzolatto Jr.
Louisiana Department of Children & Family Services
P.O. Box 1487
Lake Charles, LA 70602
(337) 491-2963
COUNSEL FOR APPELLEE:
State of Louisiana

Charles L. Bull Jr.
Attorney at Law
P. O. Box 400
Welsh, LA 70591
(337) 734-2811
COUNSEL FOR APPELLEE:
Unknown Father of C.M.C.

William J. Riley III
Attorney at Law
P. O. Box 509
Jennings, LA 70546
(337) 824-9158
COUNSEL FOR APPELLEE:
J.T.D. (father)

Jocelin Sias
Acadiana Legal Service Corporation
P. O. Box 2148
Lake Charles, LA 70602
(337) 439-0377
COUNSEL FOR APPELLEE:
C.M.C. (child)
J.T.D. (child)

GREMILLION, Judge.

The mother, M.J.C., appeals the judgment of the trial court terminating her

parental rights to her children, C.M.C. and J.T.D.1 For the following reasons, we

affirm.

FACTUAL AND PROCEDURAL BACKGROUND

The State filed a petition to adjudicate C.M.C., born September 25, 2007,

and J.T.D., born January 27, 2010, as children in need of care on December 1,

2010. The supplemental affidavit of Shamira Lyons, a child protection investigator

with the Louisiana Department of Children and Family Services,2 attested that on

October 18, 2010, C.M.C. was found wandering in the road in front of M.J.C.’s

apartment complex. On November 8, 2010, the agency received a report that

M.J.C. was using crack cocaine, had no electricity, food, or diapers, and was

leaving the children unattended while she went out to use crack cocaine. On

November 9, 2010, Lyons attempted to visit M.J.C. but was unsuccessful. On

November 10, 2010, Lyons received information that M.J.C. appeared to be under

the influence of drugs while she pushed J.T.D. in a stroller. Lyons was also

informed that M.J.C. had been off her epilepsy medication for at least three weeks.

Lyons next spoke to the manager of the apartment complex where M.J.C.

resided, who told Lyons that M.J.C. regularly left J.T.D. alone in the apartment.

On November 10, 2010, Lyons interviewed M.J.C. and reported that she did have

electricity, but only three wieners in the freezer and a couple of cans of beans in

the cabinet while she awaited her food stamps. M.J.C. admitted to being out of her

prescribed medication and to smoking crack cocaine the night before. Lyons

1
Initials are used throughout to protect the identity of the minors in accordance with
UNIFORM RULES―COURTS OF APPEAL, RULE 5-2.
2
The Louisiana Department of Children and Family Services is, hereafter, referred to as
DCFS or the agency.
1

interviewed another neighbor who confirmed that M.J.C. left the children alone

and that they often appeared hungry.

On November 11, 2010, the apartment manager reported that M.J.C. had

threatened to kill herself and was then transported to a hospital. Lyons further

attested that M.J.C. had an extensive history of mental health issues, substance

abuse issues, domestic violence issues, and parental fitness issues. She has several

other children that were either removed from her care or custody was given to their

fathers.

On November 15, 2010, another DCFS worker, Colleen Cox, attempted to

pick up M.J.C. for a visit with her children, who were now in foster care.

However, the apartment manager told Cox that M.J.C. called to inform him that

she was in a drug treatment facility. Lyons later found out that M.J.C. had entered

a detoxification program at a facility in Kaplan and that she would, thereafter, be

entering a ninety-day treatment facility in Abbeville. On November 18, 2010, Cox

was informed that M.J.C. had left the detoxification program against

recommendation. On November 22, 2010, M.J.C. contacted DCFS to inquire

about her children. DCFS was, thereafter, notified of M.J.C.’s mental health

diagnosis. M.J.C. suffers from bipolar disorder, depressive disorder, obsessive

compulsive disorder, bulimia, ADHD, depressive personality disorder, and

epilepsy.

The record indicates that the children were removed from M.J.C.’s care

pursuant to an Instanter Order issued on November 10, 2010, and filed on

November 12, 2010. An extensive case plan was formulated for M.J.C.

On January 6, 2011, and July 28, 2011, hearings were held and custody was

maintained with DCFS. Updated case plans were formulated. A November 2,

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2011 report to the trial court by DCFS recommended that the children remain in its

care.

A permanency hearing was held on December 8, 2011, at which the trial

court suspended M.J.C.’s visits with her children. On December 27, 2011, DCFS

filed a “Petition for Certification for Adoption and Termination of Parental

Rights.” Case review hearings were held on February 3, 2012, and February 23,

2012, and the trial court maintained the suspension of visitation. Following a

March 15, 2012 hearing, M.J.C.’s parental rights were terminated in a judgment

filed on March 21, 2012.3 The children’s custody was maintained with DCFS and

both were freed for adoption. M.J.C. now appeals.

ISSUES

M.J.C. assigns as error:

1. Whether or not the trial court erred by finding the State proved by
clear and convincing evidence that [she] did not substantially comply
with her case plan.

2. Whether or not the trial court erred by finding there is no
reasonable expectation of significant improvement in [her] conduct in
the near future.

3. Whether or not the trial court erred in finding that it is in the best
interest of C.M.C. and J.T.D. that [her] parental rights are terminated.

LAW AND DISCUSSION

We have stated that “[p]arental rights to the care, custody, and management

of children is a fundamental liberty interest warranting great deference and vigilant

protection under the law.” In re J.K., 97–336, p. 4 (La.App. 3 Cir. 10/29/97), 702

So.2d 1154, 1156; see also Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388

(1982). Accordingly, a parent has a strong interest in the accuracy of a decision to

terminate her rights. Lassiter v. Dep’t of Soc. Servs. of Durham County, NC, 452

3
The parental rights of the fathers of C.M.C and J.T.D. were also terminated. Neither is
a party to this litigation.
3

U.S. 18, 101 S.Ct. 2153 (1981). Thus, the Louisiana legislature has imposed strict

standards that require the State to prove, by clear and convincing evidence, the

grounds for termination under La.Ch.Code art. 1015 before a judgment can be

issued terminating parental rights. In re J.K., 702 So.2d 1154.

This analysis requires a balancing of the child’s interests and the parent’s

interests; however, it has been repeatedly held that the interests of the child are

paramount over that of the parent. In re J.A., 99–2905 (La. 1/12/00), 752 So.2d

806. In that case, the supreme court stated:

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. 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.

Id. at 811 (citation omitted).

“[T]he trial court’s determination regarding the termination of parental rights

will not be reversed by the appellate court unless it is manifestly erroneous or

clearly wrong.” In re V.F.R., 01–1041, p. 3-4 (La.App. 3 Cir. 2/13/02), 815 So.2d

1035, 1037, writ denied, 02-797 (La. 4/12/02), 813 So.2d 412 (citing In re S.M.W.,

00-3277 (La. 2/21/01), 781 So.2d 1223).

Testimony

M.J.C. testified that she currently resides at the New Life Center for

Women, a transitional housing center in Opelousas, run by the Lafayette Diocese.

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She testified that she did not know who fathered C.M.C. and that she has six other

children beside the two at issue here: The oldest child is in college, two are in the

custody of their father, another is in the custody of her father, one was freed for

adoption in 2005 pursuant to a termination of parental rights by DCFS, and the

most recent one, born in November 2011, was also given up for adoption.

M.J.C. testified that she knew of the case plan that DCFS created for her in

November 2010. She said that the requirements were to go to an Alcoholics

Anonymous (AA) treatment facility. She stated that she went to a center in San

Antonio, Texas, for six days and that she was trying to get the treatment she

needed. She said she has been making phone calls and that she in on a waiting list

for inpatient treatment. M.J.C. said that she does not drive.

M.J.C. testified that she has a safe place for her children to live at the New

Life Center. She said that many children reside there, and that it has a daycare

center. She said that she lived in her apartment for about six months and has since

resided at the New Life Center. M.J.C. said that she is in a two-year program at

the New Life Center. She admitted that she had no definite plans for the future

other than that she had applied for disability benefits, which were denied, but that

she was pursuing an appeal and would “look for work maybe to Mama’s or

something.” She admitted that she had not completed drug treatment per her case

plan because the one place she went to was “like a religious cult,” so she left of her

own accord.

M.J.C. testified that she has not been employed since the children entered

into the care of DCFS. She stated that she has sixteen parenting certificates, which

were required to receive welfare, but that she has not taken any parenting classes

since the children at issue were removed from her care. However, she said she was

going to take the agency-approved parenting courses required by the case plan.
5

When asked why she has not completed any part of her case plan in the past

sixteen months, M.J.C. admitted she “messed up,” but that she was “willing to do

whatever.” She said she goes to church four or five times per week and AA

meetings and that she “[found] God” and “God alone opens doors.” She further

stated that she is not taking medication for her epilepsy because she would not be

able to get into a treatment facility but instead goes to church to get her “healings.”

Regarding her attempts at receiving substance abuse treatment, M.J.C. stated

she had to leave the San Antonio facility because she knows the bible, and those

people were “hypocrites.”4 She said she attempted another stay at an in-patient

treatment facility for a few days, but a lady snapped at her so she left. She said she

attends Narcotics Anonymous (NA) and AA and that she kicked her cocaine habit.

Jessica Frey, the second foster worker, testified that she had been working

this case since May 2011. M.J.C. submitted to an assessment with the Jefferson

Davis Addictive Disorders Clinic on December 2, 2010. The result of the

assessment was a recommendation of inpatient treatment as soon as possible, but in

the meantime it was recommended that M.J.C. attend the intensive outpatient

program three times per week for eight weeks, attend at least one outside meeting a

week for the duration of treatment, and complete at least three consecutive drug

screens. Frey said M.J.C. was informed of the requirements and never followed

any of the recommendations and never attended scheduled appointments. Thus,

M.J.C. still needs to complete inpatient treatment per the case plan.

Frey said that M.J.C. failed to complete mental health rehabilitation as

required by the case plan. Resource Management discharged her due to

noncompliance. She further testified that the agency would never recommend

sending children to live at a shelter as it is not considered stable housing. Frey said

4
The word “hypocrites” is misspelled in the record as “Hippocrates.”
6

M.J.C’s scheduled visits with her children were initially sporadic and that there

were times when she could not be found. Frey said that M.J.C. has not

accomplished any of the goals set forth by DCFS in the past sixteen months. Frey

testified that the children were placed together in adoptive placements and that

C.M.C. was receiving psychiatric treatment for reactive attachment disorder.

Frey testified that DCFS recommended that the children be freed for

adoption. On cross-examination, Frey admitted that DCFS had not requested any

drug screen on M.J.C.; however she said that was because M.J.C. was open about

her drug use. Frey was then questioned about a letter addressed to DCFS. Frey

stated that she had never seen it. The letter, dated February 9, 2012, was written

by a clinician at the Opelousas Addictive Disorders Clinic, who stated that “Based

on the provided information by the individual, we find he/she is not needing our

services for drug/alcohol treatment at this time.”

Frey said she visited M.J.C. at the New Life Center. She denied seeing any

children residing there. She said a transitional housing facility is not considered an

acceptable residence.

Melody Walker testified that she works at the New Life Center where M.J.C.

resides and is her case manager. She said that thirty to forty children reside there

and M.J.C.’s children would be welcome. She said that the facility provides food

to the residents and that the daycare facility is free to residents. Walker testified

that M.J.C. had not appeared to have a drug problem in the seven months she had

been living there. Walker admitted knowing M.J.C. from a previous stay in a

different women’s shelter. She said that the current shelter does not drug test.

Walker said that some of the goals set for M.J.C. were for her to receive mental-

health treatment, substance abuse treatment, get a job, and get her children back.

However, Walker said that they have not been able to do much regarding mental
7

health treatment due to M.J.C.’s latest pregnancy during which she was unable to

take her medication. Walker said the reason M.J.C. has not been taking any

medication since the eighth child’s birth in November 2011, is because you are not

allowed to take medication in drug treatment facilities. She admitted that M.J.C.

has never applied for a job to her knowledge.

Walker said she was trying to assist M.J.C. in receiving inpatient drug

treatment so that she can get her children back. She said that she had received an

assessment from Jefferson Davis Addictive Disorders in February 2012. Walker

felt that M.J.C. had changed since her arrival seven months ago due to her religious

practice, AA meetings, and the meetings at the shelter. She said that M.J.C.

refuses to take medication for her epilepsy or bipolar disorder because she cannot

enter a treatment facility while taking medication. Walker said that M.J.C. was

able to function without medication for either disorder and did not jeopardize the

safety of the other residents.

Compliance with Case Plan

DCFS argues that it proved by clear and convincing evidence that M.J.C.

failed to comply with her case plan, which is a ground for termination pursuant to

La.Ch.Code art. 1015(5). Louisiana Children’s Code Article 1015(5) sets forth the

following as grounds for involuntary termination:

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.

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It also argues that pursuant to La.Ch.Code art. 1036(C), it has proven lack of

parental compliance with the case plan. Louisiana Children’s Code Article

1036(C) states:

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.

M.J.C. claims to have substantially complied with her case plan. In this

case, factors one, two, and three are less important than M.J.C.’s complete failure

to address factors five and six. Also, it should be noted that M.J.C.’s visits with

C.M.C. were suspended by his treating psychologist in early December 2011.

Moreover, there have been several occasions in which M.J.C. could not be located,

or called DCFS and left no contact information. M.J.C. was required by the case

plan to assist in the cost of her children’s foster care. However, M.J.C. has never

had an income, thus rendering payment impossible. Factors five and six are where

M.J.C. fails on all accounts. M.J.C.’s case plan required her to:

9

CASE PLAN: Housing / Food / Basic Needs

[M.J.C.] will demonstrate an ability to maintain a safe and clean
environment by maintaining the same home for six months, keeping it
free of any safety hazards, maintaining a supply of food, and keeping
the home clean.

[M.J.C.] will demonstrate stability by maintaining employment and/or
adequate legal income in order to be financially capable of caring for
herself and her family. Her income should sufficiently supply the
family’s needs for food, shelter, utilities, clothing, etc. [M.J.C.]
should maintain her employment for at least six months consecutively.
[M.J.C.] will provide the agency with proof of income every other
month.

....

[M.J.C.] will demonstrate financial responsibility by contributing
payments toward the cost of the children’s care while they are in
foster care.

CASE PLAN: Parent’s Mental and Emotional Health

[M.J.C] will attend required doctor appointments in order to
understand her medical conditions and take necessary actions.

....

[M.J.C.] will take medication as prescribed and not exceed required
dosage.

CASE PLAN: Parent’s Substance Use

[M.J.C.] will contact a substance abuse assessment/treatment resource
in her area and schedule a substance abuse evaluation.

[M.J.C.] will complete/comply with her program assessments and
recommendations.

[M.J.C.] will provide caseworker with documentation of
participation/completion of substance abuse assessment/treatment.

[M.J.C.] will participate in and successfully complete an agency
approved substance abuse treatment program.

[M.J.C.] will refrain from the use of any illegal substance.

10

A handwritten addition to the substance use section that M.J.C. initialed,

notes that “no additional refe[rrals] can be made until substance abuse treatment is

completed.”

There is no dispute that M.J.C. failed to complete any of the required

inpatient treatment. She left several facilities after only a few days. While M.J.C.

argues she has been drug-free for over a year, this is insufficient to show

substantial compliance with mental health treatment and inpatient substance abuse

treatment. M.J.C. admittedly has had a drug problem for over thirteen years that is

complicated by mental health issues.

M.J.C. has failed to redress the problems preventing reunification. She still

has no stable housing, income, or means of providing for her children. She’s

receiving no medication for epilepsy or her mental health issues. We only have

M.J.C.’s self-serving testimony that she has been-drug free for over a year. Had

she complied with her case plan and been regularly drug-tested, this claim would

carry more significance. Unfortunately, there has been no substantial improvement

in the problems that prevent reunification. This assignment of error is without

merit.

Reasonable Expectation of Future Improvement

DCFS also argues that it proved, by clear and convincing evidence that there

was a lack of any reasonable expectation of significant improvement in M.J.C.’s

conduct as evidenced by several factors set forth in La.Ch.Code art. 1036(D),

which states:

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
11

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.

M.J.C.’s primary argument that there is a reasonable expectation of significant

improvement is that she has been drug-free for over one year. Again, this claim is

self-serving and purely speculative. M.J.C. argues that her mental illness does not

render her unable to care for her children. We disagree. M.J.C. suffers from

extensive mental health issues and a lengthy drug addiction for which she has

received no treatment. For the aforementioned reasons, the trial court did not

manifestly err in finding that there is no expectation of significant improvement in

these conditions and this assignment of error is without merit.

Best Interests

M.J.C. argues that it is not in the best interest of the children to terminate her

rights because she can “provide a more stable environment” for C.M.C. and J.T.D.

than the State can. We disagree. C.M.C. and J.T.D. are placed together in an

adoptive home where the parents are addressing their extensive needs. The trial

court did not manifestly err in finding that it was in the best interest of the children

to be freed for adoption. This assignment of error is without merit.

CONCLUSION

The judgment of the trial court terminating M.J.C.’s parental right to her

children, C.M.C. and J.T.D., is affirmed. All costs of this appeal are assessed

against the defendant-appellant, M.J.C.

AFFIRMED.
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