State in the Interest of M.A.N., N.A.N. & E.J.N.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

12-946

STATE IN THE INTEREST OF M.A.N., N.A.N., & E.J.N., JR.

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. 2008-0846
HONORABLE THOMAS R. DUPLANTIER, DISTRICT JUDGE

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PHYLLIS M. KEATY
JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, John D. Saunders, and
Phyllis M. Keaty, Judges.

AFFIRMED.

Annette Fuller Roach
Louisiana Appellate Project
724 Moss Street
Lake Charles, Louisiana 70601
(337) 436-2900
Counsel for Appellant:
E.N.

Tricia R. Pierre
Attorney at Law
600 Jefferson Street, Suite 902
Lafayette, Louisiana 70501
(337) 456-1653
Counsel for Appellees:
M.A.N.
N.A.N.
E.J.N., Jr.

Tamara Rahim
State, Department of Social Services
Brandywine I, Room 218
825 Kaliste Saloom
Lafayette, Louisiana 70508
(337) 262-2250
Counsel for Appellee:
State of Louisiana, Department of Social Services

Carolyn Cole
Fifteenth Judicial District Public Defender’s Office
600 Jefferson Street, Suite 902
Lafayette, Louisiana 70501
(337) 232-9345
Counsel for Appellant:
J.M.

Michelle Breaux
Assistant District Attorney
Post Office Box 3306
Lafayette, Louisiana 70502
(337) 232-5170
Counsel for Appellee:
State of Louisiana

KEATY, Judge.

On the State’s motion and after having conducted termination proceedings

for a third time, the trial court terminated the parental rights of the mother, J.M.,

with respect to her minor son, E.J.N., Jr., and it terminated the parental rights of

the father, E.N., with respect to his minor children, M.A.N., N.A.N., 1 and E.J.N., Jr.

by judgment dated June 18, 2012. Both the father and the mother appeal. For the

following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

M.A.N., N.A.N., and E.J.N., Jr. came into the custody of the Louisiana

Department of Children and Family Services (State) on August 11, 2008, after an

oral instanter order was obtained on the grounds of physical abuse. The basis for

the removal was that the father had slapped five-month old E.J.N., Jr. in the face

leaving marks and that J.M. had slapped two-year old N.A.N. on the leg leaving

marks and causing swelling. Both E.N. and J.M. were arrested, and the three

children were voluntarily placed with their paternal grandparents. The children

were adjudicated children in need of care on October 14, 2008, and a case plan was

established which sought permanency through reunification.

On October 29, 2010, the State filed a “Petition to Terminate Parental Rights

and Certification for Adoption.” The first termination trial took place on

January 20, 2011. After hearing testimony, the trial court denied termination as to

E.N. and J.M., allowing them six months to continue working on their case plans

by obtaining “suitable housing and employment sufficient to care for their six

children.” The trial court ordered the State to work toward reunification and to

increase visitation between E.N. and J.M. and the three children.

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D.T. is the mother of M.A.N. and N.A.N. Her parental rights were terminated at the
January 20, 2011 termination trial and are not at issue in this appeal.

The State filed a second “Petition to Terminate Parental Rights and

Certification for Adoption” on December 5, 2011, asserting that E.N.’s and J.M.’s

parental rights should be terminated because they abandoned M.A.N., N.A.N., and

E.J.N., Jr. by failing “to provided significant contributions to the children’s care

and support for any period for six consecutive months.” After conducting a pre-

trial conference on January 24, 2012, the trial court reset the matter to April 3,

2012. According to the court minutes, the trial court instructed E.N. and J.M. that

if they did not wish for the hearing to take place, they should cooperate with the

State, provide financial means to take care of their six children, obtain suitable

housing for eight people, provide proof of employment, and continue with

counseling and anger management. The trial court further directed that visitation

should occur twice a month.

The termination petition was tried on May 1, 2012, and the matter was taken

under advisement. Written reasons for ruling were signed on May 21, 2012,

terminating the parental rights of E.N. and J.M. A “Judgment of Termination of

Parental Rights and Certification for Adoption” was signed on June 18, 2012. E.N.

and J.M. now appeal, asserting similar assignments of error. First, they contend

that the trial court erred in terminating their parental rights. More specifically, they

claim that the trial court erred in finding that they had not substantially complied

with their case plans and in finding that there was no reasonable expectation for

improvement in the near future nor any reasonable expectation that they would

complete any new requirements of their case plans as deemed necessary for the

safe return of their child(ren). Second, they contend that the trial court erred in

finding that termination was in the best interest of the child(ren).

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DISCUSSION

Law

We review a trial court’s determination as to whether parental rights should

be terminated according to the manifest error standard of review. State ex rel. K.G.,

02-2886 (La. 3/18/03), 841 So. 2d 759.

The Supreme Court has stated that “[t]he fundamental liberty
interest of natural parents in the care, custody, and management of
their child does not evaporate simply because they have not been
model parents.” Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct.
1388, 1394, 71 L.Ed.2d 599. This liberty interest is “perhaps the
oldest of the fundamental liberty interests.” State ex rel. SNW v.
Mitchell, 01-2128, p. 8 (La.11/28/01), 800 So.2d 809, 814 (quoting
Troxel v. Granville, 530 U.S. 57, 65, 120 S.Ct. 2054, 2060, 147
L.Ed.2d 49).

In termination proceedings, that fundamental interest must be
balanced with the interest of the child, and “courts of this state have
consistently found the interest of the child to be paramount over that
of the parent.” State ex rel. J.M., 02-2089, p. 8 (La.1/28/03), 837
So.2d 1247, 1252. Often at odds with those of its parents, the child’s
interest is “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.” Id. When
determining whether a parent’s rights should be involuntarily
terminated, the trial court must exercise “great care and caution . . .
because the permanent termination of the legal relationship existing
between children and their biological parents is one of the most severe
and drastic actions the State can take against its citizens.” Id.

Louisiana Children’s Code Article 1015 sets forth eight
grounds for termination of parental rights. Although the State need
only establish one ground for termination, the trial court must also
find that the termination is in the best interest of the child in order to
meet the statutory requirement of La.Ch.Code art. 1035(A), which
requires that grounds for termination be proven by clear and
convincing evidence. State ex rel. M.H. v. K.W.H., 40,332 (La.App. 2
Cir. 9/23/05), 912 So.2d 88.

State in the Int. of J.K.G., 11-908, pp. 5-6 (La.App. 3 Cir. 1/11/12), __ So.3d __,

__.

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The Case Plans

The case plans established for E.N. and J.M. remained virtually the same

throughout the course of these proceedings and basically required that they: 1)

establish safe, adequate, and stable housing; 2) obtain and maintain stable

employment and parental contribution; 3) attend and complete counseling and

anger management; 4) visit with his/her child(ren); and 5) cooperate and maintain

contact with the agency.

Ruling of the Trial Court

In its May 21, 2012 Reasons for Ruling, the trial court in the instant case

stated:

Enough is enough! There has to be a period of time when
children are entitled to finality. All children should be able to live a
life as a child with a chance to be within a family unit. Three years
plus 8 months, and three termination hearings, is in this Court’s
opinion enough. Despite several opportunities to change, the parents
have failed to comply with several of the statutory factors contained
within La.Ch.Code art. 1036(C). Specifically, the parents have failed
to provide this Court with any evidence that they have the means or
the intention to provide adequate housing for themselves and their 6
children. The parents have moved on numerous occasions and failed
to apprise the Department of their whereabouts. Visitation by the
parents with the children has been basically non-existent since August
2011. The parents have not complied with the counseling and anger
management requirements of their caseplans.
....

Certainly the record supports a view that the parents’ pattern of
behavior evidences lack of reasonable expectation of improvement
pursuant to Article 1036(D)(3). The parents’ pattern of behavior has
demonstrated that they are either unable or unwilling to progress in
various components of their case plan so as to indicate that they will
be able to provide an adequate permanent home for the children.

Compliance with Case Plans

Both E.N. and J.M. contend that the trial court erred in finding that they had

not substantially complied with their case plans. They contend that the trial court

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further erred in concluding that there was no reasonable expectation for further

improvement in his/her condition or conduct in the near future.

Title X of the Louisiana Children’s Code governs the involuntary

termination of parental rights. In the instant matter, the trial court relied on

Louisiana Children’s Code Articles 1015 and 1036 in deciding to terminate the

parental rights of E.N. and J.M. Article 1015 (emphasis added) provides, in

pertinent part:

The grounds for termination of parental rights are:

....

(5) Unless sooner permitted by the court, at least one year has
elapsed since a child was removed from the parent’s custody pursuant
to a court order; there has been no substantial parental compliance
with a case plan for services which has been previously filed by the
department and approved by the court as necessary for the safe return
of the child; and despite earlier intervention, there is no reasonable
expectation of significant improvement in the parent’s condition or
conduct in the near future, considering the child’s age and his need for
a safe, stable, and permanent home.

Louisiana Children’s Code Article 1036, entitled “Proof of parental

misconduct,” 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.

(5) The parent’s repeated failure to comply with the required
program of treatment and rehabilitation services provided in the case
plan.

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(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:

....

(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 trial court made the following observations in its May 21, 2012 Reasons

for Ruling:

The third termination proceeding was held on May 1, 2012.
The foster care worker, Vickey Carrie, testified that since August 11,
2008, the parent[s] moved a total of 12 times. She further testified
that they are currently living with [E.N.’s] parents in a two bedroom
trailer. She stated that the holes in the flooring and the window were
replaced with plywood. She stated that due to an incident of domestic
violence between [J.M.] and [E.N.] in 2011, they were required to
attend counseling sessions. She testified that the parents were referred
to Resource Management for counseling [on] four separate occasions,
but refused services. She stated that she had no verification of
employment before getting a check stub at court on the date of
termination. She also testified that the parents only visited with their
children three times from August 2011-March 2012. From January
2012 to date the parents have visited only one time with these three
children. On March 27, 2012, the parents’ other three children were
removed from their custody on grounds of neglect. On April 14,
2012, they did visit with their children, after their other three children
had been taken into custody. The Department had no contact from the
parents from January to March 2012.

Both E.N. and J.M. assert that the trial court erred in concluding that they

failed to substantially comply with their case plans. Nevertheless, they both

acknowledged that even if the trial court were to deny termination as to M.A.N.,

N.A.N., and E.J.N., Jr., they could not take their child(ren) home with them that

day because of their current living arrangements. As the testimony bore out, at the

time of the third termination hearing, E.N. and J.M. were living in a trailer owned
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by E.N.’s parents, and the State would not allow the children to live with their

paternal grandfather because of domestic violence issues that he had in the past. In

fact, Ms. Carrie, the foster care worker, testified that when she visited the trailer in

January 2012, the paternal grandfather stated that he did not want J.M. living in his

home because of her aggressiveness toward him. Although E.N. and J.M. both

testified that E.N.’s parents had agreed to move out of the trailer and into an

elderly housing development should E.N. and J.M. regain custody of the three

children involved in this proceeding, neither of E.N.’s parents were called to testify

to the accuracy of those statements.

The evidence supports a finding that neither E.N. nor J.M. had obtained

suitable housing for their family by the date of the termination hearing. We

conclude that the trial court did not commit manifest error in concluding that E.N.

and J.M. had not substantially complied with their case plans. Moreover, given the

history of this matter, we further find that the trial court did not commit manifest

error in concluding that there was no reasonable expectation that either E.N. or J.M.

would make significant improvement in their conduct in the future.2

Best Interest of the Child(ren)

E.N. and J.M. contend that the trial court erred in finding that termination

was in the best interest of the child(ren). We disagree. In State ex rel. K.G., 841

So.2d at 762, the Louisiana Supreme Court explained:

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
2
Because the jurisprudence requires that the State need only prove one of the grounds for
termination listed in La.Ch.Code art. 1015, we do not need to address whether the State proved
any other grounds for termination. See, State in the Int. of J.K.G., __ So.3d __.
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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.

E.J.N., Jr., was just five months old when he was removed from his parents’

care. His sisters, M.A.N. and N.A.N., were three and two years old, respectively,

when they were removed from the care of E.N. and J.M. At the time of the third

termination hearing, the children had been in the foster care system for three years

and eight months. Ms. Carrie testified that M.A.N. and N.A.N. had been living in

a certified adoptive home in Acadia Parish; both are progressing well in school and

have minimal behavioral problems. She explained that in March of 2012, E.J.N.,

Jr. was fortunate enough to move into the foster home where his two siblings had

been living. Ms. Carrie testified that while he did have a few behavioral issues, he

was adjusting to his new home and the foster parents were working with him to

solve those issues. According to Ms. Carrie, the agency was of the opinion that it

was in the best interest of the three children that the parental rights of E.N. and J.M.

be terminated.

E.N. and J.M. each admitted that while they did visit their child(ren) a few

times after the January 24, 2012 pretrial conference, they did not come close to

attending all of the bimonthly visitations as the trial court had directed. They also

admitted to not keeping the State informed of their whereabouts on several

occasions when they had to change living arrangements, including the time they

were evicted from an apartment for nonpayment of rent. More significantly, both

E.N. and J.M. acknowledged that, given their current living arrangements, they

were not presently able to bring their children home even if the trial court were to

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deny the State’s attempt to terminate their parental rights. Further, E.N. testified

that his child support obligations were “the main problem of why we can’t

maintain our own home.” Finally, and despite being ordered to obtain and

maintain stable employment, both E.N. and J.M. did not provide the State with

verification of employment until the date of the termination hearing, and then, they

each submitted only one check stub.

As the supreme court stated in State ex rel. K.G., 841 So.2d at 762, “[t]he

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.” In the instant case, despite being given much time and many

opportunities to comply with their case plains, neither E.N. nor J.M. were able to

show that they could consistently provide for the mental, physical, and emotional

needs of their children. Accordingly, we conclude that the State met its burden of

proving by clear and convincing evidence that termination of E.N.’s and J.M.’s

parental rights was in the best interest of M.A.N., N.A.N., and E.J.N., Jr. The trial

court did not err in determining that termination was in the best interest of the

child(ren).

DECREE

For the foregoing reasons, the judgment of the trial court terminating the

parental rights of J.M., with regard to her son, E.J.N., Jr., and E.N., with regard to

his children, M.A.N., N.A.N., and E.J.N., Jr. is affirmed. All costs of this appeal

are assessed against J.M. and E.N.

AFFIRMED.

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