State in the Interest of O. L. R.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

13-616

STATE IN THE INTEREST OF O.L.R.

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APPEAL FROM THE
ELEVENTH JUDICIAL DISTRICT COURT
PARISH OF SABINE, NO. 2512
HONORABLE STEPHEN BRUCE BEASLEY, DISTRICT JUDGE

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ULYSSES GENE THIBODEAUX
CHIEF JUDGE

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

AFFIRMED.

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

Renee Paula Cote
720 Travis Street
Shreveport, LA 71101
Telephone: (214) 369-0024
COUNSEL FOR:
Appellee - O.L.R.

D. Scott Kendrick
1762 Texas Street
Natchitoches, LA 71457
Telephone: (318) 354-9146
COUNSEL FOR:
Appellant – Hubert Antoine, Jr.

Richard Woolbert
750 Southfield Road - Suite C
Shreveport, LA 71106
Telephone: (318) 219-3921
COUNSEL FOR:
Appellee – Brenda Richardson

THIBODEAUX, Chief Judge.

Hubert Antoine, Jr. appeals the trial court’s termination of his parental

rights of O.L.R. Mr. Antoine argues that his incarceration at the Calcasieu Parish

Correctional Center prevents him from completing his case plan, and that the State

should allow him more time to do so. For the following reasons, we affirm the

judgment of the trial court.

I.

ISSUE

We must decide whether the trial court erred in terminating the

parental rights of Mr. Antoine.

II.

FACTS AND PROCEDURAL HISTORY

On August 22, 2010, O.L.R. entered into the State’s custody at birth

after testing positive for cocaine and marijuana. At the time of O.L.R.’s birth,

Brenda Richardson, O.L.R.’s mother, alleged that Mr. Antoine was the child’s

father.1 She was unsure of his whereabouts, although O.L.R. was the second child

born to Ms. Richardson and Mr. Antoine. Ultimately, at two months of age,

O.L.R. was adjudicated as a child in need of care. She never returned to the care of

her mother.

O.L.R. has never had contact with her father. At the time O.L.R.

entered foster care, Ms. Richardson believed that Mr. Antoine was incarcerated for

stabbing his brother, but she was uncertain. At no point did Mr. Antoine attempt to

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DNA testing has since confirmed that Mr. Antoine is the biological father of O.L.R.

formally or informally establish his parental rights to O.L.R. The Department of

Child and Family Services (DCFS) located Mr. Antoine in the Calcasieu Parish

Correctional Center where he remains today. Mr. Antoine is awaiting trial for

attempted first degree murder, two counts of armed robbery, theft of a motor

vehicle, aggravated assault with a firearm, aggravated burglary, and simple

criminal damage to property. He has also been charged with second degree battery

for an incident that occurred during his incarceration.

The State filed a petition to terminate the rights of Mr. Antoine and

Ms. Richardson. At trial, Mr. Antoine testified that he takes medication for

psychiatric issues, but he was recently found competent to stand trial. He denied

any continuing issues with his mental health. He admitted that he has never had

contact with O.L.R. or supported her in any way. He admitted that he was aware

that the State formulated a case plan for him to become involved in O.L.R.’s life

but that he had not undertaken any steps to follow the case plan. He testified that

his incarceration prevented him from following the case plan, and he would be

unable to follow the plan until he was released from prison.

O.L.R.’s foster mother also testified at trial. She stated that she has

been caring for O.L.R. since the child was released from the hospital shortly after

birth. O.L.R. calls her “mama,” and the child is thriving in her care. She seeks to

adopt O.L.R. and provide her a permanent home.

After hearing the testimony and receiving additional evidence, the

trial court entered judgment terminating the parental rights of Mr. Antoine and Ms.

Richardson. Mr. Antoine appeals.

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III.

LAW AND DISCUSSION

Standard of Review

A trial court’s findings on whether parental rights should be

terminated are subject to the manifest error standard of review. State ex rel. K.G.,

02-2886 (La. 3/18/03), 841 So.2d 759. Moreover, whether a parent has complied

with a case plan, the expected success of rehabilitation, and the expectation of

significant improvement in the parent’s condition or conduct are all questions of

fact that may not be set aside in the absence of manifest error or unless clearly

wrong. State ex rel. S.C.M., 43,441 (La.App. 2 Cir. 6/4/08), 986 So.2d 875.

Termination of Parental Rights

Mr. Antoine argues that the trial court erred in terminating his parental

rights under La.Ch.Code art. 1015(5) because DCFS did not prove its case by clear

and convincing evidence. While parents have a constitutionally protected liberty

interest in establishing and maintaining a meaningful relationship with their

children, the State has a legitimate interest in limiting or terminating parental rights

under certain conditions. State in the Interest of A.C., 93-1125 (La. 1/27/94), 643

So.2d 719, cert. denied, 515 U.S. 1128, 115 S.Ct. 2291. To terminate parental

rights, one of the grounds for termination set forth in La.Ch.Code art. 1015 must be

established by clear and convincing evidence, and termination must be found to be

in the child’s best interest. State ex rel. D.L.R., 08-1541 (La. 12/12/08), 998 So.2d

681.

The State sought termination based on the grounds set forth in

La.Ch.Code art. 1015(5):

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(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.

Lack of parental compliance with a case plan may be evidenced by

one of the following factors: (1) failure to attend court-approved scheduled

visitations; (2) failure to communicate with the child; (3) failure to keep DCFS

apprised of his whereabouts and significant changes affecting his ability to comply

with the case plan; (4) failure to contribute to the costs of the child’s foster care, if

ordered by the court when approving the case plan; (5) failure to comply with the

required program of treatment and rehabilitation services provided in the case plan;

(6) lack of substantial improvement in redressing the problems preventing

reunification; or (7) persistence of conditions that led to removal or similar

potentially harmful conditions. La.Ch.Code art. 1036(C).

Moreover, lack of any reasonable expectation of significant

improvement in the parent’s conduct in the near future may be shown by a pattern

of repeated incarceration 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. La.Ch.Code art. 1036(D)(2). It may also be shown by other

conditions or conduct that reasonably indicate that the parent is unable or unwilling

to provide an adequate permanent home for the child for an extended period of

time, based on expert opinion or an established pattern of behavior. La.Ch.Code

art. 1036(D)(3).

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Our review of the record shows that DCFS proved the grounds for

termination under La.Ch.Code art. 1015(5) by clear and convincing evidence. Mr.

Antoine admitted that he has never had contact with O.L.R. nor has he provided

any type of support. Moreover, Mr. Antoine’s testimony, along with the evidence

introduced into the record, establishes Mr. Antoine’s lack of substantial

compliance with his case plan and the lack of any reasonable expectation of

significant improvement in his conduct. Mr. Antoine admits that he will be unable

to even attempt his case plan until he is released from prison. Considering the

multitude of charges he faces, coupled with his less than favorable behavior while

incarcerated, we have serious doubts about Mr. Antoine’s ability to complete his

case plan.

Mr. Antoine blames his failure to complete his case plan on the fact

that he has been incarcerated most of O.L.R.’s life. Imprisonment is not an excuse

to escape parental obligations. State ex rel. C.M.O., 04-1780 (La.App. 4 Cir.

4/13/05), 901 So.2d 1168. Incarceration is not a defense to failure to support or

maintain contact with one’s children in a termination of parental rights case,

particularly because incarceration results from one’s actions. State ex rel. M.H. v.

K.W.H., 40,332 (La.App. 2 Cir. 9/23/05), 912 So.2d 88. Mr. Antoine’s conduct

and actions led to his incarceration; thus, he cannot use his incarceration as an

excuse for abandoning O.L.R. or failing to substantially comply with his case plan.

He has not made an attempt to contact O.L.R. or to provide support to her in any

way. Considering these failings, the State clearly and convincingly proved Mr.

Antoine’s lack of parental compliance with the case plan and that there is no

reasonable expectation of significant improvement in his conduct in the near

future. Given O.L.R.’s young age and her need for a safe, stable, and permanent

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home, termination was in her best interest and appropriate under La.Ch.Code art.

1015(5).

IV.

CONCLUSION

For the reasons articulated above, we affirm the judgment of the trial

court. Costs of this appeal are assessed against Hubert Antoine.

AFFIRMED.

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