State in the Interest of B C. & S. C.

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

14-1043

STATE IN THE INTEREST OF B.C. AND S.C.

**********

APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF VERMILION, NO. 2011-JU-96
HONORABLE DURWOOD W. CONQUE, DISTRICT JUDGE

**********

JIMMIE C. PETERS
JUDGE

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Court composed of Jimmie C. Peters, Marc T. Amy, and Elizabeth A. Pickett,
Judges.

MOTION TO STRIKE DENIED; AFFIRMED.

Tracey Davenport-McGraw
Public Defender’s Office
Fifteenth Judicial District
204 Charity Street
Abbeville, LA 70510
(337) 257-4669
COUNSEL FOR APPELLANT:
C.C. (mother)

G. Paul Marx
Public Defenders Office
Fifteenth Judicial District
Post Office Box 3622
Lafayette, LA 70502
(337) 456-1643
COUNSEL FOR APPELLANT:
G.M. (father)

Annette F. Roach
Post Office Box 1747
Lake Charles, LA 70602
(337) 436-2900
COUNSEL FOR APPELLANT:
G.M. (father)

Tamara D. Rahim
825 Kaliste Saloom Road
Brandywine 3, Room 150
Lafayette, LA 70508
(337) 262-1555
COUNSEL FOR APPELLEE:
State of Louisiana Department of Children and Family Services

Franchesca L. Hamilton-Acker
Acadiana Legal Service Corporation
Post Office Box 4823
Lafayette, LA 70502-4823
(337) 237-4320
COUNSEL FOR APPELLEE:
B.C. (child)
S.C. (child)

PETERS, J.

C.C.1 and G.M. appeal the trial court judgment terminating their parental

rights to their minor children and certifying the children as available for adoption.

For the following reasons, we affirm the trial court judgment in all respects.

DISCUSSION OF THE RECORD

The minor children at issue in these proceedings are B.C., who was born on

February 27, 2010, and S.C., who was born on January 12, 2011. Both children

came into the custody of the State of Louisiana, Department of Children and

Family Services (―DCFS‖) on September 21, 2011, when DCFS obtained an

instanter custody order from the trial court based on assertions of neglect.

Specifically, DCFS asserted that it had been notified by the children‘s relatives that

C.C. and G.M. left the children with relatives who did not agree to care for them,

and in doing so, failed to provide the relatives financial support or contact

information. DCFS further asserted that the parents were homeless, without any

means of transportation, and on probation for domestic violence; C.C. was not

taking her mental health medication as prescribed; B.C. was developmentally

delayed and had missed several appointments with the agency addressing that

situation; and the children were behind on their immunizations.

At a continued custody hearing held on September 26, 2011, C.C. and G.M.

stipulated with DCFS that the children should remain in DCFS‘s custody. A

hearing held on October 24, 2011, resulted in a trial court judgment adjudicating

the two children to be children in need of care. This judgment was also by

stipulation of the parents and DCFS; and DCFS filed into the record a case plan

1
Pursuant to Uniform Rules—Courts of Appeal, Rules 5-1 and 5-2, the initials of the
parties will be used to protect and maintain the privacy of the minor children involved in this
proceeding.

completed on October 7, 2011. This was the first of many case plans to be

prepared and implemented by DCFS. The dates of these case plans are as follows:

 October 7, 2011
 March 6, 2012
 September 4, 2012
 December 14, 2012
 February 1, 2013
 May 6, 2013
 August 12, 2013
 February 7, 2014

These case plans were considered at a number of permanency and review hearings

held on the following dates:

 March 12, 2012
 September 17, 2012
 December 17, 2012
 February 4, 2013
 March 6, 2013
 July 22, 2013
 September 16, 2013
 February 24, 2014

At each of these hearings, the trial court approved the case plans presented, and the

parents stipulated that the children‘s custody should remain with DCFS.

Paternity tests performed after DCFS obtained custody of the two minor

children revealed that while G.M. is B.C.‘s biological father, he is not S.C.‘s

biological father. On July 8, 2013, and based partially on the results of the

paternity tests, DCFS filed a petition to terminate the parental rights of C.C. and

G.M., but added the biological father of S.C. as an additional defendant. After

granting three continuances to allow the parties more time to comply with the

requirements of the case plans, the trial court heard the termination proceeding on

June 23, 2014. Upon completion of the evidence, the trial court rendered judgment

terminating the parental rights of C.C. as to both children; terminating the parental

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rights of G.M. as to B.C.; and terminating the parental rights of the father of S.C.

as to that child. In its written reasons for judgment, the trial court stated:

The court finds that there is clear and convincing evidence
presented of valid grounds for termination under LA Children‘s Code
Article 1015(5). LA CH C art 1015(5) states that, unless sooner
permitted by the court, when 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 that 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, then termination is warranted. Part C
specifically says, under Art 1015.5 (sic), lack of parental compliance
with the case plan may be evidenced by one or more of the following,
of which the court finds there is clear and convincing evidence,

1) The parents have failed to comply with the required program
of treatment and rehabilitation services provided in the case
plan.

2) The parents suffer from mental illness and/or substance
abuse or chemical dependency which renders them unable/or
incapable of exercising parental responsibilities without
exposing the minor children to a substantial risk of serious
harm, based on expert opinion and/or based upon an
established pattern of behavior;

3) The parents‘ lack of substantial improvement in redressing
the problems of preventing reunification

4) The parents conduct reasonably indicates that they are
unable or unwilling to provide an adequate permanent home
for the minor children based upon an established pattern of
behavior; and

5) The conditions that led to the removal or similar potentially
harmful conditions continue to persist.
….

Pursuant to the allegations set out in LA Children‘s Code
Article 1015 having been proved by the evidentiary standards required
by LA Children‘s Code Article 1035 & 1036, the court now finds it is
in the best interest of the children at this time to terminate the rights of
the mother, [C.C.], the fathers, [G.M.], of the minor child, [B.C.], and

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[S.B.], of the minor child, [S.C.] and to certify them eligible for
adoption.

After the trial court executed a July 9, 2014 judgment corresponding to its

reasons for judgment, C.C. and G.M. perfected this appeal, with C.C. asserting

three assignments of error and G.M. assigning two. In her assignments of error,

C.C. asserts:

1. The trial court erred in finding that the Department proved by
clear and convincing evidence that at least one year had elapsed
since the children were removed from appellant‘s custody
pursuant to a court order, in accordance with article 1036.1 of
the Children‘s Code.

2. The trial court erred in finding that the department proved by
clear and convincing evidence that appellant had not
substantially complied with her case plan; and that there was no
reasonable expectation for further improvement in her condition
or conduct in the future.

3. The trial court erred in finding that termination of C.C.‘s
parental rights was in the best interest of her children because
of their attachment to the foster parents, where the department
failed to prove any element of 1015(5) by clear and convincing
evidence.

G.M. asserts in his assignments of error that:

1. The trial court erred in terminating the parental rights of G.M.
The court erred in concluding that G.M. had not substantially
complied with his case plan and that there was no reasonable
expectation for future improvement in his condition or conduct
in the near future nor expectation that he would complete any
new requirements of the case plan as deemed necessary for the
safe return of the child.

2. The trial court erred in finding that termination was in the best
interest of the child, B.C.

MOTION TO STRIKE

In addition to her three assignments of error, C.C. filed in this court a motion

to strike certain portions of the appellate record now before us, as well as certain

portions of another appellate record in which we have rendered a separate opinion

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this day. State ex rel. J.C., 14-1044 (La.App. 3 Cir. ___/___/15) (unpublished

opinion). This other opinion involves the termination of C.C.‘s parental rights to a

third child, J.C. (born June 10, 2012).

In the matter now before us, C.C. asserts that all of the appellate record

relating to the children in need of care (CINC) proceedings that preceded the

termination proceedings should be stricken and this court consider only those

portions of the appellate record which relate to the termination proceedings. She

bases her request for this relief on the assertion that DCFS never introduced the

CINC proceedings at the trial on the termination issue; the trial court never

commented that it was taking judicial notice of the CINC proceedings; and DCFS

did not designate the CINC proceedings to be included in the appellate record.

With regard to C.C.‘s request to strike all of the pleadings relative to B.C.

and S.C. except the termination pleadings themselves, for the reasons set forth in

this opinion considering C.C.‘s first assignment of error, we deny this portion of

the motion.

OPINION

Louisiana appellate courts review a trial court‘s findings regarding the

termination of parental rights under the manifest error standard of review. State ex

rel. K.G., 02–2886 (La. 3/18/03), 841 So.2d 759. Accordingly, a reviewing court

must review the record in its entirety to determine whether a trial court‘s finding

was clearly wrong or manifestly erroneous. The issue to be resolved by an

appellate court is not whether the trier of fact was right or wrong, but whether the

factfinder‘s conclusion was a reasonable one. Stobart v. State through Dep't of

Transp. & Dev., 617 So.2d 880 (La.1993)

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The laws of this state recognize that in any involuntary termination of

parental rights proceeding, there are two private interests involved: those of the

parents and those of the child. State ex rel. J.A., 99–2905 (La. 1/12/00), 752 So.2d

806.

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 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.

Id. at 810–11 (internal citations omitted).

Termination of parental rights requires a two-prong inquiry: first, the state

must establish one of the enumerated grounds for termination, and second, the trial

court must then find that termination of parental rights is in the best interest of the

child. State ex rel. S.M., 98-922 (La. 10/20/98), 719 So.2d 445; La.Ch.Code art.

1039. Additionally, the state must prove each element of one of the enumerated

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grounds for termination by a showing of clear and convincing evidence.

La.Ch.Code art. 1035. Louisiana Children‘s Code Article 1015 lists the statutory

grounds by which a court may terminate an individual‘s parental rights and the trial

court in the matter before us based its decision on the provisions of La.Ch.Code

art. 1015(5), which reads as follows:

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.

C.C.’s First Assignment of Error

In her first assignment of error, C.C. argues that DCFS failed to establish by

clear and convincing evidence the first element of proof required by La.Ch.Code

art. 1015(5), that ―at least one year had elapsed since the children were removed

from [the parent‘s] custody pursuant to a court order[.]‖ She argues that DCFS

failed to offer into evidence the court order which caused the year period to

commence to run. In making this argument, she relies on the provisions of

La.Ch.Code art. 1036.1, which provide that:

A. Evidence of a prior adjudication or a parent‘s prior
stipulation that a child is in need of care and an instanter order or
disposition judgment removing the child from the parent‘s custody
shall be admissible in proceedings brought under this Title. If the prior
adjudication judgment was entered by the same court, it may take
judicial notice of its own records. If the prior order or judgment was
entered by another court, a certified copy of the order or judgment or
certified copy of the minute entry shall be admissible in accordance
with the Louisiana Code of Evidence.

B. The court record of a prior child in need of care
proceeding involving the child who is the subject of the termination

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proceeding may be introduced into evidence at the hearing on the
termination of parental rights.

The record does reflect that DCFS failed to offer a certified copy of any

prior court order and failed to offer the CINC proceedings into the record at trial;

and the trial court did not expressly take judicial notice of the CINC proceedings.

However, in its written reasons for judgment, the trial court specifically stated that

―[t]he minor children came into the custody of the Department of Children and

Family Services on September 21, 2011 on the grounds of neglect by dependency

and lack of adequate supervision; they were adjudicated ‗Child in Need of Care‘ by

judgment entered on October 24, 2011.‖ Thus, while the trial court did not use the

specific phrase ―judicial notice,‖ it is clear that it took judicial notice of its own

records in rendering judgment.

Furthermore, testimony adduced at the termination hearing, without

objection from C.C., established that the children were removed from the custody

of C.C. and G.M. on September 21, 2011. While La.Ch.Code art. 1036.1 provides

that a prior instanter order or dispositional judgment may be used as evidence of a

prior adjudication or parental stipulation, it does not state that its provisions are the

only way for establishing this element of proof. We find that the trial court did not

err in finding that DCFS proved by clear and convincing evidence that at least one

year had elapsed since the children were removed from C.C.‘s custody pursuant to

a court order, in accordance with La.Ch.Code art. 1036.1. Accordingly, C.C.‘s first

assignment of error lacks merit.

C.C.’s Second Assignment of Error and G.M.’s First Assignment of Error

In their respective assignments of error, C.C. and G.M. both assert that the

trial court erred in finding that DCFS established by clear and convincing evidence

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two other elements of proof required by La.Ch.Code art. 1015(5), that they [C.C.

and G.M.] had not substantially complied with their case plans and that there was

no reasonable expectation for further improvement in their condition or conduct in

the near future. For the following reasons, we find these assignments of error to be

without merit as well.

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:
…
(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.
…
(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 on expert opinion or based upon
an established pattern of behavior

As previously noted, eight case plans were created for C.C. and G.M. and

approved by the trial court from the time the children were removed from their

custody until the time of the termination hearing. Both C.C. and G.M. have had

almost three years to complete their case plans and make changes to their lifestyle

that would permit DCFS to move forward with reunification.

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Lindsey Gleason, a DCFS caseworker assigned to this matter, testified at the

termination proceeding that the components of the eight case plans were standard

in that they included the obligation of the parents to maintain safe, adequate, and

stable housing; maintain an adequate income and provide proof thereof; pay

parental contributions of $10.00 a month; submit to mental health and substance

abuse evaluations; attend anger management and parenting classes; and maintain

contact with DCFS. However, both C.C. and G.M. had been unable or unwilling

to comply with even these very basic requirements.

According to Ms. Gleason, C.C. maintained thirteen different residences

since the children‘s removal and, at the time of the termination hearing, was

residing with a new boyfriend and his parents. This new living arrangement

created additional problems because the new boyfriend‘s parents refused to be

fingerprinted. The requirement that all adults in the household be fingerprinted

was part of the case plan and, according to Ms. Gleason, C.C. was well aware of

this requirement but made only minimal attempts to find other housing and

eliminate the problem. Ms. Gleason also found no impediments to C.C. finding

gainful employment other than the lack of effort on her part.

C.C., according to Ms. Gleason has been diagnosed with borderline

intellectual functioning, bipolar II, and borderline personality features. She has

been prescribed Zoloft, Abilify, and Remeron, but does not take the medication as

prescribed. In addition, Ms. Gleason testified that DCFS reached the conclusion in

working with C.C. that she had not sufficiently demonstrated her ability to parent

her children despite the services and classes she received. There had been no

improvement in this area since the children were taken into custody, and Ms.

Gleason testified that she doubted if there would ever be any improvement.

10

Monique Eller, Resource Manager for DCFS, testified that C.C. had

difficulty handling all three children together and that visits with the children were

never extended past one hour. According to Ms. Eller, there was no difference

between the first visit she supervised and the last, and she doubted that the

situation would improve.

With regard to G.M., Ms. Gleason testified that he had moved fourteen times

since the children were removed from his custody and, at the time of the

termination hearing, he was sleeping on the kitchen floor of a mobile home that

housed three other adults and one teenager and was making no effort to find other

housing. His excuse, according to Ms. Gleason, was that his poverty prevented

him from doing so. Ms. Gleason testified that although G.M. was employed at

Wal-Mart, his only voluntary parental support contribution was one $40.00

payment in 2012. She did acknowledge that support payments were deducted from

his pay checks every month, but she was not sure if those deductions were for

current obligations or back support.

After thoroughly reviewing the record, we conclude that the trial court did

not manifestly err in finding that DCFS proved by clear and convincing evidence

that C.C. and G.M had not substantially complied with their case plans and that

there was no reasonable expectation of significant improvement in their conduct in

the near future. The record supports the determination that C.C. and G.M.

repeatedly failed to comply with their respective case plans, showed a lack of

substantial improvement in the problems preventing reunification, and that the

conditions that led to removal or similar potentially harmful conditions continued

to persist. The record also supports the trial court‘s determination that C.C. suffers

from mental deficiency that renders her incapable of exercising parental

11

responsibilities without exposing her children to substantial risk of harm, based on

her established pattern of behavior. Furthermore, there is clear and convincing

proof evidencing that neither parent is able to provide an adequate permanent

home for their children based on their established patterns of behavior.

Accordingly, for these reasons, we find C.C.‘s second assignment of error and

G.M.‘s first assignment of error to be without merit.

C.C.’s Third Assignment of Error and G.M.’s Second Assignment of Error

In their final assignments of error, C.C. and G.M. assert that the trial court

erred in finding that termination of parental rights was in the best interest of B.C.

and S.C. However, for the reasons previously expressed and the following

reasons, we find that these assignments of error lack merit.

B.C. and S.C. have spent the majority of their lives in foster care, and they

have been placed with their current foster parents since 2012. At the termination

proceeding Ms. Gleason testified that B.C. and S.C. were bonded to their foster

parents. They refer to the foster parents as ―mom and dad‖ and consider them to be

their parents. Ms. Gleason also testified that the children looked to the foster

parents, rather than C.C. and G.M., to satisfy any need they may have had during

the supervised visits. She stated that the children were thriving in the care of the

foster parents. When asked whether it was in the children‘s best interest to remain

in the same home, Ms. Gleason answered that she thought it would be detrimental

for the children to be separated.

Ms. Eller corroborated the fact that the children look to the foster parents to

have their needs met. She testified that it was clear to her that the children‘s

primary attachment and safe place is with the foster parents, and they were clearly

bonded to them. Annette Romero, a CASA volunteer, testified that the children‘s

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condition has vastly improved in the care of the foster parents, and that it was in

the best interest of the children to remain in the care of the foster parents. In its

oral statements at the termination proceeding, the trial court noted that the child‘s

best interest was a ―very, very strong factor in this case.‖ The trial court

acknowledged the parents‘ love for their children, but noted the long amount of

time it had taken them to make any sort of progress in this case, if any had been

made. The court stated, ―[A] child also recognizes what it needs and goes back to

the people that can provide that need. Unfortunately for you, you are not those

people in these children‘s lives at this point.‖ Accordingly, we find no manifest

error in the trial court‘s determination that DCFS proved by clear and convincing

evidence that termination of parental rights of C.C. and G.M is the best interest of

B.C. and S.C.

DISPOSITION

For the foregoing reasons, we deny the motion to strike and affirm the

judgment of the trial court terminating the parental rights of C.C. and G.M. to

minor children B.C. and S.C. and certifying them for adoption. We assess all costs

of this appeal to C.C. and G.M.

MOTION TO STRIKE DENIED; AFFIRMED.

This opinion is NOT DESIGNATED FOR PUBLICATION.
Uniform Rules—Courts of Appeal, Rule 2-16.3.

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