State in the Interest of K. A.

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

14-1078 consolidated with 14-1080

STATE IN THE INTEREST OF D.A., ET AL.

Consolidated with

STATE IN THE INTEREST OF K.A.

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APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NOS. 26340 and 24681
HONORABLE GUY E. BRADBERRY, DISTRICT JUDGE

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BILLY HOWARD EZELL
JUDGE

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Court composed of Jimmie C. Peters, Billy Howard Ezell, and James T. Genovese,
Judges.

AFFIRMED.

Thomas W. Sanders Jr.
1919 Kirkman St.
Lake Charles, LA 70601
(337) 491-2067
COUNSEL FOR APPELLEE:
State of Louisiana, Department of Children and Family Services

Emily Wagner
934 Garden Drive
Westlake, LA 70669
(337) 661-9877
COUNSEL FOR APPELLANT:
R. A. (mother)

Leslie M. Petty
One Lakeshore Dr., Suite 1585
Lake Charles, LA 70629
(337) 491-2461
COUNSEL FOR APPELLEE:
K. A. (child)

Laketha Holmes
901 Lakeshore Dr., 8th Floor
Lake Charles, LA 70601
(337) 437-3400
COUNSEL FOR APPELLEE:
State of Louisiana, Department of Children and Family Services

EZELL, Judge.

R.A. appeals the judgment of the trial court terminating her parental rights of

her daughter. For the following reasons, we affirm the judgment of the trial court.

FACTS

On March 5, 2012, D.A., a seventeen-year-old son, C.A., a fourteen-year-old

son, and K.A., a five-year-old daughter, were removed from their mother’s home

and placed in the custody of the State of Louisiana, Department of Children and

Family Services (DCFS).1 Initially, the DCFS received a report of physical abuse

and a danger of threatened harm while K.A. was present in the home. An

investigation by the DCFS revealed that the mother and her live-in boyfriend, J.M.,

were engaged in a physical altercation on February 29, 2012, which involved the

mother throwing furniture without regard for the presence of K.A. The altercation

started when D.A. wanted to borrow the truck, and the boyfriend would not let him.

D.A., the mother, and the boyfriend then got into an argument. As the argument

escalated, it got physical, and furniture was thrown. Eventually, the fight moved

outside, and the mother’s boyfriend ran into her with the truck. The investigation

revealed that physical fighting was a regular occurrence in the home.

At the time of this particular fight, C.A. was not at home because he was

living with his grandmother. The mother previously kicked C.A. out of the home

when he would not wake up for school one morning. The investigation further

revealed that the mother often drank beer and smoked marijuana in the house.

C.A. and K.A. were adjudicated children in need of care by a signed

judgment on June 1, 2012. The children’s father lived outside Louisiana and
1
The present case only involves K.A. During the proceedings, D.A. reached the age of
majority and was killed in an automobile accident. C.A. was about to turn eighteen years old
when the termination of parental rights proceeding was initiated, so he was not included in that
proceeding.

refused to return due to outstanding warrants for child support. 2 At the mother’s

suggestion, K.A. was placed with the mother’s brother and wife, who lived in close

proximity. Following the adjudication of the children in need of care, a case plan

seeking reunification with the parents was implemented by the DCFS.

On March 31, 2014, the DCFS filed a petition to terminate the mother’s

parental rights regarding K.A., seeking her certification for adoption. A hearing

was held on June 9, 2014. Finding it in the best interest of the child, the trial court

terminated the parental rights of both her mother and father, freeing the child for

adoption. Judgment was signed July 17, 2014. The mother then filed the present

appeal. She also filed a motion for new trial which was denied by the trial court on

November 19, 2014.

The mother has raised several assignments of error on appeal regarding both

the 2012 judgment adjudicating the children in need of care and the 2014 judgment

terminating her parental rights as to her daughter. The DCFS claims that this court

lacks jurisdiction to entertain any errors regarding the judgment adjudicating the

children in need of care because a timely appeal from that judgment was not filed.

Therefore, we will address this issue first.

2012 ADUJUDICATION AS CHILDREN IN NEED OF CARE

Louisiana Children’s Code Article 330 provides that an appeal may be taken

from a judgment of disposition in children in need of care proceedings. Appeals

are to be taken within fifteen days from the mailing of notice of the judgment.

La.Ch.Code art. 332(A).

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The father never participated in any of the proceedings in the trial court and has not
appealed the termination of his parental rights.

2

A judgment adjudicating the children in need of care was signed on June 1,

2012. Notice was personally served on the mother’s attorney on June 11, 2012.

No appeal was taken at that time. The present appeal was not filed until July 29,

2014, two years later. Furthermore, the motion for appeal clearly stated that the

mother was appealing the judgment signed on July 17, 2014. No mention was

made of the 2012 judgment.

An appellate court lacks appellate jurisdiction to address issues regarding a

judgment which has not been timely appealed. State ex rel. C.P., 00-2703 (La.

1/17/01), 777 So.2d 470; State ex rel. E.A., 02-996 (La. App. 3 Cir. 10/2/02), 827

So.2d 594. In the instant case, the judgment adjudicating the children in need of

care was not timely appealed and, thus, is not before us. Therefore, we will not

address any issues regarding the adjudication of the children in need of care.

CONTINUANCE

On the day of trial, the mother’s court-appointed attorney requested a

continuance so that the attorney she recently employed could prepare for trial. The

trial court denied the motion. On appeal, the mother claims that her right to a fair

trial was prejudiced when the trial court failed to grant her continuance because her

court-appointed attorney was not prepared because he believed that the

continuance would be granted.

While a continuance may be granted when there is a good reason, the

decision to grant a continuance is discretionary. La.Code Civ.P. art. 1601. The

trial court’s decision to deny a continuance will not be disturbed on appeal unless

the trial court abused its discretion. Ardoin v. Bourgeois, 04-1663 (La. App. 3 Cir.

11/2/05), 916 So.2d 329. The particular facts of each case must be considered in

deciding whether to grant or deny a continuance. Id. “Some factors to consider

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are diligence, good faith, and reasonable grounds.” Id. at 332. “Fairness to both

parties and the need for orderly administration of justice are additional

considerations in deciding whether to grant or deny a continuance.” Id.

The termination hearing occurred two years after the children were

adjudicated in need of care. Once the termination proceeding was initiated, the

mother had three months to hire an attorney, but choose not to inform the court that

she had hired an attorney until the day of the hearing. At that point, the witnesses

were in court and ready to proceed. The mother’s attorney examined each witness

on her behalf. The mother herself testified. She was represented during the entire

proceedings. We find no manifest error in the trial court’s decision to deny the

mother’s request for a continuance.

TERMINATION OF PARENTAL RIGHTS

Two private interests are involved in every involuntary termination of

parental rights: the interests of the parents and the interests of the child. State ex

rel. H.A.B., 10-1111 (La. 10/19/10), 49 So.3d 345. As for the parents, they have a

natural, fundamental liberty interest, which is more significant than any property

interest, to the continuing companionship, care, custody and management of their

children. Id. This significant liberty interest does not cease to exist simply

because parents have not been role models or their children have been adjudicated

in need of care. Id.

As for the children, their interests are often at odds with parents’ interests,

because they have a right to secure, stable, long-term, and continuous relationships

found in a home with proper parental care which often means terminating parental

rights that prevent adoption. Id. Courts have determined that the countervailing

interests of children are superior and paramount to the parents’ interests. Id.

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Furthermore, La.Ch.Code art. 1001 provides that “[i]n all proceedings, the primary

concern is to secure the best interest of the child if a ground justifying termination

of parental rights is proved.”

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.

State ex rel. J.A., 99-2905, p. 8 (La. 1/12/00), 752 So.2d 806, 811.

Louisiana Children’s Code Article 1015 provides the grounds for

involuntary termination of parental rights. “In order to terminate rights, the court

must find the State has established at least one of the statutory grounds contained

in its provisions by clear and convincing evidence.” State ex rel. H.A.B., 49 So.3d

at 368. “[E]ven upon finding the State has met its evidentiary burden, a court still

should not terminate parental rights unless it determines to do so is in the child’s

best interest.” Id. The manifest error standard of review applies to a trial court’s

determination that an involuntary termination of parental rights is warranted. Id.;

In re TMS, 08-810 (La.App. 3 Cir. 11/5/08), 999 So.2d 21.

The mother argues that the trial court erred in terminating her parental rights

because the weight of the evidence did not meet the criteria of La.Ch.Code art.

1015. The trial court found that the mother had failed to provide significant

contributions to the care and support of the child as contemplated by La.Ch.Code

art. 1015(4)(b). The trial court further determined that the mother had not

substantially complied with her case plan as set forth by La.Ch.Code art. 1015(5).

Significant Contributions to Child’s Care

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Louisiana Children’s Code Article 1015(4)(b) provides that termination is

appropriate due to a parent demonstrating the intention of avoiding parental

responsibility when “[a]s 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.” As part of the case plan, the mother was responsible for

paying $25.00 monthly for each child. Eventually, the amount was changed to a

total of $63.00 a month.

The mother secured employment at a Dollar General store in her area. Her

wages were garnished for the child support payments. However, the mother

became unemployed in November 2013. At trial, she testified that her

unemployment was due to the fact that she had to miss work in order to make the

necessary appointments and meetings required by the case plan. She admitted that

she was behind over $1,000.00 ($1,023.23 to be exact) from November 2013 until

March 2014, when the petition to terminate parental rights was filed. This amount

represents well over six months of obligations required for termination of parental

rights pursuant to La.Ch.Code art. 1015(4)(b).

The mother finally secured employment again in April 2014 with

Candlewood Suites in Sulphur, after the petition for termination of parental rights

was served. However, she offered no testimony or evidence that she had started

making child support payments again.

The mother testified that she did buy items for her daughter, including a bike

and other gifts. However, “gift-giving does not amount to significant support.” In

re TMS, 999 So.2d at 26. We find no manifest error in the trial court’s conclusion

that the mother did not provide adequate support as required by the case plan.

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Substantial Compliance With Case Plan

The mother argues that the trial court erred in determining that she had not

complied with the case plan submitted by the DCFS. Louisiana Children’s Code

Article 1015(5) provides:

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.

Pursuant to La.Ch.Code art. 1036(C) and (D), lack of compliance with a

case plan and lack of any reasonable expectation of significant improvement in the

parent’s conduct in the future may be established as follows:

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.
(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.

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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.

In finding the mother did not substantially comply with her case plan, the

trial court in its written reasons stated that, “The mother has often resisted

improvement in those areas where improvement was necessary if reunification was

to be accomplished. When the mother did participate in case plan goals, she later

disregarded that which she should have learned as a result of said participation.”

Reviewing the record and testimony, it is apparent to this court that the

mother went through the motions of the case plan initially. However, the record

indicates that she slacked toward the end and, as pointed out by the trial court,

failed to implement the tools that had been provided for her in order to provide a

better home environment for her daughter.

The case plan required that the mother attend twenty-four domestic violence

classes. At the time of the hearing, she still had five classes to complete. The

mother also failed to complete the mental health requirements. During the course

of seeing Kendall Lejeune for counseling, the mother just quit going because she

decided she did not need counseling. She eventually did go back to see Mr.

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Lejeune but only after she was reminded of her case plan obligations by the DCFS

case worker.

Initially, the mother was allowed unsupervised visitation with her daughter.

However, the mother constantly exposed herself to situations that subjected her to

potential domestic violence, the reason the children were removed from her home.

She allowed her oldest son and girlfriend to live in the house with her. Even

though she was supposed to notify the DCFS of anyone eighteen years or older in

the home, she never told them about her son living there. While the son was living

at home, R.A. and her son got into a disagreement in which the son was injured

and the home was damaged. Her son then moved out. However, her son and

girlfriend later moved back into the home. Again, the mother did not inform the

DCFS of her oldest son’s presence in her home. At this time, unsupervised visits

between R.A. and her daughter were suspended.

In January 2013, police were called when R.A. attacked her oldest son’s

pregnant girlfriend, who was a juvenile at the time. This incident occurred after

the mother and girlfriend dropped the son off at work. In June 2013, R.A. was

involved in another altercation with her oldest son, who was reportedly living in

the home. Her son struck her in the face causing bruising to the right side of her

face.

After removal of her daughter from the home, Tiffany Etienne, the case

worker, would visit the mother at her home. When Ms. Etienne was leaving on

one visit, she noticed R.A’s live-in boyfriend, J.M., getting dropped off at the

house. Supposedly, he was no longer living with R.A. Ms. Etienne went back to

the home and discovered the boyfriend walking around shirtless with jeans. Ms.

Etienne testified that it appeared to her that he lived in the home. R.A. testified

9

that the boyfriend would just pop in to get her in trouble. As late as September

2013, the boyfriend was seen at the home. In November 2013, the boyfriend broke

into R.A.’s home and started hitting her. After this incident, he was arrested.

R.A.’s inability to provide a stable environment for her child is also

exhibited by the fact that she has not had a consistent housing situation. Even

though the mother owns her own home, she testified that she moved in with her

brother around May 2013. However, it appears it had to be after the November

2013 incident, because she was still living at home when her boyfriend broke into

her home. Subsequently, R.A. moved in with her sister sometime in January 2014.

Finally, she moved into an apartment in Sulphur with a gentleman on May 29,

2014. The two of them agreed to split the rent on the three-bedroom apartment.

However, R.A. has failed to secure a background check on this gentleman as

required by the case plan.

Another part of R.A.’s case plan required her to secure employment. After

her employment with the Dollar General store ended in November 2013, R.A. did

not secure employment until encouraged by Ms. Etienne to do so.

Although R.A. tested negative on all the drug tests, she admitted to finding

marijuana while cleaning a hotel room at her new job and smoking it while living

with her sister. She testified that she “felt like that maybe God told [her] to.”

Even though the mother recommended that her daughter live with her

brother and sister-in-law, she would speak poorly of them to her daughter. She

also spoke poorly of the DCFS to her daughter. She was warned that part of her

case plan involved not speaking in a negative manner to her child about the

situation. R.A. testified that the negativity came from her daughter’s and

caretaker’s own minds and nothing she did.

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Sheryl Royer, a licensed clinical social worker, was appointed to provide

individual therapy for her daughter as of October 2013. K.A. had been with foster

parents for over a year when Ms. Royer first met her. In her report of March 7,

2014, Ms. Royer found K.A. to be happy at her foster home, but realized her

loyalties were divided between her mother and her foster parents. Ms. Royer

observed that since K.A. realizes she may not return to her mother’s home, “she

seems happier and more settled, as if she is assured that the decisions regarding her

future are made[,] and she can move on with her life.” At trial, Ms. Royer testified

that the mother was not satisfied with her daughter’s placement with her brother

and sister-in-law and would rather see her daughter in a foster home.

Ms. Royer also testified that R.A. told her that she had been diagnosed with

bipolar disorder but was not taking medication due to the way it made her feel and

that she could not afford it. Ms. Royer was concerned about the mother’s ability to

care for her daughter if the mother did not get treatment for her mental issues. Ms.

Royer was concerned that R.A. put her own needs ahead of her child.

Ms. Royer concluded that it is in K.A’s best interest to have her future

settled permanently. She was in agreement with the goal change to adoption,

freeing K.A. for adoption by her uncle and aunt. Ms. Royer did state that it is

important that K.A. have some continued contact with her mother over the years.

At the beginning of the case, a CASA volunteer was assigned to the case.

After visiting with K.A., her mother, and the uncle and aunt on several occasions,

it was also the CASA volunteer’s recommendation that K.A. remain with her uncle

and aunt. She also recommended adoption for K.A.

After reviewing the evidence in the record, we find no manifest error in the

trial court’s decision to terminate R.A’s parental rights to K.A. Her daughter is

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thriving and happy in her new environment. While the mother has tried to follow

the requirements of the case plan, she continued to surround herself with people

who take advantage of her, even though she knows this is why her daughter was

removed in the first place. She only seems to be going through the motions of

attending classes and getting help when she is pushed by the case workers. Under

the circumstances of this case, it is in the best interest of K.A. that her mother’s

parental rights be terminated. K.A. is in a good environment and has the

opportunity at a more secure and stable life.

The judgment of the trial court terminating R.A.’s parental rights is affirmed.

Costs are assessed to R.A.

AFFIRMED.

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

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