State in the Interest of Z. C.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

14-1082

STATE IN THE INTEREST OF Z.C.

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APPEAL FROM THE
SIXTEENTH JUDICIAL DISTRICT COURT
PARISH OF IBERIA, NO. 11-J-453
HONORABLE GERARD B. WATTIGNY, DISTRICT JUDGE

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SHANNON J. GREMILLION
JUDGE

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Court composed of Jimmie C. Peters, Marc T. Amy, and Shannon J. Gremillion,
Judges.

AFFIRMED.

J. Phillip Haney, District Attorney
Sixteenth Judicial District Court
300 Iberia Street, Suite 200
New Iberia, LA 70560
(337) 369-4420
COUNSEL FOR APPELLEE:
State of Louisiana

Barry L. LaCour
Mental Health Advocacy Service
302 Dulles Drive, Suite U-47
Lafayette, LA 70508
(337) 262-2030
COUNSEL FOR APPELLEE:
Z.C. (child)

Tamara D. Rahim
Claude Amcar
Diane E. Cote
825 Kaliste Saloom Road
Brandywine 3, Room 150
Lafayette, LA 70508
(337) 262-2250
COUNSEL FOR APPELLEE:
State of Louisiana, Department of Children and Family Services

Joseph A. Tabb
Aloise, Baudry & Tabb
111 Wilson Street
Franklin, LA 70538
(337) 828-0454
COUNSEL FOR APPELLANT:
A.C. (mother)

GREMILLION, Judge.

In this case, the mother, A.C., appeals the trial court’s judgment terminating

her parental rights to her child, Z.C., born January 29, 2007.1 For the following

reasons, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In June 2011, Z.C. was placed in the custody of the State of Louisiana,

through the Department of Children and Family Services (DCFS), pursuant to an

instanter order following a May 2011 report that Z.C. had been left in the care of

his grandmother and his mother could not be found. The grandmother told

investigators from DCFS that she and her husband often cared for Z.C., that Z.C.

reported traveling to many different locations where lots of men were, and that he

slept in beds with lots of people he did not know. The grandmother further stated

that Z.C. told her that he witnessed his father, C.C., throw a knife at his mother.2

The grandmother believed that her daughter was using drugs because she rarely

ate, complained of itching, and an intercepted text message sent by A.C. in which

she refers to ―tweaking.‖3 A drug screen of A.C. was positive for marijuana.

The petition to adjudicate Z.C. in need of care was based on the neglect of

A.C., pursuant to La.Ch.Code art. 603(14). Z.C. was adjudicated in need of care in

September 2011. Various case plans were instituted, and permanency hearings

were held. The original case plan of June 2011, set forth various goals for

reunification, including obtaining employment, undergoing a psychological

1
Pursuant to Uniform Rules—Courts of Appeal, Rule 5-2, initials are used throughout to
protect the identity of the minor.
2
C.C.’s parental rights to Z.C. have been terminated and are not at issue in this appeal.
3
Tweaking refers to being under the influence of methamphetamine.

evaluation, submitting to random drug screens, participating in substance abuse

assessments and treatment, if necessary, and attending parenting classes.

At the first review hearing in December 2011, DCFS reports indicated that

A.C. had not been compliant, because she had not maintained stable housing or

employment. Custody was continued with the state.

The next report to the court submitted by DCFS, dated April 10, 2012, found

that A.C. ―has been compliant with pursing [sic] most of her case plan goals.‖

A.C. found permanent employment in March 2012. DCFS determined that A.C.

did not need substance abuse treatment but should attend Al-Anon meetings, which

she had been doing. She completed an online parenting course. DCFS further

reported that A.C. was cooperative with the weekly visitation schedule. The

overall assessment was that A.C. was complying with some aspects of her case

plan. Following an April 26, 2012 hearing, custody was maintained with the state.

The next report, dated September 19, 2012, found that A.C. had completed

some of her case plan. The goal continued to be reunification with A.C.

Following an October 3, 2012 hearing, custody was continued with the state.

Another hearing took place on December 20, 2012. This hearing report

refers to a December 5, 2012 case plan, which is not in the record. This report

states that ―[A.C.] is no longer complying with her case plan.‖ Custody was

continued with the State.

A March 11, 2013 letter to the trial court indicated that the case-plan goal

was adoption, because A.C. was no longer compliant with her case plan. A May 9,

2013 letter to the court from DCFS stated that the agency had offered A.C. the

opportunity to have weekly weekend visits with Z.C., but that she had failed to

cooperate with this and other parts of her case plan. This letter indicates that

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adoption is the plan goal.4 The next report submitted by DCFS is dated May 13,

2013, and indicates that A.C. had not made any progress on her case plan since the

last court hearing, primarily because of failure to keep in contact with the agency. 5

Following a May 22, 2013 permanency and case-review hearing, the trial court

found that A.C. was no longer complying with her case plan and continued custody

with the state.

An October 17, 2013 letter from DCFS to the trial court continued to note

A.C. as non-compliant with her case plan and a goal for Z.C. of adoption.

Following a November 7, 2013 hearing, the trial court issued a report finding that

―Case plans goals are not being met. [A.C.] has not complied with any parts of her

plan.‖ The trial court further determined that adoption would be the permanent

plan for Z.C. and continued custody with the state.

The state filed a petition for termination of parental rights and certification

for adoption in November 2013, claiming that the parents’ rights should be

terminated due to abandonment and failing to provide significant contributions to

the child’s care and support for any period for six consecutive months, pursuant to

La.Ch.Code art. 1015(4). Following a January 14, 2014 trial, A.C.’s parental

rights to Z.C. were terminated. A.C. filed a motion for new trial, which was denied

on April 1, 2014. A.C. now appeals.

ISSUES

1. The State of Louisiana failed to prove that there had not been
substantial parental compliance with a case plan for services which
has been previously been filed.

4
This letter to the trial court was issued by a local DCFS office in New Iberia.
5
This letter to the trial court was issued by a Lake Charles office and signed by two
different child welfare specialists.

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2. The State of Louisiana failed to prove that there is no reasonable
expectation of significant improvement in the parent’s condition or
conduct in the near future and the court did not find the same, but
yet terminated parental rights.

3. The Mother was denied Due Process when the court allowed
evidence to be presented, without prior notice, via the petition, and
later when denied the right to present rebuttal testimony.

4. The mother was improperly denied a New Trial pursuant to La.Code
Civ.Proc. art [sic] 1971 and 1972.

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

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 to 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

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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).

The trial court’s decision to terminate 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 (La.App. 3 Cir. 2/13/02), 815 So.2d 1035, writ denied, 02-797 (La.

4/12/02), 813 So.2d 412.

Louisiana Children’s Code Article 1015(5) sets forth the grounds for

involuntary termination. Louisiana Children’s Code Article 1015(4) sets forth

abandonment of the child as a ground for termination:

The grounds for termination of parental rights are:

....

(4) Abandonment of the child by placing him in the physical
custody of a nonparent, or the department, or by otherwise leaving
him under circumstances demonstrating an intention to permanently
avoid parental responsibility by any of the following:

....

(b) As 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.

Louisiana Children’s Code Article 1015(5) provides the 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

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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(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.

Louisiana Children’s Code Article 1037(B) further requires that the trial

court find that the termination be in the best interests of the child and that it

provide written findings.

The trial court found by clear and convincing evidence that the parental

rights of A.C. should be terminated because:

Greater than one year has elapsed since this child was removed from
the parents’ custody; . . . . that said parents have failed to
substantially comply with their respective case plans including but not

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limited to failing to obtain and maintain safe, and stable housing,
failing to visit with the child as scheduled, failing to maintain contact
with the agency, and lack of substantial improvement in redressing the
problems preventing reunification; that there is no reasonable
expectation of significant improvement in said parents’ condition or
conduct in the near future; and, that the termination of parental rights
is in the best interest of the minor child, [Z.C.].

In its oral ruling the trial court stated:

[A.C.] has absolutely used poor judgment in understanding the
situation of her new husband and the problem it presents to her
regaining–being reunified with her son. . . . The Agency is well within
it’s [sic] policy and the ramifications that comes with a sex offense
conviction that the child would be in significant risk and it’s—it’s
entangled with obligations on behalf of sex offenders to register with
law enforcement.‖

A.C. claims that the State failed to meets its burden of proving by clear and

convincing evidence that termination was warranted because she had completed

her case plan. Further, A.C. argues that she was denied due process in that the trial

court incorrectly focused on the status of her husband as a sex offender and did not

allow her the opportunity to present evidence that her husband was not a threat to

Z.C.

Evidence and Testimony

Christina Phillips, a foster-care worker, was involved in A.C.’s case from

January 2012 through July 2012. Phillips testified regarding the circumstances

warranting the State’s involvement with Z.C. She discussed the various

components of the case plan. Phillips verified that A.C. obtained appropriate

housing and employment. She further completed some online parenting classes.

Additionally, she attended the necessary substance abuse assessment, where it was

determined that treatment was not necessary. However, A.C. did attend Al-Anon

meetings. A.C. regularly visited with her son as part of her case plan. Phillips

stated that A.C. was working her case plan during this time. However, A.C. then

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moved to an apartment. DCFS was working to provide a twin bed to A.C. so that

Z.C. could have overnight visits with his mother. However, Phillips said that A.C.

did not cooperate with the agency in coordinating overnight visits.

Lazetta West was the next caseworker, assigned to the case from August 21,

2012, through October 2013. West met with A.C. on September 4, 2012, to

facilitate Z.C.’s overnight visitation. However, West testified that she never heard

from A.C. again, and the trial placement never happened. West said that A.C.

never contacted her, even though West sent letters, visited her apartment monthly,

and left several messages. West contacted A.C.’s mother to make sure she had the

right phone number, which she did. West said A.C. had not made any contact with

the agency since a phone conversation in October 2012. However, West said that

A.C. did maintain visits with Z.C. as scheduled. A.C. did not attend any of the

family team conferences or review hearings or attend additional parenting classes

ordered by the court in October 2012. A.C. was referred to a parenting program in

November 2012, but the program dismissed the case because the counselor could

not get in contact with A.C. She was also scheduled for a psychological evaluation

in December 2012, but the psychologist cancelled the appointment because A.C.

never contacted the agency. Additionally A.C. missed family team conferences in

December 2012 and June 2013. In September 2012, A.C. took a drug test that

came back negative, but no other drug tests were obtained. In October 2013,

A.C.’s case was transferred to the Iberia office. because she had moved.

On cross-examination West admitted that she did not have any copies of the

letters she sent, because she forgot the binder at her office. She said that she sent

one a month, but that none were sent certified mail. West verified A.C.’s

employment once but said that she never tried contacting A.C. at work. West also

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testified that her office mails notices of the family team conferences, and none

were returned by the post office as undeliverable. West knew that A.C. was

consistently visiting Z.C., because West contacted A.C.’s mother. However, West

pointed out that the case plan notes that it is A.C.’s responsibility to maintain

contact with the agency and to tell the agency if she moves or changes her phone

number. West said that the only component of her case plan that she complied

with was visitation.

Fameka Johnson, a foster-care supervisor in Iberia Parish, testified that she

contacted A.C.’s mother in June 2013, to ask that A.C. get in contact with the

agency. Johnson said that the grandmother informed her that A.C. was working a

lot and could not take time off of work to come to the agency. Johnson said that

she told the grandmother to have A.C. make contact with either the Lake Charles

or Iberia Parish office just to let them know what was going on, but that A.C. never

contacted anyone. Finally, Johnson made in-person contact with A.C. in late

October 2013.

A.C. expressed a desire to work her case plan, but Johnson informed her that

so much time had passed without contact that the situation would have to be

reassessed and the case plan started over. A.C. informed Johnson that she was

engaged; A.C. subsequently married S.C. in November 2013. Johnson told A.C.

that S.C. would have to undergo a background check.6 S.C. was fingerprinted and

his status as a convicted sex offender was revealed. Johnson informed A.C. that

Z.C. would not be able to be placed in her home because agency policy prohibits

placement in a home with a convicted sex offender, which conflicts with obtaining

and maintaining stable housing for the child. Johnson said that A.C. would have to

6
S.C. was convicted in 2009, for attempted indecent behavior with a juvenile.

9

divorce S.C. before Z.C. could be placed with her, and that Z.C. had been in care

for over two years by then. Restarting the case plan would take ―a lot of time.‖

Johnson testified that Z.C. is ―doing great‖ with his grandmother. She said

he is very happy there. Johnson believed that it would not be in Z.C.’s best interest

to remove him from the stability of his grandmother’s home or to allow A.C. to

start her case plan over.

Kay Bastain, the caseworker at the time of trial, was assigned the case in

October 2013. She said that the grandmother would continue to allow A.C. to visit

Z.C. if she was allowed to adopt Z.C. She believed Z.C. should be freed for

adoption. A.C. had undergone psychological testing in January 2014, and was

being referred to parenting classes again. A.C. was not employed at the time of

trial. Bastain said that A.C. had been compliant since she took over the case but

noted that Z.C. had been in foster care for over thirty-one months.

Lori Aucoin, CASA volunteer, testified that Z.C. is happy and healthy in his

placement with his grandmother, and she recommended that he be freed for

adoption.

A.C. testified that for the past thirty-one months she knew that she had to

complete the case plan administered by DCFS. A.C. knew overnight visitation was

available, but she declined to exercise it because she did not have a good

relationship with her mother’s husband. When questioned if she believed she had

stopped working her case plan, A.C, responded, ―I believe that I did not do as

much as I should have done.‖ She said that she should have made more efforts to

contact the office. She said that she was currently unemployed, but no longer had

a financial need to work because of her marriage. A.C. testified that she never

received any mail from DCFS, certified or otherwise. She also said she had

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concerns about S.C.’s sex-offender status, but after conversations with various

friends and family member, she did not feel he was any threat to Z.C. A.C. stated

that she was not made aware of the legal ramifications of marrying a convicted sex

offender regarding Z.C. until the day before trial.

C.G., Z.C.’s grandmother, testified that Z.C. often stayed with her prior to

his removal by the state. She said that Z.C. wanted to spend the night with A.C.,

but that never occurred. She also stated that A.C. rarely called Z.C., maybe three

or four times over the course of a year. She characterized her daughter’s

relationship with her son as one of playmates. C.G. said that A.C. and Z.C. lived

with her from the time Z.C. was born until he was about three years old. Thus, he

had lived at her home six of his seven years. She stated that the only thing she

wanted for Z.C. was for him to be safe and that she did not feel he was safe with

A.C. because she still exhibited irrational behavior by marrying a sex offender and

leaving a good job, among other things.

New Trial

A new trial will be granted ―[w]hen the verdict or judgment appears clearly

contrary to the law and the evidence.‖ La.Code Civ.P. art. 1972(A). When

reviewing the grant or denial of a motion for new trial, an appellate court cannot

reverse the trial court’s decision unless an abuse of discretion can be demonstrated.

Harbor v. Christus St. Frances Cabrini Hosp., 06-593 (La.App. 3 Cir. 11/2/06),

943 So.2d 545.

Following the hearing on the motion for new trial, the trial court stated:

[T]he decision is to deny the motion for a new trial. Although
the evidence of [A.C.’s] marriage to a person who is convicted of a
sex offense was a part of the Court’s decision, equally and more
persuasive was the testimony of her mother as to her relationship with
the child, her contact with the child, her attention to the needs of the

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child, as well as her mother’s testimony of her attempts to convince
her mother that it was appropriate for the child to be, not only – to be
visiting at her home where her husband was in a sex offender status.

I think the grandmother’s testimony corroborated the testimony
of the agency, of inability to attend to the needs of the child and
testimony – The report of Dr. Lagarde indicates to me that his
impression is that the information brought to him at that time – Let me
see. I’ll quote the language from his report. (Court reviewing report.)

Yeah, I, I don’t think – It is a pretty lengthy report, but I don’t
think it would have altered the Court’s opinion on the issue of
termination of parental rights; therefore, the Court will not consider it
to be newly discovered evidence at all. But even assuming that, that
the nature of the report and the text messages or other information that
you suggested at this argument, does not convince me that the
decision should be altered.

The eve-of-trial psychological report does not change the fact that the grounds for

termination were met. This report was not crucial to the trial as suggested by A.C.

Moreover, it was A.C.’s duty to obtain the psychological report in a timely manner

as part of her case plan. Additionally, based on our discussion below, we find that

the trial court did not abuse its discretion in refusing to grant A.C.’s motion for

new trial.

Compliance with Case Plan

A.C.’s case plan consisted of obtaining and maintaining stable housing and

employment, attending a psychological evaluation and therapy if recommended,

participating in substance abuse assessment and treatment if recommended, and

participating in parenting classes.

A.C. did not have any contact with the agency from September 2012 through

October 2013. She only completed the psychological evaluation in January 2014;

the day before trial. Clear and convincing evidence of failure to meet any of

La.Ch.Code art. 1015 grounds is sufficient. A.C. failed to keep in contact with the

agency for over a year, a clear demonstration of failure to comply with the case

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plan under La.Ch.Code art. 1036(C)(3). Further, A.C. failed to comply with the

required case plan in that she did not comply with the required program of

treatment, a ground for termination under La.Ch.Code art. 1036(C)(5). While A.C.

did comply with her case plan in some respects, she did not comply in other

aspects. A.C. failed to exercise the overnight visitation that DCFS attempted to

coordinate for her. She failed to take the appropriate parenting classes or submit to

the psychological evaluation in a timely manner. Further, A.C. failed to provide a

stable and safe home for Z.C. A.C. continued to neglect the needs of Z.C. over the

course of his tenure in the state’s care.

A.C.’s marriage to a convicted sex offender simply evidences her continued

neglect of the needs of her son. A.C.’s sporadic and brief efforts to work her case

plan are too little, too late. The hurdles that would have to be overcome in order to

even consider placing Z.C. in his mother’s care would take years to accomplish;

years in which the mother’s best interest would become paramount to those of Z.C.

Parents whose children become entwined in the foster-care system do not have an

unlimited amount of time to work their case plan. A consideration of Z.C.’s best

interests, as attested to by many witnesses, requires that he be adopted into the

stable home where he has resided rather than be subjected to a home occupied by a

convicted sex offender. Z.C., who has resided with his grandmother for all but one

year of his life, is enjoying a safe and stable childhood, and his need for

permanency must trump his mother’s desire to try working her case plan again.

There is no error in the trial court’s finding that Z.C.’s best interest are served by a

permanent placement in the stable home he has lived in for the past three years.

This assignment of error is without merit.

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Reasonable Lack of Expectation of Significant Improvement

Louisiana Children’s Code Article 1036(D) 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 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.

A.C. argues that there is a reasonable expectation of reformation. Louisiana

Children’s Code Article 1036(C) illustrates the considerations that the trial court

takes in determining whether there is a reasonable expectation of reformation. In

re S.M., 98-922 (La. 10/20/98), 719 So.2d 445. Mere cooperation with DCFS is

inadequate; the parents must show improvement over time, even if all of the

problems that caused the removal have not been eliminated. Id. This requires that

the parents significantly modify the behavior that caused the removal. Id.

A.C. has not cooperated with DCFS in that she failed to contact them for

more than a year. She failed to begin the overnight visits with her son. And

finally, she has continued to neglect the needs of her son by failing to provide a

safe home environment for him. Accordingly, there is no error in the trial court’s

finding that there is no reasonable expectation of significant improvement in

A.C.’s conduct in the near future. This assignment of error is without merit.

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Due Process

Finally, throughout her brief, A.C. argues that she was denied due process

because she was not allowed to present evidence that S.C. would not be a danger to

Z.C. First, A.C. was well aware that S.C.’s status as a sex offender would be of

issue, since DCFS fingerprinted and conducted a background check of him in

October 2013. Finally, even if A.C. had not married a sex offender, the grounds

for termination would be satisfied and the best interests of Z.C. would still be met

by freeing him for adoption by his grandmother. This assignment of error is

without merit.

CONCLUSION

The judgment of the trial court terminating A.C.’s parental rights to Z.C., is

affirmed.

AFFIRMED.

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