State in the Interest of D.E.C. & N.H.C.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

15-1138

STATE IN THE INTEREST OF D.E.C. & N.H.C.

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF ACADIA, NO. JU 6150
HONORABLE KRISTIAN DENNIS EARLES, DISTRICT JUDGE

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SHANNON J. GREMILLION
JUDGE

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Court composed of Billy Howard Ezell, Shannon J. Gremillion, and David Kent
Savoie, Judges.

AFFIRMED.

Jane Hogan
Public Defender’s Office, Fifteenth Judicial District
600 Jefferson Street, Suite 902
Lafayette, LA 70501
(337) 232-9345
COUNSEL FOR APPELLANT:
J.C. (father)
Diane E. Cote
825 Kaliste Saloom Road
Brandywine III, Room 150
Lafayette, LA 70508
(337) 262-5913
COUNSEL FOR APPELLEE:
State of Louisiana,
Department of Children & Family Services

Chantel Conrad
Acadiana Legal Services
1020 Surray St.
Lafayette, LA 70501
(337) 237-4320
COUNSEL FOR APPELLEE:
D.E.C. (child)
N.H.C. (child)

Lucy Melancon
Indigent Defender's Office
P. O. Box 252
Crowley, LA 70527
(337) 889-5672
COUNSEL FOR APPELLEE:
H.L. (mother)

GREMILLION, Judge.

The father, J.C., appeals the trial court’s ruling terminating his parental

rights to his children D.E.C., born November 5, 2004, and N.H.C., born November

11, 20051 2

FACTUAL AND PROCEDURAL BACKGROUND

Pursuant to an October 2013 instanter order, D.E.C. and N.H.C. were

removed from J.C.’s grandparents’ home, where J.C. had been residing, and placed

in the State of Louisiana, Department of Children and Family Social Services’

custody (DCFS). The children were adjudicated in need of care and were placed in

foster care with their maternal aunt, G.F. The grandparents kicked J.C. out of their

home due to his ongoing drug use and because they could no longer care for the

children. J.C. was arrested on October 25, 2013 on domestic violence charges and,

at that time, tested positive for cocaine, marijuana, and opiates.

As in all cases in which DCFS has taken custody, a comprehensive and

detailed case plan was created for J.C. setting forth requirements for reunification

pertaining to housing, food, basic needs, the physical and mental health of the

parent, parental substance abuse, and the physical and mental health of the children,

among other things. Routine review hearings were held to apprise the trial court of

the status of the children and parents. DCFS filed a petition for termination of

parental rights and certification for adoption on May 28, 2015. Following a

termination hearing on September 16, 2015, J.C.’s parental rights were terminated

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Pursuant to Uniform Rules—Courts of Appeal, Rule 5-2, initials are used throughout to
protect the identity of the minor.
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The mother stipulated to the termination of her parental rights at the same hearing.

in a judgment filed October 6, 2015, and the children were freed for adoption. J.C.

now appeals and assigns as error:

1. The juvenile court erred in terminating the parental rights of J.C. under
La.Ch.C. art. 1015(4) because J.C. did not abandon his children
because he did not demonstrate an intention to permanently avoid
parental responsibilities.

2. The juvenile court erred in terminating the parental rights of J.C. under
La.Ch.C. art. 1015(5) because the agency failed to show by clear and
convincing evidence that J.C. had failed to substantially comply with
his case plan, that there was no reasonable likelihood of compliance in
the near future, and that termination was in the best interest of the
children.

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 his rights. Lassiter v. Dep’t of Soc. Servs. of Durham Cnty., N.C., 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 those of the parent. State ex rel. 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,

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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. 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(4) sets forth the following as

grounds for termination of a parent’s rights to his children:

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:

(a) For a period of at least four months as of the time of the
hearing, despite a diligent search, the whereabouts of the child’s
parents continue to be unknown.

(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.

(c) As of the time the petition is filed, the parent has failed to
maintain significant contact with the child by visiting him or
communicating with him for any period of six consecutive months.

Louisiana Children’s Code Article 1015(5) sets forth another ground for

involuntary termination of a parent’s rights to his children:

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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(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.

The evidence at trial included DCFS’s records and testimony of various

witnesses. DCFS’s paper trail documenting this case includes the following

highlight of events:

 January 13, 2013 hearing: continued custody with DCFS

 March 31, 2014 hearing: continued custody with the State;
reunification with the parent(s) remained the goal. Neither parent
attended the hearing. The status report to the trial court stated:

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In order for [J.C.] to be reunified with his children, [D.E.C.] and
[N.H.C.], he will need to demonstrate the ability to care for them, by
establishing and maintaining adequate housing, completing an
assessment with a local substance abuse clinic and follow the
treatment recommendations if there are any. [J.C.] will also need to
follow the scheduled visitation contract, participate and complete a
parenting class approved by the agency and pay monthly parental
contribution to help pay for the cost to care for [D.E.C.] and [N.H.C.]
while they are in foster care.

[J.C.] states he is working but he has not provided worker with check
stubs verifying his employment and he has not been available for
monthly home visits. [J.C.] is residing with his mother in low-income
housing for elderly and disabled individuals. On January 15, 2014,
[J.C.] tested positive for opiates. [J.C.] was referred to the Nurturing
Parenting Program for parents in Substance Abuse Treatment and
Recovery through Gulf Coast Teaching Family Services. [J.C.] was
terminated from [the] parenting program for not attending. He has not
addressed his substance abuse issues and he has not paid monthly
parental contributions. [J.C.] has visited his children one time since
they entered foster care.

 October 13, 2014 hearing: J.C.’s counsel indicated that he was working
offshore. The status report to the trial court stated:

[J.C.] states he is working but he has not provided worker with check
stubs verifying his employment and he has not been available for
monthly home visits. The agency does not know where [J.C.] is
residing. On January 15, 2014, [J.C.] tested positive for opiates. [J.C.]
was referred to the Nurturing Parenting Program for parents in
Substance Abuse Treatment and Recovery through Gulf Coast
Teaching Family Services. [J.C.] was terminated from [the] parenting
program for not attending. He has not addressed his substance abuse
issues and he has not paid monthly parental contributions. [J.C.] has
visited his children one time since they entered foster care.

At this time, it was noted that the children were placed in a certified foster

home because the maternal aunt requested that the children be removed in May

2014 due to her impending divorce.

 January 14, 2015 hearing: At this time the goal was changed to adoption.
The status report to the court stated:

HOUSING/EMPLOYMENT
[J.C.’s] last known address was XXXXXX, Basile, LA. At this time
the agency does not know whereabouts of [J.C.]. [J.C.] stated he was
working at Wolverine Industries but he has not provided worker with

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check stubs. [J.C.] has not provided verification of parental
contributions.

SUBSTANCE ABUSE
On January 15, 2014 [J.C.] tested positive for opiates. He has not
addressed his substance abuse issues. [J.C.] was able to be reached to
discuss a referral for a substance abuse assessment.

PARENTING
[J.C.] was referred to Gulf Coast Social Services for Nurturing
Parenting Program. [J.C.] was terminated from parenting program for
not attending. [J.C.] has visited his children one time since they
entered foster care.

 March 25, 2015 hearing: J.C. did not attend and had no contact with
his court-appointed attorney; goal changed to adoption

HOUSING/EMPLOYMENT
[J.C.’s] last known address was XXXXXX, Basile, LA. At this time
the agency does not know whereabouts of [J.C.]. [J.C.] stated he was
working at Wolverine Industries but he has not provided worker with
check stubs.

[J.C.] has not provided verification of parental contributions.

SUBSTANCE ABUSE
On January 15, 2014 [J.C.] tested positive for opiates. He was unable
to be reached to discuss a referral for a substance abuse assessment
and he has not provided the agency with verification of having
completed a substance abuse assessment and/or treatment.

PARENTING
[J.C.] was referred to Gulf Coast Social Services for Nurturing
Parenting Program. [J.C.] was terminated from parenting program for
not attending. [J.C.] has visited his children one time since they
entered foster care.

In the May 2015 petition for termination, DCFS cited La.Ch.Code art.

1015(4) and (5) as the reasons why J.C.’s parental rights should be terminated

because he failed to attend visitation; failed to comply with the required program

of treatment and rehabilitation services; is incapable of parenting due to his

substance abuse; he failed to contribute to the costs of the children’s care; there

was no substantial improvement in redressing the problems; he is unable to provide

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an adequate home for the children; and the conditions that led to the children’s

removal persist.

 June 17, 2015 hearing: No appearance by J.C. Adoption is the goal.
Status is identical to the March 25, 2015 hearing.

 September 16, 2015 termination hearing: The status report to the court
stated:

HOUSING/EMPLOYMENT
The Acadia Parish DCFS Office was contacted by the Evangeline
Office July 21, 2015; stating [J.C.] informed them he had a case with
the Acadia Parish office. Evangeline Parish worker verified the
reason they had contact with [J.C.] was due to the open case regarding
his younger three children in their parish. At that time, the agency
was provided with [J.C.’s] current address. [J.C.’s] younger three
children came into care on July 21, 2015 due to dependency.

On July 30, 2015, agency visited [J.C.’s ] house. He resides with his
live in girlfriend (and mother of his youngest three children] in a three
bedroom one bathroom home in Basile La. According to the couple,
they have been residing in this home since January of 2015. The lease
the couple provided stated they have resided in the home since March
of 2015. [J.C.] provided verification that he has worked for L and L
sandblasting in Eunice, La.

[J.C.] has not provided verification of parental contributions for the
life of the case plan.

SUBSTANCE ABUSE
[J.C.’s] last drug screen was on July 16, 2015 and he tested positive
for Amphetamines, Marijuana, and opiates. [J.C.] submitted to this
screen as a result of the investigation in Evangeline Parish. He did not
make contact with the agency regarding [N.H.C.] and [D.E.C.] until
the new investigation began for his younger children.

PARENTING
[J.C.] was referred to Gulf Coast Social Services for Nurturing
Parenting Program. [J.C.] was terminated from parenting program for
not attending. He has visited with his children one time since they
entered foster care.

Exhibits admitted into evidence from Gulf Coast Social Services confirm

that J.C. did not attend any of the scheduled parenting classes. Ville Platte

Behavioral Health had no records on J.C. J.C. submitted to three drug tests during

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the pendency of the case. Drug testing reports submitted into evidence showed

J.C.’s status on February 15, 2013, as negative; January 15, 2014 negative from a

urine test, but a hair test from the same day indicated a positive result for opioids;

and July 16, 2015 positive for amphetamines, cannabinoids, and opiates.

Testimony elicited from the September 16, 2015 hearing included that of

Keisha Benoit, Kimberly Blair, and J.C. Benoit, who was the case worker until

December 2014, testified that the children came into DCFS’s care because of

neglect due to abandonment and substance abuse issues. She testified that the

primary aspects of J.C.’s plan included substance abuse treatment, securing

adequate housing, parental contributions, and visitation with the children. Benoit

said that J.C. never provided proof of stable housing and that she had trouble

contacting J.C. She said that she resorted to sending letters to his mother’s house.

J.C. never provided proof of employment, but Benoit said that she was able to

contact his employer and confirm his employment for most of the year. She

further said that J.C. did not provide any proof of parental contributions. Benoit

testified that J.C. never attempted to receive the required substance abuse treatment.

She further stated that J.C. did not attend the parenting classes, even though DCFS

would have provided transportation to the classes which would have been

scheduled around J.C.’s work schedule. Benoit testified that J.C. only visited with

his children two times (once at the DCFS office and the other at the foster parents’

house) over the course of her involvement with his case plan.

Blair, who was the caseworker from January 2015 until the time of the

hearing, testified that she learned of J.C.’s address on July 21, 2015, only because

the Evangeline Parish DCFS opened up a case on his three younger children. Blair

said she had no contact with J.C. until the removal of his three younger children.

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Blair said she tried to contact J.C. by visiting his mother, but his mother failed to

inform her that J.C. was living down the street. Instead, the mother often said that

J.C. was working offshore. Blair reviewed three letters that were sent certified to

J.C.; two at his mother’s house and signed for by his mother, and one which his

girlfriend signed for at his address. The letters indicated all the parts of the case

plan that J.C. still needed to complete.

Blair said that the records only indicate one December 2013 visit by J.C. He

did not make any parental contributions for the life of the case or attend parenting

classes. J.C. was also required to complete a Family Violence Intervention

Program as part of his probation relating to his domestic violence charges;

however, a revocation hearing was scheduled for December 17, 2015, because J.C.

provided no proof that he attended the program. Blair was never contacted by J.C.

from the time she took over the case in January 2015 through July 2015, when his

other three children came into DCFS’s care.

Blair said the children are doing extremely well in their foster home. D.E.C.

and N.H.C. are both doing well in school, achieving honor roll status. They are

also involved in T-ball, baseball, Girl Scouts, Cub Scouts, and church activities.

Blair testified that both children wish to be adopted by their foster parents.

On cross-examination, Blair admitted that J.C. had recently been compliant

with the housing and employment requirements of his plan. However, J.C. never

informed DCFS of his stable housing, and DCFS was under the impression that he

continued to reside with his mother.

J.C. testified that he had been living at his current address for nearly a year.

He said that he called the DCFS offices and left messages, but they denied

receiving them due to problems with the voicemail messaging system. However,

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J.C. said that he usually tried calling the foster mom (the maternal aunt) rather than

DCFS. J.C. claimed to have visited with his children four times while they were in

this foster home; twice at Burger King and twice at the maternal aunt’s residence.

J.C. then said that he did not attempt to contact his caseworker because he was

talking directly to the foster mom. J.C. claimed his mother did not give him any of

the certified mail sent by DCFS until recently because she forgot. J.C. had been

employed at L & L Sandblasting for three months.

Regarding his positive drug screen in January 2015, J.C. said he did not have

a prescription for the medication but had taken it because he had a toothache and

could not afford to go see a dentist. However, he said he had been prescribed

painkillers for the five or six teeth he had pulled.

J.C. said he did not visit his children more often because he did not have any

transportation. However, he had not requested any transportation within the

previous year. Regarding the financial contributions required of the plan, J.C. said

that he gave money orders to the foster mom, who refused them. J.C. claims that

he then told the foster mother ―go ahead and send them. You got them over there,

go ahead and send them to Baton Rouge.‖ He admitted he had provided no

evidence of the money orders to DCFS. J.C. said he had completed four out of

twelve of the Family Violence Intervention Program classes and was scheduled to

attend another the next day. He admitted he had not attended any parenting classes,

claiming that a lack of transportation prevented him from doing so. J.C. admitted

that he was aware that he had to obtain substance abuse referrals and a mental

health assessment but said that he did not do so because he lacked transportation

because he was laid off and ―living from house to house.‖

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J.C. said he desired to have custody of D.E.C. and N.H.C. and believed he

could now complete his substance abuse assessment, mental health assessment,

provide clean drug screens, and complete parenting classes. When questioned if

there was anything else he would like to tell the trial court as to why he did not

want his rights terminated, J.C. stated:

I really don’t want my rights terminated. I’d like to have – I wasn’t
able at the time of the first two (2), I wasn’t stable, I was messed up.
I’ve straightened up a lot. And with the prior case, I was the one that
called OCS personally to let them know what was going on and let
them know I had my kids and they respond. I gave them to their
grandmother temporarily because I didn’t want them around to see
none of that stuff. And with the drug screen and the hair follicle and
the piss test, the drug screen, I had passed it. It was the hair follicle
was the only thing that come up dirty.

Shortly thereafter, J.C. admitted that if he were to be drug-tested that day, it

would come back positive for prescribed Xanax and Lortabs and Percocet for

which he had no prescription. The following colloquy then ensued:

Q. Your children, two (2) children, these two (2) children, [D.E.C.]
and [N.H.C.], came into care because of your drug use. And two-and-
a-half (2 ½) years later you are still using drugs that are not prescribed
you.

A. Yes, ma’am; okay.

We find little analysis is required to affirm the termination of J.C.’s rights to

his children subject to this appeal. J.C. utterly failed to address any of the issues

warranting the removal of his children and, in fact, was under the influence of

drugs at the time of trial. The three subsequent children born to J.C. and his

girlfriend are also in DCFS’s care. J.C. has repeatedly shown that he is unable to

meet the most basic needs of the children in his care, and there is no reasonable

expectation that this will change anytime in the near future. J.C., at most, visited

with his children four times over the course of a two-year period. He did not

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attend parenting classes, did not make parental contributions, did not obtain

assistance with his substance abuse issues, and did not maintain contact with the

agency. J.C.’s excuse of ―lack of transportation‖ is simply insufficient and not

credible, particularly in light of the fact that DCFS offered to transport J.C. The

children have been in the DCFS’s care for over two years. The best interests of

these children demand that a permanent, stable home be afforded to them, and J.C.

has demonstrated, time and time again, that he will be unable to meet those

demands. We find no manifest error in the trial court’s ruling terminating J.C.’s

parental rights to his children in accordance with La.Ch.Code art. 1015(4) and (5).

Accordingly, there is no merit in J.C.’s assignment of error.

CONCLUSION

The judgment of the trial court terminating J.C.’s parental rights to his

children, D.E.C. and N.H.C., is affirmed. All costs of this appeal are assessed

against J.C.

AFFIRMED.

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