State in the Interest M.H., I.T.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

17-128

STATE IN THE INTEREST M.H., I.T.

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APPEAL FROM THE
THIRTY-THIRD JUDICIAL DISTRICT COURT
PARISH OF ALLEN, NO. J-2012-032
HONORABLE JOEL G. DAVIS, DISTRICT JUDGE

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SHANNON J. GREMILLION
JUDGE

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Court composed of Shannon J. Gremillion, John E. Conery, and David E.
Chatelain*, Judges.

MOTION TO WITHDRAW GRANTED; AFFIRMED.

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* Honorable David E. Chatelain participated in this decision by appointment of the Louisiana
Supreme Court as Judge Pro Tempore.

John E. Demoruelle
Attorney at Law
P. O. Box 839
Oberlin, LA 70655
(337) 639-2641
COUNSEL FOR APPELLEE:
M. H. (mother)

Nicholas Pizzolatto, Jr.
Department of Children & Family Services
1919 Kirkman Streetad
Lake Charles, LA 70601
(337) 475-3037
COUNSEL FOR APPELLEE:
State of Louisiana, Department of Children & Fam. Services

Thomas L. Lorenzi
Southwest Louisiana Bar Foundation
518 Pujo Street
Lake Charles, LA 70602
(337) 436-8401
COUNSEL FOR APPELLEES:
M. H. (child)
I. T. (child)

Chad B. Guidry
Attorney at Law
P. O. Box 447
Kinder, LA 70648
(337) 738-2280
COUNSEL FOR APPELLANT:
I. H. (father)

I. H. (father)
Elayn Hunt Correctional Center
P. O. Box 174
St. Gabriel, LA 70776
(225) 642-3306
IN PROPER PERSON

GREMILLION, Judge.

I.H. (hereafter, “Father,” to avoid confusion), the father of four children,

appeals the trial court’s judgment terminating his parental rights and certifying his

children free for adoption. Father’s attorney has filed a brief requesting that he be

permitted to withdraw from representing Father pursuant to Anders v. California,

386 U.S. 738, 87 S.Ct. 1396 (1967), asserting that there are no non-frivolous issues

for appeal. For the reasons that follow, we grant counsel’s motion to withdraw and

affirm the trial court’s judgment.

FACTS

Father and M.H. (hereafter, “Mother,” to avoid confusion) are the parents of

four children: I.H., age seven (I.H. the elder); M.H. (M.H. the elder), age five; I.H.,

age four (I.H. the younger); and M.H., age two (M.H. the younger).1 All four

children have either been diagnosed with or show signs of developmental delays.

I.H. the elder and M.H. the elder first came into the State’s custody in May 2012,

and were adjudicated children in need of care on June 14, 2012. I.H. the younger

came into the State’s custody within five weeks of his birth and was adjudicated in

need of care on July 3, 2013, when he was yet only three months old. Custody of

the three children was returned to Mother and Father on July 24, 2014, after they

had completed the requirements of their case plan, but the Department of Children

& Family Service (the Department) maintained supervision thereafter for six

months, which was extended an additional six months. M.H. the younger was born

on March 18, 2015. On August 3, 2015, however, the court again ordered all four

children into the State’s custody.

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This matter is the companion to State in the Interest of I.H., M.H., I.H., M.H., 17-129 (La.App.
3 Cir. ___/___/17), ___ So.3d ___. In that matter, the older child referred to herein as “I.T.” is
identified as “I.H. the elder.”

On March 16, 2016, the State filed a petition to terminate the parental rights

of Father and Mother. It alleged that neither parent has made significant strides

toward completing their case plan requirements, except to the extent that Mother

has regularly visited the children. Father is unable to even do that, as he is

currently incarcerated on drug charges and is not eligible for release until July 28,

2019.

The matter was heard on December 1, 2016. The vast majority of the

testimony centered on Mother’s progress—or, more specifically, her lack thereof—

in completing her case plan. The parties stipulated to the admission of the report

of Dr. Alfred Buxton, Ph.D., a psychologist who evaluated Mother at the request of

the Department. Dr. Buxton opined that, because of mental disability, Mother is

not competent to manage her own affairs and must rely upon others to assure her

own welfare and to deal with the complexities of daily living. She can be relied

upon only as a secondary caregiver to her children. He would only recommend the

return of the children to Mother if the Department could ensure that there was a

competent primary caregiver.

Ms. Melinda Marcantel, Child Welfare Specialist II with the Department,

testified that she had acted as the case manager for the children since November

2013. The only component of her case plan Mother completed was regularly

visiting the children. Father’s incarceration prevents him from completing any

component of his case plan. Ms. Marcantel testified that both Mother and Father

had proposed family members who could serve as suitable caregivers, but the

Department investigated and deemed only one of them, Father’s sister, suitable.

She declined to assume those responsibilities.

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Mother and Father both testified. Mother testified about an aunt and uncle

who indicated that they would be willing to accept responsibility for the children.

Father testified that he feels his release is more imminent than the Department is

projecting. He has calculated that he would be eligible for release in fourteen

months from the time of the December 2016 hearing. He also testified that he is

taking parenting classes in prison, and that the terms of his case plan are identical

to those he had already completed before the children were returned to his custody

in July 2014.

After testimony concluded, the trial court found that the Department had

proven by clear and convincing evidence sufficient proof of parental misconduct to

terminate their parental rights under La.Ch.Code arts. 1036, 1015(4)(b), 1015(4)(c),

and 1015(5). Father now appeals the judgment terminating his parental rights and

declaring the children eligible for adoption.

ASSIGNMENTS OF ERROR

In his pro se brief, Father asserts that the trial court abused its discretion in

terminating his parental rights without expectation of reunification or reformation;

that the termination of his parental rights deprived him of the constitutional right to

care for his children; that the trial court gave no consideration of guardianship or

tutorship as an alternative to adoption; and that he received ineffective assistance

of counsel.

ANALYSIS

In State v. Benjamin, 573 So.2d 528, 531 (La.App. 4 Cir. 1990), the fourth

circuit analyzed Anders v. California, 386 U.S. 738, 87 S.Ct. 1396 (1967):

When appointed counsel has filed a brief indicating that no
non-frivolous issues and no ruling arguably supporting an appeal were
found after a conscientious review of the record, Anders requires that

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counsel move to withdraw. This motion will not be acted on until this
court performs a thorough independent review of the record after
providing the appellant an opportunity to file a brief in his or her own
behalf.

It is not necessary for Defendant’s counsel to “catalog tediously every

meritless objection made at trial or by way of pre-trial motions with a labored

explanation of why the objections all lack merit,” but counsel’s Anders brief must

“‘assure the court that the indigent defendant’s constitutional rights have not been

violated.’” State v. Jyles, 96-2669, p. 2 (La. 12/12/97), 704 So.2d 241, 241

(quoting McCoy v. Court of Appeals of Wisconsin, 486 U.S. 429, 442 108 S.Ct.

1895, 1903 (1988)). The brief must fully discuss and analyze the trial record and

consider “whether any ruling made by the trial court, subject to the

contemporaneous objection rule, had a significant, adverse impact on shaping the

evidence presented to the jury for its consideration.” Jyles, 704 So.2d at 241.

Thus, the Anders brief must review the procedural history and the evidence

presented at trial and provide “a detailed and reviewable assessment for both the

defendant and the appellate court of whether the appeal is worth pursuing in the

first place.” State v. Mouton, 95-981, p. 2 (La. 4/28/95), 653 So.2d 1176, 1177.

In this case, Father’s counsel provided a thorough history of the matter. He

stated succinctly, “Considering the length of time the children spent in State’s

custody, [Father’s] incarceration and [Mother’s] inability to work a case plan in

[Father’s] absence, counsel feels that this appeal is frivolous.” As we shall discuss

below, we agree. Counsel’s motion to withdraw is granted.

As Father correctly notes, parents are guaranteed Fourteenth Amendment

Equal Protection and Due Process protections against “the State’s unwarranted

usurpation, disregard, or disrespect” of their decisions about the rearing of their

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children. M.L.B. v. S.L.J., 519 U.S. 102, 116, 117 S.Ct. 555, 564 (1996). Those

protections, though, are not absolute; the operative wording in the M.L.B.

pronouncement is “unwarranted.”

The grounds for terminating a parent’s rights—in other words, when the

usurpation, disregard, or disrespect of a parent’s decisions regarding childrearing

are warranted—are expressed in La.Ch.Code art. 1015. These grounds must be

proven by clear and convincing evidence. La.Ch.Code art. 1035; Santosky v.

Kramer, 455 U.S. 745, 102 S.Ct. 1388 (1982). The means of proving parental

misconduct under La.Ch.Code art. 1015 is governed by La.Ch.Code art. 1036. The

paramount consideration in determining whether to terminate a parent’s rights is

whether that would be in the best interest of the child. In re Bordelon, 95-1194

(La.App. 3 Cir. 3/6/96), 670 So.2d 676.

Whether a parent has complied with a case plan, the expected success of

rehabilitation, and the expectation of significant improvement in the parents’

condition or conduct are all findings of fact. State in the Interest of O.L.R., 13-616

(La.App. 3 Cir. 11/6/13), 125 So.3d 569. These findings of fact are all reviewed

under the manifest error standard. Id. The decision to terminate parental rights is

also reviewed under the manifest error standard. State in the Interest of J.K.G. and

J.L.G., 11-908 (La.App. 3 Cir. 1/11/12), 118 So.3d 10.

Louisiana Children’s Code Article 1015 includes as a ground for terminating

a parent’s rights the incarceration of a parent for period

of such duration that the parent will not be able to care for the child
for an extended period of time, considering the child’s age and his
need for a safe, stable, and permanent home, and despite notice by the
department, the parent has refused or failed to provide a reasonable
plan for the appropriate care of the child other than foster care.

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In the present matter, Father did propose a reasonable plan for the care of his four

children; unfortunately, his sister refused to assume responsibility for them.

Mother’s family members were deemed inappropriate for the care of four

developmentally-delayed children, all under the age of eight. Even were we to

accept Father’s contention that he can be eligible for release in February or March

of 2018, we cannot conclude that the trial court manifestly erred in finding that it

would be in the best interests of the children to be cleared for adoption. Children

need stability now, not possibly eleven months from now. This assignment of error

lacks merit.

Father argues that his consent is required for adoption under La.Ch.Code art.

1193. This argument ignores the plain language of the article, which conditions

the consent requirement upon the father’s rights not having been terminated

pursuant to Title X or XI of the Children’s Code, of which La.Ch.Code art. 1015 is

a part. Because Father’s parental rights were terminated, his consent for the

adoption of the children is not required. This assignment of error lacks merit.

Father further contends that the trial court erred in not considering

guardianship for the children as an alternative to adoption. Louisiana Children’s

Code Article 718 provides (emphasis added):

The purpose of guardianship is to provide a permanent placement for
children when neither reunification with a parent nor adoption has
been found to be in their best interest; to encourage stability and
permanence in the lives of children who have been adjudicated to be
in need of care and have been removed from the custody of their
parent; and to increase the opportunities for the prompt permanent
placement of children, especially with relatives, without ongoing
supervision by the department.

The plain wording of article 718 indicates that establishing guardianship is

intended to provide a permanent placement when reunification or adoption is not in

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the children’s best interests. Guardianship does not represent an alternative to

adoption; rather, it is a means for providing a permanent placement when adoption

would not be in the children’s best interests. This assignment of error lacks merit.

Lastly, we turn to Father’s contention that he received ineffective assistance

of counsel in the hearing. Louisiana Children’s Code Article 1016 guarantees the

rights of parents and children in termination proceedings to be represented by

separate counsel and to appointed counsel under the Indigent Parents’

Representation Program. To date, no Louisiana jurisprudence has addressed

whether a claim of ineffective assistance of counsel constitutes grounds for

reversal of the termination of a parent’s rights. Given the fundamental nature of

parental rights, we find that the guarantee of the right to counsel necessarily

implies that such representation must be effective.

An analysis of the case law of other States indicates that the parent bears the

burden of proving that his representation was not effective. Further, the parent

must prove that: 1) counsel acted in a manner below an objective standard of

conduct expected of a reasonably competent attorney, and 2) that the outcome was

reasonably probable to have been different but for counsel’s failure. See, e.g., In re

N.M., 161 Cal.App.4th 253, 74 Cal.Rptr.3d 138 (2d Dist. 2008); In re M.S.S., 308

Ga.App. 614, 708 S.E.2d 570 (2011). We need not reach the issue of whether

counsel’s performance was deficient if we determine that Father has not

demonstrated that the outcome was reasonably probable to have been different.

We are not persuaded by Father’s argument. His claim of ineffective

assistance is predicated entirely upon counsel’s failure to urge the establishment of

a guardianship for the children. As we have already noted, though, guardianship is

not intended as an alternative to adoption. Father’s counsel urged the trial court to

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consider that Father would be eligible for early release for good behavior. Counsel

rendered reasonable representation of his client given the facts at his disposal.

This assignment of error lacks merit.

CONCLUSION AND DECREE

Counsel’s motion to withdraw from representing Father is granted. Father’s

contention that the termination of his parental rights were unconstitutionally

infringed lack merit. Given the children’s young ages, their developmental delays,

and their need for stable and permanent homes, we cannot conclude that the trial

court manifestly erred in terminating Father’s parental rights. Father’s

incarceration might possibly be over in a year, but might also well exceed a year.

In the meantime, his four children need stability and permanency. The trial court

did not manifestly err in terminating Father’s parental rights. All costs of this

appeal are taxed as costs to Father, I.H.

MOTION TO WITHDRAW AS COUNSEL GRANTED; AFFIRMED.

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