State of Louisiana in the Interest of J.T., A.T., C.F., A.B., L.D.

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

17-390

STATE OF LOUISIANA IN THE INTEREST OF

J.T., A.T., C.F., A.B., AND L.D.

**********

APPEAL FROM THE
THIRTEENTH JUDICIAL DISTRICT COURT
PARISH OF EVANGELINE, NO. J-7876
HONORABLE CHUCK R. WEST, DISTRICT JUDGE

**********

PHYLLIS M. KEATY
JUDGE

**********

Court composed of Ulysses Gene Thibodeaux, Chief Judge, Phyllis M. Keaty, and
Candyce G. Perret, Judges.

AFFIRMED.

Trent Brignac
District Attorney
Julhelene E. Jackson
Assistant District Attorney
Post Office Drawer 780
Ville Platte, Louisiana 70586
(337) 363-3438
Counsel for Other Appellee:
State of Louisiana

Chantel Conrad
Attorney at Law
825 Kaliste Saloom Road
Brandywine III, Suite 150
Lafayette, Louisiana 70508
(337) 262-2250
Counsel for Other Appellee:
Department of Children and Family Services

Jessica Cantave
Acadiana Legal Services
1020 Surrey Street
Lafayette, Louisiana 70501
(337) 237-4320
Counsel for Other Appellees:
A.T. (child)
C.F. (child
A.B. (child)
L.D. (child)

Christian E. P. Fontenot
In Proper Person
c/o Dixon Correctional Institute
Post Office Box 788/ U-3-D-9
Jackson, Louisiana 70748-0788
Appellant

KEATY, Judge.

This is an involuntary termination of parental rights case.

Appellant/C.E.P.F., 1 who has been incarcerated throughout the entirety of these

proceedings and who is scheduled to remain incarcerated until July 2024, appeals a

November 28, 2016 judgment2 permanently terminating his parental rights. For

the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

R.F. is the mother of all the children involved in this matter. Appellant is

the biological father of C.F., a male born in 2006, and he considers himself the

father of A.T., a female born in 2003, because she was three years old when he

married R.F. and he helped to raise her. In addition, Appellant is the presumed

father of A.B., a female born in 2012, and L.D., a male born in 2014, because he

was married to R.F. at the time of their births. This matter has been pending since

May 19, 2015, when C.F, A.B., L.D., and A.T., along with their older half-brother,

J.T., were removed from R.F.’s custody and placed into the custody of the State of

Louisiana, Department of Children and Family Services pursuant to an Oral

Instanter Order. The allegations which led to the children’s removal were that C.F.

and A.B. had been sexually abused by J.T., that R.F. had knowledge of the abuse

yet failed to protect them from further abuse, that R.F. otherwise failed to

adequately supervise them, and that they were living in a one-room trailer without

electricity or running water. Two days after their removal, the trial court found

1
Pursuant to Uniform Rules—Courts of Appeal, Rules 5–1 and 5–2, the initials of the
parties will be used to protect and maintain the privacy of the minor children involved in this
proceeding.
2
The judgment also terminated the parental rights of two of the other fathers but neither
of them appealed the judgment. The third father had previously consented to the termination of
his parental rights.

cause to continue the custody of the children with the State. Because Appellant

was incarcerated at the time, the trial court appointed counsel to represent his

interests. Thereafter, the trial court signed numerous orders for Appellant to be

transported from whichever correctional facility he was housed to the many

hearings held in this matter.

The children were adjudicated in need of care in June 2015. At a

dispositional hearing held a few weeks later, Appellant was ordered to comply with

a case plan requiring that he acquire and maintain safe and adequate housing for

six consecutive months, submit to random urine screens, complete anger

management and parenting classes, and make parental contributions of $25 per

month. The State agreed to transport C.F. once a month to visit with Appellant at

the correctional facility where he was housed. The goal of the case plan at that

time was reunification with a concurrent goal of adoption, which goal remained in

place at review hearings held in December 2015 and February 2016.

In advance of an August 24, 2016 review hearing, Appellant filed a Motion

in Limine, on the basis of La.Code Evid. art. 609(B),3 seeking an order prohibiting

the State from questioning him about any of his prior convictions.4 The trial court

denied the motion by order dated August 8, 2016. Following the review hearing,

the goal of the case plan was changed to adoption, and on September 6, 2016, the

State filed a Petition for Termination of Parental Rights and Certification for

Adoption in which it sought to terminate the parental rights of the mother and the

3
Louisiana Code of Evidence Article 609, titled “Attacking credibility by evidence of
conviction of crime in civil cases,” provides, in pertinent part, as follows: “B. Time limit.
Evidence of a conviction under this Article is not admissible if a period of more than ten years
has elapsed since the date of the conviction.”
4
Appellant did not specifically list any of his prior convictions in his Motion in Limine.

2

four fathers of C.F, A.B., L.D., and A.T.5 With regard to Appellant, the Petition

alleged that it would be in the best interest of his minor children to terminate his

parental rights because of the grounds listed in La.Ch.Code art. 1015(5)(b),

1015(6), and 1015(7).6

The termination hearing took place on November 18, 2016. At the

conclusion of the presentation of evidence, the trial court found that the State

proved that Appellant’s parental rights should be terminated and that such

termination was in the best interests of his children. It issued an oral ruling stating

that because Appellant was not scheduled to be released from his current

incarceration until 2024, which was “some eight years from now,” Appellant was

“obviously . . . not in a position to provide care and[/]or emotional or physical

support” for his children. The trial court further noted that Appellant’s

incarceration made him unable to financially contribute to the care of his children.

A written judgment terminating Appellant’s parental rights was signed on

November 28, 2016.7

Appellant, in proper person, appealed the judgment, and the trial court later

signed an order allowing him to proceed in forma pauperis. Appellant has filed a

pro se brief in this court asserting that the trial court erred: 1) in allowing his trial

counsel to withdraw from the record without filing a notice of appeal and by not

appointing counsel to represent him on appeal, 2) in denying his Motion in Limine,

5
The termination petition did not involve J.T. as he was in the custody of the Office of
Juvenile Justice serving a two-year sentence.
6
At the time the termination petition was filed, the aforementioned grounds were
numbered La.Ch.Code art. 1015(4), 1015(5), and 1015(6) respectively; however, Article 1015
was amended before the termination hearing took place. See 2016 La. Acts No. 608, § 1.
7
The judgment continued the matter with regard to the mother and ordered that the
children remain in the State’s custody for another six months.

3

3) in solely relying on his incarceration in support of its decision to terminate his

parental rights, and 4) in determining that termination of his parental rights was in

C.F.’s best interest.

LAW AND DISCUSSION

Louisiana Children’s Code Article 1015 sets forth eight
grounds for termination of parental rights. Although the State need
only establish one ground for termination, the trial court must also
find that the termination is in the best interest of the child in order to
meet the statutory requirement of La.Ch.Code art. 1035(A), which
requires that grounds for termination be proven by clear and
convincing evidence.
State in Interest of J.K.G., 11-908, pp. 5-6 (La.App. 3 Cir. 1/11/12), 118 So.3d 10,

14-15. “A trial court’s findings on whether or not parental rights should be

terminated are subject to the manifest error standard of review.” Id. at 14.

“Courts of Appeal will review only issues which were submitted to the trial

court and which are contained in specifications or assignments of error, unless the

interest of justice clearly requires otherwise.” Uniform Rules—Courts of Appeal,

Rule 1–3. In addition, courts of appeal have “no jurisdiction to receive new

evidence.” Bullock v. Commercial Union Ins. Co., 397 So.2d 13, 15 (La.App. 3

Cir. 1981).

Withdrawal of Appellant’s Trial Counsel

While he admits that he was represented by counsel throughout the trial

court proceedings in this matter, Appellant maintains that the trial court erred in

allowing his trial counsel to withdraw before lodging an appeal on his behalf and

by failing to appoint appellate counsel to represent him. His arguments are based

on the equal protection and due process protections guaranteed by the Fourteenth

Amendment of the United States Constitution.

4

Although Appellant refers to a motion to withdraw filed by his court-

appointed trial counsel, our review of the trial court record lodged in this court

does not contain any such motion. Likewise, the record provides no indication that

Appellant challenged any such withdrawal of representation by his trial counsel or

that Appellant requested that the trial court appoint counsel to represent him on

appeal. The record does show, however, that Appellant had notice of and was

represented by counsel throughout the trial court proceedings in this matter. In

addition, Appellant timely sought an appeal from the termination judgment, and his

appellate brief was timely filed in this court.

Louisiana law provides that both parents and children “have the right to be

represented by separate counsel in a termination proceeding.” La.Ch.Code art.

1016 (emphasis added). Appellant has failed to cite any binding Louisiana

jurisprudence mandating that counsel be afforded to a parent appealing a judgment

terminating his or her parental rights, particularly when that parent has not

requested that such counsel be appointed to represent him. In the instant matter,

Appellant was represented by counsel throughout the termination proceeding.

Moreover, as we will later discuss, the record contains overwhelming support for

the trial court’s conclusion that the State proved several grounds for which

Appellant’s parental rights should be terminated and that such termination was in

his children’s best interests. As a result, we conclude that the interest of justice

does not require this court to review the issues presented in Appellant’s first

assigned error which he failed to challenge at the trial court level. See Uniform

Rules—Courts of Appeal, Rule 1–3.

5

Denial of Appellant’s Motion in Limine

In his second assigned error, Appellant argues that the trial court abused its

discretion in denying his motion to exclude the State from attacking his credibility

by referencing his 1987 conviction for simple rape, his 1990 conviction for theft,

and his 1998 conviction for possession of cocaine because those convictions

occurred fourteen years before “he was arrested for his current charge in 2012 in

which he pled guilty to a fifteen (15) year sentence.”

The record reveals that the trial court denied Appellant’s Motion in Limine

before the termination petition was filed and that Appellant never re-urged the

motion. In addition, despite the denial of Appellant’s motion, the State did not

cross-examine Appellant at the termination hearing regarding the aforementioned

convictions. Finally, Appellant did not challenge the denial of his Motion in

Limine at the trial court level.

The judgment being appealed is the November 28, 2016 termination

judgment. Because there is no reference at the termination hearing to any of

Appellant’s convictions other than those for which he is currently incarcerated,

Appellant suffered no injustice regardless of whether or not the trial court erred in

denying his Motion in Limine. Thus, this court will not review the merits of

Appellant’s second assigned error. See Uniform Rules—Courts of Appeal, Rule

1–3.

Did the State Prove That Appellant’s Parental Rights Should be Terminated?

In the instant matter, the trial court determined that the State proved that

Appellant’s parental rights should be terminated for the grounds listed in

La.Ch.Code art. 1015(5), 1015(6), and 1015(7), which provide, in pertinent part:

6

(5) 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.

....

(6) 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.

(7) The child is in the custody of the department pursuant to a
court order or placement by the parent; the parent has been convicted
and sentenced to a period of incarceration 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.

Failure to comply with a case plan can be evidenced by a parent’s failure to make

court-ordered parental contributions to the costs of the child’s care and/or a

parent’s “lack of substantial improvement in redressing the problems preventing

reunification.” La.Ch.Code art. 1036(C)(6). A “lack of any reasonable

expectation of significant improvement in the parent’s conduct in the near future

may be evidenced by . . . [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.” La.Ch.Code art.

1036(D)(2). Finally, “a sentence of at least five years of imprisonment raises a

7

presumption of the parent’s inability to care for the child for an extended period of

time, although the incarceration of a parent shall not in and of itself be sufficient to

deprive a parent of his parental rights.” La.Ch.Code art. 1036(E).

In State ex rel. J.T.C., 04-1096, pp. 2-3 (La.App. 5 Cir. 2/15/05), 895 So.2d

607, 616 (on rehearing), writ denied, 05-466 (La. 4/8/05), 899 So.2d 11, cert.

denied, 546 U.S. 890, 126 S.Ct. 187 (2005), the fifth circuit noted:

Once the State has established abandonment and failure to provide
care and support, the burden shifts to the parent to establish “just
cause” and thereby avoid termination. State ex rel. T.M.H., 99-433 at
6, 748 So.2d at 1219; State in Interest of M.L., 95-45, p. 9 (La.9/5/95),
660 So.2d 830, 833.

Incarceration is not a “just cause” defense to failure to support
the children or to maintain contact with them in a termination of
parental rights case, if the incarceration is shown to be a result of his
actions. In the Interest of H.A.N., 528 So.2d 1079, 1080 (La.App. 5th
Cir.1988); In re Fleming, 01-1405, p. 7 (La.App. 5th Cir.4/30/02), 817
So.2d 371, 376. In H.A.N., we stated that “There is no set rule
resolving the question of whether incarceration is justification for
non-support. Facts and circumstances vary. Each case is decided
upon its particular merits.” 528 So.2d at 1079-80, (citations omitted).

Appellant contends that the trial court erred in “relying solely” on his

incarceration as a basis for terminating his parental rights. Appellant is mistaken.

The fact of Appellant’s incarceration was obviously factored into the trial court’s

decision to sever his parental rights. In our view, however, it was the reality of

how his incarceration affected Appellant’s ability, or more accurately his inability,

to care for his children that formed the bulk of the State’s proof that Appellant’s

parental rights should be terminated.

Lashonna Strauss, the caseworker assigned to this matter, testified at the

termination hearing that Appellant was incarcerated when his children were

removed from their mother’s home and that he did not make a single parental

contribution during the eighteen months that his children had been in the State’s

8

custody. Appellant did not challenge the fact that he had not made any parental

contributions, nor did he offer any justification for his failure to do so.

Accordingly, we conclude that the State proved that Appellant was in violation of

La.Ch.Code art. 1015(5)(b).

Ms. Strauss also stated that Appellant failed to meet the components of his

case plan requiring that he maintain safe and adequate housing, that he address his

substance abuse issues, and that he attend parenting classes. On the other hand,

Ms. Strauss confirmed that Appellant had sent messages to her and to his aunt to

be given to C.F. and that the State had transported C.F. to prison for visits with

Appellant. She further acknowledged that Appellant had completed a class in

prison that satisfied the anger management component of his case plan.

Ms. Strauss testified that Appellant was currently incarcerated on charges of

aggravated second degree battery and simple kidnapping, with an anticipated

release date of July 2024, which date Appellant confirmed in his testimony at the

hearing. While Appellant claims in his brief to this court that his release date is

subject to change, we note that the Appellant offered no evidence at the hearing

that his incarceration would end earlier than expected. Finally, Ms. Strauss

expressed her opinion that Appellant had not substantially complied with his case

plan and that the length of his future incarceration left her with no expectation that

he would be able do so in the near future.

Appellant claims that Ms. Strauss misled the trial court when she testified

that he did not address his substance abuse issues. First, he points out that his case

plan requires him “to submit to random drug screens” and argues in his brief that

as a prison trustee he is subject to regular drug screens, none of which he has ever

failed. He also maintains in his brief that the Dixon Correctional Institute where he

9

is housed has excellent substance abuse classes and that he is on the waiting list to

attend those classes. While Appellant is correct that his case plan called for

random drug screens rather than attendance at substance abuse classes, we are

prohibited from considering evidence not presented at the hearing. Appellant was

present at the hearing and represented by counsel and could have offered testimony

and/or evidence in support of his argument that he was in compliance with the

substance abuse element of his case plan.

Appellant also argues that Ms. Strauss incorrectly stated that he failed to

attend the parenting class required by his case plan, and he attaches to his brief a

certificate showing that he completed a nurturing and parenting class while in

prison. While we cannot accept evidence that was not submitted to the trial court,

our review of the record reveals that Ms. Strauss acknowledged at the August 24,

2016 review hearing that, while in prison, Appellant completed a parenting

program which was in compliance with his plan. Accordingly, we find merit to

Appellant’s argument that he satisfied the parenting requirement set forth in his

case plan.

Appellant further contends that as an incarcerated father, he made substantial

efforts, through cards, letters, and visits, to keep in contact with C.F. and to

maintain their father/son bond. We note, however, that Appellant admits that “the

only evidence that there is any sort of bond between [him] and his son is his own

testimony.” Again, Appellant had the opportunity to offer evidence at the

termination hearing to show the extent of the contact maintained between him and

C.F. during the time this matter has been pending. Moreover, our reading of the

transcript of the hearing shows that Ms. Strauss provided more details about the

10

communications and visits between Appellant and C.F. than testified to by

Appellant.

Appellant also insists that the termination petition brought against him was

caused by the abuse and neglect that his children suffered at the hands of their

mother rather than by his own actions. We find this argument to be speculative at

best. While Appellant is correct about the circumstances under which his children

came into the State’s custody, the fact remains that Appellant was incarcerated at

the time of the children’s removal from their mother’s home, and it would be

improper to assume that the abuse and neglect would have not occurred had

Appellant not been incarcerated at that time. Finally, Appellant puts much

emphasis on the fact that Ms. Strauss testified that he did the best he could to work

his case plan in light of his incarceration. While Ms. Strauss did make the

foregoing statement, she clearly expressed her ultimate opinion that Appellant had

not substantially complied with his case plan.

After considering the entirety of the foregoing testimony, we conclude that

the State met its burden of proving that Appellant had not substantially complied

with his case plan and that there was no basis to reasonably expect any

improvement in the Appellant’s conduct in the near future considering the length

of time that he is scheduled to remain incarcerated. Thus, the State proved that

Appellant was in violation of La.Ch.Code art. 1015(6).

At the hearing, Ms. Strauss testified that the four children had been together

in an adoptive placement home until the last month when the State removed them

from that home after learning that the foster parents had inadequately supervised

their own biological child. Since that time, C.F. and A.T. had been staying with

Appellant’s aunt and uncle who were interested in adopting them and were in the

11

process of being certified as an adoptive placement. According to Ms. Strauss,

there had been contact between C.F. and his aunt and uncle before he was placed in

their home. Appellant testified that his relatives had brought C.F. to visit him in

prison and that they had allowed him to talk to C.F. by telephone. Appellant stated

that he did not object to his aunt and uncle adopting C.F. and A.T. if doing so

would be in their best interests. Appellant argues in brief that because C.F. is

being cared for by his relatives, he should be credited with providing a reasonable

plan for his child other than foster care. We disagree, as any adoption of C.F. and

A.T. would necessarily be through the foster care system.

C.F. entered the State’s custody as the result of a court order. As mentioned

previously, Appellant is expected to remain incarcerated until the summer of 2024,

thereby preventing him from being able to provide care for C.F. for a substantial

period of time. C.F. was eight years old when he entered the State’s custody. If

Appellant is released on schedule, C.F. will be over seventeen years old and will

have been in State’s custody approximately nine years should this court not affirm

the judgment terminating his parental rights. In light of the forgoing evidence, we

are convinced that the State proved that Appellant was in violation of La.Ch.Code

art. 1015(7).

In conclusion, we find that given the totality of the evidence, the trial court

did not manifestly err in terminating Appellant’s parental rights. Appellant’s third

assigned error lacks merit.

Was Termination of Appellant’s Parental Rights in the Best Interest of C.F.?

In a case involving the involuntary termination of parental rights,
there are two separate private interests involved: those of the parents
and those of the child. See State ex rel D.L.R., 08-1541 (La. 12/12/08),
998 So.2d 681. A parent has a natural and fundamental liberty
interest in the continuing companionship, care, custody, and

12

management of their children’s lives which warrants great deference.
See Id. In opposition to the parent’s interest is the child’s interest “in
terminating parental rights that prevent adoption and inhibit
establishing secure, stable, long-term, and continuous relationships
found in a home with proper parental care.” State ex rel. J.M., 02-
2089, p. 8 (La.1/28/03), 837 So.2d 1247, 1252. In termination
proceedings, the interest of the parent must be balanced with the
interest of the child, and “courts of this state have consistently found
the interest of the child to be paramount over that of the parent.” Id.

State in Interest of M.C., 16-69, pp. 7-8 (La.App. 3 Cir. 6/1/16), 194 So.3d 1235,

1240-41, writ denied, 16-1273 (La. 9/6/16), 205 So.3d 918. “[T]he 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. The

potential loss to the parent is grievous, perhaps more so than the loss of personal

freedom caused by incarceration.” State ex rel. J.A., 99-2905, p. 9 (La. 1/12/00),

752 So.2d 806, 811.

In his final assignment of error, Appellant asserts that the trial court erred in

finding that termination of his parental rights was in C.F.’s best interest. More

specifically, he contends that the trial court failed to consider the bond between

him and his son and that it failed to consider C.F.’s attachment to his current

caretaker.

Ms. Strauss testified that A.B. and L.D. were placed in a certified adoptive

home on the same date that C.F. and A.T. were placed with Appellant’s relatives.

She stated that both foster families wished to adopt the children living with them

and that they are committed to ensuring that the four children remain in contact

with each other should the adoptions occur. In fact, Ms. Strauss commented that

the children had already spent several weekends together during the month of their

current placement. Ms. Strauss also testified that C.F. knows that Appellant is his

father, that he and his father share parts of their names, and that C.F. would like to

13

remain in contact with Appellant. Similarly, Appellant testified that he would like

to maintain as much of a relationship as possible with C.F. and the other children.

While Appellant’s wish to maintain parental rights is admirable, C.F. and his

siblings were removed from their mother’s home because they were not being

properly cared for and their fathers, including Appellant, were not around to take

care of them. Until one month prior to the hearing, the children were together in a

foster home, but placement proved to be unsuitable. From that time, however, the

children have been living with two foster families who want to adopt them and

who are in favor of providing the children opportunities to spend time with each

other.

After balancing Appellant’s interests against his children’s interests in living

with families that will provide them with care and relationships that they need to

thrive, we are convinced that their best interests will be served by terminating

Appellant’s parental rights. Accordingly, we find no manifest error in the trial

court’s determination that termination of Appellant’s parental rights was in the best

interests of his children.

DECREE

For the foregoing reasons, the judgment of the trial court terminating

C.E.P.F.’s parental rights is affirmed. All costs of this appeal are assessed against

C.E.P.F.

AFFIRMED.

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

14