State in the Interest of E. O.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

18-803

STATE OF LOUISIANA

IN THE INTEREST OF E.O.

**********

APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. JC-2017-337
HONORABLE THOMAS R. DUPLANTIER, DISTRICT JUDGE

**********

JONATHAN W. PERRY
JUDGE

Court composed of Billy Howard Ezell, Van H. Kyzar, and Jonathan W. Perry,
Judges.

AFFIRMED.

Daniel Ginnetty
Fifteenth Judicial Public Defender’s Office
Post Office Box 3622
Lafayette, Louisiana 70502-3622
COUNSEL FOR DEFENDANT/APPELLANT:
A.F. (Mother)

Keith A. Stutes
Lafayette Parish District Attorney
Tracey Davenport-McGraw
Lafayette Parish Assistant District Attorney
Post Office Box 3306
Lafayette, Louisiana 70502-3306
COUNSEL FOR APPELLEE:
State of Louisiana

Leah Antoinette Beard
Diane E. Cote
825 Kaliste Saloom Road
Brandywine III, Suite 150
Lafayette, Louisiana
COUNSEL FOR APPELLEE:
Louisiana Department of Children and Family Services

Jeremy Daye c/o CWS I
Case Worker
100 Asma Boulevard, Suite 260
Lafayette, Louisiana 70508

Lloyd Dangerfield
703 East University Avenue
Lafayette, Louisiana 70503
COUNSEL FOR DEFENDANT:
Z.O. (Father)

Franchesca L. Hamilton-Acker
Acadiana Legal Service Corporation
Post Office Box 4823
Lafayette, Louisiana 70502-4823
COUNSEL FOR THE MINOR CHILD:
E.O.

Alexander Hurd
Fifteenth Judicial Public Defender’s Office
215 West Saint Peter Street
New Iberia, Louisiana 70560
COUNSEL FOR THE MINOR CHILD:
E.O.

PERRY, Judge.

A.F.,1 the biological mother of the minor child, E.O., appeals the judgment of

the trial court terminating her parental rights.2 At the termination trial, the State of

Louisiana, through the Department of Children and Family Services (“DCFS”),

contended that A.F. had not completed any component of her court-approved case

plan. A.F. challenged her case plan and claimed that her efforts were sufficient to

maintain her parental relationship. The trial court determined that there was no

substantial compliance and there was no reasonable expectation that A.F.’s conduct

would significantly improve. Further, the trial court concluded it was in E.O.’s best

interest to terminate A.F.’s parental rights. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

E.O., born March 2, 2017, came into the custody of DCFS on April 4, 2017,

after an oral instanter order was obtained on the grounds of neglect and dependency.

The trial court issued the order based on the affidavit of Renee Forgason, a child

protection case worker employed by DCFS.

In her affidavit, Ms. Forgason asserted that on April 2, 2017, DCFS received

a report of suspected abuse and neglect of E.O. The basis for E.O.’s removal began

on April 1, 2017, when the Youngsville Police Department received a report of

domestic violence between A.F. and Z.O. in the home of mutual friends. A.F.

admitted to the violence and to possessing marijuana; however, Z.O. left the home

with E.O. before police officers arrived.

On April 2, 2017, the Youngsville Police Department responded to the same

home after receiving reports that Z.O. had made threats to kill E.O. After police

1
The initials of the parties will be used to protect and maintain the privacy of the minor
child involved in this proceeding. Uniform Rules—Courts of Appeal, Rules 5–1 and 5–2.

2
Z.O., the biological father of E.O., stipulated to the surrender of his parental rights on
August 13, 2017.

found Z.O. hiding in the home, he was arrested and charged with domestic abuse

battery. Additionally, Ms. Forgason asserted in her affidavit that A.F. and Z.O.

exhibited substance abuse and domestic violence issues, lacked stable housing and

employment, and that A.F. and Z.O. were using E.O. against one another, placing

E.O. at a serious risk of harm.

The trial court confirmed the instanter order after an April 5, 2017 hearing.

E.O. was adjudicated a child in need of care on May 24, 2017. A case plan was

created for A.F. with an aim toward reunification with a concurrent goal of

adoption.3

The case plan established for A.F. required she: 1) establish safe and stable

housing; 2) pay $5 a month in child support; 3) cooperate and maintain contact with

the agency; 4) submit to a psychological/psychiatric evaluation and follow all

recommendations; 5) submit to and comply with all recommendations relative to a

substance abuse assessment, including participation in substance abuse support

groups; 6) submit to random drug screens; 7) attend anger management counseling;

8) obtain and maintain legal employment; and 8) visit with E.O.

After A.F.’s noncompliance, the case plan goal, originally reunification,

changed to adoption at the April 10, 2018 case review hearing. On May 24, 2018,

DCFS petitioned to terminate A.F.’s parental rights pursuant to La.Child.Code

art. 1015(5) and (6) so that E.O. could be certified eligible for adoption.

A termination proceeding was held on August 13, 2018.4 Thereafter, the trial

court rendered judgment concluding DCFS established the parental rights of

3
The trial court held permanency and case review hearings on August 8, 2017, January 23,
2018, and April 10, 2018.

4
Originally, trial was scheduled for July 16, 2018, but continued on the unopposed motion
of DCFS because E.O.’s biological father had not been transported from jail.

2

A.F. should be terminated pursuant to La.Child.Code art. 1015(5) and (6).5

Specifically, the trial court found A.F. failed to contribute to E.O.’s care, failed to

maintain contact with E.O., and failed to substantially comply with her case plan.

The trial court further concluded that the best interest of E.O. would be served by

the termination of A.F.’s parental rights to him. The trial court executed a written

judgment to this effect on August 14, 2018, and A.F. perfected this appeal.

In her appeal, A.F. alleges that the trial court legally erred by admitting

hearsay and by restricting relevant testimony which, consequently, substantially

prejudiced A.F.’s constitutional right to a fair proceeding. She asserts the trial court

erred in finding that DCFS proved by clear and convincing evidence that she

abandoned her child, she failed to substantially comply with the requirements of her

case plan, or that there was no reasonable expectation for significant improvement

in A.F.’s conduct in the near future, such that her parental rights should be

terminated. She further asserts the trial court failed to consider whether it was in the

best interest of her child that her parental rights be terminated.

STANDARD OF REVIEW

This court reviews a trial court’s findings on whether or not parental rights

should be terminated using the manifest error standard of review. State ex rel K.G.,

02-2886, 02-2892 (La. 3/18/03), 841 So.2d 759. Under this standard, we may not

set aside any factual findings of the trial court unless the findings are manifestly

erroneous or clearly wrong. Rosell v. ESCO, 549 So.2d 840 (La.1989).

LAW AND DISCUSSION

The Louisiana Supreme Court has held in an involuntary termination

proceeding, two private interests must be balanced—those of the parents and those

5
We note that at the time of trial in this matter, La.Ch.Code art. 1015(5) and (6) had been
amended by 2016 La.Acts No. 608, § 1.
3

of the child. State ex rel. H.A.B., 10-1111 (La. 10/19/10), 49 So.3d 345. “On the

one hand, parents have a natural, fundamental liberty interest to the continuing

companionship, care, custody and management of their children.” Id. at 366.

On the other hand, however, the child has a profound interest, often at
odds with those of his parents, 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 as
“[t]here is little that can be as detrimental to a child’s sound
development as uncertainty over [where] he is to remain.” Lehman
v. Lycoming County Children’s Servs. Agency, 458 U.S. 502, 513, 102
S.Ct. 3231, 3238, 73 L.Ed.2d 928 (1982).

State ex rel. H.A.B., 49 So.3d at 366 (alterations in original).

While a parent’s interest warrants deference and protection, our courts regard

the interest of the child to be “superior and paramount.” Id. (citing Lassiter v. Dep’t

of Soc. Servs., 452 U.S. 18, 101 S.Ct. 2153 (1981)). The primary concern of a

termination of parental rights proceeding is to secure the best interest of the child.

La.Ch.Code art. 1001. “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.”

State ex rel. J.A., 99-2905, p. 9 (La. 1/12/00), 752 So.2d 806, 811.

Louisiana Children’s Code Article 1015 provides the statutory grounds by

which a court may involuntarily terminate the rights and privileges of a parent. In

order to terminate rights, the State need establish only one ground set forth in

La.Ch.Code art. 1015 by clear and convincing evidence.6 La.Ch.Code art. 1035(A).

6
The supreme court offered the following definition of “clear and convincing” in Johno
v. Doe, 16-087, p. 5 (La. 12/6/16), 218 So.3d 1004, 1008 (quoting Burmaster v. Plaquemines
Parish Gov’t, 07-2432 (La. 5/21/08), 982 So.2d 795 (alteration in original)):

Black’s Law Dictionary 209 (8th ed.2004) defines “burden of proof” generally as
“[a] party’s duty to prove a disputed assertion or charge.” Black’s entry for “burden
of proof” also includes this definition of “middle burden of proof”: “A party’s duty
to prove a fact by clear and convincing evidence. This standard lies between the
preponderance-of-the-evidence standard and the beyond-a-reasonable-doubt
standard.”

4

Additionally, the trial court must also find the termination is in the best interest of

the child. La.Ch.Code art. 1039.

In this matter, the trial court found that DCFS proved by clear and convincing

evidence that termination of A.F.’s parental rights was warranted under La.Ch.Code

art. 1015(5) and (6). Louisiana Children’s Code Article 1015(5), amended by 2016

La. Acts No. 608, § 1, states:

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 parent 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(6) amended by 2016 La. Acts No. 608, § 1,

states:

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.

Furthermore, La.Ch.Code art. 1036(C) and (D) set forth the evidence that may be

used to prove a lack of parental compliance with a case plan or the lack of a

reasonable expectation of significant improvement in the parent’s future conduct or

condition:

5

C. Under Article 1015(6), 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.

D. Under Article 1015(6), 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.

6

Evidentiary Due Process Violations

The first assignment of error alleges hearsay was admitted into evidence.

A.F. argues the testimony was not only hearsay, but irrelevant and unduly

prejudicial.

At issue is testimony elicited from the DCFS case worker, Jeremy Daye,

regarding A.F.’s compliance with her case plan. Mr. Daye became A.F.’s case

worker in December 2017. After Mr. Daye testified that A.F. had not submitted to

any drug screens since his involvement began, DCFS asked whether A.F. submitted

to any drug screens with her previous case worker. A.F. objected to Mr. Daye

testifying about things of which he had no personal knowledge. Louisiana Code of

Evidence Article 602 states: “A witness may not testify to a matter unless evidence

is introduced sufficient to support a finding that he has personal knowledge of the

matter.” The trial court overruled the objection, noting Mr. Daye could not testify

what the previous worker said, but he could reflect on notes and records kept by the

previous case worker in testifying relative to A.F.’s case plan.

A.F. presents State in the interest of Z.D., 17-0616 (La.App. 4 Cir. 10/10/18),

257 So.3d 260, to support her argument the trial court wrongly permitted hearsay.

In Z.D., the trial court declined to adjudicate the child as a child in need of care as

to the father.7 The petition requesting the child be adjudicated a child in need of care

alleged the father was incarcerated and was thus not available to provide for the

child’s medical, emotional, or housing needs, and the father had not made a plan for

the child’s care. The father, conversely, asserted he wished for his mother, the

child’s paternal grandmother, to assume custody of the child. The father alleged the

DCFS investigator was aware yet had disregarded the paternal grandmother’s

7
The child was removed from his mother’s custody as a result of abuse and was already
adjudicated a child in need of care as to his mother.
7

unequivocal willingness to assume custody of the child. At the adjudication hearing,

the DCFS investigator testified only that the child’s father was in prison where he

would remain until 2027. The trial court, noting the investigator’s testimony was

hearsay, found it to be insufficient to carry the State’s burden by a preponderance of

the evidence. State in the interest of Z.D., 257 So.3d at 267; La.Ch.Code art. 665.

On appeal, our colleagues on the Fourth Circuit found the trial court did not

abuse its discretion in declining to adjudicate the child as a child in need of care as

to the father, expressing, “Louisiana courts have repeatedly expressed concern about

child in need of custody judgments grounded in hearsay. The narrow time

constraints imposed on the State in child in need of care proceedings does not relieve

the State of its burden to offer admissible evidence.” Id. at 267 (footnote omitted).

We, however, do not find Z.D. instructive in the matter before us.

Louisiana Code of Evidence Article 801(C) defines hearsay as “a statement,

other than one made by the declarant while testifying at the present trial or hearing,

offered in evidence to prove the truth of the matter asserted.” Hearsay is

inadmissible at trial unless one of the exceptions in the Louisiana Code of Evidence

applies. La.Code Evid. art. 802. A trial court’s rulings on evidentiary issues will

not be disturbed absent a clear abuse of discretion. In re Succession of Jones,

08-1088 (La.App. 3 Cir. 3/4/09), 6 So.3d 331.

After reviewing the record, we find no abuse of discretion on the part of the

trial court. Mr. Daye testified from his personal knowledge as well as from the

DCFS record focusing on the elements of A.F.’s case plan and on whether or not

A.F. compiled therewith. He did not testify as to what A.F.’s previous case worker

said, nor did he testify about the results of A.F.’s drug screens. Accordingly, this

assignment lacks merit.

8

In her second assignment of error, A.F. asserts the trial court’s restriction of

relevant testimony at various points deprived her of a fair trial. A.F. contends

because of these erroneous restrictions, the trial court further erred by failing to

consider mitigating evidence which she contends were essential to her defense.

In the first instance, Mr. Daye was asked on cross-examination whether A.F.’s

age was taken into account when DCFS formulated her case plan. After answering

in the negative, Mr. Daye was asked, “Did [A.F.] receive the same case plan that a

28-year-old would receive if her children were removed for substance abuse?”

DCFS objected to relevance, asserting whether a case plan is rightly tailored for a

parent should have been addressed at either the Family Team Conferences or the

judicial review hearings. Counsel for A.F. responded, “We start on a blank slate . . .

this isn’t a continuation of the Child in Need of Care case. This is a new hearing,

and potentially [A.F.] could have new lawyers. She doesn’t in fact, but she could.”

The trial court sustained the objection, stating its consideration focused on A.F.’s

compliance. A.F. argues the questions regarding the tailoring of the case plan were

relevant and should have been allowed.

In another instance, A.F. complains Mr. Daye was permitted to testify under

direct examination that E.O. was taken into custody because A.F. and Z.O. were

engaging in domestic violence. Yet, when A.F. was asked under direct examination

whether she was a victim of domestic violence, the trial court sustained the objection

of DCFS on the basis this testimony was not relevant to whether or not A.F. complied

with her case plan. A.F. argues this testimony was relevant to the issue of whether

she was appropriately referred to the right kind of domestic violence counseling.

Lastly, A.F. asserts the trial court also erred in restricting both A.F. and T.G.,

her mother, from testifying about how A.F.’s grandmother’s death had, ironically,

positively affected her. The trial court sustained DCFS’s objection to relevance.

9

A.F. asserts this testimony was relevant to her likelihood of near-future compliance

and, therefore, relevant to her defense.

A.F. was seventeen when E.O. was born. She attributes her failure to comply

with her case plan to her “juvenile” status. A.F. contends it was unfair for the trial

court to deprive her permanently of her parental rights “without considering in

mitigation whether she may be growing out of the immaturity that hindered her from

perfectly complying with her case plan.” A.F. relies upon Miller v. Alabama, 567

U.S. 460, 132 S.Ct. 2455 (2012), for this proposition, asserting “the evolving

jurisprudence on juvenile criminal sentencing is helpfully analogous to a court’s

duty when it has a juvenile mother before it on the termination docket: at least to

consider mitigating factors before taking an action that permanently terminates a

fundamental liberty interest.”

In Miller, the Supreme Court of the United States held “that mandatory life

without parole for those under the age of 18 at the time of their crimes violates the

Eighth Amendment’s prohibition on ‘cruel and unusual punishments.’” Id. at 465.

A.F. contends the Miller court’s rationale rested in part on “developments in

psychology and brain science” which demonstrated “transient rashness, proclivity

for risk, and inability to assess consequences[.]” Id. at 471-72 (quoting Graham

v. Florida, 560 U.S. 48, 68, 130 S.Ct. 2011, 2026 (2010)). A.F. asserts her behavior

exhibits some of these qualities. One example is her decision not to request

transportation to visits because she was afraid her dependency would be held against

her. She contends whereas a rational adult knows to ask for help, a child is more

likely to opt for an all-or-nothing approach.

DCFS acknowledges A.F. was seventeen when E.O. was born; however,

A.F. turned eighteen three months later, and for the majority of the case she was of

the age of majority. Therefore, DCFS argues A.F.’s contention her case plan should

10

have been tailored for a juvenile mother is not relevant and this case is

distinguishable from a juvenile criminal case. Further, at each of the review

hearings, the trial court approved A.F.’s case plan, finding it consistent with the

health and safety of and in the best interest of E.O.

Louisiana Code of Evidence Article 401 defines relevant evidence as

“evidence having any tendency to make the existence of any fact that is of

consequence to the determination of the action more probable or less probable than

it would be without the evidence.” A.F.’s retrospective criticisms of the case plan

have no bearing on whether or not she complied with requirements of her case plan

and, thus, are not relevant to the issue before the trial court. Consequently, we find

it was not an abuse of the trial court’s discretion to restrict the aforementioned

testimonies.

Abandonment

A.F. asserts the trial court erred in finding that DCFS proved she abandoned

E.O. as that term is defined in La.Ch.Code art. 1015(5). Mr. Daye testified that

A.F. failed to contribute $5 per month to E.O.’s care while he was in foster care.

A.F. denied knowing this was a requirement of her case plan. Mr. Daye testified

A.F. failed to maintain contact with E.O. for six consecutive months.

A.F. acknowledged at the August 2018 termination hearing that her last visitation

with E.O. was in December 2017. That being the case, we find no manifest error in

the trial court’s finding that DCFS proved by clear and convincing evidence

A.F. abandoned E.O. by failing to provide contributions to E.O.’s care and by failing

to maintain contact with her child.

Failure to Comply with Case Plan

We also find no manifest error in the trial court’s factual finding that DCFS

proved by clear and convincing evidence that A.F. failed to substantially comply

11

with the requirements of her case plan, and there is little likelihood that her condition

or conduct will improve in the near future. The evidence of record established that

from the inception of A.F.’s case plan until the termination trial, she made virtually

no progress in fulfilling the case plan requirements.

In order to terminate the parental rights of a parent under La.Ch.Code

art. 1015(6), DCFS has to prove by clear and convincing evidence that a year has

passed since the child was removed pursuant to court order; (2) there has been no

substantial compliance of the case plan by the parent; and (3) there is no reasonable

expectation of significant improvement in the parent’s condition or conduct in the

near future.

There is no dispute that a year has passed since E.O. was removed pursuant to

court order. A.F.’s case plan required her to obtain stable housing, obtain a legal

source of income, make the aforesaid monthly parental contributions, undergo

substance abuse treatment or a mental health assessment/psychological evaluation,

participate in parenting classes, and maintain contact with E.O.

According to the record, A.F. only made an effort to comply with visitation

and the requirement to undergo substance abuse treatment. A.F. entered into

inpatient treatment for substance abuse twice in 2017; however, she left treatment

both times against medical advice. A.F. missed the vast majority of her scheduled

visits with E.O. Mr. Daye testified that before trial in August 2018, A.F.’s last visit

with E.O. was on December 13, 2017, and her visits were sparse and sporadic prior

to that.

Mr. Daye testified A.F. failed to provide verification of stable housing, a legal

source of income, and participation in parenting classes. A.F. claimed to have stable

housing and testified that she was cleaning houses for cash. However,

A.F. acknowledged not providing Mr. Daye with verification of her claims.

12

Based upon our review of the record, A.F.’s arguments are not supported.

Thus, we find no error in the trial court’s finding that DCFS proved by clear and

convincing evidence A.F. failed to substantially comply with her case plan and there

is no reasonable expectation of significant improvement in her conduct in the near

future.

Best Interests of the Child

Finally, A.F. alleges DCFS did not offer, nor could the trial court have

possibly considered, evidence pertaining to E.O.’s best interest. Thus, A.F. argues

the trial court clearly erred by finding it was in E.O.’s best interest A.F.’s parental

rights be terminated. We disagree.

As the Louisiana Supreme Court stated in State ex rel. K.G., 841 So.2d at 762,

(quoting State ex rel. J.A., 99-2905 (La. 1/12/00), 752 So.2d 806, 810-11), “[t]he

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.” In the instant case, E.O. was just one month old when he was

removed from his parents’ care. At the time of the termination trial, he had been in

foster care for sixteen months.

Despite being given time and opportunity, the evidence is clear that A.F. was

unable to show she could consistently provide for the physical, emotional, and

mental needs of E.O. Accordingly, we find it was not manifestly erroneous for the

trial court to find that DCFS satisfied its burden of proving that it was in the best

interest of E.O. that A.F.’s parental rights be terminated.

13

DECREE

For the foregoing reasons, we affirm the judgment of the trial court

terminating the parental rights of A.F. to her minor child, E.O. Costs of this appeal

are assessed to A.F.

AFFIRMED.

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