State in the Interest of L. S.

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

20-345

STATE IN THE INTEREST OF
L.S.

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APPEAL FROM THE
SIXTEENTH JUDICIAL DISTRICT COURT
PARISH OF ST. MARTIN, NO. 17-JV-18865
HONORABLE LEWIS H. PITMAN, JR., DISTRICT JUDGE

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CANDYCE G. PERRET
JUDGE

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Court composed of Shannon J. Gremillion, Van H. Kyzar, and Candyce G. Perret,
Judges.

AFFIRMED; MOTION TO WITHDRAW GRANTED.

S. Marie Johnson
110 French Street, Suite A
New Iberia, LA 70560
(337) 849-2556
COUNSEL FOR OTHER APPELLANT:
H.G. (Mother)

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

Shentell Brown
203 Main Street, Suite 105
New Iberia, LA 70560
(337) 335-8493
COUNSEL FOR OTHER APPELLEE:
State of Louisiana

Hazel Coleman
112 West Bellevue Street
Opelousas, LA 70570
(337) 948-4856
COUNSEL FOR OTHER APPELLEE:
M.S. (father)

Chantel Conrad
825 Kaliste Saloom Road, Suite 150
Brandywine Building 3, Suite 150
Lafayette, LA 70508
(337) 262-2250
COUNSEL FOR OTHER APPELLEE:
State of Louisiana,
Department of Children and Family Services

PERRET, Judge.

The appellant, H.G., appeals a judgment terminating her parental rights to

the minor child, L.S., as well as the trial court’s certification of L.S. for adoption.1

The father, M.S., stipulated to the termination of his parental rights prior to trial.

Following a three-day trial, the trial court found that H.G. had not complied with

her case plans by failing to complete substance abuse treatment, failing to obtain

and maintain stable housing, failing to address her mental health issues, and that

there was no reasonable expectation of significant improvement in her conduct in

the near future.

Court-appointed counsel for H.G. filed a brief indicating there are no non-

frivolous issues that can be raised on appeal and requested that this court conduct a

review of the record in accordance with Anders v. California, 386 U.S. 738, 87

S.Ct. 1396 (1967), State v. Jyles, 96-2669 (La.12/12/97), 704 So.2d 241 (per

curiam), and State v. Benjamin, 573 So.2d 528 (La.App. 4 Cir. 1990). Counsel for

H.G. further requests permission to withdraw as counsel of record pursuant to

Anders. For the following reasons, we affirm the trial court’s judgment

terminating the parental rights of H.G. to L.S. Additionally, counsel’s motion to

withdraw as counsel of record is granted.

FACTS AND PROCEDURAL HISTORY:

On August 29, 2017, by an Instanter Order, L.S. entered the custody of the

Department of Children and Family Services (“DCFS”). Specifically, the order

provided, in pertinent part (underlining omitted):

The minor child is a victim of Neglect/Lack of Adequate
Supervision/Dependency. [H.G.] is the mother of [L.S.] who is 7
years old, whom [sic] demonstrates minimum ability to provide
adequate care and supervision to the child. Mr. [T.G.] is [H.G’s] live
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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 child involved in the proceeding.

in boyfriend and [H.G.] is also dating Mr. [C.L.] simultaneously. Due
to consistent stories of substance abuse usage between caretakers per
the allegations and collaterals, it is determined to be a dangerous
situation which places [L.S.] in danger of serious harm. In 2014
[L.S.] was previously in Foster Care due to being lost in the woods
with his mother for 27 hours, because she was under the influence of
illegal substances, and could not find her way out of the woods. Due
to [H.G.’s] past history with the agency in regards to illegal
substances interfering with her ability to care and protect [L.S.] causes
more concerns of the child being in life and death harm[s] way[]
again. The constant illegal substance abuse usage by the caretaker and
those she leaves [L.S.] with is placing him in danger; while also
leaving him two to three days at a time without making arrangements
with suitable caretaker’s [sic] places the minor child in danger/harm
and it [is] deemed necessary that [L.S.] is placed in the custody of the
State of Louisiana[.]

On September 5, 2017, a continued custody hearing was held, at which time

the court ordered that L.S. remain in the custody of the State. Thereafter, on

September 7, 2017, a Petition for Child in Need of Care was filed by the State.

Following a hearing on November 21, 2017, L.S. was adjudicated as a child in

need of care and remained in the custody of the State.

On January 7, 2019, the State filed a Petition for Termination of Parental

Rights and Certification for Adoption. On February 7, 2019, H.G. entered a denial

to the allegations in the termination petition.

After a trial in August of 2019, the trial court ruled in favor of the DCFS

upon finding that the termination of parental rights is in the best interest of L.S.

because “[H.G.] has not completed her case plan with regards to substance abuse

treatment, housing and mental health.” On September 10, 2019, the trial court

signed a written Judgment of Termination of Parental Rights and Certification for

Adoption that stated, in pertinent part:

[T]he State of Louisiana, [DCFS] has proved by clear and convincing
evidence under Louisiana Children’s Code Articles 1015(6), in
regards to the mother, [H.G.] that, said parent has failed to
substantially comply with her case plans for failing to complete
substance abuse treatment, failing to obtain and maintain stable
housing, failing to address her mental health issues, and lack of
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substantial improvement in redressing the problems preventing
reunification; that there is no reasonable expectation of significant
improvement in said parents’ condition or conduct in the near future;
and, that the termination of parental rights is in the best interest of the
minor child [L.S.]

On appeal, counsel for H.G. alleges the following sole assignment of error:

The decision of the trial court terminating the parental rights of
[H.G.] and the certification for adoption of the minor child in State of
Louisiana in the Interest of L.S., . . . should be reviewed for its
correctness under the same procedure used in criminal cases,
commonly referred to as an Anders, Benjamin or Jyles brief.

STANDARD OF REVIEW:

“A trial court’s findings on whether or not parental rights should be

terminated are subject to the manifest error standard of review.” State in Interest

of J.K.G., 11-908, p. 5 (La.App. 3 Cir. 1/11/12), 118 So.3d 10, 14. “Moreover,

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

rehabilitation, and the expectation of significant improvement in the parent’s

condition or conduct are all questions of fact that may not be set aside in the

absence of manifest error or unless clearly wrong.” State in the Interest of O.L.R.,

13-616, p. 3 (La.App. 3 Cir. 11/6/13), 125 So.3d 569, 571.

DISCUSSION:

In State ex rel. D.H.L., 08-39, pp. 4-5 (La.App. 3 Cir. 4/30/08), 981 So.2d

906, 910 (footnotes omitted), this court discussed the State’s burden of proof in

termination of parental rights proceedings as follows:

Our supreme court has recognized that the gravity of
terminating parental rights requires our courts to impose a stricter
standard of proof than the preponderance of the evidence standard;
rather, the State must prove by clear and convincing evidence at least
one of the statutory grounds contained in La.Ch.Code art. 1015 in
order to terminate a parent’s rights. See State ex rel. J.M., 02-2089
(La. 1/28/03), 837 So.2d 1247; La.Ch.Code art. 1035(A). “Further,
even upon finding that the State has met its evidentiary burden, a
court still should not terminate parental rights unless it determines that
to do so is in the child’s best interests.” State ex. rel. J.M., 837 So.2d
at 1253; see also La.Ch.Code art. 1037(B).
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Louisiana Children’s Code Article 1015 sets forth the following pertinent

grounds for termination of parental rights:

(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.

Louisiana Children’s Code Article 1036 sets forth the necessary proof of

parental misconduct and provides, in pertinent part:

C. Under Article 1015(6), lack of parental compliance with a case
plan may be evidenced by one or more of the following:

....

(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.
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(8)(a) The parent’s failure to provide a negative test result for all
synthetic or other controlled dangerous substances, except for any
drug for which the parent has lawfully received a prescription, at the
completion of a reasonable case plan.

....

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.

Here, the trial court ruled in favor of the DCFS, finding clear and convincing

evidence to support the termination of H.G.’s parental rights under La.Ch.Code art.

1015(6). We agree. The testimony and evidence support the trial court’s finding

that H.G. has failed to substantially comply with her case plans since she continues

to have substance abuse issues and has yet to obtain stable housing for L.S.

This court in State in Interest of K.R., 11-1376, p. 2 (La.App. 3 Cir. 3/7/12),

85 So.3d 830, 831, determined that the application of an Anders analysis to a

termination of parental rights proceeding was appropriate and stated:

We are persuaded by the arguments of counsel and the court in State
ex rel. D.A.G.,[05-1806 (La.App. 1 Cir. 5/5/06), 935 So.2d 216], that
the filing of a brief and motion to withdraw in conformity with the
requirements of Anders and its progeny best protect the interests of
the parents, children, State, and the court in cases involving the
termination of parental rights.

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Upon reviewing the trial court’s decision for correctness under an Anders

analysis, we find that the testimony and evidence submitted into the record at trial

clearly supports the findings of the trial court terminating the parental rights of

H.G. and certifying L.S. eligible for adoption. Our independent review reveals no

non-frivolous issues and no ruling that arguably support an appeal. As such, we

hereby grant appellate counsel’s motion to withdraw.

DECREE:

For the foregoing reasons, the judgment of the trial court is affirmed. The

request by counsel for H.G. to withdraw is granted.

AFFIRMED; MOTION TO WITHDRAW GRANTED.

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

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