State in the Interest of P. L. J.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

22-14

STATE IN THE INTEREST OF

P.L.J.

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APPEAL FROM THE
FOURTHEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 34063
HONORABLE W. MITCHELL REDD, DISTRICT JUDGE

**********

SHANNON J. GREMILLION
JUDGE

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Court composed of Shannon J. Gremillion, John E. Conery, and Gary J. Ortego,
Judges.

AFFIRMED.

Annette Roach
CINC Appellate Project
Roach & Roach, APLC
4315 Lake Street, Suite 4
Lake Charles, LA 70605
(337) 436-2900
COUNSEL FOR APPELLANT:
A.S. (mother)

Heath J. Dorsey
1919 Kirkman Street
P.O. Box 1487
Lake Charles, LA 70601
(337) 491-2545
COUNSEL FOR APPELLEE:
State of Louisiana
Department of Children and Family Services

GREMILLION, Judge.

The mother, A.S., appeals the termination of her parental rights to her minor

child, P.L.J., and the certification of P.L.J. for adoption.1 For the following reasons,

we affirm the termination of A.S.’s parental rights and P.L.J.’s certification for

adoption.

FACTUAL AND PROCEDURAL BACKGROUND

P.L.J. was born January 3, 2020, at home. The next day, mother and child

were transported to the hospital, where P.L.J. tested positive for methamphetamine

and exhibited signs of withdrawal. The Louisiana Department of Children and

Family Services (DCFS) determined that P.L.J. could not safely leave the hospital,

and A.S. did not wish to bring the child to her residence. An Instanter Order was

signed January 6, 2020, by the trial court, finding reasonable grounds existed to

believe that P.L.J. was a neglected child in need of care (CINC). The affidavit in

support of the instanter order attested that A.S. was an I.V. drug user of

methamphetamine for the past six years and had methamphetamine and

benzodiazepines in her system upon arrival to the hospital. It further noted that A.S.

had her rights terminated to three other children following agency involvement.

On January 8, 2020, DCFS filed a CINC petition alleging that P.L.J. was a

neglected CINC. Following a February 13, 2020 hearing, A.S. stipulated that P.L.J.

was a neglected child in need of care. Three case plans were filed and approved by

the trial court on February 13, 2020, May 5, 2020 and January 7, 2021. The case

plans set forth detailed goals and requirements for successfully completing the plan.

Reports generated by DCFS indicated no progress by A.S. in obtaining substance

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Initials are used throughout in accordance with Uniform Rules—Courts of Appeal, Rule
5-2, in order to protect the identity of the minor.

abuse treatment, that A.S. did not have stable housing, and that A.S. had not obtained

a job.

On March 29, 2021, DCFS filed a petition for certification for adoption and

termination of parental rights of A.S. to P.L.J. DCFS claimed that A.S. had

abandoned her child, failed to support her child, there had been no substantial

compliance with the case plan, and there was no reasonable expectation of

significant improvement. DCFS alleged that A.S. failed to secure stable housing,

failed to obtain mental health counseling, failed to undergo substance abuse

treatment, continued to test positive for illegal substances, among other things, and

failed to address the persistence of conditions that led to removal.

Following a two-day hearing on July 7, 2021 and August 18, 2021, A.S.’s

parental rights were terminated. A judgment terminating A.S.’s parental rights was

signed on June 20, 2019. A.S. now appeals the trial court’s termination of her

parental rights and P.L.J.’s certification for adoption assigning as error:

1. The court manifestly erred in terminating the parental rights of
A.S. because the agency failed to show by clear and convincing
evidence that: factors beyond A.S.’s control did not hinder her ability
to progressively work her case plan; that DCFS provided reasonable
efforts to assist A.S. in completing her case plan; and, that there was no
reasonable expectation of a significant improvement in the near future.

2. The court manifestly erred by finding that the State proved by
clear and convincing evidence that termination of A.S.’s rights was in
the best interests of P.L.J.

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

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terminate her rights. Lassiter v. Dep’t of Soc. Servs. of Durham Cty., 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, 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. State ex rel.

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(5) sets forth the following as grounds

for termination of a parent’s rights to her child:

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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) sets forth another ground for

involuntary termination of a parent’s rights to her child:

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(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.

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(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.

(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.

(b) For purposes of this Article, “controlled dangerous substance”
shall have the meaning ascribed in R.S. 40:961.

Louisiana Children’s Code Article 1037(B) further requires that the trial court

find that the termination is in the best interests of the child and that it provide written

findings for terminating the parental rights to a child.

Evidence at trial included DCFS records and the testimony of various

witnesses.

July 7, 2021 hearing

Christina Phillips, a child welfare supervisor with DCFS, testified that she had

worked for DCFS for nearly fourteen years and was assigned to P.L.J. She testified

that P.L.J. was born drug-affected and that A.S. did not have any means for providing

for the infant. P.L.J. was adjudicated a CINC. She stated that P.L.J. had been in the

State’s care since January 4, 2020. Phillips reviewed the case plans set forth for A.S.

One component of the case plan was obtaining and maintaining stable housing.

Phillips testified that A.S. was unable to complete this requirement. Initially, she

lived in a home with frequent drug use, she was then homeless and living in a tent,

and after Hurricane Laura, she lived in a motel in the New Orleans area. She

returned to Lake Charles and was homeless and living in a tent again. At the time

of trial, A.S. had been living in a sober living facility since June 23, 2021. Phillips
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testified that the sober living facility is not appropriate housing because children are

not allowed, and the rooms are shared and do not have space for an infant. Phillips

testified that DCFS was unable to make contact with A.S. for extended periods of

time from February to May 2021 because her phone was not working and she was

moving from place to place.

The case plan required that A.S. provide proof of income; however, A.S. has

been unable to provide any. Instead, she relies on her boyfriend’s workers’

compensation and social security benefits.

A.S. was required to submit to a substance abuse assessment with an agency-

approved provider. A.S. did complete the assessment. Initially, outpatient treatment

was recommended, but because of her ongoing substance abuse, inpatient treatment

was recommended. However, A.S. would need to detox because she was an IV drug

user. Phillips testified that A.S. had not complied with inpatient treatment and had

only recently started to address her substance abuse issues, which was inadequate.

On cross-examination, Phillips was shown a treatment plan created June 1, 2021 by

Imperial Calcasieu, but she was unsure if A.S. had complied with the plan.

A.S. was required to submit to random drug screens, which she complied with

when she could be found. Phillips testified regarding the drug screens maintained

as part of DCFS records. A.S. was tested on 2/18/20, 7/21/20, 7/28/20, 1/29/21, and

5/13/21, and all tests were positive for a combination of amphetamines,

benzodiazepines, opiates, and marijuana. One drug test performed by Excelsior

House (the sober living facility) on June 23, 2021, the date A.S. entered the facility,

was reported as having a negative result. However, this form did not indicate what

type of test was conducted (urine, hair) or what types of substances it tested for. It

essentially was a dated form with “negative” written on it.

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The case plan further required that A.S. receive a mental health assessment

and follow recommendations of an agency-approved provider. Although she

submitted to the assessment, she did not follow through with the recommendations.

A.S. did visit with P.L.J. in person and then virtually when P.L.J. moved to

Washington in October or November 2020. Ms. Olivier is the party with whom

P.L.J. was placed, and she is the adoptive mother of A.S.’s biological son that A.S.

no longer has parental rights to. Phillips testified that P.L.J. is eighteen months old

and doing well, although small for her size being in the seventh percentile for her

age. Phillips testified that DCFS recommended that A.S.’s rights be terminated and

that it was in the best interest of P.L.J. that she be freed for adoption.

A.S. brought some clothing for the infant at the beginning of the case but no

other support since that time. Phillips did admit that the case plan did not set forth

a specific amount A.S. was to pay but that a parent is not limited by a set amount,

noting “they can make any parental contribution toward the care of their child while

in foster care.”

Phillips opined that A.S. did not substantially comply with her case plan. Nor

did she feel there was a reasonable expectation of significant improvement in the

near future that A.S. would complete her case plan.

Phillips was questioned about the effects of hurricanes and the COVID

pandemic. She stated that DCFS offices were closed at times,2 but they continued

to work. She said DCFS provided parents with cell phones or tablets so that they

could continue to work their case plans and have virtual visits with their children.

Phillips conceded that finding housing after the devastation wrought by hurricanes

was difficult, though not impossible.

2
DCFS’s physical building was closed following Hurricane Laura in late August 2020 for
six or seven days; following Hurricane Delta, following an iced storm for a week, and following a
flood, however, DCFS workers continued to work despite the closures.
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August 18, 2021 hearing

A.S. testified that she has struggled with addiction and was using drugs when

pregnant with P.L.J. She stated that had been “clean” since May 8, 2021. She

admitted that she procrastinated in addressing her addiction issues, but she feels that

she is moving in the right direction. She noted that she had given birth to a son on

July 24, 2021, between the last court appearance and this one and the drug test

administered on the day of his birth was negative. However, she admitted she had

used methamphetamines while pregnant with her most recent child. A.S. stated that

she felt she only lost contact with DCFS for a two-week period when she did not

have a phone. She said that she sent text messages to the caseworker but received

no response. A.S. testified that she did not get a job because she relies on her

boyfriend, P.L.J.’s father, for money. A.S. said that “2020 was a very chaotic year

for everyone, and nobody knew what was anybody’s best interest, and I think that

everybody did the best that they could.”

A.S. stated that after Hurricane Laura destroyed the home she was living in,

she “pitched a tent in a former landlord’s backyard,” where she lived from December

9, 2020 thru April 7, 2021. She said she would be able to support P.L.J. because she

and her boyfriend are not spending all of their money on drugs. A.S. said that she

did not look for a job because she and her boyfriend decided that she was not going

to work, and she still did not work at the time of trial. She stated that they were able

to survive on her boyfriend’s $1,300 a month in benefits.

A.S. claimed that Imperial Calcasieu conducted a substance abuse assessment

in February 2021 and was to begin in March, but because she had coronavirus, she

was not allowed to start until June. A release of medical information was submitted

into evidence dated May 25, 2021. When questioned whether she had made

substantial improvement in addressing her problems, A.S. stated:
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I feel like I’ve reached a little bit of sobriety. I’ve had another child
since then that is not drug affected. I obtained a permanent home again,
and I’m in therapy with my same therapist. I’ve re-engaged with my
mental health therapy to address, you know, the underlying things that
kept me using. I feel like I’m addressing all of my issues. I’m not
saying that I’ve conquered them, or, you know, It’s going to be
continual work.

A.S. testified that she lived at a home that was damaged in Hurricane Laura from

August 2020 thru December 9, 2020. Then from December 9, 2020 thru April 7,

2021, she lived in a tent. On April 7, 2021, she moved to a hotel. She then moved

into the Excelsior House in June 2021. A.S. testified that she moved to Lafayette on

July 30, 2021, nineteen days before trial, and was living with her boyfriend and

newborn son in a one-bedroom apartment. A.S. testified that she had to move to

Lafayette because she could not continue living at Excelsior House with her newborn

son and there was nowhere affordable to go in the Lake Charles area. A.S. testified

that the owner of Excelsior House leased the apartment for them and they are making

payments to him. A.S. had an appointment the next day at the Salvation Army to

get furniture for the apartment. She testified that she and her boyfriend sleep on an

air mattress, and the newborn sleeps in a pack and play. A.S. said that she gave

DCFS Olivier’s name because Olivier already had adopted her eleven-year-old son.

At the time of trial, A.S. said she was receiving substance abuse treatment

from Imperial Health and attends telehealth sessions with Kim Hebert of Compass

Counseling for mental health issues. She stated it is a once-a-month standing

appointment. She was unsure whether DCFS had received any records from Hebert.

Neither she nor her boyfriend have a driver’s license or vehicle. She testified that

she intended to have a treatment plan set up in Lafayette, but had not yet done so.

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The Trial Court’s Ruling

The trial court found that DCFS failed to prove abandonment by A.S. because

DCFS never told A.S. a specified amount she should be sending to support P.L.J.

The trial court found that A.S. did not have stable housing and did not have any

income, finding it perplexing that she and her boyfriend decided she should not work.

The trial court further found:

Substance abuse treatment, currently the parties are under NA –
or attending NA meetings. There’s no evidence that they actively
sought the treatment prior to that time. There is a history of drug use.
The Court is really concerned about the fact that a child was born to the
couple as recently as July 24th of 2021. I was very happy to hear that
the child was not substance exposed.

I was very concerned to put together the time line that [A.S.]
relapsed and used methamphetamines, not just during the pregnancy
but just over two months prior to the child being born[.]

The trial court noted the difficulties suffered by the entire community posed

by hurricanes and other weather-related emergencies along with COVID but noted

that:

One, during that time, while no progress was being made on the
case plans, the child was in foster care, and time didn’t stop for the child.
The child has been in foster care essentially since birth, and time did
not stop for the child posthurricane, and the child was there, bonding
with the foster parents. There was testimony on the first day that the
child is doing very well and is in an adoptive placement there.

The second thing is the substance abuse issue, which is the issue
which led the child to come into custody to begin with, has not by
[A.S.]’s admission, improved in the sense that there was a relapse 17
months into this case.

With that, the Court notes that also there was very little progress
on the case plan prior to the filing really of the termination of parental
rights petition. [A.S.] admitted in her testimony that she did
procrastinate on some of those items as well.

The documents produced today by [A.S.] relate to a treatment
plan from IMCAL, I believe it was, dated June 1st of 2021, authorization
to release records from IMCAL from May 25th of 2021, and honestly,
those are things that could have been done a year prior or so.

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We talked about housing. The Court is not convinced that the
parties are in housing that is secure and stable. So with that, the Court
is going to find that the State did in fact meet its burden of proof by
clear and convincing evidence that the parents failed to choose
substantial compliance with the requirements of their case plan,
specifically the fact that the child came into care due to issues related
to substance abuse, which has not at this point been addressed by the
parties. That behavior, that condition which led the child[] to be
removed has not significantly improved.

As to the factor that is there a reasonable belief that the parents
would successfully work the case plan if we granted them additional
time, again, based on the recent relapse and continued drug use, the
Court is going to find, no, that there would not be and that the best
interest of the child would be served by the granting of the termination
of parental rights.

We find no manifest error in the trial court’s findings. From the record, A.S.

was only successful in completing the part of her case plan relating to maintaining

contact with her child. She did visit P.L.J. in person at first, sometimes walking or

riding a bike to the DCFS office and virtually once P.L.J. moved. Otherwise, A.S.

failed on every aspect of her plan. Obtaining a substance abuse treatment plan on

June 1, 2021, is insufficient to evidence substantial compliance with her case plan.

Neither hurricanes nor COVID prevented A.S. from earlier entering substance abuse

treatment. Moreover, testing positive for methamphetamines while pregnant with

yet another child a mere two months before the trial does not indicate the likelihood

of any substantial improvement. On the contrary, it indicates the continuation of

subjecting newborn infants to exposure to illegal drugs and putting her desires above

her children’s safety.

A.S. argues that DCFS did not prove by clear and convincing evidence that it

made reasonable efforts to assist A.S. as required by La.Ch.Code art. 626(B) before

resorting to termination of her parental rights. We disagree. DCFS gave A.S. all the

assistance and information she needed to begin the most significant aspect of her

plan, i.e., substance abuse treatment. A parent need only fail to meet one of the case

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plan requirements for her rights to be terminated. State in the Interest of J.A., 17-

500 (La.App. 3 Cir. 1/4/18), 237 So.3d 69. Moreover, this is not A.S.’s first

encounter with DCFS. She should be well aware by now of how case plans work

since she has lost custody to three of her other children. Finally, as we have recently

stated:

We have previously noted that parents do not have unlimited
years to decide to work their case plans. The on-and-off-the-case-plan
method of attempting to regain custody of one’s child fails—not only
fails for the underlying reasons that warranted the removal, but because
the longer a child remains in a stable placement, the less it is in the
child’s best interest to have the stability of a stable placement disturbed
by a return to their biological parent. See State in the Interest of Z.C.,
14-1082 (La.App. 3 Cir. 2/11/15), 157 So.3d 1204.

State in the Interest of I.C., 21-119, pp. 9-10 (La.App. 3 Cir. 11/3/21), 330 So.3d

703, 708-09.

Similarly, deciding to start working your case plan eighteen months in is

unacceptable. A.S. failed to complete her case plan, and we find no reasonable

expectation of improvement. It is in the best interest of P.L.J. that she remains in

the stable home she has enjoyed for more than two years and be freed for adoption.

A.S. complains that the trial court failed to articulate why it would be in P.L.J.’s best

interests for A.S.’s rights to be terminated. A.S. states, “Although the child has

likely forged a bond with the foster parents, it should not override the familial bond

she shares with A.S.” We disagree. P.L.J. is in a placement with the familial bond

of her half-brother. Moreover, P.L.J.’s best interest is not served by being subjected

to her mother’s last-minute attempt to obtain sobriety and provide a stable living

environment for her children.

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CONCLUSION

The judgment of the trial court terminating A.S.’s rights to P.L.J. and

certifying her for adoption is affirmed.

AFFIRMED.

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