State in the Interest of E. A. F.

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

22-106

STATE IN THE INTEREST OF

E.A.F.

**********

APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. JC-2016-943
HONORABLE THOMAS R. DUPLANTIER, DISTRICT JUDGE

**********

CANDYCE G. PERRET
JUDGE

**********

Court composed of Billy Howard Ezell, Candyce G. Perret, and Charles G.
Fitzgerald, Judges.

AFFIRMED.

Jane Hogan
Hogan Attorneys
310 North Cherry Street
Hammond, LA 70401
(985) 542-7730
COUNSEL FOR APPELLANT:
J.F.

Diane E. Cote
825 Kaliste Saloom Road
Brandywine III, Room 150
Lafayette, LA 70508
(337) 262-5913
COUNSEL FOR APPELLEE:
State of Louisiana, Department of Child and Family Services

Brittany Edwards
Attorney at Law
100 S. Louisiana, Suite 500
Abbeville, LA 70510
(337) 740-8885
COUNSEL FOR APPELLEE:
E.A.F.

Franchesca L. Hamilton-Acker
Tia Benton
Kimberly Latigue Arvie
Acadiana Legal Service Corporation
Post Office Box 4823
Lafayette, LA 70502-4823
(337) 237-4320
COUNSEL FOR OTHER APPELLEE:
E.A.F.

Nicole M. Guidry
Attorney at Law
100 S. Louisiana, Suite 500
Abbeville, LA 70510
(337) 740-2149
COUNSEL FOR OTHER APPELLEE:
J.R.

Donald Dale Landry
District Attorney
Dinah Sledge Cain
Assistant District Attorney
Tracey Davenport-McGraw
Assistant District Attorney
Post Office Box 3306
Lafayette, LA 70502
(337) 232-5170
COUNSEL FOR OTHER APPELLEE:
State of Louisiana

Casa Coordinator
c/o Casa of SoLa
215 E Pinhook Road
Lafayette, LA 70501
(337) 268-5111
COUNSEL FOR OTHER APPELLEE:
CASA of SOLA

PERRET, Judge.

Following a one-day hearing, the trial court made a factual determination that

J.F., the biological father of E.F., had “failed to substantially comply with his case

plan, including: Failing to have demonstrated an ability to care for the child over the

last five years.” 1 J.F. now appeals the October 11, 2021 judgment that terminated

his parental rights to his minor child, E.F.2 For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY:

According to the March 3, 2021 Petition for Termination of Parental Rights

and Certification for Adoption, E.F. was born on May 4, 2016, and has been in the

custody of the Department of Children and Family Services (“DCFS”) since

September 27, 2016, “on the grounds of neglect and that the child was born

substance exposed and was adjudicated ‘Child in Need of Care’ on October 26, 2016.”

The petition states that E.F. “is currently residing in St. Martin Parish, Louisiana[,]

with adoptive foster parents.” The petition requests for the parental rights of J.F. to

be terminated pursuant to La.Ch.Code art. 1015(5) because he has “failed to provide

significant contributions to the child’s care and support for any period of six

consecutive months” and has “failed to maintain significant contact with the child

by visiting her or communicating with her for any period of six consecutive months.”

The petition also requests for the parental rights to be terminated under La.Ch.Code

art. 1015(6) for the following reasons:

(a) The father has repeatedly failed to comply with the required
program of mental health and/or substance abuse treatment,

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 child involved in the
proceeding.
2
The trial court previously terminated the mother’s, J.R.’s, parental rights on July 30, 2019,
a ruling that was not appealed and is now final.

individual therapy and rehabilitation services provided in the
case plan.

(b) The conditions that led to the removal or similar potentially
harmful conditions continue to persist.

(c) The father has failed to cooperate in the completion of the case
plans designed for reunification of the family.

(d) The father suffers from mental illness and/or substance abuse
issues which render him unable and/or incapable of exercising
parental responsibilities without exposing the minor child to a
substantial risk of serious harm, based upon expert opinion[.]

(e) The father has failed to refrain from criminal activity and has
been arrested and charged with criminal damage to property,
aggravated criminal damage to property; illegal use of a weapon;
and on or about September 24, 2020[,] he was arrested with 2
counts of Aggravated Assault with a firearm and 1 count of
contributing to the delinquency of a Juvenile.

After a hearing on September 29, 2021, the trial court found that the DCFS

satisfied its burden of proof under the “Louisiana Children’s Cod[al] Articles 1015(5)

and 1015(6), in regard to the father, [J.F.], that at least one year has elapsed since

the child, [E.F.], was removed from the father’s custody pursuant to a court order”

and that J.F. has “failed to substantially comply with his case plan.” Specifically,

the trial judge found: (1) J.F. failed to demonstrate an ability to care for E.F. over

the last five years; (2) J.F. was unable to learn the specific medical needs, care and

ability to put those in place for E.F.; (3) J.F. had limited resources that rendered him

incapable of exercising parental responsibilities; and (4) J.F. failed to demonstrate

to the court, over the last two years, a change in his parental abilities. The trial court

found that “there is no reasonable likelihood of compliance with the case plan in the

near future” and that E.F. “is flourishing in the care of the foster parents.”

Accordingly, the trial court ruled that it is in the best interest of E.F. for the parental

rights of J.F. to be “permanently and irrevocably terminated.”

2

In his lengthy oral reasons for terminating J.F.’s parental rights to E.F., the

trial judge stated:

So ordinarily, in a case like this, I would take the matter under
advisement, but today I’m not because I want Mr. [J.F.] to hear why
and where my thoughts are. So the first thing I want to tell you, Mr.
[J.F.], is that you’re certainly a fighter. There is no doubt that you have
a longing to parent your children. You have, in this matter as well as
the other matters, demonstrated to me a desire, at least, to try to be the
best parent you can be.

My problem in this case from the beginning, is that I think there
are limited resources, and it’s not your fault. Like I said, you talk about
learning on the fly, and learning from your children, and all those things.
I have no doubt that you have. But there are certain things that I don’t
know that either you have been able to learn or that you are capable
of . . . . And two years ago, in ’19, at the second termination of your
parental rights, your lawyer advocated for you in a manner that you
should be very proud of. And you, at that time, were on the fence of
me terminating your parental rights then. And I was prepared to do that,
but I gave you an opportunity to show me from that point forward that
I was wrong, that this young child with these incredible special needs
could be handled -- and I don’t mean to embarrass you -- by someone
who didn’t necessarily possess all the skills that others might. And,
unfortunately, for you, you haven’t. You have not, in those two years,
been able to show me that anything has changed to demonstrate that I
believe you can care for this child with enormous special needs. I know
Mr. Dangerfield [J.F.’s legal counsel] wants me to believe that [E.F]
has done better, which she has. And in that foster home, this child has
grown from a child that almost perished to a child that is now doing
well. But she still has huge needs. At this time, Christine Dugas says
she is functioning a year or more below her chronical age of five. She
is being referred to yet another doctor, Dr. Julie McMurphy, for an
evaluation of autism on top of her heart, her gastro, and all of her other
needs. These are needs that need to be handled by someone with great
ability and skills.

During this two-year period, you’ve been arrested twice. You
spent two months in jail. Do I take from that that you are criminally
responsible for those two events? I can’t yet because they haven’t been
proven. But what I can say, you find yourself in a position to be arrested,
which gives me some concern for your children, whether you’re guilty
or not guilty, being involved in a situation and an issue that causes that.

At your visits, clearly, and again maybe not your fault, while
there’s a bond that you have with your child, your child is not bonded
to you in the same manner that a five-year-old could be or should be

3

bonded. The visits, whether they’re in the park, whether they’re in the
office, they’re just not the demonstration of those things.

One of the things that concerns me greatly, and I will tell you, I
was called last week to remove your other two children. I didn’t do it,
but the only reason I didn’t do it is because the offense that you were
charged in September -- September 11, 2021, has not been proven. And
the department couldn’t prove to me that it occurred at that time. But I
will tell you, if it’s proven, you’ve got a heck of a mountain to climb.
I’ve talked to Mr. Dangerfield about what I think the department should
do between now and the time of that, and that’s enter into some type of
safety plan where your mom’s involved and everything else; because if
one thing happens between now and then, I’m going to either remove
those children or place them somewhere else. I’m very concerned, Mr.
[J.F.] about some of the activities that are going on. And -- so that and
the fact that your two boys -- the two children at home have missed an
enormous amount of time since 2019, when I had this termination until
now, that causes me great concern in an ability to parent. It causes me
a lot of concern and it’s one of the main factors that I believe that the
termination for the parental rights of [E.F.] is in the place that it needs
to be.

You’ve worked many aspects of your case plan, but over the last
five years, this child has attached to the foster parents. I believe that
because of those special needs, and the ability for you to demonstrate
to me the ability to carry the parenting for that child, it is for those
reasons that I, today, terminate your parental rights with regards to
[E.F.].

On October 15, 2021, J.F. filed a motion for a new trial. After a hearing on

December 6, 2021, the trial judge denied the motion. J.F. now appeals, alleging the

following three assignments of error: (1) the trial court erroneously terminated his

parental rights due to a failure to substantially comply with his case plan; (2) the trial

court erred by finding termination was in the best interest of the child; and (3) the

trial court erred in denying the motion for new trial.

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 the Interest of J.K.G.,

11-908, p. 5 (La.App. 3 Cir. 1/11/12), 118 So.3d 10, 14. “Moreover, whether a

4

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. Under the manifest error standard, the appellate court does not

decide whether the factfinder was right or wrong; rather, the appellate court is

required to consider the entire record to determine whether a reasonable factual basis

exists for the finding, and whether the finding is manifestly erroneous or clearly

wrong. State in the Interest of C.E., 15-555, 15-556 (La.App. 3 Cir. 10/7/15), 176

So.3d 755.

DISCUSSION:

In State in the interest of 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).

Accordingly, in order to terminate parental rights, the State must first establish

at least one of the statutory grounds enumerated in La.Ch.Code art. 1015 by clear

and convincing evidence. Upon satisfying this evidentiary burden, the State must

then show that termination of parental rights would be in the best interest of the

child.

5

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:

(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

(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.

....

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.

ASSIGNMENTS OF ERROR NUMBERS ONE AND TWO:

In his first two assignments of error, J.F. argues the trial court erroneously

terminated his parental rights due to a failure to substantially comply with his case

plan and in finding that termination was in the best interest of E.F. J.F. argues the

trial court erred in finding that he lacked the skills to care for E.F. and that there was

no expectation of improvement in the near future when the record reflects that he

remained compliant with his case plan for nearly five years. In support of this

argument, J.F. alleges he maintained contact with DCFS, attended family team

7

meetings, completed two different substance abuse treatment programs, completed

a mental health evaluation, and completed a parenting course.

Based on a review of the entire record before this court, we disagree. This

matter has been before the trial court for over five years and the State sought to

terminate J.F.’s parental rights on three separate occasions. The trial court was

unwilling to terminate J.F.’s parental rights at the first two attempts by the State

despite evidence that J.F. was not in compliance with his case plan. As the trial

judge noted, after denying the State’s petition to terminate J.F.’s parental rights on

April 9, 2018, “Mr. [J.F.], I also don’t think you’ve totally worked your case plan by

any means.” Again, after denying the State’s second petition to terminate on July

30, 2019, the trial judge stated:

In this case, the Court finds that, while Mr. [J.F.] has not done all
those things necessary in his case plan, I do not believe that the
department has carried its burden in showing that it is not reasonable in
the foreseeable future for Mr. [J.F.] to meet those portions of his case
plan that have not already been met. Yes, he has not made his
contributions. Has he been consistent in his employment? No, he
hasn’t. . . . .

....

Substance abuse. I think he has addressed them. Is he perfect in
his substance abuse obtaining [sic]? No, he’s not. And that’s, certainly,
something Mr. [J.F.] is going to have to work on. . . . Could he be more
prompt on his visits and on his other things that he’s supposed to do?
Yes, he should and he could.

Following the dismissal of the State’s second petition to terminate J.F.’s

parental rights, the trial judge stated that “it is now incumbent upon the department

to put reunification as a primary goal, which . . . means visits need to be changed,

and that [the] department needs to move towards reunification.” Thereafter, Ms.

Latayna Roberts, the case worker with DCFS, provided correspondence to the trial

judge on its plan and goal of reuniting E.F. with J.F.

8

According to Ms. Roberts’ October 7, 2019 report on the case plan of

reuniting E.F. with J.F., “[a] structured decision making reunification assessment

was completed on Mr. [J.F.,]” and “[t]he results of the assessments gave Mr. [J.F.]

a Very High rating, indicating that [E.F.] would be at Very High risk of abuse/neglect

if returned to his home at this time[.]” J.F.’s case plan consisted of “housing,

employment, family visitation, parental contributions, and substance abuse

evaluation and compliance, and random drug screens.” Ms. Roberts continued to

provide reports to the trial judge throughout the year with the December 1, 2020

report being the last filed in the record prior to the third termination hearing. In that

report, Ms. Roberts noted the following facts: (1) J.F. “is not employed at this time[,]”

but that “he is in the process [of] applying for disability[;]” (2) “he has not provided

verification that he has paid parental contributions during this reporting period[;]”

(3) he “was arrested on September 24, 2020[,] . . . [and] charged with 2 counts of

Aggravated Assault with a Firearm and 1 count of Contributing to the Delinquency

of a Juvenile[;]” and (4) he “has a hold for St. Martin Parish . . . [and] is currently in

jail at Lafayette Parish Correctional Center . . . [and] [t]he agency does not have an

expected release date for Mr. [J.F.]” The report also states that E.F. has been “in

foster care for 51 months” and that J.F. “has not physically visited with [E.F.] since

in March 2020.” In regard to the health of E.F., the report states that she “is currently

under the care of an Ophthalmologist, Pulmonologist, Gastroenterologist,

Neurologist, Cardiologist, Audiologist and ENT” and that she “receives services

through Acadia Parish School Board with a special instructor and speech therapist

that meets with [her] weekly.”

At the September 29, 2021 termination hearing, the State called the following

witnesses to testify: (1) Leon Winters, a licensed clinical social worker; (2) Ms.

9

Roberts, the case worker for J.F.; (3) Kathryn Viator, a foster care worker and case

worker for J.F.; (4) Ashley Taylor, the case worker for E.F.; (5) Lauren Aillet, a

teacher with the Lafayette Parish School Board; (6) Quindalyn Charlot, E.F.’s

teacher at the Ross Headstart program; (7) and Cassandra McAlister, the current case

worker for J.F. J.F. was also called as a witness.

Mr. Winters testified that he met with J.F. on at least three occasions but

gained the most information from J.F. in their one hour, in-person assessment on

June 16, 2021. When asked his impression of J.F.’s parental capacity during his

visitation with E.F., Mr. Winters testified as follows:

A. So we did a court ordered monitored visitation with him [on
August 5, 2021], and just a synopsis of it, he did walk in a little late and
then they went into the room, and it seemed like they were engaged, it
seems like there’s a bond there; however, the child [E.F.] proceeded to
exit the room quite a few times, well, at least twice. And upon exit, it
seemed like he was not --

....

A. While there is a bond and there was positive engagement in the
visitation -- during the visitation, at any point in time when [E.F.]
needed to leave or she wanted to leave the room, there was not a lot of
parenting redirection that was taking place to get her back in the room
or to follow those directions.

Ms. Roberts testified that she was the case worker from August 2019 through

December 2020. During that time, Ms. Roberts testified that J.F. was arrested on

September 25, 2020, and was incarcerated until December 1, 2020. Ms. Roberts

testified that J.F. failed to provide her with any proof of employment but that he was

receiving Temporary Assistance for Needy Families (“TANF”) benefits and

Supplemental Security Income (“SSI”) benefits on behalf of his other two minor

10

children. Ms. Roberts testified that J.F. missed six3 of the scheduled family visits in

2019-2020 without providing a reason for his absence. When asked for her

observations during J.F.’s visits with E.F., Ms. Roberts testified:

A. For the visits -- the majority of the visits, he would either show
up late or end the visit early. Quite a few of the visits he was on the
phone, not really -- very little engagement with [E.F.]. Sometimes he
would bring his children to the visits, which we asked to limit that. One,
was a concern for excessive absences for one of the children, but also
it was for us to give us an opportunity to observe just him and [E.F.].
A lot of the visits it was just more so [E.F.] doing what she wanted to
do, not a lot of re -direction. A few of the visits, he did bring things for
her. Sometimes whenever we would have an opportunity to talk to him
about, like, you know, these are some of the things that we’re looking
for you to do, he would try to implement them, but the majority of the
visits it was a lot of the times he was on his phone and there wasn’t a
lot of engagement with [E.F.].

When asked if there were times when J.F. did not show up when asked to do

random drug screens, Ms. Roberts testified as follows:

A. Yes, there were a couple of times when we requested random
drug screens, he would either state that he was -- he had something
going, he was too busy to go and do the drug screens, or he had an
appointment. And then -- and then there was another incident in August
of 2019 where we instructed him to go for 1:00 -- before 1:00; he
showed up at 4:25, five minutes before the facility was to close. Wasn’t
able to collect the sample.

Ms. Roberts was also asked about the school attendance records of J.F.’s older

son and whether there was any concern regarding E.F.’s schooling if she would be

returned to the home. Ms. Roberts testified as follows:

It did raise a concern that if we’re not able to be consistent with
[J.F.’s son’s] attendance, if it would be the same with [E.F.], especially
with her medical issues that she has going on and the stability of being
in that environment, so it did raise some concerns for the agency.

3
Ms. Roberts provided the following dates of scheduled family visits that J.F. missed
without reason: October 23, 2019; November 27, 2019; December 11, 2019; February 26, 2020;
April 25, 2020; and April 1, 2020.

11

When questioned whether J.F. had been in substantial compliance with his

case plan, Ms. Roberts testified that “[t]hroughout the time that [she] had the case,

there were parts of the case where he was compliant and there were some parts where

he kind of fell off, so it was kind of up and down for his compliance.” Ms. Roberts

testified that despite the case plan requiring proof of legal employment, J.F. failed

to provide proof of obtaining legal employment during the time she had the case.

Ms. Viator began working with J.F. in December 2020 and officially replaced

Ms. Roberts as the case worker in January 2021. Ms. Viator testified that on

September 11, 2021, J.F. was charged with attempted second-degree murder with a

firearm and disturbing the peace by fighting and possession of unregistered weapon.

In regard to the supervised visits between J.F. and E.F., Ms. Viator testified as

follows:

When visits have been held between Mr. [J.F.] and [E.F.] at the
park, typically, it consists of Mr. [J.F.] watching [E.F.] play. I’ve
observed him playing on his phone, not being very active with E.F. as
she’s playing. She’s tried to run near the street, across the playground,
and there’s no sense of urgency for Mr. [J.F.] to attempt to make sure
that she’s protected, that she’s safe, which is why we’ve had to move
visits back to the office because it is a safety concern and Mr. [J.F.] was
not ensuring that, you know, he watched her well enough during those
visits. Also when he brings -- when he has brought his other two
children to the visits, majority of those, those children interact with
[E.F.] and Mr. [J.F.] observes that interaction rather than actively
participating in the visits. Visits that have been held at our office,
oftentimes, [E.F.] is hesitant to go with Mr. [J.F.] into the visitation
room. If he brings her a toy or he brings her candy or something like
that, she is -- she will go with him in the room. She appears to be
anxious during their time together, often looking out of the window.
She has asked the worker and myself if her mom, which is what she
refers to the foster parent as, is going to come back and get her from the
visit. She has tried to leave the room several times, she has left the
room several times, just wanting to leave. Again, Mr. [J.F.] will
minimally interact with her when she’s in the visitation room for visits.
When he does bring things for her to do, he will, for a short period of
time engage with her, but he plays on his phone, he’s not actively
involved. If she leaves the room, he doesn’t try to bring her back into
the room, he doesn’t make attempts, you know, to continue to get her

12

to want to be in the visitation room with him. He has ended visits
early[.]

Ms. Viator also testified that “[o]n a regular basis, Mr. [J.F.] was consistently

late to his visits, and oftentimes he ended the visits extremely early, he did not stay

the full hour.”

Ms. Taylor testified that she has been the case worker for E.F. for the past two

years. She testified that there have been twenty-eight visits scheduled since she has

had the case and that J.F. “has missed nine of them, six of them ended early, eight

of them he arrived late, . . . three visits he stayed the entire time, [and] one of the

visits was canceled due to COVID exposure.” When asked about the interaction

during the scheduled visits between J.F. and E.F., Ms. Taylor testified as follows:

The visits, the interaction was very minimal. If it was at the park,
there obviously were a lot of safety concerns when it comes to [E.F.]
running towards the road, running towards the parking lot, running
towards the pond, and myself and the foster parent did have to intervene
one of the visits to protect [E.F.]. Mr. [J.F.] does stay on his phone.
During the park visit, he was on his phone three different times. I did
go and talk to him about getting off his phone, and he told me that he
can still watch [E.F.] while being on his phone. Visits at the office,
same thing, he will text a majority of the time, [E.F.] is trying to exit
the room, she’ll stand by the door or she’ll look at the parking lot to see
if she can see her caretaker’s vehicle.

When asked whether E.F. appears to have a bond with J.F., Ms. Taylor

responded “No, she does not.” When asked specific questions regarding the bond

between E.F. and J.F. and the bond between E.F. and her foster parents, Ms. Taylor

testified as follows:

Q. Would you say, based on your observation of those interactions,
[E.F] has a closer bond to her father, Mr. [J.F.], or does [E.F.] have a
closer bond with her foster parents?

A. She definitely has a closer bond with her foster parents; she’s
been there for three and a half years, so that’s who she considers her
mom and dad.

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Q. And so have you ever witnessed or observed [E.F.] calling her
foster parents “Mom” and “Dad”?

A. Yes.

Q. And as far as the visitations with Mr. [J.F.] and [E.F.], have you
witnessed him cuddling or holding the child?

A. No.

Q. Have you witnessed affection or love?

A. No.

Q. As far as [E.F.]’s attention, has she ever gravitated towards her
father by initiating any affection, such as a hug?

A. No. The only time she would gravitate would be if he has a treat
or a snack to give her.

Q. Okay. Outside of the gumballs, the kinetic sand, and the nail
polish, has Mr. [J.F.] ever provided any clothing for [E.F.]?

A. Yes, he has. That’s the clothing that smells, you know, the
smoke.

Q. Okay. Has he ever provided any medical care or assistance with
[E.F.]?

A. No, not to my knowledge.

Q. Has he ever provided any educational materials for [E.F.] due to
her delay?

A. No.

Ms. Aillet testified that she works at the Lafayette Parish School Board and

was the itinerant teacher for J.F.’s six-year-old son. Although Ms. Aillet testified

that she was concerned about J.F.’s son’s schooling, she noted that it was common

for families to have problems with WiFi during Covid and that virtual learning was

an adjustment, especially considering that J.F.’s son was starting his first year of

school.

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Ms. Charlot testified that she taught E.F. for a year at Ross Headstart, a school

located in Crowley, Louisiana. When asked about E.F.’s behavior during that year,

Ms. Charlot testified as follows:

A. On a regular basis, it was good when she didn’t have home visits.
When she had home visits, I seen [sic] her body language different
when she would come and have home visits. On a daily basis, it was
fine without home visits, but I could tell when she would come back
from a home visit, because her body language was different[.]

Q. What was her behavior?

A. She didn’t want to do nothing. I had to encourage her to do her
work; rub her back and say everything is going to be okay, let’s do your
work for today. And after I did that, she did.

....

Q. So when you started observing these behaviors, did you confirm
with the foster parents about -- and you said home visits, did you mean
with her father?

A. Yeah, with her father. When she had the visits with her father,
she would have different language when she would come back to
school. She wouldn't want to do her work, and I’d have to rub her say,
come [E.F.] let’s do your work, encourage her to do it because I knew
she had a visit with him. But other than that, if she wouldn’t have a
visit it was different, she would do her work with no problems or
anything.

Ms. McAlister testified that she is the current case worker for J.F. and that she

was able to observe one visit between J.F. and E.F. on August 5, 2021. When

testifying to her observations on that day, Ms. McAlister stated:

[J.F.] was trying to play with [E.F.] [while] drawing, but it was
minimal. During the visit, she tried to get up, she did get up, she said
she didn’t want to be there, she started searching for the door, he did
get up with her, but he wasn’t trying to get her to sit back down. He
actually was walking beside her and opened the door for her to leave
out. At that time, . . . Mr. Winters and I walked out of the observation
room and [we] walked into the break room, the lobby area, where Mr.
[J.F.] and [E.F.] were sitting, and Mr. [J.F.] did say that [E.F.] wanted
to leave out the room, she didn’t want to be in there. Mr. Winters
suggested, you know, bring her back in there and try to visit with her.
So they went back in there; we went back into the observation room.

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He started trying to engage with her again, but she stopped writing and
she said she was ready to go. She went towards the door; she left out
again. There was no redirection or anything by Mr. [J.F.] trying to stop
her from leaving or anything[.]

J.F. was the last witness to testify at the hearing. J.F. testified that he has two

sons, ages ten and six who are presently being home schooled. He acknowledged

that he receives SSI benefits because the ten-year-old is ADHD and the six-year-old

is autistic and that his source of income is primarily through the SSI benefits. J.F.

testified that his parents assist him with his boys and that he receives $707.30 in

social security each month. When asked whether he had difficulty in redirecting

E.F. during their visits, J.F. testified:

A. Not at all. I don’t feel like that’s true because the agency has a
funny way of showing their [sic] care. I don’t – it’s been a long time,
you know, I did this for a long time, so it’s hard for me to say, oh, I
can’t redirect her when it’s been years I been redirecting for all this
time. It’s just that setting. It’s just that setting, she’s not comfortable
with anymore. I redirect her as much as I can, like, I talk to her and I
try to tell her everything what’s going on to make her realize or
understand what she [doesn’t], but she’s still in her own mindset. And
I’m not the type to, like, force, pull, shove, and stuff like that, so I
enjoyed my park visits as much as I could with no safety issue.

J.F. acknowledged that he had been arrested in September 2020 and

incarcerated for “about three months” but explained that his parents cared for his

children during that time. J.F. also testified that he was arrested on September 11,

2021, but was bonded out of jail the following day. When asked whether he has

complied with all components of his case plan, J.F. testified:

Yes, sir, I feel like I complied above and beyond because
the agency always finds something to put there when I don’t
really have anything left. Like, my FTM [Family Team
Meetings] that they said I missed, I really was there and she only
mentioned, like, three or four things that she needed, random
drug screen, home visits, attend doctor visits, and verification of
my lease, I believe. Four things. I thought that was my case plan.
I don’t have a printed out one. At least not anymore.

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J.F. acknowledged that he has had transportation issues in the past but testified

that he would get E.F. to her necessary doctor appointments by seeking help from

his family or using the local transit system.

Upon consideration of the full record and exhibits, we find the State satisfied

its burden of demonstrating that J.F. was unable to sufficiently satisfy the

requirements in his case plan in regard to employment, family visitation obligations,

and his parental contributions. The record also provides support for finding that J.F.

is unable to provide a safe, stable home environment considering he was arrested on

September 24, 2020, and remained incarcerated until December 2020, and was

arrested again on September 11, 2021. Accordingly, we cannot say the trial court

was manifestly erroneous in finding that J.F.’s parental rights should be terminated

under La.Ch.Code. art. 1015(6).

Additionally, we find no error in the trial court’s determination that

termination of J.F.’s parental rights is in the best interest of E.F. As stated by the

Louisiana Supreme Court, our laws are not intended “for children to remain in foster

care permanently.” State in the Interest of J.M., 02-2089, p. 16 (La. 1/28/03), 837

So.2d 1247, 1257. “Forcing children to remain in foster care indefinitely, when there

is no hope of reuniting them with their families, runs afoul of the state and federal

mandates to further the best interests of the child.” Id. Further, in State in the

Interest of C.F., 17-1054 (La. 12/6/17), 235 So.3d 1066, 1075 (citations omitted),

the supreme court recently addressed the balance between the interests of the parent

with the interests of the child, and stated:

The interests of the parent must be balanced against the child’s
interest, but the child’s interest is paramount. More than simply
protecting parental rights, our judicial system must protect the child’s
right to thrive and survive. A child has an interest in the termination of
rights that prevent adoption and inhibit the child’s establishment of

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secure, stable, long term, continuous family relationships. While the
interest of a parent is protected in a termination proceeding by enforcing
procedural rules enacted to insure that the parental rights are not
thoughtlessly severed, those interests must ultimately yield to the
paramount interest of the child. Children have a right to live in a safe,
secure environment and to be reared by someone who is capable of
caring for them.

The trial judge found that it was in the best interest of E.F. to remain in the

stable foster care home where she has been thriving and could be adopted.

Considering the evidence in the record demonstrating grounds for termination and

that termination of J.F.’s parental rights is in the best interest of E.F., we find no

error in the trial court’s judgment terminating J.F.’s parental rights and finding E.F.

free and eligible for adoption.

ASSIGNMENT OF ERROR NUMBER THREE:

In his third assignment of error, J.F. asserts the trial court erred by denying

his motion for new trial. He contends the State failed to prove that the allegations

raised in his termination petition by clear and convincing evidence and that “one set

of [his] criminal charges ha[ve] now been completely dismissed.”

Louisiana Code of Civil Procedure Article 1972 lists the peremptory grounds

for a motion for new trial, as relevant herein:

A new trial shall be granted, upon contradictory motion of any party, in
the following cases:

(1) When the verdict or judgment appears clearly contrary to the law
and the evidence.

(2) When the party has discovered, since the trial, evidence important
to the cause, which he could not, with due diligence, have obtained
before or during the trial.

Further, La.Code Civ.P. art. 1973 addresses the discretionary grounds for a motion

for new trial, stating that “[a] new trial may be granted in any case if there is good

ground therefor, except as otherwise provided by law.” In order to meet the burden

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of proof on a motion for new trial on the basis of newly-discovered evidence, J.F.

must prove “that the evidence was discovered after the trial; that the new evidence

is not cumulative; that the new evidence would tend to change the result of the case;

and that the new evidence could not have been discovered, with due diligence before

the trial was completed.” Bennett v. Porter, 10-1088, p. 15 (La.App. 3 Cir. 3/9/11),

58 So.3d 663, 674. In reviewing a trial court’s ruling on a motion for new trial, the

applicable standard of review is whether the trial court abused its discretion. Pitts

v. La. Med. Mut. Ins. Co., 16-1232 (La. 3/15/17), 218 So.3d 58.

At the close of the hearing, the trial court issued oral reasons for denying J.F.’s

motion for new trial, stating, in pertinent part:

Mr. [J.F.] has done many of the things in his case plan, but there’s a
difference between compliance and understanding what is being done
in a training or in a parenting. I think it’s more than just attending a
program. It’s about understanding and being able to put in place those
things that are taught in a parenting or a mental health training. This
case has gone on for five years. I have started a termination and stopped
a termination. I have started a termination and at this point I believe
this child [E.F.] is entitled to permanency. I do not believe that many
of the things that are being asked of Mr. [J.F.] can be accomplished. I
do not believe he can grasp all of the things necessary to parent this
needy child. I believe that the department has shown that he has failed
to understand portions of his case plan that are required in order to
parent this child. I think he exhibits poor insight at many times. It’s a
compilation of many things during the case -- during the time of the
case that has caused me to have concerns. The visits were problematic.
Housing is problematic. Clearly, the child is bonded and feels that the
current caregivers are who she identifies as her parental figures. I do
not believe that the child has bonded with Mr. [J.F.]. I do believe that
it is not in the best interest of this child to reunify with Mr. [J.F.]. And
for those reasons, the Court denies any request for a new trial at this
time.

As is evident from the above-quoted oral reasons for judgment, the trial judge

considered all of the evidence presented over the last five years of this case. Given

all the circumstances, and the fact that E.F. has bonded with her foster care parents

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over the past several years, we find no abuse of discretion in the trial court’s denial

of the motion for new trial.

For the foregoing reasons, the trial court’s judgment permanently terminating

J.F.’s parental rights to E.F. is affirmed. The judgment denying J.F.’s motion for

new trial is also affirmed. Costs of this appeal are assessed against J.F.

AFFIRMED.

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

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