State in the Interest of M. J. D. Iii.; T. C. M. D.; K. R. D.

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

22-215 consolidated with 22-216

STATE OF LOUISIANA
IN THE INTEREST OF
M.J.D., III; T.C.-M.D.; AND K.R.D.

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APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NUMBER 34061
HONORABLE W. MITCHELL REDD, DISTRICT JUDGE

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SHARON DARVILLE WILSON
JUDGE

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Court composed of Shannon J. Gremillion, D. Kent Savoie, and Sharon Darville
Wilson, Judges.

AFFIRMED.

Jane Hogan
Hogan Attorneys
310 North Cherry Street
Hammond, LA 70401
(985) 542-7730
Counsel for Appellant:
M.J.D., Jr.

Amy McGray
Children Advocacy Program
1 Lakeshore Drive, Suite 1001
Lake Charles, LA 70629
(337) 491-2461
Counsel for M.J.D., III; T.C.-M.D.; and K.R.D.

Edward “Ted” Nichols
827 Pujo Street
Lake Charles, LA 70601
(337) 439-8587
Counsel for Appellee:
M.J.D., Jr.

Nick Pizzolato, Jr.
1919 Kirkman Street
Lake Charles, LA 70601
(337) 491-2066
Counsel for Appellee:
State of Louisiana, Department of Children and Family Services

Annette Roach
Roach & Roach, APLC
4315 Lake Street, Suite 4
Lake Charles, LA 70605
(337) 436-2900
Counsel for Appellant:
A.H.D.

J. Wade Smith
724 Clarence Street
Lake Charles, LA 70601
(337) 436-8424
Counsel for Appellant:
A.H.D.

Mike Stratton
1032 Ryan Street
Lake Charles, LA 70601
(337) 263-8351
Counsel for Foster Parents

WILSON, Judge.

In this consolidated appeal, A.H.D., the biological mother of M.J.D., III;

T.C.-M.D.; and K.R.D., appeals the termination of her parental rights as to all three

children. She also appeals the trial court’s certification of the three children for

adoption. M.J.D., Jr., who is the biological father of M.J.D., III, and T.C.-M.D.

and the legal father or K.R.D., appeals the termination of his parental rights as to

all three children and the trial court’s certification of the three children for adoption.

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

I.

ISSUES

We must decide whether the state properly terminated the parental rights of

A.H.D. and M.J.D., Jr., and certified the three minor children for adoption. The

parents allege that termination was unwarranted because the State did not prove by

clear and convincing evidence that: (1) they intended to permanently avoid

parental responsibility for the three children; (2) they did not substantially comply

with their case plans; (3) the Department of Children and Family Services (DCFS)

provided reasonable efforts to facilitate reunification; (4) there was no reasonable

expectation of significant improvement; and/or (5) termination of parental rights

was in the children’s best interest.

II.

FACTS AND PROCEDURAL HISTORY

M.J.D., III, was born on November 23, 2015. T.C.-M.D. was born on April

3, 2017. K.R.D. was born on January 15, 2019. A.H.D. is the biological mother of

all three children. M.J.D., Jr., is the biological father of M.J.D., III, and T.C.-M.D.

He was excluded by DNA testing as being the biological father of K.R.D., but he is

presumed to be her father. La.Civ.Code Art. 185. Two other men were identified

by A.H.D. as possibly being the biological father of K.R.D. One was excluded by

DNA evidence, and the other, B.L., could not be located.

M.J.D., III, and T.C.-M.D. were taken into State’s custody on January 9,

2018 and were returned to the care of their parents on February 12, 2019. The

instant investigation was started after K.R.D. was diagnosed with failure to thrive.

She weighed only ten pounds at five months of age. K.R.D. received home health

care, and one of the nurses expressed concern about the housing situation. An

investigation by DCFS revealed that fourteen people were residing in the three-

bedroom trailer home.1 The home had electrical problems that caused the lights to

flicker off and on and damaged several appliances. There were exposed electrical

wires within the reach of the children. There was a water leak in the living room,

and mold was growing there. There were holes in the floor of the kitchen. The

investigator also noted that there were dead rats, rat feces, and dog feces in the

home. All three children were noted to have soiled clothing. The home did not

meet agency standards, and the children’s living arrangements were deemed to be

life-threatening. Several family members offered to take the children, but the

couple refused. The couple were able to obtain a motel room for one night by

borrowing money from a family member, but the three children were removed

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A.H.D. and M.J.D., Jr., were allowing another family of four adults and five children to
reside with them. They stated that the family had nowhere to go and were going to help take
care of M.J.D., III, T.C.-M.D., and K.R.D while A.H.D. and M.J.D., Jr., were at work.

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from the home and entered foster care on or about June 6, 2019. 2 They were

adjudicated children in need of care on August 6, 2019.3

Review hearings were held on November 21, 2019; May 19, 2020;

September 29, 2020; and January 21, 2021, when the goal was changed from

reunification to adoption. The judgment terminating the parental rights of A.H.D.

and M.J.D., Jr., with respect to M.J.D., III; T.C.-M.D.; and K.R.D.; and B.L. with

respect to K.R.D., and certifying the children for adoption was rendered in open

court on September 30, 2021, and signed on October 25, 2021. Notice of judgment

issued on Friday, October 29, 2021. The notice was mailed to A.H.D. and M.J.D.,

Jr., at their home address rather than to their attorneys of record.

On November 17, 2021, A.H.D. and M.J.D., Jr., filed motions for appeal.

The State filed a motion to dismiss both appeals as untimely, alleging that that the

motion for appeal had to be filed on or before November 15, 2021 (fifteen days

after notice of judgment). A.H.D. and M.J.D., Jr., allege that the notice was

insufficient to start the running of the time for appeal because the mailing of the

notice of judgment was not sent to their counsel of record as required by La.Code

Civ.P. art. 1913. The district court denied the motion to dismiss and issued orders

of appeal. In its appellate brief, the State urges this court to dismiss the appeals as

untimely on its own motion.

Notice of judgment “shall be mailed by the clerk of court . . . to the counsel

of record for each party[.]” La.Code Civ.P. art. 1913(A). The delay for applying

for a new trial commences to run the day “after the clerk has mailed or the sheriff

2
The trailer burned down within days of the children being taken into State’s custody.
3
A.H.D. and M.J.D., Jr., stipulated that the children were in need of care without
admitting the specific allegations.

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has served the notice of judgment.” La.Code Civ.P. art. 1974. “In evaluating the

timeliness of an appeal in a termination of parental rights case, La. C.C.P. art. 1913,

made applicable by La. Ch.C. art 332(B), requires only the mailing of a notice of

judgment and the date of service, delivery, or receipt of the notice is not

determinative.” State in the Interest of J.P., 21-1036, p. 4 (La.App. 1 Cir.

12/22/21), 339 So.3d 1187, 1189 (emphasis in original). “If notice of judgment is

not furnished as required, the delay for seeking an appeal does not ordinarily begin

to run.” Ouachita Equip. Rental, Inc. v. Dyer, 386 So.2d 193, 194 (La.App. 3 Cir.

1980).

In termination of parental rights cases, the delay for applying for a new trial

is three days, and the delay for taking an appeal is fifteen days from the date of

mailing of the notice of judgment or from the denial of motion for new trial.

La.Ch.Code art. 332. “Appeals are favored and should be not dismissed unless the

law clearly so requires.” State in the Interest of D.M.H., 27,668, p. 1 (La.App. 2

Cir. 5/4/95), 658 So.2d 1309, 1310. In this case, there were no motions for new

trial. But we again note that the notice of judgment was mailed to A.H.D. and

M.J.D., Jr., and not to their attorneys of record. Since there was a failure to give

the required notice, the delay for appeal did not begin to run even though A.H.D.

and M.J.D., Jr., were given actual notice. La.Code Civ.P. arts. 1913 and 1974.

Therefore, we agree with the trial court and find that the motions for appeal are

timely.

III.

STANDARD OF REVIEW

“Whether termination of parental rights is warranted is a question of fact,

and a district court’s factual determinations will not be set aside in the absence of

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manifest error.” State ex rel. H.A.B., 10-1111, p. 31 (La. 10/19/10), 49 So.3d 345,

368.

IV.

LAW AND DISCUSSION

Louisiana Children’s Code Article 1035(A) provides that “[t]he petitioner

bears the burden of establishing each element of a ground for termination of

parental rights by clear and convincing evidence.” One ground for termination of

parental rights is the “[a]bandonment of the child by placing him the physical

custody of . . . the department, or by otherwise leaving him under circumstances

demonstrating an intention to permanently avoid parent responsibility by” failing

“to provide significant contributions to the child’s care and support for any period

of six consecutive months” as of the time petition is filed. La.Ch.Code art.

1015(5)(b). Another ground is when “at least one year has elapsed since a child

was removed from a parent’s custody pursuant to a court order” and “there has

been no substantial parental compliance with a case plan for services . . .; and

despite earlier intervention, there is no reasonable expectation of significant

improvement in the parent’s condition or conduct in the near future” with

consideration given to the children’s age and need for a safe, stable, and permanent

home. La.Ch.Code art. 1015(6). “In a termination of parental rights case, DCFS

must establish two factors: (1) one of the grounds listed in La.Ch.Code art. 1015 by

clear and convincing evidence; and (2) that the termination of parental rights is in

the children’s best interest.” State in the Interest of B.W., 16-209, p. 7 (La.App. 3

Cir. 2/22/17), 212 So.3d 695, 699, writ denied, 17-528 (La. 4/13/17), 218 So.3d

627.

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The trial court noted that the parents had another child after the three

children were taken into State’s custody and were currently living with A.H.D.’s

father, P.D., in a three-bedroom home where he resides and is the lessee. P.D.

pays the rent, and A.H.D. testified that they would not be able to afford the rent

without P.D.’s assistance. P.D. has never met these three grandchildren. The

testimony established that despite the passage of over two years, there were still

multiple questions and concerns about whether the parents would be able to

provide adequate, safe, and stable housing.

The evidence showed several failures of the parents to comply with their

case plans. Despite being ordered to pay $284.50 in parental contributions from

the time the children came in to the State’s custody, neither parent ever made any

payment toward the support of the three children. Neither of the parents objected

to the parental contributions, but, at trial, M.J.D., Jr., testified that he had been

employed by the City of Lake Charles for several years. A.H.D. was employed as

a security guard at the time the children were taken into custody but became

unemployed in August of 2020. The only reason given for non-payment of support

was that M.J.D., Jr., thought that the children “should not have gotten taken away.”

A.H.D. testified that she did not know exactly why they were not paying any

parental contributions. She further testified that they had purchased a camper,

trailer, and boat since the children had been taken into custody. She did not know

how much those items cost.

The parents went through parenting classes twice, but they did not receive

“successful completion” certificates because it was recommended that they go a

third time. One of the therapists providing services to one of the children asked

that DCFS not allow A.H.D. to attend appointments because of A.H.D.’s behavior.

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A.H.D. testified that DCFS always tells her that her three children are good but that

“[i]t did not cross her mind” to ask how her children are doing in their day-to-day

lives, what things they like, or what activities they are doing until she was asked

about that at trial. A.H.D. and M.J.D., Jr., had not seen the children for about five

months before the trial. A.H.D. and M.J.D., Jr., testified that they unsuccessfully

tried to set up other visits. The DCFS caseworker testified that they attempted to

call the parents to have visits in the months before the trial but did not get any

response. Before COVID and Hurricane Laura, there were some face-to-face visits

with the children, but the evidence is clear that A.H.D. and M.J.D., Jr., “did not

take any steps toward improving [their] situation, which is the purpose of the case

plan.” State in the Interest of B.W., 212 So.3d at 701.

Based on the evidence and testimony presented, the trial court found that the

State met its burden of proving abandonment of the three minor children for the

nonpayment of parental contribution, that there was no reasonable expectation of

substantial compliance or improvement if additional time was allowed, and that

termination of parental rights was in the best interest of the children.

We find no manifest error in the trial court’s finding that DCFS met its

burden of proof under La.Ch.Code art. 1015(5) and 1015(6) and move to

consideration of whether the termination is in the best interest of the three minor

children.

The Court Appointed Special Advocate (CASA) for the children and the

caseworker from DCFS testified about each child’s placement in their respective

foster homes. M.J.D., III, is doing well in a gifted program at his elementary

school and playing t-ball. He goes to speech therapy, and his foster parents are

reinforcing what he learns at therapy. His foster parents want a permanent

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placement for M.J.D., III, with them. M.J.D., III, has lived with someone other

than his parents for more than half of his life.

T.C.-M.D. is in speech therapy. The CASA reported that T.C.-M.D. is

always excited to show the CASA her room and dolls and how she can dance. She

is very bonded with her foster parents and foster siblings. The foster parents want

to adopt T.C.-M.D. T.C.-M.D. had been in the custody of someone other than her

parents for forty out of fifty-five months at the time of trial.

K.R.D. has several medical problems and still cannot talk. She cannot go to

daycare because of an autoimmune deficiency. K.R.D. goes to speech therapy and

feeding therapy. She requires special food that is easy for her to swallow. Her

foster mother is a nurse and is said to follow everything that K.R.D.’s therapists

and doctors say “to the ‘T.’” K.R.D. is also in an adoptive placement. K.R.D. left

the custody of her parents when she a little over four months old and had been in

the custody of someone other than her parents for twenty-seven out of thirty-three

months at the time of trial.

While the parents have a natural, fundamental liberty interest in the
continuing companionship, care, custody and management of their
children [. . .] 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.
Lehman v. Lycoming County Children’s Servs. Agency, 458 U.S. 502,
102 S.Ct. 3231, 73 L.Ed.2d 928 (1982). In balancing these interests,
the courts of this state have consistently found the interest of the child
to be paramount over that of the parent. State in the Interest of G.J.L.
and M.M.L.,791 So.2d at 85; See also State in the Interest of C.J.K.
and K.K., 774 So.2d at 113 [. . .] ; State in the Interest of S.M, 98–
0922 (La. 10/20/98), 719 So.2d 445, 452.

State ex rel. J.M., 02-2089, p. 8 (La. 1/28/03), 837 So.2d 1247, 1252.

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

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termination of the parental rights of A.H.D. and M.J.D., Jr., was in the best

interests of these three children.

V.

CONCLUSION

The judgment of the trial court is affirmed. All costs are assessed to A.H.D.

and M.J.D., Jr.

AFFIRMED.

THIS OPINION IS NOT DESIGNATED FOR PUBLICATION.
Rule 2-16.3 Uniform Rules, Courts of Appeal.

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