State in the Interest of C. W. T. W.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

23-634

STATE IN THE INTEREST OF C.W. & T.W.

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APPEAL FROM THE
THIRTY-THIRD JUDICIAL DISTRICT COURT
PARISH OF ALLEN, NO. J-2018-169
HONORABLE ERROL DAVID DESHOTELS, JR., DISTRICT JUDGE

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ELIZABETH A. PICKETT
CHIEF JUDGE

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Court composed of Elizabeth A. Pickett, Charles G. Fitzgerald, and Wilbur L.
Stiles, Judges.

REVERSED AND REMANDED.

Chad Guidry
Attorney at Law
P. O. Box 447
Kinder, LA 70648
(337) 738-2280
COUNSEL FOR APPELLANT:
W.W. – father

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

James Miguez
Acadiana Legal Services
P. O. Box 2148
Lake Charles, LA 70602
(337) 738-0377
COUNSEL FOR:
Juveniles T.W. and C.W.

Charles Draughter
Attorney at Law
4310 Ryan St.. Suite 123
Lake Charles, LA 70605
COUNSEL FOR:
Mother T.D.W.

PICKETT, Chief Judge.

W.W.1 appeals the judgment of the trial court terminating his parental rights

to his children, C.W. and T.W.

FACTS

Twins C.W. and T.W. were born on April 2, 2018. Because the children

tested positive for amphetamines at the time of their birth, a file was opened with

the Department of Children and Family Services (DCFS). Initially, DCFS

implemented a Family Services safety plan which included the mother, T.D.W.,

and the children moving into the home of W.W.’s mother. Concerns arose about

both parents’ drug use and their compliance with elements of the safety plan, and

DCFS filed a Petition for Safety Plan Compliance on December 20, 2018. The

minutes of court indicate this matter was dismissed on motion of the state on

March 1, 2019.

T.D.W. gave birth to another child in December 2019, who was also

exposed to illicit drugs at the time of her birth. At that time, C.W. and T.W. went

to live with W.W.’s mother. T.D.W. and W.W. voluntarily relinquished their

parental rights to the third child.

The Family Services Plan for C.W. and T.W. ended with W.W.’s mother

granted custody of C.W. and T.W. in August 2021. When W.W.’s mother died on

Thanksgiving Day of 2021, W.W. took custody of his children.

On December 1, 2021, DCFS initiated an investigation concerning substance

abuse by W.W. and T.D.W. On February 19, 2022, W.W. called the DCFS worker

because T.D.W. left with the children. In response, T.D.W. reported that W.W.

had been on a four-day drug binge. T.D.W. also admitted that she had been using

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The parties and the minor child are referred to by their initials to preserve
their anonymity in this confidential proceeding.

drugs. The DCFS worker learned that W.W. had subsequently been arrested and

charged with three counts of possession of controlled dangerous substances. He

also had two outstanding warrants and was unable to post bond because of a

probation hold.

An Instanter Safety Plan Order for C.W. and T.W. was filed on February 25,

2022. It placed the children in the custody of the state and instituted a safety plan

whereby T.D.W.’s mother, K.D., would provide a home for T.D.W., C.W., and

T.W., with certain conditions. T.D.W. agreed to the terms of the safety plan, but

W.W., who at this time was incarcerated, did not.

The state filed a Child in Need of Care petition on March 25, 2022. At the

answer hearing on April 12, 2022, the father had no objection to the children

remaining in state custody. At the adjudication hearing on May 4, 2022, the father

stipulated that the children were in need of care without admitting any of the

allegations raised by DCFS. The court adjudicated C.W and T.W. as children in

need of care by judgment dated May 6, 2022.

C.W. and T.W. were moved from a foster home to a prospective adoptive

placement in December 2022. Finding that T.D.W. and W.W. had not made

progress on their case plan, the court approved a case plan that changed the

primary goal of the placement of the children to adoption on March 20, 2023.

The state filed a Petition for Certification of Adoption and Termination of

Parental Rights on March 30, 2023, seeking to have both T.D.W.’s and W.W.’s

parental rights to C.W. and T.W. terminated. The petition specifically alleged that

W.W.’s parental rights should be terminated based on the provisions of

La.Ch.Code arts. 1015(5) and 1015(6) 2 and art. 1036. Following a trial on

2
Louisiana Children’s Code article 1015 was amended by the legislature in
2023 to delete sections (3) and (9). 2023 La.Acts 271, § 1, effective June 9, 2023.
2

September 1, 2023, at which the DCFS case worker and W.W. were the only

witnesses, the trial court found that the state proved grounds for termination of the

parental rights of both T.D.W. and W.W. and that termination was in the best

interests of C.W. and T.W. The trial court signed a judgment to that effect on

September 13, 2023. Only W.W. has appealed the judgment of the trial court.

ASSIGNMENT OF ERROR

On appeal, W.W. asserts three assignments of error:

1. Appellant contends the trial court manifestly erred in finding grounds
for termination of his parental rights, pursuant to La.Ch.Code art.
1015(5) (his failure to substantially complete his case plan) and art.
1015(6) (his period of incarceration being of such a duration that he
will not be able to care for the children for an extended period of
time).

2. Appellant contends the trial court manifestly erred in finding that
termination of the appellant’s parental rights is in the best interest of
the minor children.

3. Appellant contends the trial court manifestly erred because the state
should be barred from terminating [W.W.]’s parental rights during his
term of incarceration because DCFS failed to comply with the express
language of La.Ch.Code art. 1036.2.

DISCUSSION

In his first assignment of error, W.W. argues the trial court committed

manifest error in finding that the state proved by clear and convincing evidence the

grounds for termination alleged. In his third assignment of error, W.W. argues the

state failed to comply with the provisions of La.Ch.Code art. 1036.2. We discuss

these issues together as they are interrelated in this case.

The supreme court discussed the law applicable to an action by the state to

terminate parental rights in State ex rel. A.T., 06-501, p. 5 (La. 7/6/06), 936 So.2d

79, 82:

The remaining sections were renumbered, but no change was made to those
sections. In this opinion, we refer to the sections as they were numbered at the
time the petition to terminate parental rights was filed.
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Title X of the Louisiana Children’s Code governs the involuntary
termination of parental rights. Permanent termination of the legal
relationship existing between natural parents and children is one of the
most drastic actions the State can take against its citizens. However,
the primary concern of the courts and the State remains to determine
and insure the best interest of the child, which includes termination of
parental rights if justifiable statutory grounds exist and are proven by
the State. State ex rel. S.M.W., 00-3277 (La.2/21/01), 781 So.2d
1223.

....

In order to terminate parental rights, the court must find that the State
has established at least one of the statutory grounds by clear and
convincing evidence. State ex rel. J.A., 99-2905 (La.1/12/00), 752
So.2d 806, 811 (citing La. Ch. C. Art. 1035(A); Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982)). Further, even
upon finding that the State has met its evidentiary burden, a court still
must not terminate parental rights unless it determines that to do so is
in the child’s best interests. La. Ch. C. Art. 1039; State ex rel. G.J.L.,
00-3278 (La.6/29/01), 791 So.2d 80, 85.

On review, this court will not overturn the findings of fact of the trial court

in a termination proceeding unless the trial court committed manifest error or is

clearly wrong. In re A.J.F., 00-948 (La. 6/30/00), 764 So.2d 47.

At the time the petition for termination of parental rights in this matter was

filed, Louisiana Children’s Code article 1015 stated, in pertinent part:

The ground for termination of parental rights are:

....

(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:

(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.

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(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.

(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.

(7) The child is in the custody of the department pursuant to a court
order or placement by the parent; the parent has been convicted and
sentenced to a period of incarceration of such duration that the parent
will not be able to care for the child for an extended period of time,
considering the child's age and his need for a safe, stable, and
permanent home; and despite notice by the department, the parent has
refused or failed to provide a reasonable plan for the appropriate care
of the child other than foster care.

As noted, between the time of the filing of the petition and the trial of this

matter, amendments to the statute went into effect to renumber the above sections

(5) – (7) as sections (4) – (6). At trial, though, the parties referred to the pre-

amendment section numbers, as evidenced by this colloquy between the trial court

and counsel for DCFS:

THE COURT:

What are we going on, exactly, on the grounds for termination?
Are you talking about grounds number - -

MR. DORSEY [Counsel for DCFS]:

For mom we allege violation of 1015(6), the case plan. For dad
we allege no contributions under 1015(5) and lack of sufficient
contact under 1015(5).

THE COURT:

I think it is 1015(7).

MR. DORSEY:
5

I'm sorry.

THE COURT:

1015(7). It when the parent is incarcerated for a period of time
that they cannot be reasonably expected to - -

MR. DORSEY:

We did not allege that particular - - what that requires is, that
could be an allegation that we served the individual with what is
called a TPR 2 and 2A. And basically they have to give us a name of
someone that that per a reasonable - - reasonable address of someone
who could take, who could have the children there. So, I didn't have
evidence of that so I did not allege it.

THE COURT:

All right.

MR. DORSEY:

It also - - I could also allege that he had been convicted of a
crime and would be gone so long that that would be a termination, but
I don't believe I alleged that either.

In its oral ruling, the trial court gave the following reasons for termination

W.W.’s parental rights:

With respect to dad, it is a little bit more concerning. Dad is
incarcerated obviously for things that he did to get that way. And from
what I understand his sentence was ten years, all of that, or suspended
four, maybe have to serve six. And mostly as a result of that he is not
able to be a parent to his children. But the track record of dad prior to
incarceration is not the best. He was far from an exceptional dad
before his incarceration. He admits that there was issues with drugs,
substance abuse, and other criminal activity, and that he basically
voluntarily allowed or permitted his mother to have custody of the
children because he was not in a position at that time when the
children were quite young to care for his children. And that behavior,
eventually, landed him in jail for a long period of time. So when the
Court looks at the grounds for involuntary termination of parental
rights, although maybe not specifically alleged, I do refer to Article 7
in culmination with not being able to support your children, not being
able to have sufficient contact with your children, that are in 1015(6).
Not being able to work the case plan sufficiently. All of those apply.
And they apply mostly because he is incarcerated for such a duration.
But he is not able to care for his children for an extended period of
time. Considering the children's age and their need for a safe, stable,
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and permanent home. They are young. They are only 5 years old. So,
the Court also sees that the children are in good placement right now
with the foster care. They are thriving in that home. So, the Court does
find that there is sufficient proof to terminate parental rights of mom
and dad, and that it is in the best interest of the children that
termination of parental rights be granted, and that they be freed for
adoption.

In his brief to this court W.W. argues that the state failed to prove the grounds for

termination in sections (5) and (6) of the amended version of La.Ch.Code art.

1015, the failure of W.W. to substantially complete his case plan and an extended

period of incarceration. As noted from the above colloquy, though, the state

specifically denied that it was seeking termination of W.W.’s parental rights on the

basis of an extended period of incarceration, as it admitted failing to comply with

certain requirements and would be unable present evidence to prove incarceration

as grounds for termination of parental rights. But it is also clear from the trial

court’s reasons for ruling that the trial court found W.W.’s extended incarceration

was a significant factor in the determination that the state proved grounds for

termination.

Further, the only grounds for termination of W.W.’s parental rights actually

argued by the state at the close of the hearing were lack of parental contributions

and lack of sufficient contact with the children. While the state presented evidence

that W.W. failed to comply with his case plan, the state did not argue that W.W.’s

failure to comply with his case plan or his extended incarceration for an extended

period time was the grounds upon which it sought termination of parental rights.

The judgment signed by the trial court, though, listed Articles 1015(5), 1015(6),

and 1036 as the specific grounds for finding termination was appropriate.

W.W. does not argue that the state failed to prove that he failed to remit

parental contributions. At the trial of this matter, he explained that his

incarceration prevented him from doing so. Even after he began a work-release
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program, W.W. testified that he was unable to access the money he earned to make

parental contributions because he did not have access to the money he earned.

W.W. did argue that he did communicate with his children for a time, either by

video calls when T.D.W. exercised visitation or by contacting the children’s foster

parents directly. The DCFS worker testified that she was unable to facilitate calls

with the children after her work hours, even when that was the only time W.W.

was available because of his work release schedule.

We note that W.W. was incarcerated from the time the instanter order was

issued in this case to the date of the trial on the petition for termination of his

parental rights. Louisiana Children’s Code Article 1036.2 sets forth the

responsibilities of DCFS in such a situation:

A. An incarcerated parent of a child in the custody of the department
shall provide a reasonable plan for the appropriate care of his child
other than foster care. Failure by the incarcerated parent to provide an
appropriate plan may result in an action to terminate his parental
rights.

B. Within thirty days of notification that a parent of a child in foster
care is incarcerated in this state, a representative of the department
shall visit the incarcerated parent and give written notification to the
incarcerated parent of his duty to provide a reasonable plan for the
appropriate care of the child. The department, at that time, shall obtain
information regarding the plan, including the names, addresses,
cellular numbers, telephone numbers, and other contact information of
every potential suitable alternative caregiver.

C. The incarcerated parent shall provide the department with the
required information in writing within sixty days of receipt of the
notification form. During that period, a parent may submit additional
information or names of other caregivers using the form attached to
the notice. The department shall provide the parent with a stamped,
self-addressed envelope for this purpose. No additional caregiver
names will be accepted after the expiration of the sixty-day period, as
evidenced by a postmark.

D. The department shall conduct an assessment of the persons named
as caregivers by the incarcerated parent and shall notify the parent
within ten days of completion of the assessment whether the persons
named are willing and able to offer a wholesome and stable
environment for the child.
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The record in this case shows that, despite knowing from the day the

children were taken into custody that W.W. was incarcerated, DCFS never took

steps to comply with this article. We recognize that incarceration is not a “just

cause” for failure to provide support or maintain contact with one’s children. See

State in the Interest of H.R., 15-136 (La.App. 3 Cir. 6/3/15), 165 So.3d 1221.

Unlike the parent in H.R., though, the father in this case was incarcerated during

the entire pendency of this litigation. The state failed to comply with the

mandatory requirements of La.Ch.Code art. 1036.2, and admitted as much during

the trial, stating that DCFS did not allege his incarceration as a grounds for

termination because of its failure to comply with the provisions of this statute.

Further, the reason W.W. could not comply with the provisions of his case plan,

maintain contact with his children, or provide any monetary support was because

of his incarceration for the entire pendency of this litigation, from the time the state

took custody of the children until the date of the trial.

The undisputed testimony of W.W. was that during his imprisonment, he

took parenting classes for eight weeks and a re-entry program that included money

management, anger management, substance abuse treatment, and parenting. He

also testified that he was screened for drugs every nine days. The DCFS worker

testified on cross examination that, while she was aware of these steps taken by

W.W., they “do not meet the requirements of the agency.” He also testified that he

expected to be released within five weeks of the date of the hearing.

This case presented an impossibility for W.W. Because of his incarceration,

he could not work his case plan, visit his child, or provide parental contributions to

the support of his children, and DCFS failed to comply with the provisions of

La.Ch.Code art. 1036.2 to allow W.W. an alternate means of preventing the

9

department from seeking termination of his parental rights. We find the trial court

committed manifest error in finding the state proved sufficient grounds for

termination in this case. We reverse the judgment of the trial court terminating

W.W.’s parental rights to C.W. and T.W. Nevertheless, the minor children should

remain in the custody of the state as children in need of care while W.W. is given

an opportunity to work a case plan approved by the trial court.

CONCLUSION

The judgment of the trial court terminating the parental rights of the father,

W.W., is reversed, and the case is remanded for proceedings consistent with this

opinion.

REVERSED AND REMANDED.

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