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State ex rel. A.V.

Court of Appeal of Louisiana, Fifth Circuit

October 29, 2014

STATE OF LOUISIANA IN THE INTEREST OF A.V., T.V., AND C.V

Page 854

Editorial Note:

This Decision is not final until expiration of the fourteen day rehearing period.

ON APPEAL FROM THE FORTIETH JUDICIAL DISTRICT COURT, PARISH OF ST. JOHN THE BAPTIST, STATE OF LOUISIANA. NO. 16,233, DIVISION " A" . HONORABLE MADELINE JASMINE, JUDGE PRESIDING.

AMANDA M. KOLOSKI, ATTORNEY AT LAW, New Orleans, Louisiana. COUNSEL FOR PLAINTIFF/APPELLANT.

ERIC CARTER, FONTELLA FOUNTAIN BAKER, ATTORNEYS AT LAW, Laplace, Louisiana, COUNSEL FOR DEFENDANT/APPELLEE.

HESTER R. HILLIARD, ATTORNEY AT LAW, Kenner, Louisiana, COUNSEL FOR DEFENDANT/APPELLEE.

LAURA A. MALVEAU, ATTORNEY AT LAW, New Orleans, Louisiana, COUNSEL FOR DEFENDANT/APPELLEE.

Panel composed of Judges Susan M. Chehardy, Jude G. Gravois, and Hans J. Liljeberg.

OPINION

HANS J. LILJEBERG, J.

Page 855

[14-465 La.App. 5 Cir. 3] The State of Louisiana, Department of Children and Family Services, appeals the trial court's denial of its petition to terminate the parental rights of M.W.V and A.H.V. For the following reasons, we reverse.

Factual & Procedural History

On May 24, 2011, A.V. (D.O.B. 9/12/03), T.V. (D.O.B. 08/12/05), and C.V. (D.O.B. 11/22/10) were placed in the custody of Louisiana Department of Children and Family Services (" DCFS" ) following a report that M.W.V. was found wandering the streets with her three children unaware of her surroundings and begging for food. A prior report was received on May 6, 2011, which stated that M.W.V. was admitted to New Horizon Acute Psychiatric Unit in Mamou, Louisiana, due to suicidal thoughts and threats to harm her children. M.W.V. was diagnosed with Bipolar disorder and mild retardation. M.W.V. was noted to not take her psychiatric medication as prescribed as she did not like the side effects. Through further investigation, DCFS learned that on May 20, 2011, M.W.V. left A.V., age seven, to care for his younger siblings, T.V., age five, and C.V., age six-months, while she walked to the Kart N Karry store. Another report was validated in 2009, when the children were found in the road. M.W.V. admitted leaving the children alone at home while she went to the store with a friend. Two earlier [14-465 La.App. 5 Cir. 4] reports in 2006 and 2007 of lack of supervision and dependency resulted in A.V. and T.V. being placed in foster care for approximately one year.[1] While the children's father, A.H.V., has always been a part of the household, he works long hours and is not present in the home with M.W.V. and the children during the day and sometimes on weekends. There were additional allegations of domestic abuse in the home.

Based upon these allegations, Judge Mary Hotard Becnel signed an Instanter Order on May 26, 2011, placing the children in the temporary custody of the state. On September 21, 2011, Judge Madeline Jasmine declared the family in need of services. The children have remained in the custody of the state throughout these proceedings.

Initially, DCFS formulated a court-approved case plan outlining a strategy for reunification of the family; however, the DCFS case plan thereafter changed from reunification to adoption based upon the fact that A.H.V. failed to adequately develop a plan that would ensure the safety of the children during his absence from the home.

On January 2, 2013, pursuant to La. Ch.C. art. 1004.1[2], DCFS filed a petition

Page 856

to terminate the parental rights of the biological parents, M.W.V. and A.H.V., of their three children, A.V., T.V., and C.V. After a trial on the merits held on October 30, 2013, the trial court denied the state's petition and rendered a judgment with reasons on April 22, 2014. DCFS now appeals.

Assignment of Error

[14-465 La.App. 5 Cir. 5] On appeal, DCFS asserts that the trial court erroneously denied the state's petition to terminate parental rights, where DCFS met its burden by clear and convincing evidence and where termination is in the best interest of the children.

Law & Analysis

The Louisiana Supreme Court recognizes that in any case to involuntarily terminate parental rights, there are two private interests involved: those of the parents and those of the child. State ex rel. L.B. v. G.B.B, 02-1715 (La. 12/4/02), 831 So.2d 918, 921; State ex rel. J.A., 99-2905 (La. 1/12/00), 752 So.2d 806, 811. The United States Supreme Court also recognizes that parents have a natural, fundamental liberty interest to the continuing companionship, care, custody and management of their children warranting great deference and requiring vigilant due process protection under the law that fair procedure be followed when the State seeks to terminate the parent-child legal relationship. Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982); Lassiter v. Department of Soc. Servs., 452 U.S. 18, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981). Balanced against those protections is the child's profound interest in terminating parental rights which prevent adoption and inhibit the establishment of secure, stable, long-term, and continuous relationships found in a home with proper parental care. State ex rel. J.A., supra, citing Lehman v. Lycoming County Children's Serv.'s Agency, 458 U.S. 502, 102 S.Ct. 3231, 73 L.Ed.2d 928 (1982); see also, State in the Interest of S.M., 98-0922 (La. 10/20/98), 719 So.2d 445, 452. In balancing the parents' and the child's interests, Louisiana courts have consistently found " the interests of the child to be paramount over those of the parents." State ex rel. L.B., supra. See also e.g., State in the Interest of S.M., supra ; State in the Interest of A.E., 448 So.2d 183, 186 (La.App. 4th Cir. 1984); State in the Interest of Driscoll, 410 So.2d 255, 258 (La.App. 4th Cir. 1982).

[14-465 La.App. 5 Cir. 6] The state's parens patriae power allows intervention in the parent-child relationship only under serious circumstances, such as where the state seeks the permanent severance of that relationship in an involuntary termination proceeding. State ex rel. L.B., supra at 922, citing State ex rel. J.A., supra at 811. 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. Id. 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. Id. As such, the

Page 857

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. Id.

Title X of the Louisiana Children's Code governs the involuntary termination of parental rights. Louisiana Children's Code Article 1015 provides the specific statutory grounds by which a court may involuntarily terminate the rights and privileges of parents. 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. In re State ex rel. D.C.P., 05-212 (La.App. 5 Cir. 10/6/05), 916 So.2d 1206, 1208-09; State ex rel. J.A., supra at 811; La. Ch.C. art. 1035(A). Further, even upon finding that the state has met its evidentiary burden, a court still must not ...


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