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State ex rel. G.E.K.

Court of Appeal of Louisiana, Third Circuit

January 14, 2015

STATE IN THE INTEREST OF G.E.K. & C.E.S. STATE IN THE INTEREST OF I.B.W

Page 714

APPEAL FROM THE THIRTY-FIFTH JUDICIAL DISTRICT COURT, PARISH OF GRANT, NO. J-2674 C/W J-2737. HONORABLE W. PEYTON CUNNINGHAM, JR., AD-HOC DISTRICT JUDGE.

Thomas G. Wilson, Attorney at Law, Pineville, LA, COUNSEL FOR APPELLANT: A.V. (mother).

Robert L. Kennedy, Attorney at Law, Colfax, LA, COUNSEL FOR APPELLEE: B.H.W. (father).

James P. Lemoine, District Attorney, Thirty-fifth Judicial District Court, Colfax, LA, COUNSEL FOR APPELLEE: State of Louisiana.

Guy R. Lain, Louisiana Department of Children and Family Services, Bureau of General Counsel, Vidalia, LA, COUNSEL FOR APPELLEE: State of Louisiana, Department of Children and Family Services.

Renee P. Cote, Legal Services of North Louisiana, Shreveport, LA, COUNSEL FOR APPELLEES: G.E.K. (child), C.S. (child), I.W. (child).

Joseph P. Beck, III, Attorney At Law, Ball, LA, COUNSEL FOR APPELLEE: S.K. (father).

Jessica Firment, Attorney at Law, Alexandria, LA, COUNSEL FOR INTERVENORS/APPELLEES: J.V. (intervenor), H.V. (intervenor).

Carolyn O. Hines, Attorney at Law, Alexandria, LA, COUNSEL FOR APPELLANT: A.V. (mother).

Court composed of Jimmie C. Peters, Elizabeth A. Pickett, and Shannon J. Gremillion, Judges. Pickett, J., concurs in part, dissents in part, and assings written reasons.

OPINION

Page 715

[14-681 La.App. 3 Cir. 1] GREMILLION, Judge.

In this consolidated case,[1] the mother, A.V., appeals the trial court's judgment terminating her parental rights to her three children, G.E.K., C.E.S., and I.B.W.[2] For the following reasons, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In March 2010, the State, through the Department of Children and Family Services, (DCFS) received a report that A.V. was in the hospital due to a drug overdose. At that time, A.V. had only one child, G.E.K., born January 13, 2009. A.V. was referred to substance abuse treatment and offered other services from DCFS. In September 2011, DCFS received a report that a second child, C.E.S., was born substance-exposed on September 6, 2011. In an effort to keep the family unified, A.V. and her children were provided various services including daily daycare for the children and substance abuse treatment for A.V. However, A.V. failed to attend substance abuse treatment after numerous attempts by DCFS. The State filed a petition to declare a minor to be a child in need of care in July 2012. Following an August 8, 2012 hearing, A.V. was arrested on outstanding warrants, and G.E.K. and C.E.S. were placed in foster care.[3] At a continued custody hearing on September 12, 2012, all parties stipulated that G.E.K. and C.E.S. were children in need of care.[4] While G.E.K. and C.E.S. were in the State's custody, A.V. gave [14-681 La.App. 3 Cir. 2] birth to a third child, I.B.W., on February 14, 2013.[5] The State filed a petition to adjudicate I.B.W. in need of care due to high risk, and he was placed in foster care on February 28, 2013.[6][7]

The children were continued in the State's custody following a March 6, 2013[8] hearing in which the trial court found that A.V. had made inadequate progress in

Page 716

meeting reunification goals.[9] Thereafter, the State filed a petition for termination of parental rights and certification of minor children for adoption on November 5, 2013.[10] On February 5, 2014, the same day as the hearing on the termination, A.V.'s counsel filed a motion to continue, which was denied. Following the hearing, the trial court terminated A.V.'s parental rights to her three children, freeing them for adoption. A.V. now appeals and assigns as error:

(1) The trial court was in error in terminating [A.V.'s] parental rights to G.E.K., C.E.S. and I.B.W., for the State of Louisiana failed to prove by clear and convincing evidence that there had been no substantial parental compliance with a case plan for services and there is no reasonable expectation of significant improvement in the parent's condition or conduct in the near future, as mandated by Louisiana Children's Code Article 1035.
(2) The trial court erred in its ruling that the termination of parental rights was in the best interest of the minor child, as mandated by Louisiana Children's Code Article 1037 (A).
[14-681 La.App. 3 Cir. 3] (3) The trial court erred in not granting the court appointed attorney for [A.V.] a continuance to prepare for the termination proceeding.

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, 71 L.Ed.2d 599 (1982). Accordingly, a parent has a strong interest in the accuracy of a decision to terminate her rights. Lassiter v. Dep't of Soc. Servs. of Durham Cnty., NC, 452 U.S. 18, 101 S.Ct. 2153, 68 L.Ed.2d 640 (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 that of the parent. In re 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

Page 717

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.

[14-681 La.App. 3 Cir. 4] 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. In re 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 involuntary termination:

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(5), 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 ...

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