July 7, 2015
STATE OF LOUISIANA IN THE INTEREST OF J.J.S
Appeal from the Juvenile Court. In and for the Parish of East
Baton Rouge, State of Louisiana. No. 11,708, Division B. The
Honorable Pamela Taylor Johnson, Judge Presiding.
G. Slocum, Bureau of General Counsel Department of Children
and Family Services State of Louisiana, Baton Rouge,
Louisiana, Attorney for Appellant, State of Louisiana,
Department of Children and Family Services.
L. Lacy, Mental Health Advocacy Service/ Child Advocacy
Program, Baton Rouge, Louisiana, Attorney for Appellee,
J.J.S. (Minor Child).
Thomas, Baton Rouge, Louisiana, Attorney for Appellee, J.S.
Harrison, Baton Rouge, Louisiana, Curator for Appellee, B.V.
GUIDRY, PETTIGREW, WELCH, THERIOT, AND DRAKE, JJ. GUIDRY, J.,
dissents and assigns reasons.
1574 La.App. 1 Cir. 2] DRAKE, J.
State of Louisiana, Department of Children and Family
Services (DCFS), appeals the judgment of the juvenile
court, which dismissed the DCFS's
petition to terminate the parental rights of the father
(J.S.) as to a minor child adjudicated in need of care
(J.J.S.). For the reasons that follow, we
reverse the judgment of the juvenile court.
AND PROCEDURAL HISTORY
the father of J.J.S., a son who was bom on August 8, 2008. On
August 12, 2008, DCFS learned that J.J.S. was bom
prematurely and tested positive for amphetamines and
marijuana. On October 29, 2008, the juvenile court granted an
oral instanter order directing DCFS to take J.J.S. into its
immediate custody based on allegations of neglect and
dependency. A verified complaint that contained the
information that was previously orally relayed to the court
for the issuance of the oral instanter order was filed with
the court the same day. J.S. was considered a non-offending
parent in those proceedings. DCFS had a previous working
the minor child's mother, B.V. In August 2007, DCFS
opened a family services case whereby the agency paid
numerous bills for the family, including rent, water, and
November 6, 2008, a custody hearing was held, after which
custody of J.J.S. was returned to his mother, B.V., with
three months of protective supervision by DCFS. J.S. was
present at the hearing, agreed with the transfer of custody
to [2014 1574 La.App. 1 Cir. 3] B.V., and agreed to provide
some financial assistance. DCFS continued to supervise the
case. The protective supervision period was extended through
July 30, 2009, subject to B.V. enrolling in a substance abuse
treatment facility program. The court also recommended that
DCFS provide J.S. substance abuse counseling. At the July 30,
2009 hearing, the juvenile court reinstated the October 29,
2008 verified complaint and placed J.J.S. back in the custody
pursuant to the stipulation of B.V. and based on evidence
contained in the verified complaint, the juvenile court
ordered the assistant district attorney (ADA) assigned to the
case to file a petition to initiate proceedings to adjudicate
J.J.S. as a child in need of care. At an appearance hearing,
J.S. and B.V. both denied the allegations of the petition,
and the matter was set for an adjudication hearing. At the
adjudication hearing held on October 19, 2009, B.V.
stipulated that J.J.S. be adjudicated a child in need of
care, and the juvenile court rendered judgment adjudicating
J.J.S. as a child in need of care as it related to B.V. The
adjudication in relation to J.S. was continued until December
10, 2009, at which time the assigned ADA sought leave to
amend the child in need of care petition. Over the objection
of J.S., the juvenile court granted the ADA's motion to
amend the original petition to add specific factual
allegations of neglect committed by J.S. The matter was then
set for an appearance and an adjudication hearing relative to
J.S. At the appearance hearing, J.S. again denied the
allegations of the petition.
adjudication hearing on January 12, 2010, the parties entered
into an Informal Adjustment Agreement (IAA). The IAA provided
as follows: (1) J.S. was to comply with the December 28, 2009
case plan; (2) J.S. would cooperate and comply with DCFS in
allowing sibling visits; (3) DCFS would provide daycare
services for three months; (4) J.S. would continue to work
with Capital Area for substance abuse treatment and the
Infant Child & Family Center; (5) J.S. would [2014 1574
La.App. 1 Cir. 4] submit to random drug screens; (6) DCFS
would assist J.S. in obtaining childcare assistance through
the Office of Family Support; (7) CASA would provide
supervision for the duration of the IAA; and (8) DCFS would
continue to provide protective supervision for the duration
of the IAA. The IAA w as effective for six months. That same
day, custody of JJ.S. was transferred to J.S. A hearing to
review compliance with the IAA was held on April 22, 2010.
The trial court extended the IAA for another six months and
ordered J.S. to submit to a drug screen every other week.
was not successfully completed by J.S. On March 10, 2011, the
court terminated the IAA and returned J.J.S. to the custody
of DCFS over the department's objection. Although J.J.S.
was returned to DCFS custody, he remained placed in the home
of J.S. From March 10-23, 2011, however, the whereabouts of
J.S. and J.J.S. were unknown. A meeting between DCFS and J.S.
was scheduled for March 18, but J.S. did not attend. Once
J.J.S. was located, he was placed in the home of his former
foster parent, Tameka Judson. On April 18, 2011, JJ.S. was
adjudicated a child in need of care as it
related to J.S. and has remained in DCFS custody ever since.
18, 2013, DCFS filed a petition for termination of parental
rights and certification for adoption, seeking to terminate
the parental rights of B.V. and J.S. pursuant to La. Ch.C.
art. 1015(4)(b), (4)(c), and (5). Specifically, DCFS averred
in the petition that B.V. and J.S. failed to make significant
contributions towards the care and support of J.J.S. for a
period of six consecutive months, failed to maintain
significant contact with their son for six consecutive
months, and failed to demonstrate significant measurable
progress toward case goal plans. The termination of parental
rights (TPR) trial, originally set for August 28, 2013, was
continued without date following J.S.'s release from jail
because he made efforts toward working his case plan. J.S.
began visiting his son regularly, passing [2014 1574 La.App.
1 Cir. 5] random drug screens, and cooperating with DCFS.
Following a weekend visit on October 11-12, 2013, however,
J.S. had no further contact with J.J.S. for ten months, apart
from one visit on February 9, 2014. DCFS filed a supplemental
petition for termination of parental rights and certification
for adoption on May 9, 2014.
trial in this matter, the trial court terminated the parental
rights of B.V. in a judgment signed September 4, 2014. As to
J.S., the trial court found that DCFS had failed to carry its
burden of establishing the grounds for termination under La.
Ch.C. art. 1015(4)(b), (4)(c), or (5) by clear and convincing
evidence, and further, that the termination of the parental
rights of J.S. was not in the best interest of the child.
Accordingly, in a second judgment signed September 4, 2014,
the trial court dismissed the petition for termination of
parental rights and certification for adoption as to J.S.
this second judgment DCFS has appealed, contending that (1)
the trial court committed manifest error in concluding that
DCFS failed to meet its burden of proof necessary to
terminate the parental rights of J.S. pursuant to La. Ch.C.
art. 1015(4)(b), (4)(c), or (5), by clear and convincing
evidence; and (2) the trial court committed manifest error in
concluding that the termination of the parental rights of
J.S. was not in the best interest of J.J.S.
Parents have a natural, fundamental liberty interest to the
continuing companionship, care, custody and management of
their children, warranting great deference and vigilant
protection under the law, and due process requires that a
fundamentally fair procedure be followed when the State seeks
to terminate the parent-child legal relationship. State
ex rel. J.A., 99-2905 (La. 1/12/00), 752 So.2d 806, 810;
State, ex rel B.E.M., 09-2061 (La, App. 1 Cir.
3/26/10), 36 So.3d 317, 320, writ denied, 10-0957
(La. 5/5/10), 34 So.3d 851; State ex rel. B.J.,
00-1434 (La.App. 1 Cir. 7/27/00), 767 So.2d 869, 872. [2014
1574 La.App. 1 Cir. 6] However, a 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.
State ex rel. J.A., 752 So.2d at 810-11. 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. Id. at 811.
Louisiana Children's Code article 1015 provides the
statutory grounds by which a court may involuntarily
terminate the rights and privileges of a parent. The State
need only establish one ground, but the trial court must also
find that the termination is in the best interest of the
child. La. Ch.C. art. 1037 B; State, ex rel. B.E.M.,
36 So.3d at 319. Additionally, the State must prove the
elements of one of the enumerated grounds of La. Ch.C. art.
1015 by clear and convincing evidence to sever the parental
bond. La. Ch.C. art. 1035. To prove a matter by clear and
convincing evidence means to demonstrate that the existence
of a disputed fact is highly probable, that is, much more
probable than its nonexistence. State ex rel. B.J.,
767 So.2d at 872. Accordingly, a two-pronged inquiry is posed
in parental termination proceedings: (1) has the State
established by clear and convincing evidence at least one
ground for termination under La. Ch.C. art. 1015, and, if so,
(2) is the termination in the best interest of the child?
State ex rel. L.B. v. G.B.B., 02-1715 (La. 12/4/02),
831 So.2d 918, 922.
well settled that an appellate court cannot set aside a
juvenile court's findings of fact in the absence of
manifest error or unless those findings are clearly wrong.
State ex rel. B.J., 767 So.2d at 872.
instant case, DCFS relied upon La. Ch.C. art. 1015(4)(b),
1015(4)(c), and 1015(5) as the grounds for which it sought
termination of J.S.'s parental rights. Pursuant to La.
Ch.C. art. 1015(4)(b), parental rights may be terminated
[2014 1574 La.App. 1 Cir. 7] 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.
Children's Code article 1015(4)(c) provides that parental
rights may be terminated when:
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
pursuant to La. Ch.C. art. 1015(5), parental rights may be
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.
first ground for termination that DCFS alleged was pursuant
to La. Ch.C. art. 1015(4)(b), the failure to provide
significant contributions to the child's care and support
for any period of six consecutive months. In ruling that DCFS
failed to prove this ground for termination of J.S.'s
parental rights by clear and convincing evidence, the trial
court reasoned that after reviewing the record and testimony,
it appeared that J.S. had fallen on " some hard
times," whether by being laid off from work or lack of
transportation. The trial court further stated that "
there's been substantial parental compliance" based
on the testimony presented at trial. Apart from those
statements, the trial court made no statements at trial or in
its written reasons regarding J.S.'s failure to provide
any significant contributions for the care of J.J.S.
reviewing the record herein in its entirety, we find that the
trial court manifestly erred in its finding that under the
facts established by DCFS herein, DCFS failed to prove by
clear and convincing evidence that J.S.'s parental rights
[2014 1574 La.App. 1 Cir. 8] should have been terminated
pursuant to La. Ch.C. art. 1015(4)(b). The State is only
required to prove a ground for termination listed in La.
Ch.C. art. 1015 by clear and convincing evidence as required
under La. Ch.C. art. 1035, and that termination is in the
best interest of the child, pursuant to La. Ch.C. art. 1037
B. Based on our review of the record, DCFS met its burden.
time the State filed the supplemental petition for
termination of parental rights, J.S.'s case plan directed
him to provide proof of his income to J.J.S.'s foster
care worker. The case plan also directed J.S. to make a
parental contribution of $87.00 per month until a time that
DCFS would review his financial information in order to
assess child support. At trial, the foster care worker
Jeanette Dent testified that DCFS collected no money from
J.S. on behalf of his son during the entirety of JJ.S.'s
time in foster care. Additionally, DCFS offered a print-out
of J.S.'s parental contributions collected to date, which
showed that no money was collected by the State from J.S. on
behalf of his son during the last six years J.J.S. was in
foster care. No party submitted any evidence to contradict
the assertions of DCFS regarding this ground for termination
of parental rights.
the foregoing and the record as a whole, we conclude that the
trial court manifestly erred in concluding that the evidence
presented by DCFS failed to establish by clear and convincing
evidence that J.S. failed to provide significant
contributions for J.J.S.'s care and support for any
period. Instead, on review, we find that DCFS overwhelmingly
established this ground for termination of J.J.S.'s
parental rights by clear and convincing evidence.
1574 La.App. 1 Cir. 9] Because we reverse the trial
court's finding that DCFS failed to prove by clear and
convincing evidence that J.S.'s parental rights should
have been terminated pursuant to La. Ch.C. art. 1015(4)(b),
we pretermit consideration of whether it committed manifest
error in its additional determination that DCFS failed to
prove by clear and convincing evidence that J.S.'s
parental rights should have been terminated pursuant to La.
Ch.C. art. 1015(4)(c) or La. Ch.C. art. 1015(5). As stated
herein, the State need only prove one of the grounds for
termination set forth by La. Ch.C. art. 1015, by clear and
convincing evidence. See State ex rel. B.J., 767
So.2d at 873.
instant matter, given its finding that DCFS failed to prove
the existence of one of the grounds for termination set forth
in La. Ch.C. art. 1015, the trial court did not consider the
second prong of the inquiry herein, i.e., whether
termination of J.S.'s parental rights is in the
child's best interest. Apart from stating, " ... the
State's supplemental petition to terminate parental
rights of [J.S.] was premature and the Court concludes that
it is not in the best interest of the child, J.J.S., to
terminate the parental rights of his father," the trial
court made no further statements that the termination of
J.S.'s parental rights was not in J.J.S.'s best
interest. See State ex rel. L.B. v. G.B.B., 831
So.2d at 922. Based upon our review of the record, we
conclude that the evidence overwhelmingly supports a
conclusion that termination of parental rights is
in J.J.S.'s best interest herein. Foster care worker,
Jeanette Dent, opined that the child needs to have a
permanent placement in a family and recommended that the
child should be freed for adoption. Since October 29, 2008,
J.J.S. has been in and out of foster care, but he has
consistently resided in foster care since April 18, 2011.
DCFS initially placed J.J.S. with foster parent Tameka Judson
and later placed J.J.S. with Ms. Judson's sister, Nita
Davis. In his current foster care placement, J.J.S. can
maintain frequent and regular contact with Ms. Judson and his
sibling that was adopted by her (the [2014 1574 La.App. 1
Cir. 10] result of a separate termination). Ms. Judson and
Ms. Davis are the only consistent caregivers J.J.S. has
known. His current foster parent, Ms. Davis, is willing to
adopt J.J.S. and provide permanency for him, should he be
freed for adoption.
considering the foregoing and the record as a whole, we
conclude that the trial court's judgment dismissing DCF
S's petition for termination of J.S.'s parental
rights must be reversed.
above and foregoing reasons, the trial court's September
4, 2014 judgment dismissing DCFS's petition for
termination of J.S.'s parental rights and certification
for adoption is reversed. Judgment is hereby rendered
terminating J.S.'s parental rights as to J.J.S. and
decreeing that J.J.S. is now free for adoption. This matter
is remanded to the juvenile court for further proceedings
consistent with the views expressed herein. Costs of this
appeal are assessed against J.S.
RENDERED, AND REMANDED.
1574 La.App. 1 Cir. 1] GUIDRY, J., dissents and assigns
on my review of the record before us on appeal, I find that I
cannot agree with the decision to reverse the juvenile court.
Although I agree with the opinion finding that the ground of
non-support under La. Ch. C. art 1015(4)(b) was clearly met,
in reading the juvenile court's reasons for judgment, it
appears equally evident that the court's reason for
denying the state's petition was not because it found the
ground was not met, but because the court found it was not in
the best interest of the child. The court expressly referred
to the child's close relationship with his father and the
father's difficulty in securing and maintaining
employment, due largely to his criminal history.
Additionally, the juvenile court was critical of the
department's handling of the case. The record shows that
several case workers were assigned to this case and the
juvenile court expressly found that certain case workers did
not do all that they could do to assist the father and
support the father in working his case plan. This finding by
the juvenile court was amply supported by evidence in the
record that illustrated the father was much more successful
in complying with his case plan when supervised by other case
workers who better performed their duties.
1574 La.App. 1 Cir. 2] Thus, considering the entirety of the
juvenile court's reasons for judgment, I believe the
juvenile court expressed a sound and supported factual basis
for denying the state's petition to terminate the
father's parental rights, to which this court should
defer. Specifically, the record shows, and the juvenile court
found, that the evidence did NOT show a manifestation of the
father's intention to permanently avoid all parental
responsibility. See State in the Interest of P.S.T., 08-1462
(La.App.3d Cir. 5/6/09), 11 So.3d 565, vacated,
09-1481 (La. 7/27/09), 17 So.3d 362 (wherein although the
supreme court vacated the decision of the appellate court,
which had reversed the trial court's judgment of
termination, the supreme court nevertheless maintained the
reversal of the trial court's judgment and remanded the
matter for further proceedings in light of the fact that the
mother was to be released from prison at an earlier date.
This fact is noteworthy when considered in conjunction with
the appellate court's finding that termination of the
mother's parental rights was not warranted as the child
remained close to his mother, despite the good relationship
the child had with his foster parents); and State v.
F.Y., 05-920 (La.App.3d Cir. 3/1/06), 924 So.2d 1164,
writ denied, 060932 (La. 5/26/06) 930 So.2d 35 (wherein the
appellate court AFFIRMED the decision of the trial court,
observing " that the paramount interest in termination
proceedings is the best interest of the children
involved" and " termination of a parent's right
is not in the best interest of the children when, even if a
parent has failed to comply with the case plan in the past,
the parent's recent behavior indicates a reasonable
expectation of improvement in the near future."
(Emphasis added.)); and compare State in the Interest of
E.M.M., 12-229 (La.App.3d Cir. 7/5/12), 96 So.3d 668 (Amy,
J., dissenting), rev'd, 12-1794 (La. 8/13/12), 95 So.3d
1057 (wherein the supreme court reversed the appellate court
for the reasons stated in the appellate court's
dissenting opinion. In that dissent, the dissenting judge
specifically found that there was " no evidence
regarding the father's circumstances so compelling as to
undermine the trial court's decision" regarding the
father's failure to provide support. Such is not the case
in the present matter. There WAS evidence that the juvenile
court found compelling as to the [2014 1574 La.App. 1 Cir. 3]
father's circumstances. Further in E.M.M., the dissent
noted that " the father s past history supports a
conclusion that there is a lack of any reasonable expectation
of significant improvement in his conduct in the
future." Again, such is not the case in the present
as the termination of a parental rights is such a harsh and
potentially detrimental decision, and considering the unique
position of the juvenile court in this matter to personally
observe the parties and witnesses while assessing the
evidence and making its decision, I believe proper appellate
review requires deferring to the determinations of the
juvenile court in this matter. I therefore respectfully
dissent from the majority opinion holding otherwise.
 The Juvenile Court for the Parish of
East Baton Rouge exercises original juvenile jurisdiction for
the Parish of East Baton Rouge. See La. Ch.C. art. 302(1);
La. R.S. 13:1621(A). As a court exercising juvenile
jurisdiction, it has exclusive original jurisdiction, in
conformity with any special rules prescribed by law, over any
child alleged to be in need of care and the parents of any
such child. La. Ch.C. art. 604.
The children and their parents are referred
to by their initials to preserve their anonymity in this
confidential proceeding. Uniform Rules-Courts of Appeal, Rule
In the written order issued by the juvenile
court pursuant to the filing of the verified complaint, the
court ordered J.J.S. placed in the custody of the Department
of Social Services, which was renamed the Department of
Children and Family Services in 2010. See 2010 La. Acts, No.
877, § 3.
All of the case plans made a part of the
record in this matter directed J.S. to provide proof of
income to J.J.S.'s foster care worker in order for DCFS
to review his financial information so that he could be
assessed child support. Beginning in 2012, J.S.'s case
plans directed him to not only provide proof of income, but
to also make a $87.00 parental contribution, per month,
toward the care of J.J.S. Case manager Iris Mills testified
that in 2011, J.S. did provide proof of income in accordance
with the 9/14/11 case plan.