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State ex rel. A.S.

Court of Appeals of Louisiana, Fourth Circuit

May 10, 2017

STATE OF LOUISIANA IN THE INTEREST OF A.S., Z.H., Z.H. AND X.H.

         APPEAL FROM 25TH JDC, PARISH OF PLAQUEMINES NO. J-2015-010-C, DIVISION "B" Honorable Michael D. Clement.

          Elizabeth Lincoln STATE OF LOUISIANA DEPARTMENT OF CHILDREN AND FAMILY SERVICES COUNSEL FOR APPELLEE/STATE OF LOUISIANA.

          Justin Caine Harrell H2 LAW, LLC COUNSEL FOR DEFENDANT/APPELLANT.

          (Court composed of Chief Judge James F. McKay, III, Judge Roland Belsome, Judge Regina Bartholomew Woods).

          Regina Bartholomew Woods Judge.

         In this case, a mother, Calendria Houston, appeals the involuntary termination of her parental rights to her minor children, A.S., Z.H., Z.H., and X.H.[1]For the following reasons, we affirm.

         FACTUAL AND PROCEDURAL BACKGROUND

         The Appellant, Calendria Houston ("Appellant"), is the mother of the following minor children: J.S. (born November 9, 2010), A.S. (born February 29, 2012), Z.H. and Z.H. (twins born February 26, 2014), and X. H. and K.H. (twins born December 7, 2014). On March 15, 2015, law enforcement officers responded to a call at the Appellant's home where three-month old K.H. was found dead in the crib that she shared with her twin and the other five (5) children were found severely undernourished and developmentally delayed; the officers suspected that Appellant and her husband, Xavier Houston ("Mr. Houston") either refused or unreasonably failed to provide adequate care for the deceased child and the surviving minor children. The Louisiana Department of Child and Family Services ("DCFS") received a report from law enforcement, which was later confirmed by a DCFS investigator, that Appellant's home was inadequate and in disarray, and that the children had severe diaper rashes and bruising. On that same date, pursuant to an Instanter Order, the remaining five (5) minor children were taken into the custody of the DCFS. On April 14, 2015, DCFS filed a petition for children in need of care for each of Appellant's minor children. On April 15, 2015, Mr. Houston and Appellant attended a DCFS family team conference and signed their case plan with a goal of reunification of the family, with a concurrent goal of adoption. [2] Appellant worked her case plan until May 27, 2015, when Appellant was arrested and charged with Second-Degree Murder of K.H., Cruelty to Juveniles, and Second-Degree Cruelty to Juveniles. Appellant's bond was set at $350, 000. On May 28, 2015, Appellant, without admitting the truth of the allegations contained within the petition for children in need of care, stipulated that her minor children were in need of care. On that same date, J.S. was placed into the custody of his biological father, Joshua Wheatley, and is not a part of this proceeding. Subsequently, Mr. Houston pled guilty and was sentenced to more than ten (10) years of imprisonment; Mr. Houston is not a party to this appeal.

         Unable to fulfill the financial obligations of her bond, Appellant has remained in pre-adjudication custody since her arrest. Approximately ten (10) months after Appellant's arrest and pre-trial detention, on March 23, 2016, DCFS filed a Petition for Termination of Parental Rights. In the petition, DCFS alleged, inter alia, the following:

(1) [Appellant] did engage in misconduct towards each child and the deceased sibling in a manner that constitutes extreme abuse, cruel and inhuman treatment, and/or grossly negligent behavior below a reasonable standard of human decency by
(a) starvation by neglecting to feed the children adequately resulting in the children being severely underweight …, and
(b)abuse or neglect which was chronic and life threatening and did result in the death of one child
(2) [Appellant] has failed to maintain stable and safe housing;
(3) [Appellant] has failed to make any … parental contributions;
(4) [Appellant] has failed to comply with the visitation schedule with her children;
(5) [Appellant] has failed to participate in and successfully complete a qualified parenting program;
(6) [Appellant] has failed to acknowledge and take responsibility for the extreme harm that her children suffered while in her care due to her neglect

         On November 14, 2016, the trial court rendered a judgment, which terminated Appellant's parental rights to her minor children. In a separate document, the trial court issued "Reasons for Judgment, " which set forth the grounds upon which Appellant's rights were terminated. It is from this judgment that Appellant appeals.

         STANDARD OF REVIEW

         It is well-settled that a trial court's findings on factually-intense termination of parental rights issues-including a parent's compliance with a case plan, and whether termination is in the children's best interests-are reviewed on appeal under a manifest error standard of review. State in Interest of T.M.P., 13-1006, p. 21 (La.App. 4 Cir. 10/23/13), 126 So.3d 741, 754.

         DISCUSSION

         Timeliness of Appeal

         Although it is not raised as an assignment of error, DCFS argues that the subject matter jurisdiction lapsed and cannot be re-instated. The judgment terminating parental rights was signed on November 14, 2016. On November 15, 2016, the St. Bernard Parish Sheriff's Office "walked" the judgment to counsel for the Appellant. On December 5, 2016, counsel for Appellant filed a motion for appeal. DCFS moved the trial court to deny the motion for appeal as untimely. The trial court ruled that Appellant's motion for appeal was premature. On December 12, 2016, the trial court mailed the judgment of termination of parental rights to counsel for the State and the parents. On December 15, 2016, counsel for Appellant filed a Notice of Appeal.

         DCFS asserts that the 25th Judicial District relies on the local custom of personal service through the St. Bernard Parish Sheriffs Office; thus DCFS asserts that the clock for timely filing of a Notice of Appeal begins at that moment. However, Article 332 of the Louisiana Children's Code states, in pertinent part, that "appeals shall be taken within fifteen days from the mailing of the notice of the judgment."[3] (Emphasis added). The "starting point for interpreting a statute is the language of the statute itself." Consumer Prod. Safety Comm'n v. GTE Sylvania, Inc., 447 U.S. 102, 108, 100 S.Ct. 2051, 2056, 64 L.Ed.2d 766 (1980). The legislature is presumed to mean what it plainly says in the text of a statute. Cat's Meow v. City of New Orleans, 98-0601, p. 15 (La. 10/20/98), 720 So.2d 1186, 1198. "Courts must presume that a legislature says in a statute what it means and means in a statute what it says there." State v. Williams, 10-1514, p. 6 (La. 3/15/11), 60 So.3d 1189, 1192. "When a law is clear and unambiguous, and its application does not lead to absurd consequences, it shall be applied as written." Id. In the instant matter, the mailing of the judgment, not the custom or practice of the Sheriff's Office, marked the start of the time delay for filing a Notice of Appeal. Therefore, DCFS's argument that subject matter jurisdiction lapsed is without merit. We find the Notice of Appeal timely and as such, will consider the merits of Appellant's appeal.

         Assignments ...


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