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State ex rel. T.M.B.

Court of Appeals of Louisiana, Third Circuit

May 24, 2017

STATE IN THE INTEREST OF T.M.B. & T.T.B.

         APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF LAFAYETTE, NO. JC-2014-511 HONORABLE THOMAS R. DUPLANTIER, DISTRICT JUDGE

          Lloyd Dangerfield COUNSEL FOR APPELLANT: T.G. (father)

          L. Antoinette Beard COUNSEL FOR APPELLEE: State of Louisiana, Department of Children & Family Services

          Nicole M. Guidry COUNSEL FOR APPELLANT: E.L.B. (mother)

          Franchesca L. Hamilton-Acker Acadiana Legal Service Corp. COUNSEL FOR APPELLEES: T.M.B. (child) T.T.B. (child)

          Tracy Davenport-McGraw Assistant District Attorney COUNSEL FOR APPELLEE: State of Louisiana

          Court composed of Ulysses Gene Thibodeaux, Chief Judge, John D. Saunders, and Marc T. Amy, Judges.

          MARC T. AMY JUDGE

         The two minor children came into the custody of the State due to allegations of their parents' drug use. Citing a lack of substantial compliance with the case plan, the State filed a petition to terminate parental rights. Following a trial, the trial court terminated the parental rights of both parents and certified the children eligible for adoption. The father appeals. For the following reasons, we affirm.

         Factual and Procedural Background

         According to the record, T.M.B. and T.T.B.[1] were one year old and four months old, respectively, when they were placed into the State's custody on June 23, 2014.[2] The Department of Children and Family Services (DCFS) became involved with the family in February 2014, after receiving a report that E.B., the children's mother, tested positive for cocaine while in labor with T.T.B. During the ensuing investigation, the children's father, T.G., admitted to using marijuana.

         Before the children were removed from their parents' custody, DCFS developed a safety plan for the family, which required E.B. and T.G. to attend substance abuse programs and submit to random drug screenings. However, according to the State's Affidavit in Support of Instanter Order, E.B. and T.G. continued to test positive for illicit drugs. In August 2014, T.M.B. and T.T.B. were adjudicated children in need of care and were placed with a foster parent. While the State's initial primary goal was reunification of the children with their parents, it later converted its primary goal to adoption, which was approved by the trial court in November 2015.

         On April 21, 2016, the State filed a petition seeking to terminate E.B. and T.G.'s parental rights and to certify the children eligible for adoption. In its petition, the State alleged that E.B. and T.G. abandoned their children pursuant to La.Ch.Code art. 1015(4), [3] as they "failed to provide significant contributions to their children's care and support for a period of six consecutive months." The State further alleged that T.G. "failed to maintain significant contact with [his] minor children by failing to visit or communicate with said children for a period of six consecutive months[.]" Additionally, the State alleged that termination of parental rights was justified pursuant to La.Ch.Code art. 1015(5), [4] as "greater than one year has elapsed since the children were removed from the parents' custody pursuant to a court order, there has been no substantial parental compliance with the case plan[, ]" and "there is no reasonable expectation of significant improvement in the parents' condition or conduct in the near future, considering the children's ages and need for a safe, stable, and permanent home[.]"

         After a trial, the trial court took the matter under advisement. On October 19, 2016, the trial court rendered a judgment, with written reasons for ruling, terminating the parental rights of E.B. and T.G. and freeing T.M.B. and T.T.B. for adoption.

         T.G. appeals, [5] assigning as error that:

1. The trial court erred in terminating the rights of T.G. for substantial non-compliance when he was complying with the case plan.
2. The trial court erred in terminating the rights of T.G. where D.C.F.S. failed to prove by clear and convincing evidence there was no reasonable expectation of significant improvement in the parent's condition or conduct.
3. The trial court erred in terminating the rights of T.G. where D.C.F.S. failed to demonstrate that termination was in the best interest of the children.

(Upper case font removed.)

         Discussion

         Substantial Compliance

         In his first assignment of error, T.G. asserts that the trial court erred in determining that he failed to substantially comply with his case plan, such that termination of his parental rights pursuant to La.Ch.Code art. 1015(5) was unwarranted. T.G.'s case plan, which substantially remained the same throughout these proceedings, required him to: 1) maintain adequate housing and income, 2) provide contributions of $25.00 per month toward the care and support of the children, 3) complete substance abuse treatment while submitting to random drug screens, 4) attend parenting classes, and 5) attend weekly visits with the children.

         T.G. argues that he "substantially complied with each component of the case plan except for completing the parenting class and making monthly contributions." Regarding the parenting class component, he argues that he was "appropriate" with the children during their visits and that "[b]ased on the case managers['] observations of T.G. during the visits, there appears to be no real need for the parenting class other than to try to improve upon what is already appropriate." Additionally, regarding the monthly contributions component, T.G. appears to argue that he could not afford to make contributions, stating that he "maintained the expenses of the household where he and E.B. lived" and that "[i]t is understandable that an individual without a driver's license and without a vehicle would be hindered in seeking and maintaining gainful employment[.]"

         According to La.Ch.Code art. 1035(A), "[t]he petitioner bears the burden of establishing each element of a ground for termination of parental rights by clear and convincing evidence." Moreover, "the State need only establish one ground for termination[.]" State in the Interest of J.K.G., 11-908, p. 5 (La.App. 3 Cir. 1/11/12), 118 So.3d 10, 14. This principle is particularly pertinent to the defendant's concession that he failed to substantially comply with the case plan in two respects. Additionally, La.Ch.Code art. 1036(C) provides the following:

Under Article 1015(5), lack of parental compliance with a case plan may be evidenced by one or ...

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