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State ex rel. T. D.

Court of Appeals of Louisiana, Fifth Circuit

May 31, 2017

STATE OF LOUISIANA IN THE INTEREST OF T. D.

         ON APPEAL FROM THE JEFFERSON PARISH JUVENILE COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 16-TP-17, DIVISION "B" HONORABLE ANDREA PRICE JANZEN, JUDGE PRESIDING

          COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA, DEPARTMENT OF CHILDREN & FAMILY SERVICES Jessica Coalter.

          COUNSEL FOR PARENT/APPELLANT, T. D., MOTHER Jennifer G. Womble.

          COUNSEL FOR PARENT/APPELLANT, W. D., III, FATHER M. Elizabeth Toca.

          Panel composed of Susan M. Chehardy, Stephen J. Windhorst, and Hans J. Liljeberg

         AFFIRMED

         SJW

         SMC

         HJL

          STEPHEN J. WINDHORST JUDGE.

         The Juvenile Court for the Parish of Jefferson rendered judgment in this case on the petition filed by the State of Louisiana, Department of Children and Family Services ("DCFS"), terminating the parental rights of the mother, T. and the father, W.D., to the minor child, T.D.[1] Both T. and W.D. appeal from that judgment. For the following reasons, we affirm the decision of the juvenile court.

         Procedural History and Facts

         T.D. was born on February 4, 2002, and was 14 at the time of the termination hearing. T.D.'s aunt, D.M., was his legal guardian and primary caregiver for most of his life.

         On January 30, 2015, the Jefferson Parish District Attorney's Office (D.A.'s Office) filed a petition against T.D. alleging that he committed simple battery, simple robbery and criminal damage to property. On February 19, 2015, a petition was filed charging T.D. with theft of goods valued under $500.00. On March 4, 2015, the matter came for adjudication. The State dismissed the charges of simple battery and simple criminal damage to property and T.D. entered an admission to the charge of simple robbery. On March 5, 2015, T.D. entered into an Informal Adjustment Agreement with the D.A.'s Office and was enrolled in the diversion program.

         On March 17, 2015, the D.A.'s Office filed a petition against T.D. alleging that he committed theft of goods and criminal trespass. On March 31, 2015, T.D.'s bond was revoked on the simple robbery charge, and he was remanded to the Rivarde Detention Center.

         Thereafter, the March 17, 2015 petition was amended to charge a Family in Need of Services ("FINS"): ungovernable. T.D. entered an admission to the FINS charge. At this time, he was placed in the custody of DCFS. On the allegation of simple robbery, T.D. was sentenced to the Office of Juvenile Justice for one year, suspended, and placed on two years active probation. The DCFS held several review hearings in 2015 and 2016, during which time it was noted that, although there was a visitation schedule set, T.D.'s parents failed to visit him. In May of 2016, T.D. was hospitalized three times for voicing suicidal ideations. Three hearings were held regarding this issue. There was no indication that the parents visited T.D. during this time.

         On May 16, 2016, DCFS filed a petition for termination of parental rights, alleging that T.D. had been abandoned by his parents. Also on that date, the juvenile court ordered appointment of attorneys for W.D. and T. At the July 16, 2016 case review hearing, it was noted that his parents still had not visited T.D., and further had not visited him since he had been taken into DCFS custody.

         In the petition for termination of parental rights, it alleged that T.D. had been placed in the State's custody on April 14, 2015, and had remained in the State's custody since that time, for a period of over one year. DCFS further alleged that both T. and W.D. abandoned T.D. by leaving him under circumstances demonstrating an intention to permanently avoid responsibility by failing to provide significant contributions to T.D.'s care and support and/or by failing to maintain significant contact with T.D. for a period of six consecutive months from the time T.D. entered into the State's custody through the date of filing of the petition, citing La. Ch.C. art. 1015, Sections 5 and/or 6.[2]

         The hearing on the petition filed by DCFS was held on August 15, 2016. At the hearing, the Juvenile Court judge took judicial notice of the underlying FINS record. Jovia Alexis, employee of the DCFS and the foster care worker for T.D., testified that the FINS proceeding "turned into" a CINC proceedings, and T.D. entered foster care in April of 2015, after T. tested positive on a drug screening. Ms. Alexis stated that a case plan was formulated for T. which included parental contributions or child support payments and visitation. T. did not make any contributions or child support payments, and did not provide food, clothing or other necessities for T.D. In addition, T. did not make any visits. While T. did not initiate contact with DCFS, she did answer when Ms. Alexis contacted her. Ms. Alexis stated that T. indicated that she understood her case plan, but she indicated an unwillingness to participate in that plan. According to Ms. Alexis, T. stated that "she did not complete or will not participate in her case plan and she would not be completing as she felt that [T.D.] being in state custody was best for [him]." Ms. Alexis also testified that initially, DCFS provided bus tokens to enable T. to visit the child, but stopped when it was learned that T. had an automobile and/or was not visiting T.D. Ms. Alexis conducted a home visit and determined that T. did not maintain housing that would be safe and appropriate for T.D. Ms. Alexis stated that, to the best of her knowledge, T. did not maintain a legal means to support herself and T.D. and that she did not have a job or provide proof of income. T. did participate in a psychiatric evaluation, and the recommendations were that she complete a substance abuse program, and then, after she was clean and sober, participate in parenting classes. T. did not complete a substance abuse program, and therefore was not referred for parenting classes. Finally, Ms. Alexis stated that T. had not made any substantial improvement in addressing the problems that prevented her unification with T.D., the minor child.

         T. testified that she wanted an opportunity to be reunited with T.D., but that she could not comply with all requirements of her reunification plan because she was "dealing" with her other children, including a bipolar son.

         Concerning W.D., Ms. Alexis testified that there was also a case plan formulated for him, which included support and visitation. W.D. did not make any parental contributions or pay any child support. Furthermore, W.D. failed to visit T.D. and failed to maintain contact with DCFS. Ms. Alexis stated that she could not determine whether W.D. had maintained safe and appropriate housing for himself and T.D. because she was unsuccessful in her attempts to schedule an appointment with W.D. to visit his home. Furthermore, W.D. had not informed her that he was employed, and had not provided proof of income to DCFS. Ms. Alexis stated that the conditions that led to T.D.'s removal from W.D. persisted and that W.D. had not kept in contact with T.D., nor had he complied with a program of treatment and rehabilitation services set forth in his case plan. Ms. Alexis testified that a case plan had been formulated and she made an appointment with W.D. to review the plan. W.D. did not show up for the appointment and he did not reschedule.

         At the time of the hearing, W.D. was incarcerated, awaiting trial on a possession of heroin charge. W.D. stated that he was incarcerated in April of 2016. W.D. testified that he was unaware of any case plan made by the DCFS. W.D. further testified that he had two houses, and family members that were willing to take care of T.D. while he was incarcerated, but he also admitted that he did not provide the names of those persons to DCFS. He also stated that he was willing to take custody of T.D., but did not attempt to do so because "That was between him and his mother to come in here." W.D. also stated that he could have paid bond money and been released pending trial, but refused to do so because he was facing contempt charges for non-payment of child support.

         Finally, Ms. Alexis testified that T.D. was currently in the custody of DCFS, residing at BoysTown in New Orleans, and that he was adjusting well with a few minor setbacks. According to Ms. Alexis, T.D. had related to her that he wished to be adopted. Furthermore, DCFS was of the opinion that it is in the best interest of T.D. that ...


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