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State ex rel. C. F.

Court of Appeals of Louisiana, Fifth Circuit

May 31, 2017

STATE OF LOUISIANA IN THE INTEREST OF C. F.

         ON APPEAL FROM THE FORTIETH JUDICIAL DISTRICT COURT PARISH OF ST. JOHN THE BAPTIST, STATE OF LOUISIANA NO. 16, 999, DIVISION "A" HONORABLE MADELINE JASMINE, JUDGE PRESIDING

          COUNSEL FOR PLAINTIFF/APPELLANT, STATE OF LOUISIANA, DEPARTMENT OF CHILDREN AND FAMILY SERVICES Jessica Coalter.

          COUNSEL FOR DEFENDANT/APPELLEE, FATHER, C. F., JR. Kevin L. Ambres.

          COUNSEL FOR MINOR/APPELLEE, MINOR CHILD, C. F. Laura A. Malveau.

          Panel composed of Fredericka Homberg Wicker, Marc E. Johnson, and Stephen J. Windhorst

         AFFIRMED

         FHW

         MEJ

         DISSENTS WITH REASONS

         SJW

          FREDERICKA HOMBERG WICKER JUDGE.

         The State of Louisiana, Department of Children and Family Services ("DCFS"), appeals the denial of its petition to terminate C.F., Jr.'s parental rights to his minor child, C.F.[1] For the following reasons, we affirm.

         On June 9, 2014, DCFS received a report expressing concern for the minor child, C.F. Upon investigation, DCFS learned that C.F.'s mother was deceased[2]and that C.F.'s father, C.F., Jr., had a lengthy history of substance abuse and was reported to be passed out after smoking crack cocaine in the home while the minor child was in his care. On June 20, 2014, DCFS interviewed C.F., Jr., and reported that his behavior was disoriented and his speech slurred. DCFS reported that, during the interview, C.F., Jr. admitted to smoking crack cocaine ten days earlier while the minor child was asleep in the home. C.F., Jr. thereafter made arrangements for C.F. to stay with his sister. For the following six days, DCFS made several attempts to contact C.F., Jr. to transport him for random urine drug screenings and to refer him for substance abuse treatment. In light of C.F., Jr.'s alleged lengthy history of substance abuse and failure to cooperate with DCFS, the trial court granted an oral instanter order directing DCFS to take C.F. into its immediate custody.[3]

         On August 12, 2014, the trial court adjudicated C.F. as a child in need of care. The initial case plan goal for permanent placement for C.F. was reunification with a concurrent goal of adoption. C.F., Jr.'s case plan required him to find and maintain stable housing for a period of six months; contribute $25.00 per month for C.F.'s care and support; participate in and complete agency-approved substance abuse classes; participate in mental health evaluations and therapy appointments; complete random drug screenings; participate in all court hearings and scheduled Family Team Conferences ("FTCs"); visit with C.F. as scheduled and bring her nutritious snacks and age-appropriate toys; and complete agency-approved parenting classes.

         On September 10, 2015, DCFS filed a petition to terminate C.F., Jr.'s parental rights to C.F. In its petition, DCFS sought to terminate C.F., Jr.'s parental rights on the ground of abandonment pursuant to La. Ch.C. art. 1015(4) and (5).[4]DCFS argued that termination was proper because C.F., Jr. failed to make any significant contributions to C.F.'s care and support for a period of six months and, further, because he failed to substantially comply with his case plan.[5]

         On September 29, 2016, the matter proceeded to trial on DCFS's petition to terminate parental rights.[6] At trial, Kyra Johnson, a child welfare specialist with DCFS, testified that she is the case worker assigned to C.F.'s case. She testified that C.F. came into state custody on June 26, 2014, and had been placed in a certified foster home.[7] She testified that C.F. was previously placed into state custody in 2007, when her father C.F., Jr. admitted to using crack cocaine in C.F.'s presence and her mother, E.M., was discovered passed out in the home. Within the initial six-month period in the 2007 case, C.F. was returned to her parents' custody.

         Concerning C.F., Jr.'s contributions to the care and support of C.F., Ms. Johnson testified that, at the time of trial, C.F., Jr. had made no payments in accordance with his case plan for C.F.'s support. She testified, however, that C.F., Jr. did provide snacks during his visits with the child and further provided her with a cell phone.

         Concerning his compliance with his case plan, Ms. Johnson testified that C.F., Jr. received a certificate of completion for the ordered parenting classes and weekly mental health sessions, which included comprehensive evaluations and one-on-one therapy sessions. Ms. Johnson testified that C.F., Jr. "made every appointment" with the evaluating physician. She testified that C.F., Jr. also completed the required substance abuse program and that, prior to December 2015, although he missed a few drug screens he was, generally, "very good with completing his drug screens." Ms. Johnson testified that C.F., Jr. has tested positive for opiates but that C.F., Jr. provided proof to show that he had been prescribed pain medication. Ms. Johnson testified that C.F., Jr. never tested positive for crack cocaine.

         Ms. Johnson testified that, after the filing of the September 2015 petition to terminate, C.F., Jr. did not appear for his December 15, 2015 review hearing. At that hearing, the case plan goal was amended to adoption. C.F., Jr. further did not participate in his January and February 2016 drug screens, which resulted in automatic positive results for those screenings pursuant to DCFS procedures. Ms. Johnson testified that she observed a noticeable difference in C.F., Jr.'s behavior in December 2015, and the beginning of 2016, surmising that C.F., Jr. following the holidays was still grieving the loss of his wife. After the filing of the petition to terminate, C.F., Jr. indicated to Ms. Johnson that he would surrender his rights to C.F. He told Ms. Johnson he felt that everyone was "turning back on him" and that no one was actually trying to help him get his daughter back. C.F., Jr. appeared for the remainder of the drug screens in 2016, up to the date of trial in September 2016. C.F., Jr.'s drug screen in September of 2016 was negative.

         Concerning visitation with C.F., Ms. Johnson testified that prior to December of 2015, C.F., Jr. visited with C.F. twice a month and regularly made those visits with her, missing few visits. She testified that C.F., Jr. brought snacks for C.F. to each visit. Ms. Johnson testified that C.F., Jr. was in an accident in March of 2016, which required him to have multiple surgeries. She testified that C.F., Jr. missed his monthly visitations with C.F. from March 2016 through July 2016, and that C.F., Jr. was immobile after the accident but was likely mobile by June 2016. C.F., Jr. visited with C.F. as scheduled in August and September 2016.

         Regarding his income and housing, Ms. Johnson testified that C.F., Jr. receives $1, 067.00 per month in social security benefits. She testified that C.F., Jr. has always had housing since C.F. entered state custody, but that his housing has been inconsistent. She testified that C.F., Jr. recently, in June 2016, leased a 4-bedroom home in Westwego, which provided space for C.F. and appeared operable with working utilities upon inspection. Although C.F., Jr. had stable housing at the time of trial, Ms. Johnson testified that C.F, Jr.'s housing was still a concern because he shared his home with his two adult sons and his daughter-in-law, who each have had open foster care cases.[8]

         Ms. Johnson testified that C.F. is very happy with her foster care family, who is willing to adopt her. She testified that C.F. does not want to be removed from her foster family and would like to be adopted. She testified that C.F. has been diagnosed with depression since June of 2016 at which time she began medication. C.F. is attending trauma therapy as she has suffered extreme distress from the loss of her mother. On cross-examination, Ms. Johnson admitted that she has not spoken to the doctor treating C.F. for depression to determine if a part of the trauma and resulting depression is also the result of losing her father's daily presence in her life as well. Ms. Johnson testified that, since June of 2016, C.F. has begun exhibiting extreme behavior, and has been caught stealing a package off of someone's porch, and lying. C.F. is enrolled in therapy and is receiving support and professional care to address her recent behavioral issues.

         C.F., Jr. testified at trial that he loves his daughter and that he wants to regain custody. He specifically denied that he uses any illicit drugs and testified that he has been sober for approximately a year and a half. He admitted that he had smoked crack cocaine and that, following the death of his wife, he was in a bad place and went down the wrong path. He further testified that he is a recovering alcoholic and does not drink alcohol. He testified that he is willing to continue substance abuse programs to show that he is committed to remaining sober to regain custody of C.F.

         C.F., Jr, testified that he has been taking prescribed medications for "a long time." He testified that he broke his back years ago, when he was approximately twenty years old, while working on the river. He testified that he has never informed his doctors that he has had a substance abuse problem with crack cocaine, indicating essentially that it is irrelevant because he has never had a substance abuse issue with prescribed pain medication. He stated that any pain medication he has taken has always been prescribed to him by a physician.

         Concerning visitation, C.F., Jr. testified that his daughter is suffering from the loss of her mother and has put up an "ice barrier" and that "one visit an hour a day is not even nearly enough to even start breaking through the ice barrier" to communicate with C.F. He acknowledged that he did not visit with C.F. from April to July 2016. He testified that he broke his hip and his leg and was immobile for a period of time and that he did not want C.F. to see him like that and to worry about him. He acknowledged that C.F.'s foster parents are very good people and that he has the "utmost respect" for them and what they have done for C.F. However, he testified that he wants to be in ...


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