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State ex rel. K.P.

Court of Appeals of Louisiana, Second Circuit

November 15, 2017

STATE OF LOUISIANA IN THE INTEREST OF K.P., I.P., K.C. STATE OF LOUISIANA IN THE INTEREST OF K.C. STATE OF LOUISIANA IN THE INTEREST OF K.P.

         Appealed from the Caddo Parish Juvenile Court Parish of Caddo, Louisiana Trial Court Nos. 148, 219; 148, 219-A; 148, 219-B Honorable David Matlock, Judge

          SAMUEL D. GOODWIN for Appellant, Mother

          JAMES E. STEWART, SR. District Attorney SARAH M. HOOD TOMMY J. JOHNSON Assistant District Attorneys for Appellee

          NANCY G. COOPER for Appellees, Children

          ALLEN HAYNES for Appellee, Father

          KIMBERLY S. SMITH for Appellee, Department of Children and Family Services

          Before PITMAN, GARRETT, and COX, JJ.

          GARRETT, J.

         In these three consolidated cases, the mother of three minor female children appeals a trial court judgment granting guardianship of the children to the godparents of the two oldest children, who have been the foster parents for all three children, as their permanent placement. We affirm.

         FACTS

         The children at issue are IP (DOB 2/9/11), KC (DOB 6/21/13), and KP (DOB 8/14/15). Their mother (DOB 2/28/76) and father (DOB 8/25/86) are apparently not married to each other. While the mother referred to the father as her fiancé in 2013, she was still married to another man. The record does not indicate that the mother has divorced her husband or married the father of these three children.

         The two oldest girls, IP and KC, first came into the custody of the Department of Children and Family Services ("DCFS") less than two months after KC's birth. KC, who has Down syndrome, was positive at birth for controlled substances; according to the mother, the medication was prescribed. On August 16, 2013, a home health nurse went to the family's mobile home in Shreveport to check on the baby's weight. The nurse observed a bruise on IP's forehead and IP's sippy cup lying in a puddle of dog urine. She also smelled a strong odor of marijuana in the home. The mother's speech was slurred, and she fell asleep while trying to talk.[1] The police and DCFS were summoned. The parents were arrested, and an oral instanter order removing the girls was issued. An instanter order was signed on August 19, 2013, placing IP and KC in DCFS custody. During the course of the investigation, both parents tested positive for drugs - the mother for opiates and codeine and the father for marijuana.

         DCFS verified that both parents had been the subjects of prior valid investigations. The father had a 2012 valid investigation. The mother had five valid investigations between 2003 and 2012. In fact, she had three other daughters from her marriage who had been placed in foster care, and the mother eventually lost custody of them to relatives. See State ex rel. P.A.P., 44, 221 (La.App. 2 Cir. 2/4/09), 4 So.3d 182, in which the granting of guardianship to relatives was affirmed.[2]

         The father, who admitted to daily marijuana use, was charged with marijuana possession, use/possession of drug paraphernalia, improper supervision of a minor, and illegal use of a controlled dangerous substance ("CDS") in the presence of persons under 17 years of age. He bonded out of jail after several days.[3] The mother, who admitted a history of polysubstance dependence, remained in jail until early March 2014, due to a parole violation.[4]

          Following a hearing on August 21, 2013, the children were continued in care; an order forbidding unsupervised visitation by the parents was issued. On August 26, 2013, the Court Appointed Special Advocate ("CASA") program was appointed to advocate for the children. In September 2013, the girls, who initially had been put in separate foster homes, were placed with their godparents, AK and JK.[5]

         A petition to adjudicate the children in need of care ("CINC") was filed. On October 23, 2013, the children were so adjudicated by stipulation. They were continued in their placement with the godparents. The mother was ordered to obtain a second medical opinion before taking any prescribed opiates; the father was prohibited from smoking marijuana or using other illegal substances. At this point, the case plan goal was reunification. At a case review on January 27, 2014, the court found that the girls were still CINC. The court approved a case plan with an amended goal of reunification/guardianship.

         Effective April 10, 2014, the mother - who had detoxed during her seven months in jail - was ordered to participate in and follow the rules of Family Preservation Court. These included refraining from drug use, attending treatment, and submitting to random drug testing. In July 2014, the mother successfully completed that program by attending all treatment classes and consistently testing negative.

         In the meantime, on April 21, 2013, another case review was held; the children were maintained in custody. On August 6, 2014, a permanency/ case review hearing was held. The goal was amended to adoption/ reunification. The mother was ordered to continue supervision by the Family Preservation Court. The father was ordered not to use marijuana or associate with anyone who used it. Unsupervised visits with the girls were permitted.

         In September 2014, CASA recommended that the godparents be granted guardianship of the girls. However, following a modification hearing on September 22, 2014, the children were returned to their mother's custody. DCFS was ordered to continue supervision for three months. CASA was also ordered to remain in the case. After a case review hearing on November 17, 2014, the trial court ordered that the children continue in their mother's custody, with DCFS supervision terminating on December 17, 2014.[6] In March 2015, CASA was relieved of its appointment, but the court ordered that the case remain open and the disposition remain in effect until the children's respective 18th birthdays, unless otherwise ordered. The protective order prohibiting the father from using marijuana or any illegal drug remained in place.

         In August 2015, a third daughter, KP, was born.

          On August 24, 2016, DCFS received a report that KC was severely underweight, and had been hospitalized and diagnosed as failure to thrive. At age three, KC was 2'9" but weighed only 21 lbs., 6 oz. She was also nonverbal and unable to walk. On August 26, 2016, KC was placed back in DCFS custody, pursuant to an emergency instanter order. At a hearing on August 31, 2016, the court found that KC was not CINC, and she was returned to the custody of her mother, who was ordered to cooperate with DCFS and submit to drug testing. A random drug test of the mother on September 1, 2016, was positive for methadone and methamphetamine.

         On November 22, 2016, the DCFS caseworker assigned to the family went to their home because she had been unable to contact the mother for a week. When she arrived, she found the home to be "unclean" and in "total chaos." The father, who was in the process of moving out, was screaming loudly, distressing the children and making them cry. He told the caseworker that he had had enough, that he was leaving the mother because he was tired of "her lies and deceptions, " that the mother was lying about her drug abuse, and that she took 160 pills a month. He also said he would no longer work with the agency. IP, who was five years old, described to the DCFS caseworker a physical confrontation between her parents over a cellphone, in which one-year-old KP was knocked to the floor. IP also told the caseworker that she would "need a new family" because her parents were going to "run away." The mother failed to comply with random drug screening immediately after this incident. The father refused to submit to drug testing, telling the caseworker he would test positive because he had been living in Denver where he smoked marijuana legally.[7] The father's mother picked him up while the caseworker was present. The next day, the mother called the caseworker and told her that the father had returned home. According to the mother, the father always says "he's leaving and always comes back; he's not going anywhere." She also said that he had been diagnosed as bipolar and had been off his medications.[8]

         In a report dated November 23, 2016, the DCFS expressed the following specific concerns: (1) the parents' volatile relationship, especially in the children's presence; (2) the mother's failure to always be truthful to the caseworker; and (3) the father's mental health, continuous substance abuse, and noncooperation with the agency.

         On December 6, 2016, a hearing was held as to IP and KC.[9] The CASA volunteer testified that, at age three, KC was unable to walk or talk. She had missed numerous medical appointments. KC had not been seen at Shriners Hospital for Children since November 2014; she was "no call/no show" for a June 2015 appointment to determine if she needed splints. She missed 13 of 17 scheduled appointments for outpatient therapy at Willis Knighton Canterbury Square, a facility which assists developmentally delayed children and has an eight-month waiting list. As a result, she was discharged from the program. KC's last known appointment with her former pediatrician was March 23, 2015; between that time and her hospitalization in August 2016, there were three "no call/no show" visits. The clinic of her new pediatrician reported two "no call/no shows" in October and November 2016. Per clinic policy, a third one would result in KC being removed as a patient. KP, the youngest child, had already been dismissed as a patient by this clinic because she was "no call/no show" on her new patient appointment in October 2016. The CASA volunteer's report admitted at this hearing refuted the mother's claims that KC lost weight due to a thyroid condition. The record indicates that KC was diagnosed with hypothyroidism, which typically involves weight gain.

         According to the CASA volunteer, IP's kindergarten teacher expressed several concerns about the care IP was receiving. Among these were the fact that she frequently came to school dirty and unbathed, with unwashed hair and unbrushed teeth. Further, she could not recognize her ABCs even though she was halfway through the school year. The CASA report admitted at this hearing also stated that IP had reported to school with numerous bug bites from August to October 2016. Despite the teacher's discussion with the mother, the mother failed to treat the bites. Additionally, IP had not seen a dentist since July 2014.

         At the hearing, the mother was confronted about a Facebook live post she made earlier in the day indicating that she would flee the jurisdiction with the children if they were removed. Although she steadfastly denied using illegal drugs, she was unable to present a plausible explanation for testing positive for methamphetamine. At the conclusion of the evidence, IP and KC were placed in DCFS custody. The court ordered an expedited interstate compact home study on the godparents, who were living in Missouri.[10] The court ordered DCFS to provide tutoring and counseling for IP, to attend to KC's medical needs, and to conduct a welfare check on KP. Pursuant to the last order, DCFS obtained a verbal instanter order to ...


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