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State ex rel. M.F.

Court of Appeals of Louisiana, First Circuit

December 21, 2017

STATE OF LOUISIANA IN THE INTEREST OF M.F. STATE OF LOUISIANA IN THE INTEREST OF K.N.

         On appeal from the Seventeenth Judicial District Court In and for the Parish of Lafourche State of Louisiana Docket Number 13045 c/w 13141 Honorable Steven Miller, Judge Presiding

          Camille A. Morvant II District Attorney Anthony P. Lewis Assistant District Attorney Thibodaux, LA Counsel for Appellee State of Louisiana

          Linda A. Mitchell Houma, LA Counsel for Appellee State of Louisiana, Department of Children and Family Services

          Marcia Arceneaux Houma, LA Counsel for Appellees M.F. and K.N.

          Teresa D. King Houma, LA Counsel for Appellant M.N.

          Andrea Cheramie Stentz Thibodaux, LA Counsel for Appellant J.F.

          BEFORE: GUIDRY, PETTIGREW, AND CRAIN, JJ.

          GUIDRY, J.

         Parents, whose parental rights were terminated, filed this appeal to challenge the trial court's determination that the State of Louisiana, through the Department of Children and Family Services (DCFS), was not required to attempt to reunify the parents with their children prior to terminating their parental rights.

         FACTS AND PROCEDURAL HISTORY

         On June 13, 2015, J.F.[1] gave birth to M.F. At the time of M.F.'s birth, J.F. tested positive for cocaine, THC, opiates, and benzodiazepines. M.F. was found to be a drug affected newborn when a subsequent test revealed benzodiazepines in his urine. As a result of M.F.'s drug exposure, DCFS sought and was issued an instanter order to have M.F. placed in DCFS's custody pending further investigation and proceedings. The Seventeenth Judicial District Attorney's Office (DA) later filed a petition seeking to have M.F. adjudicated a child in need of care (CINC petition). Following an answer hearing, during which the court found that the allegations of the petition had been proven by a preponderance of the evidence, the trial court adjudicated M.F. a child in need of care.

         On September 3, 2015, the DA amended the CINC petition to identify M.N. as the father of M.F. As M.N. did not participate in the prior answer hearing, a second answer hearing was held at which both J.F. and M.N. appeared. Following the second answer hearing, the trial court again rendered judgment adjudicating M.F. a child in need of care.

         Five months after M.F. came into state custody, DCFS sought and was issued an instanter order to have M.F.'s older sibling, K.N., placed in its custody. M.N. was the legal custodian of K.N. at the time DCFS obtained custody of K.N. pursuant to the instanter order. The instanter order placing K.N. in DCFS's custody was issued based on J.F. testing positive in drug screens, J.F. attending parenting classes while under the influence of drugs, and M.N. admitting that he left K.N. in the care of J.F. when he was absent from home for work.[2] The DA later filed a CINC petition to have K.N. adjudicated a child in need of care based on the same grounds, noting in particular that the parenting classes at which J.F. appeared under the influence of drugs were the ones she was required to attend as part of her case plan[3] for M.F. The petition also referenced the fact that J.F. failed a hair follicle drug screen conducted by DCFS on October 9, 2015, when she tested positive for amphetamines, cocaine, methamphetamines, and opiates, and that she failed a urine drug screen ordered by the trial court on October 17, 2015, when she again tested positive for amphetamines, cocaine, methamphetamines, and opiates. At the answer hearing to the CINC petition for K.N., M.N. and J.F. stipulated to K.N. being adjudicated a child in need of care without admitting to the allegations of the petition.

         Roughly six months after K.N. came into state custody, DCFS filed a petition seeking to terminate the parental rights of J.F. and M.N. to M.F. and K.N., alleging that J.F. and M.N.'s "parental rights to four siblings of [K.N. and M.F.] were terminated due to neglect or abuse and prior attempts to rehabilitate the parents have been unsuccessful. Despite intervention by the agency, the parents did not rehabilitate." See La. Ch.C. art. 1015(4)(k).[4] Although only a single petition was filed seeking to terminate both parents' parental rights to the children, on August 10, 2016, DCFS made an oral motion in open court (as prompted by the trial court and to which counsel for K.N. and M.F. agreed and counsel for J.F. and M.N. did not object) to consolidate the actions to terminate the parental rights of J.F. and M.N. to K.N. and M.F. Thus, the actions were consolidated.[5]

         A hearing on termination of the parental rights of J.F. and M.N. was held on November 14, 2016. Following the hearing, the trial court ordered the parties to file post-trial briefs and took the matter under advisement. The trial court later rendered judgment terminating the parental rights of J.F. and M.N. to K.N. and M.F., based on both parents failing to comply with their case plans - - J.F. due to testing positive on drug tests and M.N. due to his work schedule. The court made particular note of its disagreement with M.N.'s belief that it was appropriate and acceptable to leave the children in the care of J.F. during his extended absences from home for work.

         Additionally, the court found that the parental rights of J.F. and M.N. had been terminated to one or more of the children's siblings due to neglect or abuse, that prior attempts to rehabilitate them had been unsuccessful, and that current attempts to reunite the children with their parents were not required pursuant to La. Ch.C. art. 672.1. Thus, considering that the children had been consistently maintained for a significant period of time in the same foster home, which family was willing to adopt both children, the court found it in the best interest of the children to terminate the parental rights of J.F. and M.N. An amended judgment terminating the parental rights of J.F. and M.N. was signed by the trial court on February 14, 2017, [6] which both J.F. and M.N. have separately appealed.

         DISCUSSION

         In every involuntary termination of parental rights case, there are two private interests involved: those of the parents and those of the child. State ex rel. H.A.B., 10-1111, p. 28 (La. 10/19/10), 49 So.3d 345, 366. While a parent's interests undeniably warrant deference, that deference and protection should always bow to the child's countervailing interests, which are deemed to be superior and paramount. See H.A.B., 10-1111 at p. 29, 49 So.3d at 366. Louisiana Children's Code article 1015 provides the statutory grounds by which a court may involuntarily terminate the rights and privileges of parents. In order to terminate a person's parental rights, the court must find the State has established at least one of the statutory grounds contained in Article 1015 by clear and convincing evidence. See La. Ch.C. art. 1035(A). Notwithstanding, even upon finding the State has met its evidentiary burden, a court still should not terminate parental rights unless it determines to do so is in the child's best interest. La. Ch.C. art. 1037(B). Whether termination of parental rights is warranted is a question of fact, and a trial court's factual determinations will not be set aside in the absence of manifest error. H.A.B., 10-1111 at p. 31, 49 So.3d at 368.

         In this case, the trial court terminated the parental rights of J.F. and M.N. to M.F. and K.N. pursuant to La. Ch.C. art. 1015(4)(k), which provides the following basis for the termination of parental rights:

(4) Misconduct of the parent toward this child or any other child of the parent or any other child which constitutes extreme abuse, cruel and inhuman treatment, or grossly negligent behavior below a reasonable standard of human decency, including but not limited to the conviction, commission, aiding or abetting, attempting, conspiring, or soliciting to commit any of the following:
(k) The parent's parental rights to one or more of the child's siblings have been terminated due to neglect or abuse, prior attempts to rehabilitate the parent have been unsuccessful, and the court has determined pursuant to Article 672.1, that current attempts to reunite the family are not required.

         On appeal, both J.F. and M.N. acknowledge that three conditions are required to be met in order for a person's parental rights to be terminated under Article 1015(4)(k); however, in their briefs to this court, J.F. asserts that the evidence in the record is insufficient to establish the third condition of Article 1015(4)(k), whereas M.N. asserts that, at least as to him, DCFS failed to prove any ...


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