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State ex rel. J.A.

Court of Appeals of Louisiana, Third Circuit

January 5, 2018



          S. Marie Johnson, Public Defender's Office, Counsel for Appellant: D.A. (mother)

          Diane E. Cote, Attorney at Law, Counsel for Appellee: State of Louisiana, Department of Children & Family Services

          Jocelyn Sias, The Sias Firm, LLC, Counsel for Appellee: J.B. (father)

          Denise Henderson, Raveen Hill, Mental Health Advocacy Service, Child Advocacy Program, Counsel for Appellee: J.A. (child)

          Court composed of Marc T. Amy, Shannon J. Gremillion, and Phyllis M. Keaty, Judges.


         D.A.[1] appeals the judgment of the trial court terminating her parental rights to her minor child, J.A. For the following reasons, the trial court's judgment is affirmed.


         The mother, D.A., and the father, J.B., together produced one female child, J.A., who was born on October 6, 2012. On December 28, 2014, the State of Louisiana, Department of Children and Family Services (DCFS) received a report that J.A. was an alleged victim of dependency, lacked parental supervision, and lived in an inadequate shelter. Following an initial investigation into the allegations, the DCFS recommended that it retain temporary custody of J.A., who had been living with her mother in the home of her maternal grandmother, M.A. An oral instanter order was issued placing J.A. in the temporary custody of the DCFS on January 4, 2015. On January 7, 2015, a written instanter order with a supporting affidavit was filed and signed by the trial court and contained the information regarding DCFS's investigation into the reported claims. On that same date, a continued custody hearing was held which resulted in the trial court signing a formal judgment maintaining custody of J.A. with the DCFS. On January 8, 2015, the State filed a Petition of Child in Need of Care alleging that J.A. was a victim of neglect as defined under La.Ch.Code art. 603(18), secondary to the mother's substance abuse and mental health illness along with the absence of the father. The allegations contained in the petition were denied by D.A. at the answer hearing on February 12, 2015. The trial court thereafter granted the State's request in its petition.

         Following an adjudication hearing and pursuant to the trial court's written judgment dated March 10, 2015, J.A. was adjudicated a child in need of care. The trial court found that it was in J.A.'s best interest to remain in the custody of the DCFS. The written judgment advised D.A. of the case review and permanency review procedure along with her obligation to cooperate with the department and to comply with all of the case plan's requirements. According to the judgment, failure to comply with the case plan could result in termination of parental rights.

         Thereafter, multiple permanency review hearings occurred wherein the trial court was presented with a DCFS case plan, DCFS progress reports, and supporting evidence. Initially, the DCFS formulated a court-approved case plan outlining a strategy for reunification between D.A. and J.A. The strategy for reunification subsequently changed to adoption based upon D.A.'s continued substance abuse and mental health issues.

         On May 3, 2016, the DCFS filed a formal Petition for Termination of Parental Rights and Certificate of Adoption, seeking to terminate D.A. and J.B.'s parental rights and clear the way for the foster parent to adopt J.A. Trial on the petition occurred on August 19, 2016. After considering the testimony and evidence offered at trial, the trial court orally terminated the father's parental rights and continued the matter with respect to the termination of D.A.'s parental rights. The matter proceeded to trial on October 31, 2016. After hearing the testimony and evidence presented, the trial court terminated D.A.'s parental rights for reasons stated in open court. It subsequently issued a written Judgment of Termination of Parental Rights and Certification for Adoption on November 16, 2016, terminating the parental rights of both parents. D.A. appealed.

         The appeal was lodged with this court on May 30, 2017. On May 31, 2017, we issued a rule for D.A. to show cause why the appeal should not be dismissed as untimely filed. Based on the allegations contained in the Appellant's response brief, this court ordered a limited remand to allow the trial court to conduct a contradictory hearing on the untimeliness issue. State in Interest of J.A., 17-500 (La.App. 3 Cir. 6/28/17), 224 So.3d 411. According to trial court's minutes dated August 18, 2017, which is in the supplemental record on review, the trial court found that D.A.'s appeal was timely filed.

         On appeal, D.A. contends that the trial court erred in granting judgment in favor of the DCFS, terminating her parental rights.


         "In a termination proceeding, the appellate court will not set aside the trial court's findings of fact unless it was manifestly erroneous." State in Interest of J.M.L., 47, 201, p. 5 (La.App. 2 Cir. 4/11/12), 92 So.3d 447, 450. Questions of fact in a proceeding for termination of parental rights include the "issue of parental compliance with a case plan, the parent's expected success of rehabilitation, and the expectation of significant improvement in the parent's condition and conduct." Id.


         In her assignment of error, D.A. contends that the trial court erred in granting judgment in favor of the DCFS, terminating her parental rights.

         A parent has a constitutionally protected liberty interest in establishing and maintaining a meaningful relationship with his or her children. State in Interest of A.C., 93-1125 (La. 1/27/94), 643 So.2d 719. This parental interest includes the "care, custody, and management of their child." State ex rel. J.M., 02-2089, p. 7 (La. 1/28/03), 837 So.2d 1247, 1252. Consistent with the parental interest, the state has a legitimate interest in limiting or terminating parental rights under certain conditions. Id. Because termination of parental rights is a severe action, the state bears the burden of establishing each element of a ground for termination by clear and convincing evidence. La.Ch.Code art. 1035; State ex rel. B.H. v. A.H., 42, 864 (La.App. 2 Cir. 10/24/07), 968 So.2d 881. The statutory grounds for involuntary termination of parental rights are found in La.Ch.Code art. 1015, although "only one ground need be established." State ex rel. B.H., 968 So.2d at 885. Once a ground for termination has been established, the parental rights may be terminated by the trial court if it is in the child's best interest. Id.; La.Ch.Code art. 1037.

         In this case, the trial court's written judgment states that the DCFS "met its burden of proof by clear and convincing evidence under Louisiana Children's Code Articles 1015(4) (now 1015(5) and 1015(5) (now 1015(6)[.]" It explained:

[T]hat at least one year has elapsed since the child was removed from the parents' custody pursuant to a court order; case plans for services as to the minor child were formulated for the mother and father and approved by the court; that said parents have failed to substantially comply with their respective case plans, including but not limited to a lack of mental health treatment and substance abuse treatment; that for a period of at least four months as of the time of the trial, despite a diligent search, the whereabouts of the child's father continued to be unknown, that the father has failed to maintain significant contact with the child by visiting her or communicating with her for any period of six consecutive months; that said parents have failed to provide significant contributions to their child's care and support for a consecutive six month period; that the conditions that led to the removal or similar potentially harmful conditions continue to persist; that there is no reasonable expectation of significant improvement in said parents' condition or conduct in the near future; that termination of parental rights is in the best interest of the minor child, [J.A.], for the reason set forth above.

         The trial court's judgment terminating D.A.'s parental rights was based upon the following grounds ...

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