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Alexander v. State, Department of Children & Family Services

Court of Appeals of Louisiana, Third Circuit

June 6, 2018

TRACY ALEXANDER
v.
STATE OF LOUISIANA, DEPARTMENT OF CHILDREN & FAMILY SERVICES

          APPEAL FROM THE FOURTEENTH JUDICIAL DISTRICT COURT PARISH OF CALCASIEU, NO. 2016-4882 HONORABLE W. MITCHELL REDD, DISTRICT JUDGE

          Nicholas Pizzolatto, Jr. Department of Children & Family Services COUNSEL FOR APPELLEE: State of Louisiana, Department of Children & Family Services

          Richard D. Moreno Richard D. Moreno, LLC COUNSEL FOR PLAINTIFF/APPELLANT: Tracy Alexander

          Court composed of Ulysses Gene Thibodeaux, Chief Judge, Marc T. Amy, and Elizabeth A. Pickett, Judges.

          MARC T. AMY, JUDGE

         After proceedings related to the State's filing of a "Petition for Termination of Parental Rights and Certification for Adoption" concerning two minor children, the trial court rendered judgment terminating the mother's parental rights. The mother ultimately filed a petition for nullity and corresponding motion for summary judgment. However, the trial court denied her motion for summary judgment and dismissed her petition for nullity, and the mother now appeals that judgment. For the following reasons, we affirm.

         Factual and Procedural Background

         On July 1, 2015, the State, through the Louisiana Department of Children and Family Services (DCFS), filed a "Petition for Termination of Parental Rights and Certification for Adoption" concerning two of the minor children of Tracy Alexander. A bench trial on the merits of the petition was held on December 1, 2015. The children's mother, Ms. Alexander, was not present at the trial, and neither Ms. Alexander's counsel, Richard P. Moreno, nor counsel for DCFS had an explanation for her absence. Mr. Moreno explained to the trial court that he had recently "been unable to contact [Ms. Alexander], despite repeated efforts" but that he had "her last current address" and had "notified her twice by mail and once in conversation" about the trial date. Citing Ms. Alexander's absence, Mr. Moreno orally moved for a continuance, which the trial court denied, and the matter proceeded in her absence. The trial court ultimately granted DCFS's petition, thus terminating Ms. Alexander's parental rights over the minor children.

         On December 15, 2015, Ms. Alexander filed a motion for new trial based on her absence at the trial. At a hearing on the motion, Lazetter West, the DCFS caseworker handling Ms. Alexander's case, testified that on November 5, 2015, she received a letter from Mr. Moreno requesting that Ms. West arrange transportation for Ms. Alexander to attend the December 1, 2015 trial. Ms. West explained that, after receiving the letter, she "tried to call Ms. Tracy on the number, but for some reason, [she] couldn't get through" because the "number kept being busy or something." She stated that she further tried to reach Ms. Alexander by calling the residence where Ms. Alexander had reported to be living and the place where Ms. Alexander had reported to be working but was informed that Ms. Alexander no longer lived nor worked there, respectively, and had not provided forwarding information. Ms. West confirmed that she did not alert Mr. Moreno of her inability to get in touch with Ms. Alexander to schedule transportation prior to trial.

         Ms. Alexander also testified at the hearing. When asked whether she was aware of the trial date beforehand and whether she was aware that she needed to attend the trial, Ms. Alexander answered: "I wasn't aware I needed to be here, but I was aware of it." Regarding her efforts to attend the trial, she indicated that she called Ms. West "two or three days before the court date" and left voicemail messages asking Ms. West to return her calls. Ms. Alexander stated that she did not receive return phone calls from Ms. West and had no other means to attend the trial. Ms. Alexander also stated that she called her attorney in the days leading up to trial, and the following colloquy occurred:

Q. Did you ever call your lawyer before the trial?
A. Yes.
Q. After you could not get hold of Ms. West?
A. I called him, and he's the one who told me to call Ms. West to file for a ride.
Q. Okay. And then you called her and couldn't get her?
A. Yes.
Q. That was the 25th. That was six days prior to trial?
A. Yes.
Q. Yeah, six days prior to trial. Now, I do know that Thanksgiving, I ...

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