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State ex rel. A.L.D.

Court of Appeals of Louisiana, Second Circuit

June 27, 2018

STATE OF LOUISIANA IN THE INTEREST OF A.L.D. AND. L.S.D.

          Appealed from the Caddo Parish Juvenile Court Parish of Caddo, Louisiana Trial Court No. 157740 Honorable David Neil Matlock, Judge

          DANIEL TOMLIN WILSON Counsel for Defendant Appellant C.K.D.

          GEORGE E. HARP Counsel for Defendant Appellee N.M.L.

          DANA M. RAUSCH Counsel for Plaintiff Appellees A.L.D. and L.S.D.

          KIMBERLY S. SMITH Counsel for Plaintiff Appellee State of Louisiana DCFS.

          Before BROWN, GARRETT, and STEPHENS, JJ.

          STEPHENS, J.

         CKD, the father of the minor children ALD and LSD, appeals a judgment of the Caddo Parish Juvenile Court, Louisiana, terminating his parental rights. For the following reasons, we reverse the trial court's judgment and remand with instructions.

         FACTS

         On May 4, 2016, the minor child ALD was removed from the home of his mother, NML.[1] ALD's biological father is CKD, the appellant in this appeal. Initially, it was alleged that NML and CKD were using methamphetamine and other drugs, as well as engaging in domestic abuse of each other. This behavior, along with a chaotic lifestyle, made NML and CKD unable to provide a safe and appropriate environment for the minor child. Additionally, ALD, who was one year old at the time, tested positive for methamphetamine during the course of the investigation.

         On May 31, 2016, the Department of Children and Family Services for the State of Louisiana ("DCFS") filed its petition in which it alleged that ALD was a child in need of care ("CINC"). On June 10, 2016, during the course of these proceedings, NML gave birth to LSD, also CKD's child. At the trial on July 13, 2016, the parents stipulated that ALD was in need of care. The parents were drug-tested, and both tested positive for methamphetamine. LSD, a one-month-old infant, also tested positive for methamphetamine. On August 23, 2016, DCFS filed its petition regarding LSD, and that child was adjudicated a CINC.

         DCFS developed a plan for rehabilitation of the parents, which was approved by the trial court.[2] The case plan called for CKD to obtain safe and stable housing, complete random drug testing and substance abuse treatment, obtain a legal source of income, and successfully attend and complete parenting classes and anger management. Notably, from the commencement of the case, both NML and CKD had ongoing problems with substance abuse. In fact, as late as November 2017, CKD tested positive for cocaine and drug metabolites.

         Attempting to maintain the children with family members, DCFS initially placed the children with CKD's mother, DD. In May 2017, DCFS received reports that CKD (and maybe NML) were also living with DD, and that perhaps DD was using drugs while caring for the children. NML, DD, and CKD were all drug-tested, and CKD's test came back positive for methamphetamines, cocaine, benzodiazepines, and marijuana. DD's drug-test was positive for benzodiazepines, cocaine, and marijuana. Unfortunately, both the children tested positive for methamphetamines and cocaine at that time. As a result, DCFS removed the children from DD's home and placed them in foster care.

         Afterwards, according to testimony at the trial, NML was incarcerated and CKD's location became unknown to DCFS. The department maintains that between May and November 2017, CKD was noncompliant with his case plan: he made no contributions to the children's care, stopped visiting them, and made no effort for services. DCFS attempted to contact him at his last known address, but the house appeared abandoned. His family claimed not to know his whereabouts.

         DCFS filed a petition to terminate both parents' parental rights on October 9, 2017. NML filed a motion to grant guardianship to her uncle, Dan Linnell, and the matters were consolidated for a December 11, 2017, trial. During a two-day trial, the trial court heard testimony and considered evidence on both issues, and ultimately entered judgment denying NML's motion and terminating both NML's and CKD's parental rights.[3] The trial court stated that CKD's parental rights were terminated pursuant to La. Ch. C. art. 1015(6). CKD filed a timely motion for new trial, which was denied. Only this appeal by CKD ensued-neither NML nor the children appeal the judgment.

         DISCUSSION

         In related assignments of error, CKD argues the trial court erroneously determined that DCFS proved its case for terminating his parental rights on the basis of La. Ch. C. art. 1015(6) and in the best interest of the children. Specifically, CKD argues that in order to successfully terminate his parental rights under art. 1015(6), DCFS had to prove three elements: (1) it had been one year since the children had been removed; (2) there had not been substantial compliance with the case plan for services; and, (3) there is no reasonable expectation of significant improvement in his condition or conduct in the near future. CKD concedes one year has elapsed since the children were removed from his custody; however, he argues that he has complied with several aspects of his case plan, which in the totality of circumstances, amounts to "substantial parental compliance" on his part. He also argues that DCFS failed to prove he lacked a reasonable expectation of significant improvement. He also maintains that DCFS failed to prove that termination of his parental rights was in the children's best interest. Considering the particular facts of this case, we agree.

         Whether termination of parental rights is warranted is a question of fact, and a trial court's determinations will not be set aside in the absence of manifest error. State in Interest of T.P., 51, 172 (La.App. 2 Cir. 11/16/16), 209 So.3d 1015; State in Interest of C.V.W., 48, 166 (La.App. 2 Cir. 4/10/13), 113 So.3d 1202.

         To terminate parental rights, the state must meet the onerous burden of proving one of the statutory grounds for termination set forth in La. Ch. C. art. 1015 by clear and convincing evidence. Here, the pertinent factor ...


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