STATE IN THE INTEREST OF C.D.W.
FROM THE FOURTEENTH JUDICIAL DISTRICT COURT PARISH OF
CALCASIEU, NO. 30015 HONORABLE LILYNN A. CUTRER, DISTRICT
M. Sanchez The Sanchez Law Firm, L.L.C. COUNSEL FOR APPELLEE:
State of Louisiana, Department of Children & Family
Hinch The Larry Roach Law Firm COUNSEL FOR APPELLEES: State
of Louisiana, Department of Children & Family Services
Jack Bernsmeier Melanie Bernsmeier
LaKetha Holmes Holmes Family Law Group, L.L.C. COUNSEL FOR
T. AMY, JUDGE.
appointed counsel for the subject minor child, the State
sought termination of the parental rights of the child's
biological mother on the ground of abandonment as provided by
La.Ch.Code art. 1015(5). Following a hearing, the trial court
entered the termination of parental rights and certified the
child eligible for adoption. The biological mother appeals.
For the following reasons, we affirm.
and Procedural Background
C.D.W. was born to T.R.W., his
mother, in June 2009. However, due to T.R.W.'s cocaine
use and C.D.W.'s exposure thereto, the minor child was
taken from T.R.W.'s custody and was placed in the custody
of the State of Louisiana, Department of Children and Family
Services. The child was initially placed in the care of
foster parents, J.B. and M.B., for the first months of his
life. An August 2009 case plan advanced the goal of the
child's reunification with T.R.W. In 2010, C.D.W. was
placed in the custody of his maternal grandmother, M.W.,
although J.B. and M.B. maintained visitation with him during
that period. The State issued a new case plan for
reunification in September 2010, but, according to the trial
court, the State was released from supervision of the case at
the end of that month.
by judgment dated June 2, 2015, J.B. and M.B. were granted
joint custody, along with M.W. At that time, J.B. and M.B.
were designated domiciliary parents of C.D.W. As reported by
the trial court, however, J.B. and M.B. were awarded sole
custody of the child following a December 2015 hearing.
matter was instituted on February 1, 2017 with the filing of
a "Petition for Termination of Parental Rights Pursuant
to Louisiana Children's Code Article 1015(4)." By
that petition, the State sought the appointment of Walter
Sanchez to "bring this action to terminate on behalf of
the minor child" per La.Ch.Code art. 607 and to
authorize him to bring the action to terminate the parental
rights of T.R.W. pursuant to La.Ch.Code art. 1004(B) and
petition advanced La.Ch.Code art. 1015(5)(a), (b), and (c)
as grounds for termination insofar as T.R.W.'s
whereabouts were unknown for more than four months and:
[S]he has failed to provide significant contributions to the
care and support of the minor child for more than six (6)
consecutive months; and, as of the time of filing of this
petition, has failed to maintain significant contact with the
minor child in that she has failed to visit or communicate
with the minor child since December of 2015.
petition noted that Mr. Sanchez was privately retained.
corresponding order, the trial court appointed Mr. Sanchez as
counsel for the child and granted him the authority to bring
the termination action pursuant to La.Ch.Code art. 1004(B)
and (F). As reported below, the trial court further appointed
counsel to represent T.R.W.
parties thereafter appeared at a pre-trial hearing in April
2017, by which time T.R.W. was represented by retained
counsel. The trial court's order from that date further
recognized that T.R.W. was served in open court with the
petition for termination of parental rights and that she
"accepted service, waiving any informality with regard
to the manner of delivery." The order further noted that
T.R.W. entered a denial to the petition.
merits of the termination matter proceeded to a June 2017
hearing. In written reasons for ruling, the trial court found
that the ground of abandonment was proven by clear and
convincing evidence and explained that, with regard to
The undisputed evidence presented at trial indicated that
[T.R.W.] has not provided any support for [C.D.W.] and has
failed to communicate or visit with [C.D.W.] for a period far
in excess of six months. [C.D.W.] was removed from
[T.R.W.]'s care and placed in the State's custody due
to crack cocaine in her and [C.D.W.]'s system at birth.
[C.D.W.] went straight from the hospital into the State's
custody and the … home [of J.B. and M.B.]. [T.R.W.]
has never had custody of [C.D.W.] and he is now 7 (almost 8)
years old. She was a given a case plan but never worked it.
[T.R.W] acknowledged at trial that she has made no effort to
contact [J.B. and M.B.] to see [C.D.W.] prior to the petition
to terminate her rights was filed. She also admits that she
has never provided any financial support for [C.D.W.] either.
those observations, the trial court concluded that T.R.W.
abandoned the child "by placing him in the care of
another" and that she "failed to provide support
for him and failed to visit or communicate with him for a
period in excess of six months." The trial court's
subsequent best interests of the child analysis addressed
both T.R.W.'s longstanding drug problem, and C.D.W.'s
care by J.B. and M.B. The trial court explained that T.R.W.
had been successful in her most recent rehabilitation
program, but further recognized her years of drug use and
inability to parent. By contrast, the trial court identified
that C.D.W. was closely bonded with J.B. and M.B., that they
had provided him with a safe and stable home, and that they
had provided for medical and mental health needs. In light of
these factors, the trial court explained that termination of
parental rights was in the best interests of C.D.W.
final judgment of December 21, 2017, the trial court
commemorated its findings, terminating the parental rights of
T.R.W. to C.D.W. pursuant to La.Ch.Code art. 1015(5). The
trial court further ordered that C.D.W. remain in the custody
of J.B. and M.B. and that the minor child was eligible for
adoption. See La.Ch.Code art. 1037.
appeals, asserting that the trial court erred in: 1)
permitting the appointment of counsel for the minor child
when counsel previously served as counsel for J.B. and M.B.;
2) ordering the termination due to failure to comply with
La.Ch.Code art. 1020; and in 3) finding that the burden of
proof for termination was satisfied.
first questions the trial court's appointment of Mr.
Sanchez as counsel for C.D.W. and argues that the appointment
posed an inherent conflict insofar as Mr. Sanchez had been
counsel for J.B. and M.B. "since the case
inception." In support of the argument, T.R.W.
references La.Ch.Code art. 1016, which, at the time of Mr.
Sanchez's appointment in February 2017,  provided that:
A. The child and the parent shall each have the right to be
represented by separate counsel in a termination
proceeding brought under this Title. Neither the child nor
anyone purporting to act on his behalf may be permitted to
waive the child's right to counsel.
(Emphasis added.). Referencing jurisprudence regarding the
distinct interests involved in a termination of parental
rights matter, T.R.W. suggests that the attendant
"careful balancing act was overlooked by appointment of
special counsel as [Mr.] Sanchez, given his close
connectivity to [J.B. and M.B.] and their goal to hinder
reunification efforts for the minor child, C.D.W. with the
biological parent, [T.R.W.] or for that matter with any of
the minor child's maternal relatives[.]"
review, however, we find no merit in T.R.W.'s claim.
First, as noted by C.D.W., no party lodged an objection to
the petition for appointment of Mr. Sanchez in the court
below and, thus, the trial court did not address the conflict
issue now presented. See Uniform Rules-Courts of
Appeal, Rule 1-3 (providing, in part, that: "The Courts
of Appeal will review only issues which were submitted to the
trial court and which are contained in specifications or
assignments of error, unless the interest of justice clearly
requires otherwise."). See also Council of City
of New Orleans v. Washington, 09-1067, p. 3 (La.
5/29/09), 9 So.3d 854, 856 (wherein the supreme court
explained that: "The well-settled jurisprudence of this
court establishes that as a general matter, appellate courts
will not consider issues raised for the first time, which are
not pleaded in the court below and which the district court
has not addressed.").
noteworthy that T.R.W's argument stems from language
indicating that "[t]he child and the
parent shall each have the right to be represented
by separate counsel in a termination proceeding
brought under this Title." La.Ch.Code art. 1016(A)
(emphasis added). In this case, T.R.W. complains not of
original representation of herself, as the parent, and
subsequent representation of the child. She instead complains
that Mr. Sanchez formerly represented J.B. and M.B. and was
subsequently appointed to represent T.R.W.  By its wording,
Article 1016(A) does not address that situation. Neither is
T.R.W.'s reference to La.Ch.Code art. 607 persuasive as
that provision is contained within Louisiana Children's
Code, Title VI (Child in Need of Care). By contrast, this
matter arises under Title X (Judicial Certification of
Children for Adoption).
these reasons, we leave the trial court's appointment of
counsel for C.D.W. undisturbed.
similarly find that T.R.W.'s second argument is not
preserved for review. By this argument, T.R.W. asserts that
when presented with the initial petition in this matter, the
document did not contain the notice required by La.Ch.Code
art. 1020. While the record does not indicate such
notice was provided pursuant to the Article, the petition
indicated that T.R.W. was an absentee parent "who no
longer resides at her last known address[.]" Thus, it
further sought an order "[a]ppointing an attorney at law
to represent the absentee defendant, [T.R.W.], upon whom
service can be made and against whom these proceedings
conducted contradictorily." The trial court thereafter
appointed an attorney "to represent the interests of the
absentee defendant, [T.R.W.], in these proceedings, upon whom
service shall be made and against whom these proceedings
conducted contradictorily." The resulting sheriff's
return indicates that appointed counsel for T.R.W. was served
with the petition.
her appointed counsel, and her newly enrolled counsel
appeared at the answer hearing in April 2017. The trial
court permitted appointed counsel to withdraw at that time.
The order resulting from that hearing indicates that T.R.W.
was "served in Open Court with a certified copy of the
Petition for Termination of Parental Rights …,
accepted service, waiving any informality with regard to the
manner of delivery." The order further reflects that
T.R.W.'s counsel "entered a denial to the petition,
which is set for trial on June 28, 2017 at 9:00 A.M."
in addition to the fact that T.R.W. did not lodge an
objection below regarding a lack of notice pursuant to
La.Ch.Code art. 1020, T.R.W. specifically waived any
informality regarding delivery. Additionally, it is worth
noting that T.R.W. was at all times represented by either
appointed or retained counsel and that she made personal
appearances at both the answer hearing and at the trial of
the merits. She was thus provided with actual notice.
we find that this argument lacks merit.
final argument, T.R.W. questions whether the trial
court's termination of parental rights was based on
adequate evidence. As noted above, the petition initiating
this matter advanced grounds for termination under ...