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State ex rel. C.D.W. v. T.R.W.

Court of Appeals of Louisiana, Third Circuit

September 26, 2018

STATE IN THE INTEREST OF C.D.W.
v.
T.R.W.

          APPEAL FROM THE FOURTEENTH JUDICIAL DISTRICT COURT PARISH OF CALCASIEU, NO. 30015 HONORABLE LILYNN A. CUTRER, DISTRICT JUDGE

          Walter M. Sanchez The Sanchez Law Firm, L.L.C. COUNSEL FOR APPELLEE: State of Louisiana, Department of Children & Family Services C.D.W.

          Shane 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 APPELLANT: T.R.W.

          MARC T. AMY, JUDGE.

         Through 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.

         Factual and Procedural Background

         C.D.W.[1] 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.

         Then, 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.

         This 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 (F).[2]

         The petition advanced La.Ch.Code art. 1015(5)[3](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.

         The petition noted that Mr. Sanchez was privately retained.

         In its 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.

         The 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.

         The 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[4] by clear and convincing evidence and explained that, with regard to parental abandonment:

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.

         Given 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.

         By 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.

         T.R.W. 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.

         Discussion

         Appointment of Counsel

         T.R.W. 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, [5] 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[.]"

         Following 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.").

         It is 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. [6] By its wording, Article 1016(A) does not address that situation. Neither is T.R.W.'s reference to La.Ch.Code art. 607[7] 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).

         For these reasons, we leave the trial court's appointment of counsel for C.D.W. undisturbed.

         Notice

         We 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.[8] 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.[9]

         T.R.W., her appointed counsel, and her newly enrolled counsel appeared at the answer hearing in April 2017.[10] 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."

         Thus, 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.

         Therefore, we find that this argument lacks merit.

         Merits

         In her 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 ...


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