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State ex rel. Z.P.

Court of Appeals of Louisiana, Second Circuit

September 26, 2018

STATE OF LOUISIANA IN THE INTEREST OF Z.P.

          Appealed from the Ouachita Parish Juvenile Court Parish of Ouachita, Louisiana Trial Court No. 20, 643 Honorable Sharon Marchman, Judge

          LAYNE M. ADAMS Counsel for Appellant, Mother

          VARHONDA E. BURRELL Counsel for Father

          JOHNNY L. SANDERS, II Assistant District Attorney Counsel for State of Louisiana DCFS

          LEGAL AID OF NORTH LOUISIANA By: Krystal J. Williams Counsel for Child, Z.P.

          Before GARRETT, STONE, and COX, JJ.

          GARRETT, J.

         AP, the mother of ZP, appeals from a trial court ruling refusing to change the goal in this child in need of care ("CINC") case from adoption to reunification, changing the visitation schedule and conditions, and ordering the state to file a petition to terminate parental rights. For the following reasons, we affirm.

         FACTS

         As explained below, the child in this case has been in state custody for more than four years. All of the protracted court proceedings described below were heard by the same judge who, by the time of the rulings at issue here, was thoroughly familiar with the case and the procedural background.

         On November 21, 2013, ZP was born to AP and DP, a married couple in their early 20s. AP, the mother, had significant mental health issues. There were concerns that she was not mentally stable enough to care for the baby and that the child might be harmed. AP had previously been diagnosed with ADHD and major depression; she admitted to head banging or fighting. On November 25, 2013, a report of neglect/dependency was made to the Department of Children and Family Services ("DCFS"). A safety plan was developed whereby AP and ZP were to stay with AP's mother and stepfather, BP and CP. AP failed to comply with the safety plan. She did not take her mental health medications or attend her psychiatric appointments. She did not stay in the home with her parents and, due to her mental health diagnosis, she had little patience with ZP. AP was not readily available to go to ZP's medical appointments and had to be tracked down to go.

         DP also had mental health issues and was largely uninterested in caring for ZP. During this time, DP lived with his grandparents. Their home was close to BP and CP. AP would frequently go there to stay with DP when she was supposed to be at her mother's house caring for ZP.

         An instanter order taking ZP into state custody was issued on March 31, 2014. ZP was placed with BP and CP. A hearing was held on April 3, 2014. The DCFS worker testified that there were concerns about AP and DP, who were both approximately 21 years old. AP was not following the safety plan, which required her to stay with her parents, and was not going to medical appointments. Also, there had been an incident in which AP became upset and used profanity when talking with a DCFS supervisor on the telephone. AP and DP failed to get mental health evaluations or submit to drug testing. AP was not bonding with the baby and DP slept and played video games all day. ZP had been diagnosed with a heart murmur and was receiving care from a cardiologist.

         AP testified that she had a long history of psychiatric problems and was hospitalized at Brentwood for approximately one year beginning when she was 12. Her grandmother had died and she had depression and hallucinations where she thought she saw and talked to her grandmother. She said she was bipolar, schizophrenic, and had thoughts of suicide. AP said, "I am a head banger when I get angry." While pregnant with ZP, AP banged her head harder than she meant to, and was hospitalized at Conway Hospital for several days. Following the hearing, a judgment and order were signed on April 3, 2014, finding reasonable grounds to believe ZP was a CINC and custody was continued with the state.

         On June 9, 2014, a CINC hearing was held. AP and DP stipulated that ZP was a CINC. A judgment to that effect was entered. AP and DP were instructed to attend mental health assessments. The trial court approved a case plan requiring AP and DP to maintain income, comply with mental health treatment, complete anger management, and complete parenting classes.

         At a review hearing on September 8, 2014, the DCFS reported that AP and DP had not been working their case plans. A letter from the DCFS filed prior to the hearing stated that AP and DP were not employed and had not maintained stable incomes. They both received SSI benefits. The DCFS reported that AP and DP were not responsible with their finances. They had not maintained an adequate home. They had lived for a time with DP's grandparents. The police had been called to the house due to fighting between AP and DP and between AP and DP's grandmother. Both DP and AP had been referred for mental health treatment, but were refusing to take their medications as prescribed. They were attending parenting classes and the DCFS was attempting to find an appropriate anger management class for them. According to the DCFS, they needed one-on-one counseling rather than group therapy.

         During this time, ZP was living with BP and CP, who were seeking to be certified as foster parents and were willing to adopt the child. AP and DP were allowed to visit with ZP daily, as long as they were supervised by AP's parents. They did not visit daily, even though they lived less than one mile from AP's parents. A judgment was entered continuing ZP in DCFS custody. In September 2014, a court-appointed special advocate ("CASA") volunteer was appointed to the case.

         On September 23, 2014, AP filed a motion seeking to have the court grant the guardianship of the child to her mother, BP. The DCFS raised concerns about BP due to prior reports to the agency. When AP was a baby, BP was married to a child molester and left AP in his care. This resulted in a positive report for failure to supervise AP. According to BP, that former husband is currently serving a life sentence for the molestation of another child, not AP. She divorced him and later married CP.

         BP also had a valid report for physical abuse involving AP in 2002, but the DCFS could not locate the records from that report. Late in 2014, ZP was removed from BP's home and was placed with DW, BP's uncle, and his wife, PW, who are in their 60s. It was determined that ZP had ADHD and was mildly autistic. She was provided services to deal with those conditions. She also had surgery to place tubes in her ears due to frequent infections.

         On January 22, 2015, the parties appeared in court for the hearing on the guardianship motion, but the matter was continued. The trial court expressed concern about AP's physical condition in court, noting that she was hardly able to stand up. BP said that AP was very emotional, they had taken her to a psychiatrist, and were taking her back there as soon as the hearing was concluded that day.

         In March 2015, ZP had been in state custody for one year. The hearing on the motion for guardianship was finally held on April 27, 2015. AP testified that she wanted BP to be ZP's guardian. She stated that the family resides in a three-bedroom, two bathroom mobile home. BP and CP lived there, along with AP and AP's teenage brother, who has spina bifida and is paralyzed from the waist down.

         DP also appeared and testified that he wished the guardianship of the child to be placed with BP and CP. AP and DP were separated at that point and planned to get divorced as soon as they had the money to do so.

         BP testified that she had cared for ZP for more than one year and the child was removed from her home in late 2014, because of the two valid reports with DCFS concerning AP, discussed above. Because of these reports, BP could not be certified as a foster parent. BP stated that she accepted the fact that AP had disabilities and that she would have to be responsible for her. She said that when AP was five years old, she was told to have her sterilized. BP had no complaints about the care ZP was receiving from DW and PW.

         The DCFS worker outlined the concerns with BP's prior valid reports. She also acknowledged that ZP was well cared for while with BP and CP. During the course of the proceedings, DW and PW, who were caring for ZP, were certified as foster parents. They planned to seek certification to adopt if ZP became available. The DCFS planned to request that the permanent case plan be changed from reunification to adoption. The court signed a judgment denying AP's motion to grant the guardianship of ZP to BP, and continued the child in DCFS custody.

         Prior to the permanency hearing in April 2015, the DCFS filed a report with the court and recommended that the permanent case plan be changed to adoption. The CASA volunteer filed a report with the court which concluded that AP was too immature and childlike to parent a child at that point. ZP was observed to be happy and well-adjusted in the home of DW and PW.

         At the permanency hearing on April 30, 2015, the DCFS worker testified that neither AP nor DP had made much progress with their case plans. They had attended parenting classes, but slept through many classes and missed some of them. They had not been taking their mental health medications as prescribed. AP could not tell the worker what medications she was taking. According to the DCFS, AP's mother prompted her to take her medications. AP had started anger management classes, which were ordered because of fighting between AP and DP. At one point she hit him in the head with a frying pan.

         The DCFS did not think that AP or DP could care for ZP without outside help. AP had to be told everything to do for the baby. The DCFS did not rule out the possibility that AP could care for ZP in the future if she took care of her mental health issues. At the time of that hearing, AP was pregnant with a child not fathered by DP.

         The trial court found that neither parent had completed their case plan, but AP had made more effort in addressing her mental health needs than she had in the past. The trial court found that the most appropriate permanent plan was adoption.

         A case review hearing was held on October 12, 2015. AP had given birth to her second child on September 28, 2015. AP had been punctual with her visits to ZP, had finished batterer's intervention, and was working hard to follow her case plan. DP had visited with ZP, but had not done anything else to complete his case plan. Following the review hearing, the trial court signed and filed a judgment noting that the permanent case plan was adoption and not reunification.

         On December 3, 2015, the DCFS filed a motion and order to approve a case plan which listed the permanent case plan as reunification, with a secondary goal of adoption. On January 7, 2016, the trial court denied the motion, noting that the case plan had been changed to adoption.

         In March 2016, ZP had been in state custody for two years. A permanency hearing was held on April 7, 2016. Prior to the hearing, the DCFS filed a report with the trial court expressing concern for ZP's risk of harm in the care of AP and DP. At the hearing, it was noted that AP had made progress, but the permanent case plan goal remained adoption. AP's mental health medication had been changed because she was pregnant again.

         A review hearing was held on October 6, 2016. BP was allowed to remain in the courtroom because she had power of attorney to handle AP's legal matters and to help her understand the court proceedings. AP was opposed to continuing the permanent plan of adoption and her lawyer indicated that a motion to modify the plan to the goal of reunification would be filed. The trial court expressed surprise that no petition for termination of parental rights had been filed. The court stated that was where the case needed to head and noted that, "[I]f we're here for our next permanency review without that having been ...


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