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State ex rel. A.L.D.

Supreme Court of Louisiana

January 30, 2019

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

          ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, SECOND CIRCUIT, PARISH OF CADDO

          JOHNSON, CHIEF JUSTICE

         We granted a writ in this termination of parental rights case to determine if the court of appeal erred in reversing a district court judgment terminating the parental rights of the father, C.K.D. After reviewing the record and the applicable law, we find no manifest error in the district court's ruling that termination was supported by clear and convincing evidence and that termination was in the best interests of the children. Thus, we reverse the ruling of the court of appeal and reinstate the district court's judgment, terminating C.K.D.'s parental rights as to A.L.D. and L.S.D. pursuant to Louisiana Children's Code article 1015(6).

         FACTS AND PROCEDURAL HISTORY

         On or about May 4, 2016, the minor child A.L.D. was removed from the care of his mother, N.M.L., and his father, C.K.D. On May 31, 2016, the Department of Children and Family Services for the State of Louisiana ("DCFS") filed a petition alleging that A.L.D. was a child in need of care ("CINC"). During the course of the investigation, one-year-old A.L.D. tested positive for methamphetamines. On June 10, 2016, N.M.L. gave birth to L.S.D., also C.K.D.'s child. At the CINC trial on July 13, 2016, the parents stipulated that A.L.D. was in need of care. The parents were drug-tested, and both tested positive for methamphetamines. L.S.D., a one-month-old infant at the time, also tested positive for methamphetamines. On August 23, 2016, DCFS filed a petition regarding L.S.D., and that child was also adjudicated CINC.[1]

         DCFS developed a case plan for the parents, which was approved by the district court. As it relates to C.K.D., the plan required him, among other things, to remain drug free, maintain a safe and stable home that met the basic needs of his children, complete random drug screens, and obtain a legal source of income to support his children. The plan was amended to require that C.K.D. complete parenting classes, anger management, and mental health counseling and to pay $25/month per child to DCFS for the support of his children.

         DCFS initially placed the children with C.K.D.'s mother, D.D. In May 2017, DCFS received reports that C.K.D. was improperly living with D.D., and that D.D. was possibly using drugs while caring for the children. C.K.D., D.D., and both children tested positive for drugs. As a result, DCFS removed the children from D.D.'s home and placed them in non-relative foster care with G.B.

         DCFS filed a petition to terminate both parents' parental rights on October 9, 2017. As to C.K.D., the petition alleged he struggled to comply with the requirements of his court-approved case plan. Specifically, DCFS alleged that although he participated in Active Recovery and received a certificate of completion for Phase I of substance abuse treatment in November 2016, he tested positive for cocaine and methamphetamines in December 2016. DCFS asserted he continued to test positive for those substances and marijuana in May 2017, and that he struggled to maintain compliance with treatment for substance abuse or mental health counseling despite some initial success. DCFS further alleged that C.K.D. had not maintained a safe and stable home that could support the return of his children, and he has not maintained contact with the agency. The petition also alleged C.K.D. failed to pay $25 per child per month in contributions to the care of his children as required by his case plan and that he had no contact with the children since May 2017.

         N.M.L. filed a motion to grant guardianship to her uncle, D.L., and the matters were consolidated for a December 11, 2017, trial. During a two-day trial, the district court heard testimony and considered evidence on both issues, took judicial notice of the non-hearsay portions of the CINC proceedings, and ultimately entered judgment terminating both N.M.L.'s and C.K.D.'s parental rights as to A.L.D. and L.S.D.[2]N.M.L.'s motion to grant guardianship to D.L. was denied, presumably as moot.[3] The district court stated that C.K.D.'s parental rights were terminated pursuant to La. Ch. C. art. 1015(6). C.K.D. filed a motion for new trial, which was denied. C.K.D. appealed the judgment.[4]

         The court of appeal reversed the termination of C.K.D.'s parental rights and remanded the case to the district court for further proceedings, ordering that DCFS maintain custody of the children, the CINC proceeding be reinstated, and the children remain placed with their great-uncle, D.L.[5] State in Interest of A.L.D., 52, 239 (La.App. 2 Cir. 6/27/18), 251 So.3d 554 (2018). The court of appeal concluded that DCFS did not meet its burden of proving the elements required for termination under La. Ch. C. art. 1015(6) by clear and convincing evidence. The court reasoned that C.K.D. sufficiently demonstrated "substantial parental compliance" with the case plan and found there was not clear and convincing evidence at trial to indicate there was no reasonable expectation of significant improvement in C.K.D.'s condition or conduct in the near future, particularly considering the short length of time between the time the petition for termination was filed and the trial. Id. at 560-61. The court of appeal also noted that although the children did not appeal the termination, their appellate counsel appeared and argued that the district court was manifestly erroneous in its judgment and that the children are bonded with their father, who has made strides towards preserving the parent-child relationship and it was the position of the children's appellate counsel that termination was premature and not in their best interests. Id. at 561.

         DCFS filed a writ application in this court, which we granted. State in Interest of A.L.D., 18-1271 (La. 9/21/18), 252 So.3d 490.

         DISCUSSION

         Permanent termination of the legal relationship existing between natural parents and children is one of the most drastic actions the state can take against its citizens. However, the primary concern of the courts and the state remains to determine and insure the best interest of the child, which includes termination of parental rights if justifiable statutory grounds exist and are proven by the state. State ex rel. J.M., 02-2089 (La. 1/28/03), 837 So.2d 1247, 1254. Louisiana Children's Code article 1015 sets forth the grounds for which parental rights may be terminated. To terminate parental rights, the state has the burden of proving one of the statutory grounds for termination by clear and convincing evidence. La. Ch. C. art. 1035(A). "'Clear and convincing' evidence requires more than a 'preponderance,' but less than 'beyond a reasonable doubt.' Under the 'clear and convincing' standard, the existence of the disputed fact must be highly probable or much more probable than its nonexistence." In re L.M.M., Jr., 17-1988 (La. 6/27/18), ___o. 3d ___, n. 13 (internal citation removed). If a ground for termination is found, the district court must then determine whether the termination is in the best interest of the child. La. Ch. C. art. 1039; State ex rel. L.B. v. G.B.B., 02-1715 (La. 12/4/02), 831 So.2d 918, 922.

         The district court terminated C.K.D.'s parental rights on the basis of Article 1015(6), which provides:

Unless sooner permitted by the court, at least one year has elapsed since a child was removed from the parent's custody pursuant to a court order; there has been no substantial parental compliance with a case plan for services which has been previously filed by the department and approved by the court as necessary for the safe return of the child; and despite earlier intervention, there is no reasonable expectation of significant improvement in the parent's condition or conduct in the near future, considering the child's age and his need for a safe, stable, and permanent home.

         Thus, under this Article, DCFS had to prove three elements: (1) it had been one year since the children had been removed; (2) C.K.D. had not substantially complied with the case plan for services; and, (3) there is no reasonable expectation of significant improvement in C.K.D.'s condition or conduct in the near future. The dispute in this case centers on elements two and three.

         Lack of Substantial Compliance with Case Plan

         Children's Code article 1036 provides that lack of parental compliance with a case plan under Article 1015(6), may be evidenced by one or more of the following:

(1) The parent's failure to attend court-approved scheduled visitations with the child.
(2) The parent's failure to communicate with the child.
(3) The parent's failure to keep the department apprised of the parent's whereabouts and significant changes affecting the parent's ability to comply with the case plan for services.
(4) The parent's failure to contribute to the costs of the child's foster care, if ordered to do so by the court when approving the case plan.
(5) The parent's repeated failure to comply with the required program of treatment and rehabilitation services provided in the case plan.
(6) The parent's lack of substantial improvement in redressing the problems preventing reunification.
(7) The persistence of conditions that led to removal or similar potentially ...

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