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State ex rel I. A.

Court of Appeals of Louisiana, Third Circuit

April 3, 2019

STATE IN THE INTEREST OF I. A.

          APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF LAFAYETTE, NO. JC2017-706 HONORABLE THOMAS R. DUPLANTIER, DISTRICT JUDGE.

          JAMI PELLERIN PUBLIC DEFENDER'S OFFICE FIFTEENTH JUDICIAL DISTRICT COURT COUNSEL FOR APPELLANT: IN. A. (MOTHER)

          TRACEY DAVENPORT-MCGRAW ASSISTANT DISTRICT ATTORNEY FIFTEENTH JUDICIAL DISTRICT COURT COUNSEL FOR OTHER APPELLEE: STATE OF LOUISIANA

          ALEXANDER HURD ACADIANA LEGAL SERVICES COUNSEL FOR OTHER APPELLEE: I. A. (CHILD)

          CASA COORDINATOR C/O CASA OF SOLA OTHER APPELLEE: CASA OF SOLA

          RENEISHA STEWART DEPARTMENT OF CHILDREN AND FAMILY SERVICES OTHER APPELLEE: DEPARTMENT OF CHILDREN AND FAMILYSERVICES

          LLOYD DANGERFIELD ATTORNEY AT LAW COUNSEL FOR OTHER APPELLEE: DONALD GRIFFEN

          Court composed of Sylvia R. Cooks, Shannon J. Gremillion, and D. Kent Savoie, Judges.

          SHANNON J. GREMILLION JUDGE.

         In.A., the mother of I.A., appeals the judgment of the trial court maintaining I.A. in the custody of the State of Louisiana with the goal of placing I.A. for adoption.[1] For the reasons that follow, we affirm.

         FACTS

         On August 2, 2017, In.A. was placed in the custody of the Department of Children and Family Services (DCFS) after allegations were made that she had been sexually abused. She was eleven years old. She complained of stomach pain while in DCFS custody and was taken to a nearby hospital, where personnel ascertained that In.A. was thirty-two weeks pregnant. I.A. was born on September 15, 2017. The trial court issued an instanter order placing I.A. into DCFS custody, and he and In.A. were placed at Lighthouse Ministries, a shelter for adolescent mothers and children. I.A. was adjudicated a Child in Need of Care (CINC) in January 2018.

         At Lighthouse, In.A. exhibited defiant behavior. In.A. did receive parenting instruction at Lighthouse, but those lessons seem to have not been absorbed. There surfaced other concerns as well, which led the facility to request that I.A. and In.A. be placed elsewhere. According to the testimony of In.A.'s case worker, Ms. Reneisha Stewart, I.A. was moved to a foster home on March 20, 2018, because of "incident reports that were happening between [I.A.] and [In.A.] and the home felt that it was a liability on them and they didn't want anything to happen to [I.A.]" In.A. was also moved to a different facility in Baker, Louisiana. Thereafter, In.A. saw I.A. every other week during supervised visits at either the DCFS facility in Lafayette or at a park near the Lafayette DCFS facility. I.A. was appointed a Court Appointed Special Advocate (CASA) volunteer, who also attended the bi-monthly visits.

         In.A. was subject to a DCFS plan with the goal of reunifying her with I.A., but "her behavior problems as well as her not willing to listen to the instructors who were trying to help her parent her child" resulted in In.A. not progressing satisfactorily in this plan, according to Ms. Stewart. Her defiance, Ms. Stewart testified, had even progressed to physical aggression against the staff of the home. After nine months, DCFS sought approval to maintain I.A. in its custody but to change the goal of the plan from reunification to adoption. This plan was submitted on June 13, 2018.

         A hearing on this change in I.A.'s plan was held on June 26, 2018. At the hearing, Ms. Stewart testified to the above facts. Her testimony indicated that In.A. had problems maintaining an orderly room. According to information Ms. Stewart received from her foster caretakers, In.A. resorts to destructive tantrums when not given her way. Ms. Stewart also testified to difficulties In.A. had in following the instructions of the foster caretakers regarding her own personal hygiene. In.A.'s rough play with I.A., that resulted in a minor "bump" on his head, was of deep concern for Ms. Stewart. Daycare workers also reported to Ms. Stewart that, following a family visit, I.A. presented with scratches on his abdomen.

The report of the CASA volunteer indicated, in pertinent part:
[In.A.] has shown herself to be incapable of properly caring for her baby for an ongoing time. Information gathered by CASA, from the DCFS case files, states that Dr Pappaspyrus, child psychiatrist, diagnosed [In.A.] (at age 8) with Oppositional Defiance Disorder. In February 2018, Dr Brennan, child psychologist, has expressed her concerns in regard to [In.A.]'s behavior toward [I.A.]. There have been reports from [In.A.]'s caregivers of her behaving in violent and aggressive ways. She has had trouble maintaining her own personal hygiene. According to reports, [In.A.] will never be capable of living on her own, caring for her child without a primary caregiver, or holding a job. She attends elementary school in a special education classroom. She is currently living at Provisions Residential Care in Baker, LA. In a conversation with staff members on [In.A.]'s progress, it was reported that [In.A.] struggles with hygiene, care of her belongings and proper interactive behavior. She does have some good days. [In.A.] is going to summer school to catch up on lessons, so that she will be ready for 7th grade. Ms[.] Keisha Roberson informed CASA that [In.A.] does have a long way to go with her progress and is very immature for her age, also saying that some things will never be possible for [In.A.] because of her low IQ.
CASA has observed and/or interacted in four different family visits (9.5). [In.A.] invariably shows brief and intermittent interest in [I.A.] and then moves on to her own interests. She demonstrates that she is not aware of [I.A.]'s needs and wants at any given moment and is only concerned with her own interests. She does not show any ability or even desire to care for him for more than a few moments at any given time. [In.A.] gives most of her attention to her mother, [V.A.], to her phone, and to photos or other belongings brought to visits. She often defers to another adult when someone indicates that [I.A.] is in need of some attention. When she does have him, she demonstrates lack of understanding of basic care for him. At one visit, she wanted to give [I.A.] a french fry "because he has three teeth". No family member objected, so CASA advised her that he was too young for this food and that it could cause him to choke. According to Reneisha, DCFS caseworker, she later 'snuck' the french fry to him anyway. When family visits are set at the park, CASA must interact when necessary, such as when [In.A.] or the 8-year-old half sister brings [I.A.] to a baby swing or when someone is trying to feed him things not meant for a baby. No family member has ever brought an age appropriate toy for [I.A.] to a visit.

         The CASA volunteer recommended that DCFS change the goal for I.A. from reunification to adoption. The CASA volunteer, however, did not testify at the hearing.

         At the close of testimony, In.A.'s attorney argued that DCFS had not made reasonable efforts at reunification. Specifically, he argued that In.A. had not been given parenting classes since I.A. was separated from her. He also argued that In.A. had not been given reasonable assistance to manage her trauma and improve her behavior. The trial court found that In.A. was "a twelve (12) year old child trying to be a mother, and that she does not possess the ability to be a mother, based on it's not going to change with parenting skills or anything else." The trial court noted the lamentable situation this posed but found that adoption was the appropriate disposition to correct it.

         An order was entered by the trial court on June 25, 2018. The order did not contain language finding that DCFS's efforts at reunification were reasonable. It did state that the new plan was in I.A.'s best interests. In.A. then perfected this appeal.

         ASSIGNMENTS OF ERROR

In. A. assigns the following as errors:
1. The trial court failed to make any particularized finding regarding the Department's reasonable efforts to reunite In.A. with I.A.
2. A permanency change was not warranted by the evidence presented at the permanency hearing.
3. The Department made no reasonable efforts to reunify In. A. with I.A., so that the trial court's approval of the permanent placement plan of adoption was error.

         DISCUSSION

         The permanent disposition of CINC cases by hearing is governed by La.Ch.Code art. 702, which provides, in pertinent part:

B. The court shall conduct a permanency hearing within nine months after the disposition hearing if the child was removed prior to disposition or within twelve months if the child was removed at disposition, but in no case more than twelve months after the removal. Permanency reviews shall continue to be held at least once every twelve months thereafter until the child is permanently placed or earlier upon motion of a party for good cause shown or on the court's own motion.
C. The court shall determine the permanent plan for the child that is most appropriate and in the best interest of the child in accordance with the following priorities of placement:
(1)Return the child to the legal custody of the parents within a specified time period consistent with the child's age and need for a safe and permanent home. In order for reunification to remain as the permanent plan for the child, the parent must be complying with the case plan and making significant measurable progress toward achieving its goals and correcting the conditions requiring the child to be in care.
(2)Adoption.
(3)Placement with a legal guardian.
(4) Placement in the legal custody of a relative who is willing and able to offer a safe, wholesome, and stable home for the child.
E. Except as otherwise provided in Article 672.1, the court shall determine whether the department has made reasonable efforts to reunify the parent and child or to finalize the child's placement in an alternative safe and permanent home in accordance with the child's permanent plan. The child's health and safety will be the paramount concern in the court's determination of the permanent plan.

         We note specifically the language in paragraph (C)(1), which requires that the parent be "complying with the case plan and making significant measurable progress toward achieving its goals and correcting the conditions requiring the child to be in care." While Article 702 establishes a priority of placement, and the main priority is reunification, plan compliance and significant progress are prerequisites to its consideration. As our colleagues on the second circuit stated:

Mere cooperation by a parent is not the sole focus of the evaluation of a permanency plan. Rather, the courts must assess whether the parent has exhibited significant improvement in the particulars that caused the state to remove the children from the parent's care and custody. Stability in the home environment and relationships is a consideration in the permanency plan determination. A parent who professes an intention to exercise his or her parental rights and responsibilities must take some action in furtherance of the intention to avoid having those rights terminated.

State in Interest of E.M., 51, 511, p. 10 (La.App. 2 Cir. 6/2/17), 224 So.3d 1122, 1128.

         A plan determination may be reversed only on a finding of manifest error. Id. Under the manifest error standard of review, we review the entire record to determine not whether the trial court was right or wrong, but whether the record contains reasonable support for the trial court's ...


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