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State ex rel. T.A.G.

Court of Appeals of Louisiana, Second Circuit

April 10, 2019

STATE OF LOUISIANA IN THE INTEREST OF T.A.G.

          Appealed from the Fourth Judicial District Court Parish of Morehouse, Louisiana Trial Court No. JD1148 Honorable Sharon Ingram Marchman, Judge.

          VARHONDA EUGENIA BURRELL Counsel for Appellant, J.G.S.

          SCOTT ERIC McELROY Counsel for Appellee, State of Louisiana

          THE LOWERY LAW FIRM By: Scotty Wayne Lowery Counsel for Appellee, T.A.G.

          Before STONE, McCALLUM, and BLEICH (Pro Tempore), JJ. BLEICH, J. (Pro Tempore), dissents with written reasons.

          McCALLUM, J.

         The child's interest is paramount. A child has a right to live in a safe, secure environment and to be reared by a person capable of caring for them. We begin our analysis of this case there.

         J.G.S. ("mother") appeals a judgment terminating her parental rights and freeing her daughter for adoption. Because we conclude that the State satisfied its burden of proving that the mother had statutorily abandoned the child and that termination was in the best interest of the child, we affirm the judgment.

         FACTS

         The mother's daughter, T.A.G., was born in Baton Rouge on July 18, 2014. At the time, the mother was 24 years old and an inmate at the women's prison in St. Gabriel, Louisiana. No father was listed on T.A.G.'s birth certificate.

         L.H., the mother's maternal grandmother, went to Baton Rouge to care for T.A.G. a few days after her birth. T.A.G. remained with L.H. in Bastrop for approximately a year before she began living with her mother.

         J.C. of Bastrop is a friend of the mother's family. On June 6, 2016, the mother asked J.C. to get T.A.G. The next day, the mother returned for T.A.G., but she stayed with the mother for only a couple of days before she was returned to J.C. T.A.G. was kept by J.C. for a few days before the mother again returned for her. T.A.G. remained with the mother for a couple of days before she brought her to J.C. T.A.G has remained in J.C.'s care and custody since that time.

         On June 29, 2016, J.C. filed a petition for custody of T.A.G. She was awarded temporary sole custody of T.A.G., with the mother having no visitation rights. The next month, the order of temporary custody was continued in full force and effect pending a hearing officer conference.

         The hearing officer conference was held on October 28, 2016, with the mother, who was unrepresented by counsel, participating by phone. The hearing officer recommended that J.C. receive sole custody, with the mother having reasonable telephone and supervised visitation rights in Morehouse Parish. No objections to the recommendation were raised, and the recommendation was adopted by the district court.

         On the date of the hearing officer conference, J.C. told the mother that she could call T.A.G. at 2:00 p.m. on every Sunday, and that she would consider expanding telephone visitation if that went well. J.C. also told the mother that supervised visitation would need to be set up through the Wellspring Supervised Visitation Program, a Monroe agency which facilitates supervised visitation.

         Dates of occurrences are not entirely clear from this record. At some point following the hearing officer conference, the mother apparently went to a CADA rehab facility in Shreveport for 28 days. After her stay at the rehab facility, the mother went to Oxford House in Shreveport for three to four months. The mother also apparently began living in Lake Charles at some point.

         On July 7, 2017, the mother was incarcerated in Concordia Parish after violating her parole conditions for not transferring her parole status from parish to parish. She had to complete a 90-day sentence.

         On November 21, 2017, J.C. drove to Ferriday to bring the mother back to L.H.'s home in Bastrop following her release. J.C. had left T.A.G. with L.H. while she traveled to Ferriday. This was the first time in over a year that the mother had physical contact with her daughter.

         L.H. thought the mother spent the next two or three months at her home. J.C. recalled that the mother remained with L.H. for a couple of days before she began residing at Monroe's Oxford House, which is a sober living facility. After leaving Oxford House, the mother moved to an apartment in Monroe and obtained employment. The mother remarried in April of 2018.

         On May 23, 2018, the District Attorney for the Fourth Judicial District, pursuant to La. Ch. C. art. 1004(F), granted authority to a special assistant district attorney to file a petition to terminate the mother's parental rights as to T.A.G. The petition to terminate the mother's parental rights and free T.A.G. for adoption was filed in Morehouse Parish on June 13, 2018. The petition alleged that T.A.G.'s father had never been married to the mother and was deceased. The grounds asserted for termination were that: (1) prior attempts to rehabilitate the mother had been unsuccessful, and she had already surrendered her parental rights over one child and had her parental rights over another child terminated; (2) the mother abandoned T.A.G. by placing her in the physical custody of J.C. in June of 2016 and not seeing her again until November of 2017, not exercising telephone visitation during the designated time, and not exercising supervised visitation; and (3) the mother abandoned T.A.G. by not contributing to her care and support since June 6, 2016.

         After the mother obtained counsel, the termination hearing was continued a couple of times before finally being held on November 14, 2018, when the court heard testimony from the mother, J.C., and L.H. The parties agreed before the hearing that termination would be sought only on the abandonment grounds found in La. Ch. C. art. 1015(5)(b) and (c). Termination would not be sought on the art. 1015(4)(k) ground of prior surrender and termination of parental rights that had been alleged in the petition.[1] This is the case even though the mother alluded to one of her children having been adopted in her testimony.

         The court found against the mother and provided oral reasons for judgment following the hearing. The court found uncontroverted testimony that the State had met its burden of proof under La. Ch. C. art. 1015(5)(b) that the mother failed to provide significant care and support to T.A.G. for six consecutive months. The court also found that while the question of whether there was a lack of significant contacts for six months was a little harder to resolve, the State had met its burden under La. Ch. C. art. 1015(5)(c) of proving a lack of significant contact for six consecutive months. The court concluded that termination of parental rights was in T.A.G.'s best interest as she was well-cared for and in a stable environment with someone who ensured that she received all necessary therapy. Finally, the court noted that the alleged father was deceased, and that no father had come forward according to the putative father registry.

         A written judgment in accordance with the oral reasons for judgment was signed on December 6, 2018. The mother appealed, arguing that the court erred in: (1) finding that the State had met its burden of proving the grounds for termination; (2) finding that the termination was in the best interest of T.A.G.; and (3) denying her motion to dismiss after the State put on its evidence.

         DISCUSSION

         The termination of parental rights involves a two-pronged inquiry. First, the State must establish the existence of at least one ground for termination under La. Ch. Code art. 1015. If a ground for termination is found, then the trial court must determine whether the termination is in the best interest of the child. State in Interest of C.F., 2017-1054 (La. 12/6/17), 235 So.3d 1066.

         Parents have a natural, fundamental liberty interest to the continuing companionship, care, custody and management of their children warranting great deference and vigilant protection under the law, and due process requires that a fundamentally fair procedure be followed when the state seeks to terminate the parent-child legal relationship. However, this parental interest is often at odds with the child's interest in establishing secure, stable, long-term, and continuous relationships in a home with proper parental care. State ex rel. D.L.R., 2008-1541 (La. 12/12/08), 998 So.2d 681; State ex rel. K.G., 2002-2886 (La. 3/18/03), 841 So.2d 759.

         In State in Interest of C.F., supra, the Louisiana Supreme Court explained the considerations underlying a termination of parental rights:

Under La. Ch. Code art. 1001, the purpose of a termination of parental rights proceeding is to protect children whose parents are unwilling or unable to provide safety and care adequate to meet their physical, emotional, and mental health needs. In all proceedings, the primary concern is to secure the best interest of the child if a ground justifying termination of parental rights is proved. Termination of parental rights is to be considered the first step toward permanent placement of the child in a safe and suitable home, and if possible, to achieve the child's adoption. The interests of the parent must be balanced against the child's interest, but the child's interest is paramount. More than simply protecting parental rights, our judicial system must protect the child's right to thrive and survive. A child has an interest in the termination of rights that prevent adoption and inhibit the child's establishment of secure, stable, long term, continuous family relationships. While the interest of a parent is protected in a termination proceeding by enforcing procedural rules enacted to insure that the parental rights are not thoughtlessly severed, those interests must ultimately yield to the paramount interest of the child. Children have a right to live in a safe, secure environment and to be reared by someone who is capable of caring for them.

Id., 2017-1054 at pp. 15-16, 235 So.3d at 1075 (internal citations omitted).

         La. Ch. C. art. 1015[2] sets forth the statutory grounds by which a court may involuntarily terminate the rights and privileges of parents. The grounds include:

(5) Abandonment of the child by placing him in the physical custody of a nonparent, or the department, or by otherwise leaving him under circumstances demonstrating an intention to permanently avoid parental responsibility by any of the following:
* * *
(b) As of the time the petition is filed, the parent has failed to provide significant contributions to the child's care and support for any period of six consecutive months.
(c) As of the time the petition is filed, the parent has failed to maintain significant contact with the child by visiting him or communicating with him for any period of six consecutive months.

         Because the termination of parental rights is a severe and terminal action, the legislature has mandated that in order to terminate these rights, the state must satisfy an onerous burden of proof. State ex rel. B.H. v. A.H., 42, 864 (La.App. 2 Cir. 10/24/07), 968 So.2d 881. Thus, the petitioner bears the burden of establishing each element of a ground for termination of parental rights by clear and convincing evidence. La. Ch. C. art. 1035(A). Proof by clear and convincing evidence requires a showing that the existence of the ...


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