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State ex rel. K. D. M.

Court of Appeals of Louisiana, Third Circuit

May 8, 2019

STATE IN THE INTEREST OF K. D. M., K. J. M. & K. K. B.

          APPEAL FROM THE THIRTY-FIFTH JUDICIAL DISTRICT COURT PARISH OF GRANT, NO. 3128 HONORABLE WARREN DANIEL WILLETT, DISTRICT JUDGE

          Robert L. Kennedy Grant Parish District Defender COUNSEL FOR APPELLANT: D. M. (father of K.D.M & K.J.M)

          Guy R. Lain Louisiana Dept. of Children and Family Services Bureau of General Counsel COUNSEL FOR APPELLEE: State of Louisiana, Dept. of Children and Family Services

          Thomas Gardiner Wilson Attorney at Law COUNSEL FOR OTHER APPELLEE: K.M. (mother)

          Hon. James Patrick Lemoine D.A., 35th JDC COUNSEL FOR OTHER APPELLEE: State of Louisiana

          Jacqueline Chevette Williams Assistant District Attorney COUNSEL FOR OTHER APPELLEES: K. D. M., K. J. M. K. K. B.

          Joseph P. Beck, III Attorney At Law COUNSEL FOR OTHER APPELLEE: D. B. (father of K.K.B.)

          Jerrica Wilson Case Worker COUNSEL FOR OTHER APPELLEE: Grant Dept of Children and Family Svcs

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

          D. KENT SAVOIE JUDGE

         D.M., [1] who is the biological father of twin children, K.D.M. and K.J.M. [2], appeals the trial court's order terminating his parental rights. For the following reasons, we affirm.

         FACTUAL AND PROCEDURAL BACKGROUND

         On August 18, 2017, the State, through the Department of Children and Family Services (the State), sought and obtained an instanter order from the trial court placing K.D.M. and K.J.M., and also K.K.B, who is another child with a different father, in the temporary custody of the State. The children were placed in foster care. K.D.M. and K.J.M. were eight years old at the time, and K.K.B. was one. In support of the instanter order, the State alleged that the mother of the three children provided inadequate shelter and "sells her food stamps, smokes synthetic marijuana on a daily basis in the presence of the minor children, and the trailer in which they lived was in bad condition, there are no working utilities in the home, and the children looked malnourished." In addition, the State alleged that, at the time, school had been in session for three weeks, yet the children had not attended during that time. The State also alleged that it eventually made contact with the children's mother, who provided false information concerning the whereabouts of the children. The State further alleged that the family had previously been offered services on two separate occasions; however, the cases were closed due to the mother's noncompliance.

         On August 29, 2017, the State filed a Petition seeking to declare K.D.M., K.J.M., and K.K.B. as children in need of care. Therein it alleged that D.M. was the father of K.D.M. and K.J.M., and that K.B. was the father of K.K.B. Given that this appeal involves only D.M. with respect to K.D.M. and K.J.M., we will not further discuss actions taken in the trial court with respect to K.B. and/or K.K.B.

         A continued custody hearing was held August 21, 2017. The children's mother and her attorney were present in court. Counsel for D.M. also made an appearance on D.M.'s behalf and noted that D.M. was incarcerated. Following the hearing, the trial court rendered an order the same day finding that it was in the children's best interest for them to remain in the custody of the State. The order further advised the parents of their rights and responsibilities, including their responsibility to keep the State apprised of their current address, and to cooperate in preparing a case plan and meeting the needs of their children.

         The matter was heard again on September 6, 2017. Counsel for the mother, and counsel for D.M., were present, as well as a Court Appointed Special Advocate (CASA) on behalf of the children. An adjudication hearing was then held on October 11, 2017. D.M., through counsel, was present, as well as the mother and her counsel. D.M.'s counsel again indicated that D.M. was incarcerated. During the October 11, 2017 hearing, a Case Plan dated September 13, 2017, was offered and accepted by the trial court.

         The September 2017 Case Plan reflected that D.M. participated by phone. It stated that the primary goal with respect to K.D.M. and K.J.M. was reunification, with a secondary goal of adoption. The plan stated that D.M. "will support his children in foster care and agree to pay $10.00 per month per child . . . when not working and $25.00 per month per child if working." It further provided that visitation would occur on the second and fourth Thursdays, and included specific action steps to be taken by D.M., including maintaining safe housing, participating in a substance abuse assessment and screenings, and attending visitation. The plan further stated that D.M. "will maintain contact with the Agency, report all changes in situation such as: employment, address change, telephone number, etc. He will attend all court hearings, FTC's and any other meetings or functions concerning the children."

         D.M. was incarcerated at the time of the September 2017 case plan, and his case worker, Ms. Jerrica Wilson, provided a copy of the plan to him when she visited with him in jail in October 2017.

         Following the October 11, 2017 hearing, the trial court rendered a Judgment finding that it was in K.D.M.'s and K.J.M.'s best interests to remain in the State's custody. The Judgment also advised the parents of their rights and responsibilities, adjudicated the children in need of care, and set a case plan review hearing for February 7, 2018.

         On January 31, 2018, the State filed with the court a report dated January 22, 2018. Therein, the State noted that "[D.M.'s] whereabouts are unknown. [D.M.] was released from jail on November 1, 2017. [D.M.] has contacted this worker one time since being out of jail. He has not had any more contact with the agency." The report further noted that D.M.'s employment status was unknown and that he had not completed the case plan's required substance abuse assessment, parenting education, or financial contributions.

         Also on January 31, 2018, the State filed a Case Plan dated January 23, 2018. The plan reflected that all three children had been placed with the same foster family and K.D.M. and K.J.M. had changed schools due to this placement. It also reflected that D.M. had not fulfilled any of the required obligations and further stated that D.M.:

was incarcerated . . . until November 1, 2017. The worker visited with him once while he was in jail. Worker had contact with him one time in November when he was released and notified of a family visit. He did not show up and has not been in contact with the Agency since November 2017.

         A case plan review hearing was held February 7, 2018. Counsel for D.M. made an appearance on his behalf. Thereafter, the trial court entered a Judgment ordering the children to remain in the State's custody and approving the January 23, 2018 case plan.

         On July 20, 2018, the State submitted a report dated July 25, 2018, to the trial court, which stated as follows with respect to D.M.:

[D.M.]'s whereabouts are unknown. [D.M.] was released from jail on November 1, 2017. [D.M.] has contacted this worker one time in November 2017. He has not had any more contact with the Agency. Clear searches have been completed but did not turn up any information on his whereabouts. The Grant Parish Child Support office contacted this worker in June 2018. They located [D.M.] in Richland Correctional Center for a misdemeanor and resisting an officer. The office had pursued child support for [D.M.] Once located and brought forth in front of your Honor, he denied being the father of [K.D.M.] and [K.J.M.] and requested a DNA test. The test was completed and results showed that he is the father of the twins. [D.M.] was released from jail on June 29, 2018.

         The July 25, 2018 report further reflected that D.M.'s employment status was unknown, he had not provided any financial support for the children, and he had not completed the requisite substance abuse assessment or parenting education. It also stated that D.M. "has never visited the children since they have been in foster care."

         Also on July 30, 2018, the State submitted a Case Plan dated July 2, 2018, to the trial court. This plan similarly noted that D.M. had not provided financial support for the children, his whereabouts were ...


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