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State ex rel. M.S.

Court of Appeals of Louisiana, Third Circuit

July 17, 2019

STATE IN THE INTEREST OF M.S., M.B., and P.O.

          APPEAL FROM THE THIRTIETH JUDICIAL DISTRICT COURT PARISH OF VERNON, NO. J-2310-2017 A HONORABLE TONY ALAN BENNETT, DISTRICT JUDGE

          Annette Fuller Roach Thirtieth Judicial District Defender Office COUNSEL FOR: Appellant - L.N.S. (mother)

          Jack L. Simms, Jr. P. O. Box 1554 COUNSEL FOR: Appellant - L.N.S. (mother)

          Tony Clell Tillman Public Defender's Office COUNSEL FOR: Appellee - L.F.I. (father)

          Lisa Kay Nelson Williams & Nelson P. O. Box 1810 COUNSEL FOR: Appellee - H.A.O., Jr. (father)

          Ruby Norris Freeman Louisiana Department of Children and Family Services Bureau of General Counsel COUNSEL FOR: Appellee - State of Louisiana, Department of Children and Family Services

          Mary K. Beaird Acadiana Legal Services COUNSEL FOR: Appellees - M.D.S. (child), M.D.B. (child), and P.O. (child)

          Max S. Antony Antony Law Group, LLC COUNSEL FOR: Appellee - State of Louisiana, DA

          Tiffany Ratliff Attorney a Law, LLC COUNSEL FOR: Appellee - J.D.B. (father)

          Court composed of Ulysses Gene Thibodeaux, Chief Judge, John D. Saunders, Shannon J. Gremillion, John E. Conery, and D. Kent Savoie, Judges.

          GREMILLION, J., concurs.

          CONERY, J., dissents and assigns reasons.

          ULYSSES GENE THIBODEAUX CHIEF JUDGE

         L.N.S., the mother of three minor children, M.S., M.B., and P.O., appeals the November 14, 2018 judgment of the trial court terminating her parental rights and certifying the three children for adoption.[1] The three minor children have three different fathers. The trial court's judgment reflected that L.F.I., the father of M.S., voluntarily terminated his parental rights. The judgment also terminated the parental rights of J.D.B., the father of M.B., and the parental rights of H.A.O. Jr., the father of P.O. The judgment of the trial court terminating the parental rights of the three fathers has not been appealed and is therefore a final judgment. For the following reasons, we reverse the termination of parental rights of the mother, L.N.S., and remand this matter to the trial court to allow her an opportunity to successfully complete a new case plan.

         I.

         ISSUES

         We must decide:

(1)whether the State proved by clear and convincing evidence the grounds for termination of parental rights under La.Ch.Code art. 1015(5) and (6); and
(2)whether the State proved by clear and convincing evidence that termination of L.N.S.'s paternal rights was in the best interest of the three minor children.

         II.

         FACTS AND PROCEDURAL HISTORY

         L.N.S. is the mother of three boys, now ages eleven, nine, and two. Respectively, they are M.S., M.B., and P.O. She and the children reside with H.A.O. Jr., the father of P.O., and P.R., the maternal grandmother of the children. The Department of Children and Family Services (DCFS) received a report on June 7, 2017, alleging the neglect of the mother for providing inadequate food and shelter in caring for the children.

         The following day, a DCFS case worker arrived at the residence of L.N.S. and found that the water had been cut off for one day and then turned back on, and the electricity had been off for two days. The DCFS obtained a verbal instanter order for removal of the three children based upon "Dependency and Shelter Inadequate."

         The DCFS then applied for an instanter order for removal of the three children, providing an affidavit that its intervention was required because of the lack of utilities. The DCFS also alleged that L.N.S. received $500.00 for food stamps, but used the money for drugs, as there was no food in the house. The DCFS also reported trash, dirty dishes, and laundry strewn about the home, as well as spoiled food in the refrigerator and sink; there was also a presence of odor, flies, and roaches. The maternal grandmother and the two older children confirmed that they had stayed with a neighbor the night before. L.N.S. and H.A.O., Jr. had left the residence with the baby, P.O., when the power was cut off.

         L.N.S. confessed that she and H.A.O., Jr. had used methamphetamines the night before while in the presence of P.O. L.N.S. further admitted that they had left P.O. in the car with a friend, whose full name L.N.S. did not know, while they were inside the home using drugs. Afterward, they went to spend the night at the home of another friend in New Llano. P.O. slept in his car seat. It was determined that the living situation was contrary to the health, safety, and welfare of the three children and that it was in their best interests to place them in the temporary custody of the State through the DCFS. The instanter order was granted on June 9, 2017, and a hearing on the continued custody of M.S., M.B., and P.O. was fixed for June 13, 2017, in order to determine whether there were sufficient grounds to find that the boys were children in need of services and that continued custody was necessary for their protection. The hearing was held as scheduled, and the trial court granted DCFS continued care, custody, and control of the minor children until the forty-five day adjudication hearing could be held or until further orders of the court.

         The DCFS filed a petition to have the children designated children in need of care, and a hearing was set for August 2017. In the meantime, the Initial Family Team Meeting took place, and a case plan was created for L.N.S., [2] who attended and participated. Under "Basic Obligations of Parents," she was required to provide safe and adequate housing, pay foster care costs of $25.00 per month per child if employed, or $10.00 per month per child if unemployed. L.N.S. was to obtain employment, comply with drug screens, submit to substance abuse and mental health assessments, and follow up with any recommended treatment and counseling. L.N.S. was further required to maintain positive support, attend visitation, and engage in parent education, anger management, and domestic violence classes.

         At the August 2017 hearing on the DCFS's petition, the children were adjudicated children in need of care. A case plan was approved, and a review hearing was ordered fixed for December 2017.

         In November 2017, L.N.S. failed to attend the second family team meeting and review. At the case review hearing on December 13, 2017, the three children were continued in the custody of the DCFS upon a finding by the trial court that reasonable efforts had been made or offered by DCFS to reunify the family; that inadequate progress had been made toward "alleviating or mitigating" the causes of placement with the DCFS; and that return to their former home was contrary to the best interests of the children. The next review was set for June 2018, and custody was continued with the DCFS. The trial court also approved the case plan submitted by the DCFS which changed the goal plan from reunification to adoption and ordered all parties to comply.

         The DCFS filed a petition for termination of parental rights and certification for adoption of the three children in September 2018. The hearing for termination of parental rights was held the following month, resulting in a judgment terminating the parental rights of the parents, which included the mother, L.N.S., and the three fathers, L.F.I., J.D.B., and H.A.O., Jr.

         L.N.S. filed a timely suspensive appeal. She assigns two errors: (1) the trial court erred in terminating the parental rights of L.N.S., and (2) the trial court erred in finding that termination of parental rights was in the best interest of the children.

         III.

         STANDARD OF REVIEW

         "An appellate court reviews a trial court's findings as to whether parental rights should be terminated according to the manifest error standard." State ex rel. H.A.S., 10-1529, p. 11 (La. 11/30/10), 52 So.3d 852, 859 (quoting State ex rel. K.G. and T.G., 02-2886, p. 4 (La. 3/18/03), 841 So.2d 759, 762).

         IV.

         LAW AND DISCUSSION

         In cases involving the termination of parental rights, Louisiana courts are guided by a value for the sanctity of the family unit as set forth in the preamble of the Louisiana Children's Code:

The people of Louisiana recognize the family as the most fundamental unit of human society; that preserving families is essential to a free society; that the relationship between parent and child is preeminent in establishing and maintaining the well-being of the child; that parents have the responsibility for providing the basic necessities of life as well as love and affection to their children; that parents have the paramount right to raise their children in accordance with their own values and traditions; that parents should make the decisions regarding where and with whom the child shall reside, the educational, moral, ethical, and religious training of the child, the medical, psychiatric, surgical, and preventive health care of the child, and the discipline of the child; that children owe to their parents respect, obedience, and affection; that the role of the state in the family is limited and should only be asserted when there is a serious threat to the family, the parents, or the child; and that extraordinary procedures established by law are meant to be used only when required by necessity, and then with due respect for the rights of the parents, the children, and the institution of the family, and only to the extent that such procedures are not prohibited by the Louisiana Constitution of 1974, as amended.

La.Ch.Code art. 101.

         The basis for termination of parental rights in the DCFS petition was that L.N.S. had failed to adequately participate in services provided to her, or failed to substantially comply with the case plans previously approved by the trial court. The DCFS petition further alleged that L.N.S. had failed to provide significant contributions to the care and support of her three children while they were in the custody of DCFS, demonstrating an intent to permanently avoid parental responsibility. These allegations are derived from La.Ch.Code art. 1015(5)(b) and (6), [3] which provide the grounds for termination of parental rights applicable to this case:

(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.
(6) 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, in this case, we must examine four factors from the above paragraphs of La.Ch.Code art. 1015(5)(b) and (6): (1) lack of significant contributions to support the children; (2) passage of at least one year since the children were put in DCFS custody; (3) lack of parental compliance with the case plan; and (4) lack of reasonable expectations of significant improvement in the parent's condition or conduct in the near future.

         Termination of Parental Rights

         In this case, the trial court found that L.N.S. failed to comply with her case plan to the extent that her parental rights should be terminated. But there is not clear and convincing evidence in the record that termination is appropriate as to L.N.S. As shown in our examination of the various components of L.N.S.'s case plan in the sections below, there was substantial compliance with the plan, and certainly not failures sufficient to demonstrate an intent to abandon her children and permanently avoid parental responsibility. Instead, the record reflects that L.N.S. was not given enough time or enough assistance to obtain the skills and housing necessary to have the three children returned to her custody. We note that DCFS called no experts for trial and, in fact, called only one witness, Ms. Megan Boudreaux, the DCFS case worker who handled L.N.S.'s case and the DCFS custody of the three children.

         Parenting/Anger Management/Visitation/Contact With DCFS

         L.N.S. was required to complete an anger management course and parenting classes as part of her case plan. Ms. Boudreaux testified that L.N.S. began parenting and anger management classes on June 15, 2017, and completed the classes on October 24, 2017, satisfying these components of her case plan. Ms. Boudreaux testified that L.N.S. was cooperative and maintained contact with DCFS, with the exception of a few months (conceivably between December 15, 2017 and January 31, 2018, when L.N.S. was in jail).

         L.N.S. has maintained contact with her children and visited them during their custody with DCFS. More, specifically, Ms. Boudreaux testified that L.N.S. visited with her three children regularly and had attended thirty-three of the forty-four scheduled visits with P.O. and twenty of the twenty-five scheduled visits with M.S. and M.B. L.N.S. met weekly with P.O. and bi-weekly with the older children until May 2018, when the visits on all children were changed to monthly. Ms. Boudreaux testified that L.N.S. was bonded with her children and they were bonded with her, and there had never been a concern during the visits.

         Substance Abuse Evaluations/Treatment/ Drug Screens

         L.N.S. initially completed a substance abuse assessment on July 12, 2017, at Beauregard Behavioral Health. A treatment plan was created on August 23, 2017, with sessions scheduled every three weeks for a period of three months. Ms. Boudreaux further testified that L.N.S. was sporadic in attendance and did not follow up, so they closed their case. Later, L.N.S. requested to be referred to another provider and was referred to Project Celebration on March 6, 2018. Again, she failed to follow-up, and they closed their case for non-compliance. At L.N.S.'s request, a third referral was made on May 24, 2018, to Caring Choices. Ms. Boudreaux testified that L.N.S. completed the assessment on September 20, 2018. At that time, no services were recommended as her drug screen was negative. Ms. Boudreaux testified that L.N.S. had several problems with transportation throughout her case plan and that, at one ...


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