In Re Tms

999 So. 2d 21, 8 La.App. 3 Cir. 810, 2008 La. App. LEXIS 1469, 2008 WL 4791594
Louisiana Court of Appeal·Decided November 5, 2008·No. 08-810·Published

Opinion

999 So.2d 21 (2008)

In the Interest of TMS.

No. 08-810.

Court of Appeal of Louisiana, Third Circuit.

November 5, 2008.

*23 Lloyd Dangerfield, Lafayette, LA, for Appellee, D.S.

L. Antoinette Beard, Lafayette, LA, for Appellee, Department of Social Services.

Vivian V. Neumann, Lafayette, LA, for Appellee, T.M.S.

Allyson M. Prejean, Lafayette, LA, for Appellant, E.S.

Michelle Breaux, Assistant District Attorney, Lafayette, LA, for Appellee, State of Louisiana.

Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, OSWALD A. DECUIR and MARC T. AMY, Judges.

AMY, Judge.

E.S.[1], the mother of the child, T.M.S., appeals from a judgment terminating her parental rights. We affirm the judgment, finding no error in the trial court's determination that the State met the burden of proof required to terminate parental rights.

Factual and Procedural Background

E.S. is the biological mother of the minor, T.M.S. On September 28, 2004, the court granted an Instanter Order on the grounds of E.S.'s neglect and inability to care for and provide for her son, T.M.S. He was placed in the temporary custody of the Louisiana Department of Social Services, Office of Community Services ("OCS"). On November 30, 2004, the court adjudicated the child in need of care. Subsequent hearings resulted in continued State custody and renewed approval of the proposed case plan. E.S.'s case plan included the following provisions: "mental health treatment, parenting skills, permanency planning, cooperation with the agency, housing, income, and visit[ation] with her child according to the visitation contract." Additionally, the trial court, enforcing the case plan, ordered E.S. to pay fifty dollars each month to support T.M.S.

On November 12, 2007, the State filed a Petition for Termination of Parental Rights and Certification for Adoption. Trial on the matter was held on April 16, 2008. In its reasons for ruling, the trial court noted that the whereabouts of T.M.S.'s father, D.S., are "basically unknown." Accordingly, the trial court's reasons for ruling referred exclusively to the case plan concerning the mother, E.S.

Consequently, the trial court, in its reasons for ruling, focused on the circumstances concerning E.S. In particular, the trial court noted that it found that returning custody of T.M.S. to E.S. would pose a high risk of harm. The trial court referenced an episode in which E.S. attempted to elope with the child while he was in the custody of OCS. The Physician Emergency Certificate resulting from the event reflects that E.S. was arrested, struggled with police and was "tazered." The Certificate indicates that, thereafter, "she cut her wrist in the patrol car [with a] razor she had hidden." The trial court further referenced E.S.'s "numerous suicide attempts" and her failure to obtain *24 mental health treatment as required by the case plan. The trial court found, among other things, that the State demonstrated E.S.'s failure to complete required parenting classes and her failure to support the minor child. Finally, the trial court observed that T.M.S. had bonded with the foster parents caring for him.

The trial judge's finding resulted in the termination of both E.S.'s and D.S.'s parental rights to T.M.S. E.S. appeals, asserting the following assignments of error:

1. The trial court erred in applying an incorrect standard in terminating E.S.'s parental rights to TMS.
2. OCS did not prove by clear and convincing evidence that E.S. failed to provide significant contributions to the child's care and support for any period of six consecutive months.
3. OCS did not prove by clear and convincing evidence that E.S. failed to substantially comply with her case plan.
4. OCS did not prove by clear and convincing evidence that there was no reasonable expectation for improvement in E.S.'s condition and/or conduct.
5. The trial court erred in finding that termination of E.S.'s parental rights was in the best interest of T.M.S.

Discussion

Burden of Proof

E.S. alleges that the trial court erred by applying the wrong standard in terminating her parental rights. In support of this argument, she points to the trial court's use of the words "fully comply" in its reasons for ruling, rather than "no substantial parental compliance" as set out in La.Ch.Code art. 1015(5).

Louisiana Children's Code Article 1015 sets forth, in pertinent part, the grounds for terminating parental rights:

(4) 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.
. . . .
(5) 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.

The State must prove "each element of a ground for termination of parental rights by clear and convincing evidence." La.Ch. Code art. 1035.

The supreme court has explained:

[T]hat great care and caution must be exercised in these proceedings because the permanent termination of the legal relationship existing between children and their biological parents is one of the most severe and drastic actions the State can take against its citizens. State in the Interest of G.J.L. and M.L., 791 So.2d at 85; State in the Interest of J.A., *25 752 So.2d at 811. Parents have a natural, fundamental liberty interest in the continuing companionship, care, custody and management of their children, which warrants great deference and vigilant protection under the law. Id. Thus, we recognize that the potential loss to parents is grievous, "perhaps more so than the loss of personal freedom caused by incarceration." Id. Because due process requires that a fundamentally fair procedure be followed when the State seeks to terminate the parent-child legal relationship, actions to terminate must be scrutinized very carefully. Id.

State in the Interest of J.M., J.P.M., and M.M., 02-2089, pp. 8-9 (La. 1/28/03), 837 So.2d 1247, 1252-53.

In its reasons for judgment, the trial court explained:

The court has decided to terminate parental rights based upon failure of the mother to fully comply with the case plan developed by OCS. The court finds that a high risk of harm continues to exist should T.M.S. be placed in his mother's custody, characterized in part by her eloping with the child, during a visitation with the child at OCS while in possession of a razor in her pocket; based upon numerous suicide attempts on the part of the mother at various times; based upon the findings of Dr.

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In Re Tms, 999 So. 2d 21, 8 La.App. 3 Cir. 810, 2008 La. App. LEXIS 1469, 2008 WL 4791594 (La. Ct. App. 2008).

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