In the Interest of A.D.H.

784 So. 2d 854, 2001 WL 461003
CourtLouisiana Court of Appeal
DecidedMay 2, 2001
DocketNo. 01-0107
StatusPublished
Cited by4 cases

This text of 784 So. 2d 854 (In the Interest of A.D.H.) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In the Interest of A.D.H., 784 So. 2d 854, 2001 WL 461003 (La. Ct. App. 2001).

Opinion

|,DECUIR, Judge.

This is an appeal of the termination of parental rights. BJL appeals the termination of her parental rights as to three of her children, ADH, CAH, and HL.1 LDH appeals the termination of his parental rights as to ADH and CAH. After careful consideration of the record and the arguments propounded by the parties, we affirm the termination of the mother’s parental rights and reverse the termination of the father’s rights.

In March of 1998, the State of Louisiana, through the Department of Social Services, removed from the home of their mother five children, namely, ADH, CAH, HL, AL, and MB. The grounds for removal were lack of supervision and passive abuse. The younger children had been left in the care of MB, an incorrigible and unstable teenager, and there was evidence of a recent fire in the home and injuries to some of the children. Prior to the filing of these termination proceedings, MB reached the age of majority and AL was placed in the custody of her father and stepmother.

BJL is an uneducated, unskilled woman in her mid-thirties. She was evaluated by a psychologist at the initiation of these proceedings and was found to be of subav-erage intelligence. She was diagnosed with personality and anger impulse control disorders. BJL is able to manage her own affairs. In the first year of foster care, she was consistently available for visits with her children in her home; however, she then moved to California without notifying the Department. She has no income and was recently rejected for social security benefits. She also has been unable to maintain housing. Both the psychologist and the trial judge referred to the fact that, prior to the removal of the children, BJL often left the younger ones in the care of MB |gand believed him to be a capable caregiver, even though they considered him far from able to care for other children. Additionally, BJL has made no [857]*857attempt to obtain mental health treatment or other assistance offered to her throughout the course of these proceedings.

BJL did not appear at the termination hearing. At the time the petition for termination was filed, BJL was believed to be an absentee living at an unknown address in California. Accordingly, a curator ad hoc was properly appointed to locate and represent her and was served in accordance with La.Ch.Code art. 1023. By the time of the hearing, the curator had been in contact with BJL, and she was apparently back in Louisiana. At the start of the termination hearing, the curator advised the court that BJL was aware of the hearing, but that she was not present. He moved for a continuance which was denied. The trial judge commented that BJL had made no contact with the court or counsel to advise that she could not appear at the hearing. In this appeal, counsel for BJL complains that she was not personally served with the termination petition and that the trial judge erred in refusing to grant a continuance. We find no merit to these arguments as service was made according to law and there was no abuse of discretion in the denial of a continuance.

LDH, the father of the twin boys ADH and CAH, divorced BJL about a year after his children were born in 1991. At the termination hearing, he testified that he wants to raise the boys in his home and has sought custody of them three times since his divorce from BJL. He also asserted that the, boys want to live with him, although they did not testify at the hearing. LDH moved out of town after his divorce and, in 1998, he took a job in the oil industry in Nigeria, working two six-month periods there in 1998 and 1999. In the latter part of 1999, LDH came forward to exercise visitation with his sons and begin compliance with the case plan devised by the ^Department of Social Services to reunite the family. LDH is not without problems. In the absence of a court order to do so, he has not provided financial support for the boys. He has two DWI convictions from 1998 and was delinquent in providing income verification and a substance abuse evaluation to the Department.

LDH testified that he works offshore as a cook, working fourteen days on and fourteen days off. He lives with a woman, MJ, who has three children of her own. The trial judge was very concerned that MJ could be a potential caregiver for the boys. Her own children have been removed from her home. She has been diagnosed as mildly mentally retarded and is unable to manage her own affairs. LDH testified that he would be willing to break off the relationship with MJ if that is what it would take to gain custody of the boys.

The trial judge found that BJL has made no significant progress in “putting herself in a position to receive” the children back into her life. Although she has “gone through the motions,” as far as attending family conferences and most visitations, she has not taken advantage of the services offered to her. Noting that BJL was not even present for the termination hearing, the trial judge concluded that BJL has a serious problem in caring for her children because of her low threshold for frustration. Additionally, her insistence on leaving the younger children in the care of MB shows an extreme lack of good judgment.

In terminating the parental rights of LDH, the trial judge voiced two serious concerns with LDH’s ability to be a parent. She first took issue with LDH’s denial of a substance abuse problem, noting the two DWI convictions and a recommendation for substance abuse counseling from the evaluating psychologist. Additionally, [858]*858the trial judge expressed grave concern over the three year relationship between LDH and MJ, believing that MJ’s inadequacies as a caregiver should have |4been obvious to LDH. She commented to him, “I feel sorry for you, Mr. [H], I think you’d like to have an attempt to raise those two children, but it’s not a matter of what you wish to do, it’s what you will do. And what have you done?”

There was evidence in the record that the foster parents of the boys have requested them removal. There was no evidence from the Department as to any long term plans for the boys. In fact, the trial judge commented that perhaps the boys would get “nothing more than some type of long term facility,” essentially recognizing that the boys are unadoptable. She also surmised that if LDH were serious about getting custody of his sons he could apply to adopt them.

Louisiana law holds the institution of the family in very high regard. The preamble to our Children’s Code, which governs termination of parental rights proceedings, contains the following pronouncements:

Art. 101. Preamble

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Related

In re State I.A.
269 So. 3d 881 (Louisiana Court of Appeal, 2019)
State in the Interest of I. A.
Louisiana Court of Appeal, 2019
State ex rel. K.G.
832 So. 2d 1035 (Louisiana Court of Appeal, 2002)
State ex rel. J.M.
818 So. 2d 802 (Louisiana Court of Appeal, 2002)

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Bluebook (online)
784 So. 2d 854, 2001 WL 461003, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-the-interest-of-adh-lactapp-2001.