State ex rel. A.C.H.

846 So. 2d 791, 2002 La.App. 3 Cir. 1014, 2003 La. App. LEXIS 295, 2003 WL 292076
Louisiana Court of Appeal·Decided February 12, 2003·No. Nos. 02-1014, 02-1015·Published·Cited by 7 cases

Opinion

hGREMILLION, Judge.

In these consolidated cases, the State of Louisiana through the Department of Social Services, appeals the judgment of the trial court dismissing its petition to terminate the parental rights of Lisa Marie Lavergne Fernandez, as to her children, A.C.H. and A.I.H.1 For the following reasons, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

A.C.H., born April 23, 2000, entered foster care in October 2000, after his mother and her boyfriend were arrested for attempting to rob a tobacco store. A.C.H. was present at the attempted robbery.2 In December 2000, A.C.H. was adjudicated a child in need of care.

A.I.H., born March 19, 2001, entered foster care at birth because she had cocaine in her system and her mother was incarcerated shortly after delivery due to [793] an outstanding warrant for her arrest on charges of theft. Following a hearing in late April 2001, the trial court adjudicated A.I.H. a child in need of care and continued her custody with the state, with a follow-up hearing scheduled in September 2001. Fernandez was ordered to begin treatment for her mental illness and substance abuse problems, to attend and participate in parenting classes deemed appropriate by DSS, to refrain from criminal activity, to submit to random drug screens, and to attend Narcotics Anonymous and/or Alcoholics Anonymous meetings.

Following a September 2001 hearing, the trial court continued custody of both children in the State finding that inadequate progress had been made toward | ¡.alleviating or mitigating the causes necessitating the children’s continued placement in foster care. In a case plan dated October 2001, reunification with Fernandez was still DSS’s goal. A review hearing was scheduled for January 2002. In the interim between the September 2001 hearing and the January 2002 hearing, DSS reported to the trial court that Fernandez had been incarcerated for forty-two days at the Lafayette Parish Correctional Center, she had resumed residing with her boyfriend, who has an extensive mental health record and criminal history, and that she had not complied with her case plan.

Following the January 2002 hearing, the trial court continued custody in the State, again finding that Fernandez had made inadequate progress to alleviate the circumstances requiring the removal of her children from her custody. At this time, the permanent plan for A.I.H. changed to “adoption” rather than “reunification.”

In March 2002, DSS filed a petition for termination of parental rights and certification for adoption, urging that, pursuant to La.Ch.Code art. 1015(5), more than one year had elapsed since the minor children were removed, Fernandez had not substantially complied with her case plan, and there was no reasonable expectation of significant improvement in Fernandez’s condition or conduct in the near future.

In preparation for trial, DSS forwarded a report on May 13, 2002, to the trial court indicating that Fernandez had not complied with her case plan because she had failed to attend substance abuse treatment. As of April 2002, Fernandez began residing in a homeless shelter for women. DSS reported that she was not working, attending any inpatient treatment, and had missed several visitations with her children. However, Fernandez reported to DSS that she attended two NA/AA 1 ¡¡meetings per week, attended church, and that she had discontinued contact with her boyfriend, who had strongly influenced her to use drugs. DSS further reported a positive drug screen in February 2002, but a negative one in April 2002. DSS further stated that Fernandez failed to comply with that portion of her case plan requiring her to seek treatment for her mental illness. The report also states she has not sought out any help, nor has she taken her recommended medication. Further, Fernandez did not refrain from criminal activity and faced felony theft charges as of that date. Fernandez was also to attend parenting classes, which she had failed to do in the past. She was referred to classes again, and had attended two classes with four remaining. Fernandez’s scheduled visitations with her children were hit-or-miss and DSS reported that the children were uncomfortable around her and would often cry, causing her to end the sessions early. As many as six months have elapsed with no visit whatsoever. Finally, DSS reported that Fernandez is not in frequent contact with them, nor does she keep the agency apprized of her where[794] abouts. Further, she had not provided the agency with verification of her income and had not maintained a stable residence in order to demonstrate that she would be able to provide for her children’s basic needs.

Following the hearing, the trial court issued a written judgment denying and dismissing the petition to terminate Fernandez’s parental rights and continued the children’s custody in the State. DSS timely appealed to this court.

ISSUES

DSS assigns as error:

1. The trial court’s finding that there was a reasonable expectation of significant improvement in Fernandez’s | condition or conduct in the near future.

2. The trial court’s finding that termination of Fernandez’s rights was not in the best interest of the children.

LAW AND DISCUSSION

We have stated that “[p]arental rights to the care, custody, and management of children is a fundamental liberty interest warranting great deference and vigilant protection under the law.” In re J.K., 97-336, p. 4 (La.App. 3 Cir. 10/29/97), 702 So.2d 1154, 1156. See also Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982). Accordingly, a parent has a strong interest in the accuracy of a decision to terminate her rights. Lassiter v. Department of Social Servs. of Durham County, 452 U.S. 18, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981). Thus, the Louisiana legislature has imposed strict standards that require the State to prove, by clear and convincing evidence, the grounds for termination under La.Ch.Code art. 1015 before a judgment can be issued terminating parental rights. In re J.K., 702 So.2d 1154.

This analysis requires a balancing of the child’s interests and the parent’s interests; however, it has been repetitively held that the interests of the child are paramount over that of the parent. In re J.A., 99-2905 (La.1/12/2000), 752 So.2d 806. In that case, the supreme court stated:

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State ex rel. A.C.H., 846 So. 2d 791, 2002 La.App. 3 Cir. 1014, 2003 La. App. LEXIS 295, 2003 WL 292076 (La. Ct. App. 2003).

846 So. 2d 791 (State ex rel. A.C.H.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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