State ex rel. B.J.

767 So. 2d 869, 2000 La. App. LEXIS 1878, 2000 WL 1060409
CourtLouisiana Court of Appeal
DecidedJuly 27, 2000
DocketNo. 00 CJ 1434
StatusPublished
Cited by4 cases

This text of 767 So. 2d 869 (State ex rel. B.J.) 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
State ex rel. B.J., 767 So. 2d 869, 2000 La. App. LEXIS 1878, 2000 WL 1060409 (La. Ct. App. 2000).

Opinions

1»GUIDRY, J.

This is an appeal by M.P.J.J.B., the mother, from a judgment terminating her parental rights and certifying the three minor children, B.J., J.N.J. and J.M.J., for adoption. The three alleged fathers have not appealed the termination of their parental rights. For the reasons that follow, we reverse the portion of the trial court’s judgment from which M.P.J.J.B. appeals and render.

FACTS AND PROCEDURAL HISTORY

B.J., (born on October 7, 1991), J.N.J., (born on February 4, 1993), and J.M.J., (born on July 26, 1994) entered state custody on September 20, 1996, after a complaint of lack of supervision. According to initial reports of the Office of Community Services (OCS), the mother, M.P.J.J.B., left the children at night with a sitter without telling when she would return and, sometimes, she would be gone for days. According to OCS case plans in the record and testimony from the mother, OCS was already involved with the family when M.P.J.J.B. requested that her children be taken into foster care because she was having a nervous breakdown and was unable to care for them. She also had limited family resources so placing her three daughters with a family member was not a viable option.

The trial court held a seventy-two hour hearing and ordered that the children remain in state custody pending an adjudication hearing on November 12, 1996, at which it was determined that the children were in need of care and would remain in state custody for the next six months. The court ordered M.P.J.J.B. and C.J., her husband at that time, to continue mental health treatment and counseling, and to provide regular schooling with a special-education emphasis for the children.

OCS formulated case plans on January 28 and August 20, 1998; February 1 and August 4, 1999; and February 2, 2000, for M.P.J.J.B. related to accomplishing |3a permanency plan for the children. Although each case plan stated that adoption is the permanent plan for the family, the initial case plans contained the following goals: establish a stable residence; continue to receive psychiatric treatment through the local mental health clinic; continue to improve her parenting and coping skills; maintain a relationship by visitation with her children; adhere to the requirements and conditions of her probation for forgery and burglary; make herself available for a home study if she moved to Texas; and that her boyfriend, J.B., whom she married in September 1998, cooperate with Social Services in Texas in furnishing personal information for a background check.

After the September 16, 1998 review hearing, the requirements remained the same except visitation was changed from once a week to once per month because of the mother’s stay in Texas. After the March 9 and September 14, 1999 review hearings, the requirements remained the same except that visitation between the children and the mother was suspended upon the recommendation of Dr. Timothy Brown, the psychiatrist who evaluated M.P.J.J.B. for one hour in February 1999, and who evaluated the children on several occasions.

In August 1999, M.P.J.J.B.’s case plan goals were changed as follows: establish a stable residence; maintain good mental health; continue to abide by the requirements and conditions of her probation; have her husband make himself available to the agency; the agency to provide therapy for M.P.J.J.B. (regarding dealing with the loss of her children); and the agency filing a petition for termination of parental rights.

On September 20, 1999, the state filed a petition for termination of parental rights and certification of the three minor children for adoption under LSA-Ch.C. art. 1015(4) and (5). After a hearing held on March 30 and April 11, 2000, the | ¿trial [872]*872court signed a judgment terminating the parental rights of M.P.J.J.B. under La. Ch. C. art. 1015(5) and the three alleged fathers under La. Ch. C. art. 1015(4) and certifying the children as eligible for adoption on May 19, 2000. Only M.P.J.J.B. has appealed, asserting that the state failed to show that she did not substantially comply with her case plan and that there is no reasonable expectation of significant improvement in her condition or conduct in the near future.

DISCUSSION

Standard of Review

A court of appeal may not overturn a judgment of a trial court absent an error of law or a factual finding which is manifestly erroneous or clearly wrong. Before an appellate court may reverse a factfinder’s determinations, it must find from the record that a reasonable factual basis does not exist for the findings and that the record establishes that the findings are clearly wrong (manifestly erroneous). State, In Interest of GA, 94-2227, p. 4 (La.App. 1st Cir. 7/27/95), 664 So.2d 106, 110. The factual findings of the trial court in determining whether the requirements of article 1015 have been satisfied will not be set aside in the absence of manifest error. State in Interest of BJ, 95-1915, p. 9 (La.App. 1st Cir.4/4/96), 672 So.2d 342, 348. Specifically, whether the mother has shown no significant substantial indication of reformation, and whether she is unlikely to reform are questions of fact. State, In Interest of GA, 94-2227 at 4, 664 So.2d at 110.

Termination of Parental Rights

Parental rights to the care, custody, and management of children are a fundamental liberty interest warranting great deference and vigilant protection under the law. State, in Interest of GA, 94-2227 at 5, 664 So.2d at 110. The termination of parental rights is a severe and irreversible action. State in the interest of L.L.Z. v. M.Y.S., 620 So.2d 1309, 1313 (La.1993). Thus, the legislature has imposed strict procedural and evidentiary requirements which must be met before issuance of a judgment terminating parental rights. State in Interest of GA, 94-2227 at 5, 664 So.2d at 110.

La. Ch. C. art. 1035 dictates that the elements of subsection (5) of article 1015 be proven by clear and convincing evidence. To prove a matter by clear and convincing evidence means to demonstrate that the existence of a disputed fact is highly probable, that is, much more probable than its nonexistence. State in Interest of BJ, 95-1915 at 9, 672 So.2d at 348. The evidentiary standard established in termination cases mandates that the state present proof by clear and convincing evidence of the parents’ failure to comply with all of the enumerated conditions specified in any given subsection of La. Ch. C. art. 1015 which permits termination of parental rights under certain circumstances. State in Interest of EG, 95-0018, p. 3 (La.App. 1st Cir. 6/23/95), 657 So.2d 1094, 1096. The “clear and convincing evidence” burden of proof is an intermediate one between the burden of proof by a preponderance of the evidence and the burden of proof beyond a reasonable doubt. Proof by clear and convincing evidence requires more than a “preponderance” of the evidence, the traditional measure of persuasion, but less than “beyond a reasonable doubt,” the stringent criminal standard. In the Interest of CLS, 94-531, pp. 5-6 (La.App. 3rd Cir. 11/2/94), 649 So.2d 532, 536.

The ground for involuntary termination of parental rights applicable in this case is La. Ch. C. Art. 1015(5), which provides:

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Bluebook (online)
767 So. 2d 869, 2000 La. App. LEXIS 1878, 2000 WL 1060409, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-bj-lactapp-2000.