State ex rel. C.D.W. v. T.R.W.

255 So. 3d 1147
CourtLouisiana Court of Appeal
DecidedSeptember 26, 2018
Docket18-240
StatusPublished

This text of 255 So. 3d 1147 (State ex rel. C.D.W. v. T.R.W.) 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. C.D.W. v. T.R.W., 255 So. 3d 1147 (La. Ct. App. 2018).

Opinion

AMY, Judge.

*1149Through appointed counsel for the subject minor child, the State sought termination of the parental rights of the child's biological mother on the ground of abandonment as provided by La.Ch.Code art. 1015(5). Following a hearing, the trial court entered the termination of parental rights and certified the child eligible for adoption. The biological mother appeals. For the following reasons, we affirm.

Factual and Procedural Background

C.D.W.1 was born to T.R.W., his mother, in June 2009. However, due to T.R.W.'s cocaine use and C.D.W.'s exposure thereto, the minor child was taken from T.R.W.'s custody and was placed in the custody of the State of Louisiana, Department of Children and Family Services. The child was initially placed in the care of foster parents, J.B. and M.B., for the first months of his life. An August 2009 case plan advanced the goal of the child's reunification with T.R.W. In 2010, C.D.W. was placed in the custody of his maternal grandmother, M.W., although J.B. and M.B. maintained visitation with him during that period. The State issued a new case plan for reunification in September 2010, but, according to the trial court, the State was released from supervision of the case at the end of that month.

Then, by judgment dated June 2, 2015, J.B. and M.B. were granted joint custody, along with M.W. At that time, J.B. and M.B. were designated domiciliary parents of C.D.W. As reported by the trial court, however, J.B. and M.B. were awarded sole custody of the child following a December 2015 hearing.

This matter was instituted on February 1, 2017 with the filing of a "Petition for Termination of Parental Rights Pursuant to Louisiana Children's Code Article 1015(4)." By that petition, the State sought the appointment of Walter Sanchez to "bring this action to terminate on behalf of the minor child" per La.Ch.Code art. 607 and to authorize him to bring the action to terminate the parental rights of T.R.W. pursuant to La.Ch.Code art. 1004(B) and (F).2

The petition advanced La.Ch.Code art. 1015(5) 3 (a), (b), and (c) as grounds for termination insofar as T.R.W.'s whereabouts were unknown for more than four months and:

[S]he has failed to provide significant contributions to the care and support of *1150the minor child for more than six (6) consecutive months; and, as of the time of filing of this petition, has failed to maintain significant contact with the minor child in that she has failed to visit or communicate with the minor child since December of 2015.

The petition noted that Mr. Sanchez was privately retained.

In its corresponding order, the trial court appointed Mr. Sanchez as counsel for the child and granted him the authority to bring the termination action pursuant to La.Ch.Code art. 1004(B) and (F). As reported below, the trial court further appointed counsel to represent T.R.W.

The parties thereafter appeared at a pre-trial hearing in April 2017, by which time T.R.W. was represented by retained counsel. The trial court's order from that date further recognized that T.R.W. was served in open court with the petition for termination of parental rights and that she "accepted service, waiving any informality with regard to the manner of delivery." The order further noted that T.R.W. entered a denial to the petition.

The merits of the termination matter proceeded to a June 2017 hearing. In written reasons for ruling, the trial court found that the ground of abandonment was proven4 by clear and convincing evidence and explained that, with regard to parental abandonment:

The undisputed evidence presented at trial indicated that [T.R.W.] has not provided any support for [C.D.W.] and has failed to communicate or visit with [C.D.W.] for a period far in excess of six months. [C.D.W.] was removed from [T.R.W.]'s care and placed in the State's custody due to crack cocaine in her and [C.D.W.]'s system at birth. [C.D.W.] went straight from the hospital into the State's custody and the ... home [of J.B. and M.B.]. [T.R.W.] has never had custody of [C.D.W.] and he is now 7 (almost 8) years old. She was a given a case plan but never worked it.
[T.R.W] acknowledged at trial that she has made no effort to contact [J.B. and M.B.] to see [C.D.W.] prior to the petition to terminate her rights was filed. She also admits that she has never provided any financial support for [C.D.W.] either.

Given those observations, the trial court concluded that T.R.W. abandoned the child "by placing him in the care of another" and that she "failed to provide support for him and failed to visit or communicate with him for a period in excess of six months." The trial court's subsequent best interests of the child analysis addressed both T.R.W.'s longstanding drug problem, and C.D.W.'s care by J.B. and M.B. The trial court explained that T.R.W. had been successful in her most recent rehabilitation program, but further recognized her years of drug use and inability to parent. By contrast, the trial court identified that C.D.W. was closely bonded with J.B. and M.B., that they had provided him with a safe and stable home, and that they had provided for medical and mental health needs. In light of these factors, the trial court explained that termination of parental rights was in the best interests of C.D.W.

By final judgment of December 21, 2017, the trial court commemorated its findings, terminating the parental rights of T.R.W. to C.D.W. pursuant to La.Ch.Code art. 1015(5). The trial court further ordered that C.D.W. remain in the custody of J.B. and M.B. and that the minor child was eligible for adoption. See La.Ch.Code art. 1037.

*1151T.R.W. appeals, asserting that the trial court erred in: 1) permitting the appointment of counsel for the minor child when counsel previously served as counsel for J.B. and M.B.; 2) ordering the termination due to failure to comply with La.Ch.Code art. 1020 ; and in 3) finding that the burden of proof for termination was satisfied.

Discussion

Appointment of Counsel

T.R.W. first questions the trial court's appointment of Mr. Sanchez as counsel for C.D.W. and argues that the appointment posed an inherent conflict insofar as Mr. Sanchez had been counsel for J.B. and M.B. "since the case inception." In support of the argument, T.R.W. references La.Ch.Code art. 1016, which, at the time of Mr. Sanchez's appointment in February 2017,5 provided that:

A. The child and the parent shall each have the right to be represented by separate counsel in a termination proceeding brought under this Title. Neither the child nor anyone purporting to act on his behalf may be permitted to waive the child's right to counsel.

(Emphasis added.). Referencing jurisprudence regarding the distinct interests involved in a termination of parental rights matter, T.R.W. suggests that the attendant "careful balancing act was overlooked by appointment of special counsel as [Mr.] Sanchez, given his close connectivity to [J.B. and M.B.] and their goal to hinder reunification efforts for the minor child, C.D.W.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Council of City of New Orleans v. Washington
9 So. 3d 854 (Supreme Court of Louisiana, 2009)
State of Louisiana in the Interest of C.F.
235 So. 3d 1066 (Supreme Court of Louisiana, 2017)
State ex rel. H.A.S.
52 So. 3d 852 (Supreme Court of Louisiana, 2010)

Cite This Page — Counsel Stack

Bluebook (online)
255 So. 3d 1147, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-cdw-v-trw-lactapp-2018.