State ex rel. C.M.S.

70 So. 3d 968, 2011 La. App. LEXIS 815, 2011 WL 2463541
CourtLouisiana Court of Appeal
DecidedJune 22, 2011
DocketNo. 46,472-JAC
StatusPublished
Cited by1 cases

This text of 70 So. 3d 968 (State ex rel. C.M.S.) 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.M.S., 70 So. 3d 968, 2011 La. App. LEXIS 815, 2011 WL 2463541 (La. Ct. App. 2011).

Opinions

STEWART, J.

_JjT.P., the biological father of S.P.W., a female child, appeals a judgment terminating his parental rights. The trial court found that T.P. abandoned S.P.W. by failing to make significant contributions to her care and support for a period of six consecutive months as of the time the petition for termination was filed, and that termination of parental rights was in the child’s best interest. For the reasons explained in this opinion, we affirm.

FACTS

The Louisiana Department of Children and Family Services (“the department”) removed S.P.W., then age three, and her four older siblings from the custody of their mother, H.A., on December 4, 2007, pursuant to an oral instanter order. Removal was necessitated by validated reports of physical abuse of one of the children by the mother’s husband and dependency due to the mother’s drug use. The family had a prior history with the department. The children had previously been placed in the state’s custody by instanter order issued December 1, 2006, because of validated reports of neglect due to drug dependency and abuse. They were returned to the mother’s custody in October 2007. As stated above, less than two months later, the depart[970]*970ment again removed the children from H.A.’s custody. On December 19, 2007, S.P.W. was placed in foster care with her paternal grandmother, I.P., in Wisconsin where T.P., who has never had custody of the child, also resides.

|2The children were adjudicated in need of care on January 8, 2008. Though case plans were formulated to work toward family reunification, the permanent goal for the children was changed to adoption as reflected in the permanency hearing judgment of May 6, 2008.

The department filed a petition to terminate parental rights on April 23, 2009. Though a date was set, the hearing never took place. The department again filed a petition to terminate parental rights on October 18, 2010. The petition alleged that T.P.’s parental rights should be terminated under La. Ch. C. Art. 1015(4) for abandonment in that he failed to keep the department apprised of his whereabouts, failed to provide significant contributions toward S.P.W.’s care, and failed to maintain significant contact with her. At an answer hearing held on November 19, 2010, T.P., through the attorney appointed to represent the absent fathers, denied the allegations of the termination petition.

The termination hearing took place on January 12, 2011. T.P. was not present for the hearing. Testimony was taken and the entire record, including case plans, was introduced into evidence. Only evidence relating to T.P. will be addressed.

According to Anita Traxler and Tracy Hoggatt, both with the department, T.P. attended one Family Team Conference in May 2007, when S.P.W. and her siblings were in state custody for the first time. When the children were removed from their mother’s custody again in December 2007, the department notified T.P. As documented in the case plan from the Family Team Conference on June 23, 2008, the department | ^representative who brought S.P.W. to her grandmother in Wisconsin on December 19, 2007, visited T.P. and discussed the child’s permanency plans with him. Around that time, T.P. was incarcerated for a parole violation and was soon to be released.

Hoggatt, who supervised the foster care, testified that the department had minimal contact with T.P. Though it attempted to notify him of all hearings and Family Team Conferences, several items mailed to him were returned unclaimed. Hoggatt recalled that the department did contact T.P. in May 2009, at which time he supported adoption of S.P.W. by his mother. T.P.’s case plan allowed him to visit S.P.W. in the home of his mother and under her supervision. Hoggatt testified and the case plans indicate that T.P. had requested and obtained a home study for possible placement of S.P.W. in his home but that the home was not approved.

Hoggatt’s testimony established the T.P. attended by telephone the last Family Team Conference on December 6, 2010, shortly before the termination hearing. She informed the court that arrangements were made through a social worker at a detention center where T.P. was located to have him available for the conference. Hoggatt testified that this was the only conference attended by T.P. since the children had been taken into custody on December 4, 2007, and that he had not attended any of the hearings concerning S.P.W.

T.P.’s case plans beginning with the December 22, 2008, Family Team Conference required him to provide financial assistance to his mother for S.P.W. Hoggatt testified that the department had nothing showing that Rhe ever provided financial support for S.P.W. No support payments were documented to have been paid by [971]*971T.P. through Support Enforcement Services, and he provided no proof to the department that he provided financial support, gifts, or other items for S.P.W. On cross-examination by T.P.’s counsel, Hog-gatt admitted that other than checking for payments through Support Enforcement Services, she would not know whether T.P. provided any sort of financial support for S.P.W. unless he reported it.

The department introduced a “Stipulation & Judgment of Paternity” from a matter brought by the State of Wisconsin in 2006 on behalf of Louisiana and H.A. against T.P. to establish paternity and child support. The judgment filed in Wisconsin on April 19, 2006, and in Louisiana on May 5, 2006, determined T.P. to be S.P.W.’s father and stated that the issue of child support was to be held open due to T.P.’s incarceration. It ordered him to report to the Brown County Child Support Agency within seven days of his release from incarceration. Hoggatt testified that any support payments collected by Wisconsin should have come to Louisiana, but there was no evidence that Louisiana had received support payments.

Finally, Hoggatt testified that its Wisconsin counterpart makes monthly visits to check on S.P.W. and provides quarterly reports to the department. Based on these reports, the department had no concerns about recommending S.P.W. for adoption by her paternal grandmother, who had become a certified foster/adoptive parent.

On February 3, 2011, the trial court rendered a judgment terminating T.P.’s parental rights. The judgment also terminated the rights of the | smother, H.A., as to each of the children, and those of the other biological fathers. In its written reasons for its judgment, the trial court found that the department did not prove the grounds for abandonment by T.P. under either La. Ch. C. art. 1015(4)(a) or (c). It found that the department learned of T.P.’s whereabouts within four months of the hearing date as evidenced by the fact that he participated by telephone in the last Family Team Conference held on December 6, 2010. The trial also found that the evidence showed that T.P. periodically exercised supervised visitation with S.P.W. in his mother’s home. However, the trial court did find that the department proved, under La. Ch. C. art. 1015(4)(b), that T.P. abandoned S.P.W. by failing to provide significant contributions to her care and support. Furthermore, the trial court found termination of T.P.’s parental rights to be in S.P.W.’s best interest so that she can be free for adoption.

T.P.’s appeal followed. In two assignments of error, he argues that the department failed to prove by clear and convincing evidence that he did not provide significant contributions to S.P.W.’s care and support or that termination of parental rights was in the child’s best interest.

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Related

State Ex Rel. Cms
70 So. 3d 968 (Louisiana Court of Appeal, 2011)

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Bluebook (online)
70 So. 3d 968, 2011 La. App. LEXIS 815, 2011 WL 2463541, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-cms-lactapp-2011.