State ex rel. D.T. v. K.T.

697 So. 2d 665, 1997 La. App. LEXIS 1671
CourtLouisiana Court of Appeal
DecidedJune 18, 1997
DocketNo. 29796-JAC
StatusPublished
Cited by5 cases

This text of 697 So. 2d 665 (State ex rel. D.T. v. K.T.) 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. D.T. v. K.T., 697 So. 2d 665, 1997 La. App. LEXIS 1671 (La. Ct. App. 1997).

Opinion

JjPEATROSS, Judge.

This is an appeal by the mother from a 1996 judgment terminating her parental rights to her son, D.T., bom October 8,1984, and her daughter, L.T., born April 1, 1988. For the reasons expressed below, we affirm.

FACTS

On October 30, 1991, the Department of Social Services, State of Louisiana (“DSS”), received an emergency phone call from D.T.’s elementary school reporting alleged physical abuse of seven-year old D.T. D.T.’s teacher reported that the child had been severely beaten and was in pain. Regina Reader, a child protective services worker for DSS, went to the school and interviewed D.T., who reported that he had been beaten with a belt by his mother.

Ms. Reader then talked to the mother, who told Ms. Reader that she did beat her children with a switch. Ms. Reader transported the mother, D.T. and L.T., the mother’s younger child, to North Caddo Hospital, where D.T. was examined. While at the hospital, Ms. Reader personally observed and [667]*667photographed D.T.’s injuries. According to Ms. Reader, on the way to the hospital, the mother hit three-year old L.T. several times with her open hand in an attempt to control L.T.’s behavior.

An oral instanter order was issued and, after a hearing on November 4, 1991, the children were placed into the custody of DSS. On November 7, 1991, the children were examined by Dr. Robert Savory, who found that L.T. had a recent burn mark and whiplash injuries to her upper right thigh and that D.T. had severe injuries to his back and whiplash injuries to his leg, chest and back. The history given indicated that D.T.’s injuries were the result of a beating by his mother. Both children were adjudicated in need of care on January 31, 1992, and have remained in the State’s custody through the time of the trial.

^Subsequent to the children’s adjudication, DSS provided services to the mother in an attempt to reunify her with the children. A psychological evaluation by Dr. Donita Goth-ard, an expert in the field of educational counseling and psychology, revealed that the mother’s IQ was approximately 60, which is considered “mildly mentally retarded.” Further testing by Dr. David Atkins, a licensed professional counselor who conducted individual counseling with the mother, indicated that her reading ability was on the second grade level. Dr. Gothard felt that the mother’s limited intellectual ability alone did not rule out her ability to parent her children, but recommended the mother attend parenting classes, receive counseling, learn how to maintain adequate housing and demonstrate emotional involvement with her children before their return to her control.

DSS provided the mother parenting classes, individual counseling with two counselors and transportation to scheduled monthly visits with the children. The mother completed the parenting classes and, initially, attended the scheduled visits with the children. After August 1993, however, she no longer regularly attended scheduled visitation with the children. Although the testimony is conflicting as to whether the mother was present at certain visitations and conferences, the testimony indicates that she did not see the children from August 1993 to August 1994.

In April 1993, based on the opinions of counselors and DSS service workers that the mother was not making progress, DSS. made the decision to discontinue efforts at reunification and to seek termination, of the- mother’s parental rights.

On December 30,1993, DSS filed a petition to terminate the parental rights of the mother as to D.T. and L.T. The petition also sought to terminate the mother’s parental rights as to M.T., who was born to the moth- ■ er on December 8, L1991.1 The petition further sought the termination of the parental rights of Dennis White, the father of D.T., and the termination of the parental rights of Obediah James, the father of L.T.2

After a trial, in a judgment rendered on October 16, 1996, the trial court ordered the termination of the parental rights of the mother as to D.T. and L.T. and the termination of the parental rights of Dennis White as to D.T.3 The trial court signed a written judgment on October 29,1996.

Assigning three assignments of error, the mother appeals from the judgment terminating her parental rights as to her children, D.T. and L.T.

DISCUSSION

In a termination of parental rights case, the state must prove all the elements of its case by clear and convincing evidence. La. Ch. C. art. 1035; State in the Interest of [668]*668L.L.Z. v. M.Y.S., 620 So.2d 1309 (La.1993); State in the Interest of S.C. v. D.N.C., 26,104 (La.App.2d Cir. 6/22/94), 639 So.2d 426, writ denied, 94-1977 (La.11/4/94), 644 So.2d 1061. The evidence must allow the conclusion that termination is in the best interest of the child. State in the Interest of S.C. v. D.N.C., supra; State in the Interest of A.M.M., 622 So.2d 1217 (La.App. 2d Cir.1993).

A trial court’s factual determinations, including whether a parent is unfit and whether there is a reasonable expectation bf reformation, will not be set aside in the absence of manifest error. State in the Interest of TD v. Webb, 28,471 (La.App.2d Cir. 5/8/96), 674 So.2d 1077; State in the Interest of S.C. v. D.N.C., Lsupra. Great weight is attached to the exercise of the trial judge’s discretion, which will not be disturbed on review if reasonable men could differ as to the propriety of the trial court’s action. On the other hand, the discretion vested in the trial court must be exercised in whole-heart-ed good faith and be guided by the statutes, not by the court’s private opinion of what the statute ought to be. Where the exercise of discretion is arbitrary and not judicial, and the judgment is unjust, it will be set aside. State v. Talbot, 408 So.2d 861 (La.1980) on rehearing; State of Louisiana in the Interest of KLB v. Biggs, 29,512 (La.App.2d Cir. 2/28/97), 690 So.2d 965.

La. Ch. C. art. 1015 provides the grounds for the involuntary termination of parental rights. In his written reasons for judgment, the trial judge found that termination was proper under both Subparagraph (4) of La. Ch. C. art. 1015 (“Section 4”) and Subpara-graph (5) of La. Ch. C. art. 1015 (“Section 5”).

La. Ch. C. Art. 1015 provides, in pertinent part:

The grounds set forth in the petition must meet all of the conditions of any one of the following Paragraphs:
******
(4) Prior adjudications as a child in need of care
(a)One year has elapsed since a child in need of care adjudication.
(b) The parent is unfit to retain parental control.
(c) The parent has shown no significant, substantial indication of reformation, and there is no reasonable expectation of his reformation in the foreseeable future.
(5) Prior adjudication as a child in need of care and removal from the parental home
(a) One year has elapsed since a child was removed from the parent’s custody pursuant to a court order in a child in need of care proceeding and placed either in the custody of an agency or individual.

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Bluebook (online)
697 So. 2d 665, 1997 La. App. LEXIS 1671, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-dt-v-kt-lactapp-1997.