State ex rel. H.A.S.

38 So. 3d 1278, 9 La.App. 3 Cir. 1530, 2010 La. App. LEXIS 857, 2010 WL 2178563
CourtLouisiana Court of Appeal
DecidedJune 2, 2010
DocketNo. 09-1530
StatusPublished
Cited by3 cases

This text of 38 So. 3d 1278 (State ex rel. H.A.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. H.A.S., 38 So. 3d 1278, 9 La.App. 3 Cir. 1530, 2010 La. App. LEXIS 857, 2010 WL 2178563 (La. Ct. App. 2010).

Opinion

SAUNDERS, Judge.

| herein, we address whether the trial court erred in terminating the parental rights of the mother of two minor children based upon noncompliance with a case plan and a lack of reasonable expectation of significant improvement in the mother’s conduct or condition. For the following reasons, we reverse the ruling of the trial court.

FACTS AND PROCEDURAL HISTORY:

The Appellant, S.M.S.S., is the biological mother of the minor children H.A.S. and C.W.C. The Department of Social Services, Office of Community Services (OCS) obtained temporary custody of the children on February 15, 2007, based on neglect and inadequate supervision and pursuant to a Instanter Order. They were subsequently adjudicated Children in Need of Care by a judgment rendered on March 13, 2007, and have remained in the custody of the State.

On March 23, 2009, OCS filed a Petition for Termination of Parental Rights and Certification for Adoption. A trial on the [1280]*1280matter was held from August 31, 2009 through September 2, 2009. The trial judge granted the petition terminating the Appellant’s parental rights, and the judgment was signed on October 15, 2009.

The Appellant has appealed the judgment and asserts the following assignments of error:

APPELLANT’S ASSIGNMENTS OF ERROR:

1. The trial judge’s finding that OCS established by clear and convincing evidence that Shanna failed to substantially comply with her case plan is not supported by the record, is manifestly erroneous, is clearly wrong and must be reversed.
2. The trial judge’s finding that OCS established by clear and convincing evidence that there is no reasonable expectation of significant improvement in Shanna’s condition and/or conduct in the near future is not supported by the record, is manifestly erroneous, is clearly wrong and must be reversed.
|23. The trial judge’s finding that termination of Shanna’s parental rights is in the best interest of the children is not supported by the record, is manifestly erroneous, is clearly wrong and must be reversed.

LAW AND DISCUSSION ON THE MERITS:

The standard of review to be applied by this court was set out by our supreme court in Stobart v. State, through Department of Transportation and Development, 617 So.2d 880 (La.1993) (citations omitted) (alteration in original).

A court of appeal may not set aside a trial court’s or a jury’s finding of fact in the absence of “manifest error” or unless it is “clearly wrong.” Rosell v. ESCO, 549 So.2d 840 (La.1989). This court has announced a two-part test for the reversal of a factfinder’s determinations:
1) The appellate court must find from the record that a reasonable factual basis does not exist for the finding of the trial court, and
2) The appellate court must further determine that the record establishes that the finding is clearly wrong (manifestly erroneous).
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This court has recognized that “[t]he reason for this well-settled principle of review is based not only upon the trial court’s better capacity to evaluate live witnesses (as compared with the appellate court’s access only to a cold record), but also upon the proper allocation of trial and appellate functions between the respective courts.”

This court has long recognized the great importance of a parent’s constitutionally protected liberty interest in the care, custody, and management of his/her children and the great deference and protection afforded to that right under the law. State ex rel. V.F.R., 01-1041 (La.App. 3 Cir. 2/13/02), 815 So.2d 1035, writ denied, 02-0797 (La.4/12/02), 813 So.2d 412; In re J.K., 97-336 (La.App. 3 Cir. 10/29/97), 702 So.2d 1154.

In State ex rel. J.A., 99-2905, p. 9 (La.1/12/00), 752 So.2d 806, 811, our |ssupreme court noted that, “the permanent termination of the legal relationship existing between natural parents and the child is one of the most drastic actions the State can take against its citizens. The potential loss to the parent is grievous, perhaps more so than the loss of personal freedom caused by incarceration.”

The State sought termination of Appellant’s parental rights based on La.Ch.Code art. 1015(5). The article reads as follows:

[1281]*1281Unless sooner permitted by the court, at least one year has elapsed since a child was removed from the parent’s custody pursuant to a court order; there has been no substantial parental compliance with a case plan for services which have been previously filed by the department and approved by the court as necessary for the safe return of the child; and despite earlier intervention, there is no reasonable expectation of significant improvement in the parent’s condition or conduct in the near future, considering the child’s age and his need for a safe, stable, and permanent home.

The article sets out three requirements for the termination of parental rights: (1) the passage of one year’s time, (2) the lack of substantial compliance with a case plan approved by the court, and (3) the lack of a reasonable expectation of significant improvement in the near future.

The State bears the burden of establishing each element of a ground for termination of parental rights by clear and convincing evidence. La.Ch.Code art. 1085. This court recognizes that the first prong of the test has been satisfied, and we will now address prongs two and three.

Substantial Compliance

Louisiana Children’s Code Article 1036(C) sets forth the evidence which may prove, separately or combined, a lack of substantial compliance with the case plan as required by Article 1015(5). The article reads, in pertinent part:

C. Under Article 1015(5), lack of parental compliance with a case plan may be evidenced by one or more of the following:
_k---
(5)The parent’s repeated failure to comply with the required program of treatment and rehabilitation services provided in the case plan.
(6) The parent’s lack of substantial improvement in redressing the problems preventing reunification.
(7) The persistence of conditions that led to removal or similar potentially harmful conditions.

La.Ch.Code art. 1036(C).

With regard to Appellant’s case plan, we will address each component individually.

Day-to-Day Parenting: Here, Appellant is expected to engage in age-appropriate interaction with the children and to learn new parenting lessons. Appellant has enrolled in and completed multiple parenting classes and has maintained regular visitation with the children. There is nothing in the record or argued in briefs that would suggest that Appellant is not in compliance with this component of her case plan.

Health Issues/Mental Health: The primary concern under this category in this case is the mental health and stability of Appellant. She is required to provide OCS with a list of her prescribed medications and dosages and must see her doctor for follow-ups and medication management. Dr.

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Cite This Page — Counsel Stack

Bluebook (online)
38 So. 3d 1278, 9 La.App. 3 Cir. 1530, 2010 La. App. LEXIS 857, 2010 WL 2178563, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-has-lactapp-2010.