State ex rel. H.M.D.

35 So. 3d 426, 9 La.App. 3 Cir. 0508, 2010 La. App. LEXIS 510
CourtLouisiana Court of Appeal
DecidedApril 7, 2010
DocketNo. 09-0508
StatusPublished
Cited by2 cases

This text of 35 So. 3d 426 (State ex rel. H.M.D.) 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.M.D., 35 So. 3d 426, 9 La.App. 3 Cir. 0508, 2010 La. App. LEXIS 510 (La. Ct. App. 2010).

Opinion

PETERS, J.

This matter is before us on remand from the supreme court. When we previously reviewed it, J.D.1 had appealed a judgment terminating her parental rights to her two minor children, J.J.W. (born January 24, 2005) and H.M.D. (born November 30, 2005).2 We reversed the judgment and remanded the matter to the trial court for further proceedings. State in the Interest of H.M.D. and J.J.W., 09-508 (La.App. 3 Cir. 10/7/09), 20 So.3d 564. Relying on the five-day service requirement of La.Ch.Code art. 1021, we found the trial court erred in denying J.D.’s motion for continuance when domiciliary service of notice of the hearing occurred only two days prior to the adjudication hearing.

The supreme court granted a supervisory writ filed by the State of Louisiana through the Department of Social Services, Office of Community Services (referred to hereafter as “the state” or “OCS”), set aside our reversal and remand, and remanded the matter to this court for consideration of the remaining assignments of error. State in the Interest of H.M.D. and J.J.W., 09-2373 (La.1/8/10), 26 So.3d 129. The supreme court found that La.Ch.Code art. 1021 applies only to the initial answer hearing in a juvenile proceeding, and that the trial court did not abuse its discretion in denying the continuance. Pursuant to the supreme court’s instruction, we now address the remaining assignments of error: (1) that the trial court erred in concluding that J.D. had not substantially complied with the requirements of her case management plan, and (2) that the trial court erred in concluding that there was no reasonable expectation of future significant improvement.

^DISCUSSION OF THE RECORD

The record establishes that OCS first became involved with J.D. and her children on April 12, 2006,3 and that trial on the termination issue occurred on February 12, 2009. At trial, the state introduced two exhibits4 and called four witnesses to testify. Although her attorney participat[429]*429ed in the termination hearing, J.D. did not attend the hearing.5 Her attorney did, however, introduce three exhibits.6 Upon completion of the evidence, the trial court rendered judgment terminating J.D.’s parental rights.

Despite OCS’s mid-April 2006 involvement, the judicial system did not become involved until July 20, 2006, when OCS sought and received an instanter oral order from the trial court authorizing OCS to take the two children into custody. The affidavit filed in support of the July 20 order was signed by Kristi Gott, identified only as “an employee” of OCS’s Jefferson Davis Parish office. In her affidavit, Ms. Gott asserted that on July 20, the OCS office had received “a report of dependency and lack of adequate shelter” concerning the two children. The trial court set a continued custody hearing for July 25, 2006.

|SJ.D. appeared at the July 25, 2006 hearing, accompanied by her court-appointed counsel. Without admitting to any specific allegation, she admitted that her children were in need of care and consented to OCS’s continued custody. Based on this assertion, the trial court confirmed its July 20 oral order and continued custody of the children in the state pending further orders of the court.

The next step in the process occurred on August 18, 2006, when J.D. and representatives of OCS met and entered into a case management plan. The plan restated the original reasons for' removal and stated that J.D. desired to be reunited with her children and that OCS was seeking relative placement while “working with [J.D.] in order for her [sic] be able to regain custody of her children.” In another section of the case management plan, OCS identified as its goal “Reunification.”

On September 7, 2006, the state filed a petition to have the children adjudicated in need of care. The trial court set the matter for hearing on September 14, 2006. On that date, J.D. appeared with her attorney and entered an admission that her children were in need of care, again without admitting to any specific allegations. Based on this admission, the trial court adjudicated the children in need of care pursuant to La.Ch.Code art. 606 and approved the August 18 case management plan.

The next meeting to review the case management plan occurred on January 4, 2007. However, the record before us does not contain a copy of the ease management plan generated from this meeting. Instead, it contains a written summary of OCS’s position with regard to future actions. The summary is dated January 17, 2007, and was not prepared by OCS officials, but by the state’s attorney. That report suggests that J.D. “was jumping from shelter to shelter” after the initial order and had resided, not in Jefferson Davis Parish, but in Lafayette Parish, under the supervision of the |4Lafayette Office of OCS, between July 2006 and October 2006.7 According to the report, in [430]*430October 2006, J.D. contacted Jessica Frey, her OCS worker in Jefferson Davis Parish, to inform the worker that she was living back in the parish. Based on these assertions, OCS recommended that the children remain in its custody and supervision.

The trial court held a review hearing on January 18, 2007. The minutes of that hearing reflect that J.D. and her attorney were present and voiced no objections to the recommendations of the January 17 report or the request for continued custody. The trial court then ordered that OCS maintain custody of the children, advised J.D. of her obligation to complete all the requirements of the case management plan, and approved the case plan dated January 17, 2007. The trial court also ordered that the next review hearing be held July 19, 2007.

On July 6, 2007, OCS and J.D. met for another administrative review of the case management plan. With regard to J.D.’s progress, the report generated from this meeting states that:

[J.D.] has successfully secured a home for herself with utilities connected and has furnished it. She has kept the agency informed about any changes in her contact information. [J.D.] completed a psychological evaluation on January 25, 2007 as requested. She also participated in a Parenting Wise-ley program consisting of three class periods. [J.D.] has attended most of the visits with her children but she has missed some also.
[J.D.] does not bring the children gifts for holidays or birthdays. [J.D.] does not provide adequate supervision to her children during visitation at all times.

The report further provides that J.D. still wanted her children returned to her, that no relatives had been located for placement, and that “[t]he children were moved into an ^adoptive placement on 5/3/07 due to [J.D.’s] lack of progress in the allotted time.” (Emphasis added.) In its overall assessment, which appears to conflict with the afore-stated progress summary, the report provides:

The agency has been attempting to work with [J.D.] for the last 11 months. She has not made significant progress in the allotted time. The agency has placed the children with an adoptive resource. The children are now establishing a strong and healthy bond with their foster parents. The children are thriving.
The agency continues to work with [J.D.J on the completion of her case plan.

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Related

State ex rel. P.M.
86 So. 3d 165 (Louisiana Court of Appeal, 2012)
State in the Interest of P.M. & H.M.
Louisiana Court of Appeal, 2012
State Ex Rel. Hmd
35 So. 3d 426 (Louisiana Court of Appeal, 2010)

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Bluebook (online)
35 So. 3d 426, 9 La.App. 3 Cir. 0508, 2010 La. App. LEXIS 510, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-hmd-lactapp-2010.