State ex rel. J.M.

818 So. 2d 802, 1 La.App. 3 Cir. 868, 2002 La. App. LEXIS 1172, 2002 WL 851276
CourtLouisiana Court of Appeal
DecidedMay 1, 2002
DocketNo. 01-868
StatusPublished
Cited by3 cases

This text of 818 So. 2d 802 (State ex rel. J.M.) 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. J.M., 818 So. 2d 802, 1 La.App. 3 Cir. 868, 2002 La. App. LEXIS 1172, 2002 WL 851276 (La. Ct. App. 2002).

Opinion

| .DOUCET, Chief Judge.

S.M., the mother, and F.H., the father of the minor children, J.M., J.P.M., and M.L.M., appeal a judgment of the trial court terminating their parental rights and certifying the three minors free for adoption. We affirm in part and reverse in part the judgment of the trial court.

FACTS

The three minors were adjudicated “children in need of care” on August 26, 1997. At that time their physical custody was left with their mother, but under State supervision. Thereafter, on March 23, 1998, the custody of the three minor children was transferred to the State of Louisiana, Department of Social Services, Office of Community Services and the children were placed in a foster home.

The State filed a Petition for Termination of Parental Rights and Certification for Adoption on September 25, 2000. A hearing was held on the State’s petition on December 15, 2000, and on March 16, 2001, the trial court rendered judgment terminating the parental rights of S.M. and F.H. in regard to the minor children J.M., J.P.M., and M.L.M.

On appeal, both parents argue that the State failed to carry its burden of proof.

LAW AND DISCUSSION

In October of last year, in State ex rel LFB, 01-536, pp. 2-4 (La.App. 3 Cir. 10/3/01); 796 So.2d 916; 918-19, this court [804]*804recounted in detail the law applicable to termination cases:

In State in the Interest of S.M.W., C.D.W., C.N.W., and E.S.W., 00-3277, pp. 12-14, (La.2/21/01), 781 So.2d 1223, 1232-33, our supreme court discussed the law applicable to this case:
| ¡¿Title X of the Children’s Code governs the involuntary termination of parental rights. As applicable to this case, the grounds for termination of parental rights are:
(5) Unless 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 has 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.
La. Children’s Code Art. 1015(5). The method of proving these elements is provided in La. Children’s Code Art. 1036. La. Children’s Code Art. 1036(C) and (D) provide:
C) Under Article 1015(5), lack of parental compliance with a case plan may be evidenced by one or more of the following:
(1) The parent’s failure to attend court-approved scheduled visitations with the child.
(2) The parent’s failure to communicate with the child.
(3) The parent’s failure to keep the department apprised of the parent’s whereabouts and significant changes affecting the parent’s ability to comply with the case plan for services.
(4) The parent’s failure to contribute to the costs of the child’s foster care, if ordered to do so by the court when approving the case plan.
(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.
|S(D) Under Article 1015(5), lack of any reasonable expectation of significant improvement in the parent’s conduct in the near future may be evidenced by one or more of the following:
(1) Any physical or mental illness, mental deficiency, substance abuse, or chemical dependency that renders the parent unable or incapable of exercising parental responsibilities without exposing the child to a substantial risk of serious harm, based upon expert opinion or based upon an established pattern of behavior.
(2) A pattern of repeated incarceration of the parent that has rendered the parent unable to care for the immediate and continuing physical or emotional needs of the child for extended periods of time.
(3) Any other condition or conduct that reasonably indicates that the parent is unable or unwilling to provide an adequate permanent home for the child, based upon expert opinion or based upon an established pattern of behavior.
The State must prove the elements of one of the enumerated grounds by clear and convincing evidence to sever the parental, bond. La. Children’s Code art. 1035(A); Santosky v. [805]*805Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982) (holding that the minimum standard of proof in termination of parental rights cases in clear and convincing evidence); State ex rel. J.A., supra [99—2905 (La.1/12/00), 752 So.2d 806] at 811. The State must only establish one statutory ground for termination, but the trial judge must also find that termination is in the best interest of the , child. La. Children’s Code art. 1039; State ex rel. J.A., supra.
“It is well-settled that an appellate court cannot set aside a juvenile court’s findings of fact in the absence of manifest error or unless those findings are clearly wrong.” In re A.J.F., 00-0948 (La.6/30/00), 764 So.2d 47, 61. “Where there is conflicting testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even when the appellate court may feel that its own evaluations and inferences are as reasonable as those of the trial court.” Id.; Rosell v. ESCO, 549 So.2d 840 (La.1989). “[I]f the trial court or jury findings are reasonable in light of the record [¿reviewed in its entirety, the court of appeal may not reverse even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.” Rosell, supra at 844. “Where there are two permissible views of the evidence, the fact finder’s choice between them cannot be manifestly erroneous or clearly wrong.” • Id. “In its manifest error review, it is important that the appellate court not substitute its opinion when it is the juvenile court who is in the unique position to see and hear the witnesses as they testify.” In re A.J.F., supra at 62. “The trier of fact is not disadvantaged by the review of a cold record and is in a superior position to observe the nuances of demeanor evidence not revealed in a record.” Id.

Both parents admit that more than one year elapsed between the time the children were placed in foster care and the time DSS filed for termination. However, they argue that the trial court’s conclusion that they did not substantially comply with the DSS case plan was erroneous.

In regard to the father, F.H., the record establishes that he did maintain suitable employment. However, he did not visit with the three minor children between the time they were placed into State custody and the date of the termination hearing.

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State ex rel. J.M.
837 So. 2d 1247 (Supreme Court of Louisiana, 2003)
State in Interest of JM
837 So. 2d 1247 (Supreme Court of Louisiana, 2003)
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832 So. 2d 1035 (Louisiana Court of Appeal, 2002)

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Bluebook (online)
818 So. 2d 802, 1 La.App. 3 Cir. 868, 2002 La. App. LEXIS 1172, 2002 WL 851276, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-jm-lactapp-2002.