State ex rel. JY v. JD

545 So. 2d 547, 1989 La. App. LEXIS 289, 1989 WL 14325
CourtLouisiana Court of Appeal
DecidedFebruary 22, 1989
DocketNo. 20408-CK
StatusPublished
Cited by1 cases

This text of 545 So. 2d 547 (State ex rel. JY v. JD) 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. JY v. JD, 545 So. 2d 547, 1989 La. App. LEXIS 289, 1989 WL 14325 (La. Ct. App. 1989).

Opinions

NORRIS, Judge.

This is a petition to terminate the parental rights of the mother, JD, with respect to her two minor children, JY and TY. From a judgment granting the relief sought, JD appeals. Finding that the evidence presented does not meet the statutory requisites, we reverse and remand.

The children were taken into the state’s custody on February 3, 1986, upon an investigation of child abuse and an affidavit of Alliece Cole, a child protection worker with the State Department of Health and Human Resources, Division of Children, Youth and Family Services (“Depart[548]*548ment”). TY, a girl, and JY, a boy, were aged five and six at the time. Ms. Cole’s affidavit, filed February 4, alleged that the children had bruises and welts on their buttocks, and that the mother’s boyfriend, DWB, admitted using a paddle on them as punishment for bringing home “bad grades.” The affidavit also alleged that the house where JD and DWB lived provided “inadequate living conditions” and was filled with drug paraphernalia, which they had instructed the children how to use. It finally alleged that JD and DWB were leaving the children in the care of DWB’s cousin, who has been in and out of mental institutions, used LSD and was recently arrested for indecent exposure. By petition of March 5, the state sought that the children be adjudicated in need of care. Although the Department later claimed that this adjudication was rendered, the record does not show it.

While in a foster home in April 1986, the children began to report incidents of sexual abuse. After an investigation, JD was arrested on two counts of cruelty to juveniles. DWB was also arrested on various charges. JD ultimately pled guilty to one count of indecent behavior with juveniles (and one of middle grade theft, from an unrelated incident). Her sentence of seven years at hard labor was affirmed by this court in an unpublished opinion noted at 520 So.2d 121 (La.App. 2d Cir.1988). In the same proceedings, DWB was sentenced to I8V2 years at hard labor for two counts of attempted cruelty to juveniles and various theft and burglary charges.

In October 1987 the Department filed a petition to terminate JD’s parental rights under LSA-R.S. 13:1601 A and B. The petition alleged that the Department’s objective was to place the children for adoption; their father, Mr. Y, had voluntarily surrendered his rights in June 1987. The petition stated as grounds that JD was “unfit to retain parental control of the said minor children and there is no reasonable expectation of reformation on her part.” The Department also submitted a disposi-tional team conference report which listed the termination of JD’s parental rights as its sole objective.

The court conducted a hearing on May 11, 1988. Ms. Cole, the child protection worker who filed the original affidavit, testified that when she investigated the initial complaint, she found both children to have bruises consistent with paddling. She also investigated the later complaint of sexual abuse, which “was found to be valid.” Deputy Renee Smith testified that she visited JD’s house early in the investigation and saw marijuana and LSD around the home. JD told her that DWB was the children’s principal disciplinarian and had whipped them on occasion but not recently; Dep. Smith did not see any bruises or marks on the children at the time. Pam Futch, a social worker, testified that the children have adjusted well to their foster care. She added that JD had made no effort to visit them, and Ms. Futch could not recommend a visit. Amy Thomas,' another social worker, testified that she had placed the children in foster homes in Lincoln Parish but they experienced so many problems that she had to return them to the Methodist Children’s Home. Over objection, Ms. Thomas said these problems stemmed from the children’s fear that DWB and JD were “coming to get them,” and that the problems had escalated over time. Mary Morris, the social service supervisor, took the stand to say the Department’s position was for terminating JD’s parental rights.

An expert, Dr. Stephenson, also testified for the Department. He examined the children on March 25, 1986, before the charges of sexual abuse had been lodged. Both children told him that DWB had beaten them; TY even reported that DWB once held a gun to her head. Dr. Stephenson said JY had seen “a lot of conflict” and TY had undergone “disturbing experiences” that resulted in adjustment problems and poor performance on IQ tests. Because of their emotional immaturity and problems with interpersonal relationships, he suspected both children had been physically and sexually abused. He added that in terms of emotional disturbance, this was one of the worst cases he had ever seen. He “guessed” the perpetrator of the abuse was a fixated pedophile, for whom there [549]*549was no real hope of treatment. This is distinguished from a regressed pedophile, who will respond to treatment. On cross examination Dr. Stephenson admitted he could not say that JD was a fixated pedophile; he has never examined her.

JD took the stand. She began by disagreeing with Ms. Futch’s testimony that she had not visited the children; she claimed to have visited them twice after they were taken away, but not since she was arrested. When they visited, the children were not at all fearful of her, though they were fearful of DWB, so he stayed in the car during the visit. A night or so before they were taken away, she had bathed the children and noticed no bruises or marks, but she admitted leaving them with DWB’s cousin for a time right afterward. She denied that she or DWB “beat” the children, but admitted that he had spanked them for getting in bed together or for hiding from the school bus. JD denied any sexual activity with the children either on her part or DWB’s; if there was any sexual abuse, it must have been by DWB’s cousin. She concluded by saying she wanted her children back and would be able to care for them. Until her release from jail, she said her mother could exercise physical custody. On cross examination she admitted that she and DWB had smoked pot and watched pornographic movies in the children’s presence; that DWB hung around with “trashy” people and had been in trouble ever since she knew him. She nevertheless insisted that she had no further contact with him.

After the close of evidence, the trial judge took the case under advisement. By judgment of May 27, 1988, he concluded “the law and evidence is in favor of the state” and terminated JD’s parental rights.

The Department sought to terminate JD’s parental rights by authority of LSA-R.S. 13:1601 A and B, which provide as follows:

§ 1601. Petitioning for the termination of parental rights
The court on its own motion may order that the district attorney petition, or the district attorney in his discretion may petition, for the termination of parental rights of the parent or parents of an abused, neglected, or other child within a juvenile court’s jurisdiction, when the grounds set forth in the petition meet all the conditions of Subsection A, B, C, D, E or F of this Section. * * *
A. (1) The abuse or neglect of the child by the parent or parents results from a crime committed against the person of the child or a crime committed against another child of the parent or parents or when a parent is an accessory to such a crime committed against the person of the child or another child of the parent or parents.

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Cite This Page — Counsel Stack

Bluebook (online)
545 So. 2d 547, 1989 La. App. LEXIS 289, 1989 WL 14325, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-jy-v-jd-lactapp-1989.