State ex rel. L.D.

92 So. 3d 454, 2012 La. App. LEXIS 502, 2012 WL 1205863
CourtLouisiana Court of Appeal
DecidedApril 11, 2012
DocketNo. 47,226-JAC
StatusPublished

This text of 92 So. 3d 454 (State ex rel. L.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. L.D., 92 So. 3d 454, 2012 La. App. LEXIS 502, 2012 WL 1205863 (La. Ct. App. 2012).

Opinion

WILLIAMS, J.

hThe Louisiana Department of Children and Family Services (“the Department”) appeals the juvenile court’s ruling that the Department failed to meet its burden of proving the grounds for termination of the parental rights of F.B., the father of L.M. For the following reasons, we reverse and render.

FACTS

V.M. (“the mother”) is the mother of L.D., born October 22, 2003, and L.M., born April 13, 2006. On March 18, 2008, the Department received a report that the mother, who had a long history of drug use, had left the children in the care of her sister, and the sister was no longer willing and/or able to care for them. The report was investigated, and no known suitable relatives were located to care for the children at that time.

On March 28, 2008, the Department requested and obtained an Instanter Order to remove L.D. and L.M. from the custody of the mother and place them in the custody of the Department. In the affidavit in support of the Order, T.D. was alleged to [456]*456be the father of L.D., and R.S. was alleged to be the father of L.M. However, a DNA test verified that R.S. was not L.M.’s biological father.

On July 8, 2008, L.D. and L.M. were adjudicated children in need of care and continued in the custody of the Department. Pursuant to case plans formulated by the Department, the primary goal was reunification of the children with the mother. The secondary goal was to grant guardianship of the children to a suitable relative. Initially, the children were placed in the home of their maternal great-aunt; however, months later, the great-aunt 12returned the children to the Department, due to “personal problems.” Since then, the children have remained together, but have been placed in various foster homes in several different parishes.

Over the course of one year, the mother sporadically complied with portions of the case plan. However, she failed to comply with the majority of the plan, largely due to her drug addiction and related problems.

On September 24, 2009, the Department was informed that F.B. was the alleged biological father of L.M. Initially, the whereabouts of F.B. were unknown. However, the following year, the Department discovered that F.B. was incarcerated and was a participant in the Ouachita Parish Work Release program. On July 12, 2010, a case worker visited F.B., who verbally acknowledged that L.M. was his daughter. A case plan was formulated and provided to F.B. with regard to L.M. Subsequent DNA testing proved that F.B. was the biological father of L.M.

Meanwhile, on March 26, 2010, a permanency hearing was held. Pursuant to a judgment signed on that date, L.D. and L.M. were placed in the permanent custody of the Department, pending certification of the children for adoption. Subsequently, on August 30, 2010, the Department filed a petition to involuntarily terminate the parental rights of the mother and both fathers, T.D. and F.B. At the time of the hearing, which was held on September 23, 2011, the mother and both fathers were incarcerated.1 _Jj20nly F.B. and Susan Green, a foster care worker for the Department, testified at the hearing.2

Ms. Green testified that the case had been assigned to her since April 2010. She stated that the Department did not discover the whereabouts of F.B. until approximately July, 2010. Ms. Green also stated that F.B. had been incarcerated the entire time the Department had been in contact with him; however, she and F.B. had “had a couple of face-to-face conversations.” She further testified that F.B. had not had any significant contact with L.M. He had not written any letters, made any [457]*457phone calls or made any effort to communicate with the child. Ms.- Green also stated that F.B. had not provided any financial support for L.M. since the time the child entered state custody. Ms. Green testified that the Department recommended termination of F.B.’s parental rights because he had not communicated with the child and had not provided any significant contributions to the child’s care.

F.B. testified that his current release date is May 18, 2012. He expressed his desire to have a relationship with his daughter and testified that he would be able to provide a home for her after his release from jail. ^According to F.B., he and the child would reside with his grandmother. F.B. testified that he earned $50 every two weeks when he was in the Work Release program in 2010; however, he was not aware that he could have sent money to the Department to financially support his child. He testified that he was never informed that his case plan required him to provide financial support for the child. Additionally, F.B. testified that he was not informed that he could communicate with the child through the Department until “the other day when we had the Parent Team Conference.” F.B. stated that he was aware that he had a case plan, but he believed that the case plan was “[t]o try to do better and find a home.”

When questioned by the court, F.B. testified that he was aware of his case plan but he had never received any copies of case plans pertaining to the child until “the other day.” He testified that he met with Ms. Green for the first time in 2010, and she informed him that “they were trying to terminate the rights.” F.B. stated that he informed Ms. Green that he did not want his parental rights terminated and he asked her how he could avoid having his rights terminated. According to F.B., he had seen L.M. in 2007 and he “felt like she was my daughter.” He stated that he tried to visit her “a couple of times,” but he was prevented from doing so by “her side of her family[.]” F.B. further testified that he had purchased clothing for L.M. on one occasion, but her family refused to accept the clothing, so he gave the items to his sister. He admitted that he “bumped into [the mother’s] sister” in 2010, and she informed him that L.M. was in foster care. He stated that he “tried to find out what was going on,” but claimed that he did not know | ¡¡that he could have contacted the Department to determine the whereabouts of his daughter.

After hearing the testimony, the court found that the Department had failed to prove, by clear and convincing evidence, the grounds set forth in LSA-Ch.C. art. 1015. The court stated:

As it relates to [F.B.], he was sentenced to six years in 2009 and given credit for time served and his [release] date is May of 2012[.]
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[T]he standard of proof is clear and convincing, and because he is incarcerated, it does not make it automatic termination. You have to take into consideration the amount of time that is involved here as in regards to [F.B.]. Even though he was on Work Release, his income was only fifty dollars every two weeks and he was not advised, according to his testimony, [of his] obligation ... to send money to the State in support of [L.M.]. He was just advised of this at the last Team conference held on the 13th of this month.
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However, the court made no determination regarding the best interest of the child.

The Department now appeals.

[458]*458DISCUSSION

The Department contends the juvenile court erred in failing to terminate F.B.’s parental rights. The Department argues that F.B. abandoned L.M.

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Bluebook (online)
92 So. 3d 454, 2012 La. App. LEXIS 502, 2012 WL 1205863, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-ld-lactapp-2012.