State ex rel. M.A.J.

733 So. 2d 108, 98 La.App. 4 Cir. 2540, 1999 La. App. LEXIS 798, 1999 WL 173640
CourtLouisiana Court of Appeal
DecidedMarch 24, 1999
DocketNo. 98-CA-2540
StatusPublished

This text of 733 So. 2d 108 (State ex rel. M.A.J.) 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. M.A.J., 733 So. 2d 108, 98 La.App. 4 Cir. 2540, 1999 La. App. LEXIS 798, 1999 WL 173640 (La. Ct. App. 1999).

Opinion

LKLEES, Chief Judge.

This is a suspensive appeal from a judgment of the trial court terminating a mother’s parental rights to her eleven children. Finding no manifest error in the trial court’s determination, we affirm.

FACTS

E.J.1 is the mother of eleven children ranging in ages from 1 year to 17 years. The eight oldest children were placed in the custody of the State of Louisiana on October 28, 1992, and were adjudicated to be children in need of care on March 30, 1993 by the Juvenile Court for the Parish of Orleans. Two of the children were returned to the mother’s care on April 14, 1993, but came back into the State’s custody on May 25, 1994. A petition for termination of E.J.’s parental rights was denied on February 19, 1995. On November 16, 1995, the ninth child was placed in State custody and was adjudicated a child in need of care on January 24,1996.

The State of Louisiana filed the instant petition for termination of parental rights on May 28, 1997 against E.J. and the alleged fathers of these children. The | State alleged in the petition that the parents are unfit to retain parental control under the provisions of the Louisiana Children’s Code because of consistent failure to provide necessary food, clothing, appropriate shelter, and health or medical treatment for the children. The State further alleged that the parents have a behavior/conduct disorder or substance abuse/chemical dependency problem which makes them unable or unwilling to provide an adequate permanent home for the children. The State further claimed that the parents have shown no significant substantial indication of reformation, or reasonable expectation of rehabilitation, and are unlikely to reform in the foreseeable future. The State filed an amended petition on October 19, 1997, alleging an additional basis for termination of E.J.’s parental rights based on her incarceration for criminal conduct. This matter was heard in two hearings, on April 23, 1998 and July 27, 1998.

The trial judge terminated E.J.’s parental rights on July 27, 1998, and subsequently signed a written judgment on August 5, 1998. E.J. now suspensively appeals from this judgment.

The issues raised are whether the State carried its burden of proof under the appli[110]*110cable provisions of the Children’s Code and whether the judgment of termination was manifestly erroneous.

DISCUSSION

Termination of parental rights is a severe and irrevocable action. State in the Interest of L.L.Z. v. M.Y.S., 620 So.2d 1809 (La.1998). In a termination of parental rights case, the State must prove all the elements of its case by clear and | ^convincing evidence. La. Ch.C. art. 1035; State in the Interest of L.L.Z. v. M.Y.S., supra. The evidence must allow the conclusion that termination is in the best interest of the child. State In the Interest of D.T. v. K.T., 29,796 (La.App. 2 Cir. 6/18/97), 697 So.2d 665, 668.

A trial court’s factual determinations, including whether a parent is unfit and whether there is a reasonable expectation of reformation, will not be set aside in the absence of manifest error. State In the Interest of T.D. v. Webb, 28,471 (La.App. 2 Cir. 5/8/96), 674 So.2d 1077.

At the time the State’s petition was filed, La. Ch. C. art. 1015 provided the grounds for the involuntary termination of parental rights and stated that the grounds set forth in the petition must meet all of the conditions in the enumerated paragraphs. The State alleged that E.J.’s parental rights should be terminated pursuant to paragraphs (4), (8), and (9) of that article. Paragraph (4) provided in part as follows:

(4) Prior adjudications as a child in need of care
(a) One year has elapsed since a child in need of care adjudication.
(b) The parent is unfit to retain parental control.
(c) The parent has shown no significant, substantial indication of reformation, and there is no reasonable expectation of his reformation in the foreseeable future.

Section 4(c) requires that the State show that there is no reasonable expectation of reformation in the foreseeable future. Reformation sufficient to prevent termination of parental rights requires that the parent demonstrate a substantial change, such as significantly altering or modifying that behavior which served as the basis for, and resulted in, the State’s removal of the children from the |4home. State in the Interest of T.D. v. Webb, supra; State In the Interest of D.T. v. K.T., supra, 697 So.2d at 670.

Section 8 of Article 1015 provided a basis for termination where the child has been deserted by the parent for a period of at least four months, the parent has made no provision for the child’s care and support, and the whereabouts of the parent is unknown. Section 9 authorizes termination of parental rights where the child has been abandoned by the parent for at least four months and the parent has failed to provide for the child’s care and support without just cause.

By the amended petition, the State sought termination pursuant to Article 1015(5), as amended by Acts 1997, No. 256, § 1, which provides:

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 needs for a stable and permanent home.

Further, the State in its amended petition referred to Article 1036(D)(2) which provides:

D. Under Article 1015(5), lack of any reasonable expectation of significant improvement in the parent’s conduct in the near future may be evi[111]*111denced by one or more of the following:
(2) A pattern of repeated incarceration of the parent that has rendered the parent unable to care for the Ifiimmediate and continuing physical or emotional needs of the child for extended periods of time.

Following the hearing in this matter, the trial court stated that it found a lack of significant or substantial indication of the mother’s reformation or of a reasonable expectation of her reformation in the reasonable future. Of significance to the trial court was the mother’s lack of desire to comply with her case plan.

The testimony of EJ.’s caseworkers indicates that the State’s case plan for E.J. required her to obtain a psychological evaluation, attend therapy and parenting classes, seek drug screening, maintain stable housing and comply with the visitation with her children.

At trial, the State presented the testimony of Katherine Franklin who was E.J.’s case manager from October 1995 to September of 1996. Ms. Franklin stated that at the time she was assigned to the case, there was a court-ordered suspension of the mother’s visitation privileges pending medical clearance for lesions appearing on E.J.’s skin. The State wanted to rule out a diagnosis of syphilis or other contagious condition prior to reinstating the visitation.

Ms.

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Related

State in Interest of TD v. Webb
674 So. 2d 1077 (Louisiana Court of Appeal, 1996)

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Bluebook (online)
733 So. 2d 108, 98 La.App. 4 Cir. 2540, 1999 La. App. LEXIS 798, 1999 WL 173640, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-maj-lactapp-1999.