State ex rel. M.H. v. K.W.H.

912 So. 2d 88, 2005 La. App. LEXIS 2083
CourtLouisiana Court of Appeal
DecidedSeptember 23, 2005
DocketNo. 40,332-JAC
StatusPublished
Cited by20 cases

This text of 912 So. 2d 88 (State ex rel. M.H. v. K.W.H.) 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.H. v. K.W.H., 912 So. 2d 88, 2005 La. App. LEXIS 2083 (La. Ct. App. 2005).

Opinion

11WILLIAMS, Judge.

The parents, K.W.H. and R.H., appeal a judgment terminating their parental rights to their minor children. For the following reasons, we affirm.

FACTS

In December 2003, the minor children, M.H., K.H. and R.H., Jr., were taken into care by the Louisiana Department of Social Services (“DSS”) pursuant to an instanter order issued by the Caddo Parish Juvenile Court. In February 2004, the children were adjudicated in need of care. At the March 2004 disposition hearing the court approved the case plan with a goal of reunification. The case plan for the mother, K.W.H., involved the following goals: enter substance abuse treatment, complete parenting and anger management classes, demonstrate the learned skills, attend court hearings, regularly visit her children and provide them with financial support. During the pendency of this case, the minor children have resided together with foster care parents.

Initially, K.W.H. was cooperative with the case plan. From December 2003 to June 2004, she completed parenting and anger management classes, attended the psychological evaluations ordered by the court and entered into substance abuse treatment. During this time period, her drug screens were negative. However, in June 2004, K.W.H. relapsed and returned to using cocaine. She discontinued her visits with the children, quit her job and stopped attending counseling and drug treatment.

The case plan for R.H. required that he submit to a substance abuse assessment and random drug screens, attend drug treatment, complete 12parenting and anger [91]*91management classes, visit the children and provide them with financial support, demonstrate appropriate parenting skills and maintain a positive relationship with DSS, the court and the foster parents. From December 2003 to May 2004, R.H. visited the children at five of the 16 scheduled visits and did not provide them with financial support. He failed to attend parenting classes, substance abuse treatment or the psychological evaluation. In May 2004, R.H. was incarcerated and is currently in prison.

In January 2005, DSS filed a petition to terminate the parental rights of K.W.H. and R.H. to the minor children. After a trial, the juvenile court issued oral reasons for judgment finding that the mother failed to provide significant contributions to the children’s support and did not visit or communicate with the children for a period of six consecutive months, that there was no substantial compliance with the case plan and no reasonable expectation of significant improvement in the parent’s condition or conduct in the near future.

The court also found that the father failed to provide any significant contribution to the children’s support for six consecutive months, that there was no substantial compliance with the case plan and no reasonable expectation of significant improvement in the parent’s condition or conduct in the near future. The court rendered judgment terminating the parental rights of K.W.H. and R.H., finding that the ruling was in the best interest of the children. Both parents appeal the judgment.

| aDISCUSSION

The parents contend the trial court erred in terminating their parental rights. KW.H. argues that the court was clearly wrong in finding that she abandoned her children because the evidence of her dependent personality and untreated anxiety established a mental disability which prevented her from performing her support and visitation responsibilities.

LSA-Ch.C. art. 1015 provides the statutory grounds by which a court may terminate parental rights. The state must prove the grounds for termination by clear and convincing evidence. LSA-Ch.C. art. 1035(A). To meet this burden, the state must establish only one statutory ground for termination, but the court must also find that termination is in the best interest of the children. LSA-Ch.C. art. 1037(B). An appellate court will not set aside a juvenile court’s findings of fact in the absence of manifest error. State in Interest of S.S.S., J.J.S. and K.K.S., 39,047 (La.App. 2d Cir.8/18/04), 880 So.2d 153.

In the present case, KW.H. testified that in June 2004, she relapsed and used cocaine shortly before the children were to begin overnight visits in her home. K.W.H. acknowledged that she did not visit the children after June 2004 and did not telephone them after July 2004. She admitted that since June 2004, she had not provided any support for her children by sending clothing or gifts or by making payments to the foster parents. KW.H.’s testimony demonstrated that when the petition to terminate was filed in January 2005, she had failed to provide significant contributions to the children’s care and support and had failed to maintain significant contact |4with the children for a period of six consecutive months.

In her appellate brief, KW.H. asserts that her failure to support or visit the children should be excused because she has a mental disability. The parent asserting a mental or physical disability as an affirmative defense to abandonment under Article 1015(4) bears the burden of [92]*92proof by a preponderance of the evidence. LSA-Ch.C. art. 1035(B).

Here, K.W.H. submitted to several psychological evaluations. In February 2004, Daniel Lonowski, Ph.D., reported that the results of psychological testing showed that K.W.H. has anti-social personality traits that harm her social decision-making ability and behavior.

In April 2004, the court appointed David Atkins, Ph.D., a clinical psychologist, to evaluate K.W.H. Based on the test results and his clinical impressions, Dr. Atkins agreed with Dr. Lonowski that K.W.H. exhibited characteristics of anti-social personality disorder, indicating a tendency to act impulsively, engage in risky behavior and disregard the needs of others. Dr. Atkins opined that KW.H.’s drug abuse amplified her anti-social traits, but that in the absence of drugs, such personality traits alone would not diminish her functioning. Dr. Atkins also opined that K.W.H. has a “dependent personality,” which tended to involve her in unhealthy relationships. He recommended that KW.H.’s drug dependence needed to be addressed as a first step.

In August 2004, Dr. Suzanne Woodard, a psychiatrist, evaluated K.W.H. and reported that her main complaint involved episodes of intense anxiety. Dr. Woodard diagnosed K.W.H. with substance dependence and Isanxiety disorder, noting that her most important need was sobriety maintenance treatment. Dr. Woodard opined that K.W.H. might benefit from anti-depressant medication.

Although the psychological evaluations indicated that K.W.H. has anti-social and dependent personality traits, the reports did not conclude that K.W.H. was mentally disabled. Drs. Atkins and Woodard opined that her drug abuse was the most important problem to address. Dr. Atkins found that without drugs, KW.H.’s personality traits would not significantly impair her ability to function. Thus, K.W.H. failed to establish a mental disability by a preponderance of evidence. Based on this record, we cannot say the trial court erred in finding clear and convincing evidence that K.W.H. abandoned her minor children by failing to significantly contribute to the children’s support and failing to visit or communicate with her children.

R.H. argues that DSS failed to prove that he demonstrated an intent to permanently avoid all parental responsibilities because DSS was required to show that he did not provide support for his children without just cause.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

In re State in Interest of S.G.
273 So. 3d 1279 (Louisiana Court of Appeal, 2019)
In re State in Interest of K.D.M.
271 So. 3d 1279 (Louisiana Court of Appeal, 2019)
State ex rel. A.R.
178 So. 3d 280 (Louisiana Court of Appeal, 2015)
State ex rel. A.G.B.
153 So. 3d 1077 (Louisiana Court of Appeal, 2014)
State ex rel. O.L.R.
125 So. 3d 569 (Louisiana Court of Appeal, 2013)
State ex rel. M.A.N.
106 So. 3d 288 (Louisiana Court of Appeal, 2012)
State ex rel. J.M.L.
92 So. 3d 447 (Louisiana Court of Appeal, 2012)
State ex rel. J.K.G.
118 So. 3d 10 (Louisiana Court of Appeal, 2012)
State ex rel. J.R.
84 So. 3d 623 (Louisiana Court of Appeal, 2011)
State Ex Rel. Cms
70 So. 3d 968 (Louisiana Court of Appeal, 2011)
State ex rel. J.T.
58 So. 3d 1015 (Louisiana Court of Appeal, 2011)
State Ex Rel. JT v. J.M.
56 So. 3d 1009 (Louisiana Court of Appeal, 2010)
In the Matter of Jwm
15 So. 3d 1218 (Louisiana Court of Appeal, 2009)
State ex rel. J.W.M.
15 So. 3d 1218 (Louisiana Court of Appeal, 2009)
State ex rel. B.H. v. A.H.
968 So. 2d 881 (Louisiana Court of Appeal, 2007)
State Ex Rel. MH v. KWH
912 So. 2d 88 (Louisiana Court of Appeal, 2005)

Cite This Page — Counsel Stack

Bluebook (online)
912 So. 2d 88, 2005 La. App. LEXIS 2083, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-mh-v-kwh-lactapp-2005.