State, in Interest of a Minor Male Child

529 So. 2d 34, 1988 La. App. LEXIS 1619, 1988 WL 66215
CourtLouisiana Court of Appeal
DecidedJune 21, 1988
Docket87 CJ 1687
StatusPublished
Cited by7 cases

This text of 529 So. 2d 34 (State, in Interest of a Minor Male Child) 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, in Interest of a Minor Male Child, 529 So. 2d 34, 1988 La. App. LEXIS 1619, 1988 WL 66215 (La. Ct. App. 1988).

Opinion

529 So.2d 34 (1988)

STATE of Louisiana in the Interest of A MINOR MALE CHILD[1].

No. 87 CJ 1687.

Court of Appeal of Louisiana, First Circuit.

June 21, 1988.

*35 Jacqueline Joubert, Baton Rouge, for plaintiff/appellant.

William LePore, Hammond, for mother.

Jean S. Robertson, Hammond, for father.

Before WATKINS, CARTER and FOIL, JJ.

CARTER, Judge.

This is a suit by the State of Louisiana Through the Department of Health and Human Resources (Department) to terminate the parental rights of the parents of a minor male child.

FACTS

The minor child was born on August 1, 1983, to an unmarried couple who were living together. The child was subsequently placed in the custody of the Department pursuant to LSA-R.S. 14:403 following certain incidents endangering his health and safety.

In February, 1984, the child was hospitalized for "chylous ascites" (a condition which resulted from the failure of his body to process fats) and "failure to thrive." He was placed on a special dietary formula and discharged to his parents at a weight of over nine pounds.

During the following year, the child's parents failed to provide the minor child with the necessary amounts of the special dietary formula and the proper medical care. The child missed numerous medical appointments at the local pediatric clinic, and his parents consistently failed to pick up the special dietary formula, which was provided at no charge.

On October 9, 1984, the mother brought the minor child to the local pediatric clinic, stating that the minor child was spitting up.[2] At that time, the child was fourteen months old and weighed a little over eight pounds. The mother was told to immediately take the child to the emergency room of the local charity hospital. The child was taken to the hospital the following day. He was transferred to New Orleans Charity Hospital. After examination, hospital personnel determined that the child had multiple abrasions around his eyes and neck, a bruise on his neck and a subdural hematoma.[3] Upon admittance, the child could not walk, crawl, or turn over and responded only to intense pain. He also flinched when anyone approached him. While hospitalized, the child was treated with subdural taps for seven to ten days.

Thereafter, the physicians determined that the child needed surgery. Despite numerous efforts, the hospital was unable to contact the parents.[4] On October 24, 1984, the child was placed in the custody of the Department pursuant to LSA-R.S. 14:403. *36 Following a hearing, the child was adjudged "in need of care" on November 8, 1984, and custody in the Department was continued. The child was then able to have the surgery necessary for placement of a subdural peritoneal shunt.

On December 5, 1984, an adjudication hearing, which both parents attended, was held, and the court placed the child in the custody of the Department's foster care program. He was released from the hospital and placed in a foster home where, within six months, he had gained weight, was alert and could sit up, turn over and use a walker. Thereafter, reviews were conducted approximately every six months to determine whether the minor child could be returned home to his parents or must remain in the custody of the Department.

In November, 1986, the Department filed a Petition for Termination of Parental Rights. After a hearing, the trial court terminated the mother's parental rights, but refused to terminate the father's parental rights. From this judgment, the Department appealed, assigning as its sole assignment of error the failure of the trial judge to terminate the father's parental rights.[5]

TERMINATION OF PARENTAL AUTHORITY

The State proceeded pursuant to LSA-R.S. 13:1601(B),[6] which sets forth the elements necessary for termination. LSA-R.S. 13:1601(B) provides as follows:

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 Subsections A, B, C, D, E, or F, of this Section. The district attorney may appoint any attorney representing the Department of Health and Human Resources as a special assistant district attorney for the purpose of prosecuting any such case, regardless of the domicile of said special assistant.
B. (1) One year has passed since the rendition of an abuse or neglect judgment or child in need of care judgment, as defined in R.S. 13:1600(7), pursuant to the Code of Juvenile Procedure, and in the opinion of the court the parent is unfit to rear the child.
(2) The parent or parents have shown no significant substantial indication of reformation and are unlikely to reform.

These elements "must be proven by clear and convincing evidence." LSA-R.S. 13:1603(A); State in the Interest of J.K.F., 481 So.2d 194 (La.App. 1st Cir.1985). Additionally, it must be proven "that the best interest of the child dictates termination of parental rights." LSA-R.S. 13:1602(D); State in the Interest of a Minor Male Child, 461 So.2d 1278 (La.App. 1st Cir. 1984). The trial court held that requisite burden of proof had not been met. We disagree.

As we address each element, we find that the Department has fully satisfied its burden of proving each of the elements in subsection (B) as follows:

(1) One year has passed since the rendition of an abuse or neglect judgment or child in need of care judgment, as defined in R.S. 13:1600(7), pursuant to the Code of Juvenile Procedure, and in the opinion of the court the parent is unfit to rear the child.

LSA-R.S. 13:1601(B)(1) has a two-prong analysis. First, more than one year must have elapsed since the child was adjudged to be abused, neglected or in need of care. *37 Second, the parent must be determined to be unfit.

a. One year since rendition of judgment

The record clearly reflects that a judicial order was rendered on November 8, 1984, finding that the child was in need of care. The instant proceeding to terminate parental rights was instituted two years later.

b. Parent is unfit to rear the child

"Unfit" as defined by LSA-R.S. 13:1600(6) refers to a parent:

(a) Who has abused a child by inflicting physical or mental injury which causes severe deterioration to the child, or who has sexually abused, exploited, or overworked a child to such an extent that his or her health, moral, or emotional well-being is endangered; or
(b) Who has consistently refused to provide reasonably necessary food, clothing, appropriate shelter, or treatment either by medical care or other health services in accordance with the tenets of a well recognized religious method of healing with a reasonable proven record of success. Financial inability alone shall not constitute grounds for termination of parental rights; or
(c) Whose medical or emotional illness, mental deficiency, behavior or conduct disorder, severe physical disability, or chemical dependency makes the parent unable or unwilling to provide an adequate permanent home for the child at the present time or in the reasonably near future based upon expert opinion or based upon an established pattern of behavior.

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Bluebook (online)
529 So. 2d 34, 1988 La. App. LEXIS 1619, 1988 WL 66215, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-in-interest-of-a-minor-male-child-lactapp-1988.