State in Interest of CD

558 So. 2d 806, 1990 WL 31976
CourtLouisiana Court of Appeal
DecidedMarch 14, 1990
Docket89-CA-688
StatusPublished
Cited by16 cases

This text of 558 So. 2d 806 (State in Interest of CD) 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 CD, 558 So. 2d 806, 1990 WL 31976 (La. Ct. App. 1990).

Opinion

558 So.2d 806 (1990)

STATE of Louisiana in the Interest of C.D. & M.D.

No. 89-CA-688.

Court of Appeal of Louisiana, Fifth Circuit.

March 14, 1990.

*807 Janice L. Kazmier, Dept. of Soc. Services, Bureau of Gen. Counsel, New Orleans, for plaintiff/appellee.

Theresa A. Beckler, Metairie, for defendant/appellant.

Jamie Vaverica, Dist. Atty's. Office, Gretna.

Samuel Stephens, Juvenile Court, Gretna.

Before KLIEBERT, WICKER and GOTHARD, JJ.

GOTHARD, Judge.

In this appeal the unmarried mother of two children opposes the termination of her parental rights by judgment of the Juvenile Court of Jefferson Parish.

The two children are C.D., born November 2, 1982, and M.D., born January 25, 1986. C.D. was adjudged a child in need of care on May 21, 1985 and M.D. on July 2, 1986. Earlier, the three older children of the mother, F.D., had been removed from her by judgment terminating parental rights.[1] C.D. was placed at first with the mother's aunt, while M.D. was placed in a foster home. C.D. was moved to the home of the mother's brother and sister-in-law, and finally in December, 1988 to the foster home of Mrs. Hankins. M.D. was placed there in February, 1989. Mrs. Hankins would like to keep and adopt the girls, now ages seven and three. On April 24, 1989, the state petitioned for termination of parental rights, pursuant to LSA-R.S. 13:1600 et seq. After hearings on July 31 and August 28, 1989, the court rendered and signed a judgment on September 7, 1989, terminating all parental rights and obligations of F.D. to the two children and ordering that the children remain in the custody of the Department of Social Services pending permanent placement. This suspensive appeal followed.

The issues raised are whether the state carried its burden of proof under LSA-R.S. 13:1603, which requires clear and convincing evidence, and whether the judgment of termination under LSA-R.S. 13:1601(B) was manifestly erroneous.

The applicable statutes appear in LSA-R.S. 13:1600 et seq. LSA-R.S. 13:1601 provides:

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 Social Services 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.

R.S. 13:1600(6) defines "unfit" as follows:

(6) "Unfit" 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 *808 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.

R.S. 13:1603(A) states that allegations made under section 1601(B) must be proven by clear and convincing evidence. Finally, section 1602(D) provides that:

The district attorney or the appointed attorney for the child must prove that the child has been abused or neglected or the other elements enumerated in R.S. 13:1601 exist, and that the best interest of the child dictates termination of parental rights.

The termination of parental rights is a severe deprivation. Under due process, certain safeguards must be instituted before the state may deprive a person of his parental rights. Lassiter v. Department of Social Services, 452 U.S. 18, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981); Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982). However, the conflicting interests of the parents must be balanced against the child's interests, and the jurisprudence has held that the best interest of the child is paramount. In Interest of Boudreaux, 427 So.2d 891 (La. App. 1st Cir.1983), writ denied 432 So.2d 267 (La.1983). See also State In Interest of C.V. v. T.V., 499 So.2d 159, writ denied 500 So.2d 411 (La.1986); State In Interest of S.A.D., 481 So.2d 191 (La.App. 1st Cir. 1985); State in Interest of M.P., 538 So.2d 1112 (La.App. 5th Cir.1989).

Unfitness Of Mother

Counsel for the mother argues that she is not unfit under the definition provided by R.S. 13:1600(6). She quotes the definition as it read prior to the amendment of Acts 1986, No. 234, § 1; however, in her brief she discusses only the definition of "Child in need of care" as it appears in R.S. 13:1600(7)(a) and (b).[2] She argues that since there is no allegation or evidence of intentional acts of abuse on the part of the mother, and since she is financially unable to provide, she is not unfit.

The thrust of the mother's argument is that the state was responsible for rehabilitating her from the time C.D. was removed from her custody in 1985 to the present and has failed to do so. She also alleges that the state made no attempt toward reuniting her with her two daughters.

Counsel for DHHR points out that the mother cannot now attack the previous judgments in which the court declared the children to be in need of care. She avers that the mother is legally unfit by virtue of her substance abuse, incarcerations, meager education and sparse work history, along with her lack of effort or motivation toward reuniting her family. DHHR explains further that the statutory definition of unfitness includes not only intentional harmful acts but passive conduct that may harm a child. State In Interest of C.V. v. T.V., supra. DHHR avers that its workers attempted to assist the mother but she failed to follow through on recommendations.

The mother, F.D., testified as to incarcerations beginning in 1980 in Texas, West Virginia, and most recently in Jefferson Parish Correction Center and St. Gabriel, from October, 1986 until her release in May, 1989.

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Bluebook (online)
558 So. 2d 806, 1990 WL 31976, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-in-interest-of-cd-lactapp-1990.