State, in Interest of Jm

702 So. 2d 45, 1997 La. App. LEXIS 2468, 1997 WL 674941
Louisiana Court of Appeal·Decided October 29, 1997·No. 30302-JAC·Published·Cited by 11 cases

Opinion

702 So.2d 45 (1997)

STATE of Louisiana, In the Interest of J.M.

No. 30302-JAC.

Court of Appeal of Louisiana, Second Circuit.

October 29, 1997.
Writ Denied February 6, 1998.

*46 Brian C. McCrae, for Appellant.

Pamela Harper-Jacob, Minden, Audie L. Jones, Haughton, for Appellee.

Before MARVIN, C.J., and BROWN and GASKINS, JJ.

MARVIN, Chief Judge.

The natural mother, YS, appeals a judgment terminating her parental rights to the minor child, JM, pursuant to La. Ch. C. art. 1015(1) and (5), contending the State failed to show there is no reasonable expectation of her reformation in the foreseeable future by clear and convincing evidence. We affirm.

FACTS

JM was born January 28, 1992 to YS and CS. On March 9, 1992, he was taken into protective custody by the Department of Social Services (hereafter "the Department") after investigating a complaint received by the Department involving the unexplained death of JM's sibling, WM, YS's child of a prior marriage.

JM was adjudicated a child in need of care on May 15, 1992, and was placed in foster care. For the first two years, he had limited visitation with his mother, but has not seen her since he was two years old. JM has been in the same family placement since he was taken into custody by the Department. He is now five years old. His foster family wishes to adopt him.

The injuries resulting in WM's death were determined to have been caused by child abuse. CS, JM's father, was convicted of first degree murder in connection with WM's death and was sentenced to death. YS was convicted of manslaughter, and was sentenced to 21 years imprisonment. She began serving her sentence on April 7, 1994, and is presently incarcerated at Avoyelles Bordelonville Correctional Center (hereafter "Bordelonville"). *47 She will not be eligible for parole until 2001.

For the first year that JM was in the Department's custody, the goal of his foster care plan was reunification of the family. However, the goal was changed to termination of parental rights in 1993, and the Department filed a petition seeking termination as to YS, CS, the biological parents, and WM, the legal father, in 1996.

Only YS actively contested the termination of parental rights. At trial, she argued that she had changed since the time of WM's death and would seek further counseling and psychotherapy after her release from prison. She reasoned that she had reformed and could reform further, and all of the conditions required for termination of her parental rights under La. Ch. C. art. 1051(1) and (5) were therefore not present.

The trial court terminated the parental rights of both JM, the legal father, and CS, the biological father, after the close of the evidence. He found that there was no reasonable expectation of YS's reformation in the foreseeable future and ordered termination of YS's parental rights. YS appeals the termination.

DISCUSSION

La. Ch. C. art. 1051(1) and (5) provides as follows:

The grounds set forth in the petition [for termination of parental rights] must meet all of the conditions of any one of the following Paragraphs:
(1) Prior criminal conviction
(a) As a result of a criminal prosecution, the parent has been convicted, either as a principal or accessory, of a crime against the child who is the subject of this termination proceeding, or against another child of the parent.
(b) The parent is now unfit to retain parental control, and there is no reasonable expectation of his reformation in the foreseeable future.
(5) Prior adjudication as a child in need of care and removal from the parental home
(a) One year has elapsed since a child was removed from the parent's custody pursuant to a court order in a child in need of care proceeding and placed either in the custody of an agency or individual.
(b) The parent is now unfit to retain parental control, and there is no reasonable expectation of his reformation in the foreseeable future.
(c) The department has made every reasonable effort to reunite the child with his parents to no avail but now recommends that reunification would not be in the best interests of the child.

The only condition of either of the grounds for termination in arts. 1015(1) and (5) that YS disputes on appeal is the lack of a reasonable expectation of the parent's reformation in the foreseeable future. She maintains the Department's evidence fails to demonstrate that there is no reasonable expectation of her reformation by clear and convincing evidence.

YS was evaluated by psychiatrist Dr. George Seiden on behalf of the state. Dr. Seiden had also evaluated YS in connection with the criminal prosecution. He reported that when he interviewed YS on April 17, 1996, she was not willing to accept any responsibility for the death of her child due to abuse by her husband, CS, although she admitted participating in the events by hitting the child, withholding food and forcing the child to sleep on a steamer trunk in soiled underpants. She justified her failure to act on WM's behalf by declaring that her husband exercised control over her mind and, since she was not making the decisions that resulted in the death of the child, she did not consider herself responsible for the death. She showed no remorse, feeling that she should not be incarcerated for involuntary manslaughter in connection with the child's death.

Dr. Seiden concluded from his interview with YS that she has dependent personality disorder, with borderline personality traits which make the disorder somewhat worse. Some of the characteristics of this personality disorder are avoidance of responsibility for *48 one's decisions, viewing oneself as under the control of others, and subordinating one's own needs to the needs of the controlling person.

Although YS maintained that she had changed since the death of her older child and was no longer dependent, Dr. Seiden disagreed. He believed she had transferred her dependence to a church organization and religious counselor at Bordelonville, but remained dependent when he examined her. Dr. Seiden said she was capable of reforming, but her reformation is unlikely because she continued to refuse to accept responsibility for her own decisions.

Dr. Mark Vigen, a clinical psychologist, evaluated YS and appeared on her behalf at trial. He said his testing and interview showed that YS fits the profile of passive dependent personality, a battered woman, with unconscious anger and a tendency to deny rather than confront problems. He also stated she has a significant degree of egocentricity, the tendency to view everything in terms of self without understanding the effect of her behavior on other persons, and an emotional distancing and fear of closeness with others. YS told him she wants whatever is in JM's best interest, but she did not have a good cognitive idea about what would be in his best interest. He found YS to be a compliant individual willing to do what she was told.

Dr. Vigen agreed with Dr. Seiden that there had been little change in YS's passive dependent personality since she went to prison, and that the change she had made consisted only of transferring dependence from an individual, CS, to a spiritual counselor or to God.

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State, in Interest of Jm, 702 So. 2d 45, 1997 La. App. LEXIS 2468, 1997 WL 674941 (La. Ct. App. 1997).

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