State in Interest of QP

649 So. 2d 512, 94 La.App. 3 Cir. 609, 1994 La. App. LEXIS 3005, 1994 WL 597428
CourtLouisiana Court of Appeal
DecidedNovember 2, 1994
Docket94-609
StatusPublished
Cited by33 cases

This text of 649 So. 2d 512 (State in Interest of QP) 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 QP, 649 So. 2d 512, 94 La.App. 3 Cir. 609, 1994 La. App. LEXIS 3005, 1994 WL 597428 (La. Ct. App. 1994).

Opinion

649 So.2d 512 (1994)

STATE of Louisiana In the Interest of Q.P.

No. 94-609.

Court of Appeal of Louisiana, Third Circuit.

November 2, 1994.

*514 Leah Antoinette Beard, for State Dept. of Social Services.

Harold Dewey Register Jr., for Theresa Payne.

Gregory James Doucet, for Devon Whyte.

Ferdinand John Iseringhausen, for Q.P.

Before GUIDRY, C.J., and KNOLL and WOODARD, JJ.

KNOLL, Judge.

This appeal concerns the termination of parental rights. The State of Louisiana initiated this action pursuant to the provisions of LSA-Ch.C. Art. 1015 to terminate the parental rights of Theresa Ann Payne and Devon Whyte, an incarcerated person, with respect to their two year old son, Q.P. After conducting a hearing on the State's petition, the juvenile court terminated the parental rights. Theresa and Devon appeal.

Theresa contends that the juvenile court erred: (1) in denying her motion to have a psychiatrist examine her; and, (2) incorrectly terminating her parental rights.

Devon contends that the juvenile court erred: (1) in finding that he abandoned and failed to support Q.P. as delineated in LSA-Ch.C. Art. 1015(8) and (9); and, (2) in finding that the State met its burden of proof as required in LSA-Ch.C. Art. 1035.

FACTS

Q.P., a male child, was born on July 31, 1990, at Opelousas General Hospital in Opelousas, Louisiana. Theresa Ann Payne, 20 years of age, is listed on the birth certificate as Q.P.'s mother. Although no father is designated on the birth certificate, Devon Whyte informally acknowledged in various letters that Q.P. was his child. Devon Whyte was incarcerated at the time of Q.P.'s birth and remained incarcerated at the time of the termination hearing, serving a 14 year sentence in federal prison on a conviction for distribution of cocaine.

On September 11, 1990, Q.P. was admitted to Opelousas General with a diagnosis of severe diarrhea and dehydration. Because of the severity of his condition, he was transferred the following day to the pediatric unit at Tulane Medical School Hospital (Tulane Medical) in New Orleans. Tulane Medical confirmed Q.P.'s initial diagnosis and discovered that he also suffered a large intraparenchymal hemorrhage with extension into the brain's ventricular system, which caused Q.P. to begin to experience seizures. Because of the brain hemorrhage, Dr. Diane K. Alfrick, a pediatric neurologist, suspected child abuse and monitored the case accordingly. Q.P. remained in pediatric intensive care for 10 days after his admission to Tulane Medical. During this time, Theresa Payne, Q.P.'s mother, was absent from the hospital.

On September 21, 1990, Theresa visited Q.P. in Tulane Medical and left again. Because of the need for parental consent for a surgical procedure, the sheriff's personnel had to locate and return Theresa to Tulane Medical. On September 22, Theresa left the hospital and attempts to contact her were not successful. In the course of Q.P.'s treatment at Tulane Medical, a VP shunt was placed into his skull to relieve pressure on the brain.

Based on Theresa's failure to make herself accessible to the doctors at Tulane Medical and her failure to provide adequate care for Q.P. during his hospitalization, the Department of Social Services (DSS) obtained custody of Q.P. on October 12, 1990, pursuant to an instanter order issued by the Opelousas City Court. On December 12, 1990, the Opelousas City Court adjudicated Q.P. a child in need of care and placed him into DSS's custody. Since that time DSS placed Q.P. in the care and custody of a foster parent, Yvonne Miller.

In the following years, DSS worked with Theresa in order to have Q.P. returned to her custody. After various home studies, contacts with Devon Whyte, and Theresa's failure to participate in random drug testing and counseling, DSS initiated this termination action on November 4, 1992. After several continuances, a hearing was held on DSS's petition. On September 27, 1993, the juvenile court signed a judgment terminating Devon and Theresa's parental rights.

*515 DENIAL OF THERESA'S MOTION FOR A PSYCHIATRIC EXAMINATION

Theresa first contends that the juvenile court erred in denying her pre-trial motion to have a psychiatrist examine her as provided by LSA-Ch.C. Art. 1026.

From the outset, we note that the record does not contain the written motion which Theresa contends was filed and denied by the juvenile court on September 8, 1993. It is axiomatic that an appellant has the burden of making sure that the record contains all of the documents relied upon in seeking appellate review. In the absence of such documentation, the appellate court is powerless to review the alleged error. Moreover, although Theresa attaches a photocopy of the alleged document to her brief, it is well settled that an appellate court may not consider such evidence since it is not contained in the appellate record. Accordingly, we find that this issue is not properly before us.

Furthermore, even assuming arguendo that this issue is properly before us, we find no clear error in the trial court's denial of Theresa's motion.

LSA-Ch.C. Art. 1026 provides that a juvenile court "may order physical or mental examination or evaluation of any party...." (emphasis added). From the permissive wording of Article 1026, it is clear that the juvenile court is not required to order physical or mental examinations. Accordingly, before reversing the juvenile court on this issue, we must first find that the juvenile court abused its discretion in failing to order such an examination.

In the case sub judice, the juvenile court had before it psychological examinations of Theresa which Dr. Al Buxton, a clinical psychologist, conducted in October 1990 and on September 10, 1992, which showed that he thoroughly tested and extensively interviewed Theresa. These two medical reports were introduced into evidence at the beginning of the trial, without objection. Based upon this evidence, we do not find that the juvenile court abused its discretion in failing to require additional testing and mental examinations.

TERMINATION OF THERESA'S PARENTAL RIGHTS

In her next assignment of error, Theresa contends that the juvenile court erred in terminating her parental rights. She argues that: (1) the case workers were not objective in their presentation of the facts which pertain to Q.P.; (2) the State failed to offer substantial proof of Theresa's drug problem; and, (3) DSS has not made serious efforts to reunite Theresa and Q.P.

Parental rights to the care, custody, and management of children is a fundamental liberty interest warranting great deference and vigilant protection under the law. State in the Interest of C.P., 463 So.2d 899 (La.App. 2 Cir.1985). On this basis, the Louisiana legislature imposed statutorily strict procedural and evidentiary requirements which must be met before issuance of a judgment terminating parental rights. As explained in State in the Interest of J, 582 So.2d 269 (La.App. 1 Cir.), writ denied, 583 So.2d 1145 (La.1991), the evidentiary standard established in termination cases mandates that the State present proof by clear and convincing evidence of the parents' failure to comply with all the enumerated conditions relied upon in the specific paragraph(s) of LSA-Ch.C. Art. 1015 before terminating parental rights. Accordingly, this heightened burden of proof requires the State to show not only that the existence of the fact sought to be established is more probable, but rather that the fact is highly probable or more certain. Hines v. Williams, 567 So.2d 1139 (La.App.

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Bluebook (online)
649 So. 2d 512, 94 La.App. 3 Cir. 609, 1994 La. App. LEXIS 3005, 1994 WL 597428, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-in-interest-of-qp-lactapp-1994.