STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
10-1498
STATE OF LOUISIANA
IN THE INTEREST OF
A.A.M.B.
********** APPEAL FROM THE CITY COURT OF KAPLAN, PARISH OF VERMILION, NO. J-3595 HONORABLE FRANK E. LEMOINE, CITY COURT JUDGE
**********
J. DAVID PAINTER JUDGE
Court composed of Ulysses Gene Thibodeaux, Chief Judge, J. David Painter, and Phyllis M. Keaty, Judges.
AFFIRMED.
Nicole Guidry, Attorney at Law 2 South Magdalen Square Abbeville, LA 70510 Counsel for S.E.B.
Jo Ann Nixon, Attorney at Law 129 West Pershing Street New Iberia, LA 70560 Counsel for Appellant: H.L.T.
Julie Rosenzweig, Attorney at Law P.O. Box 9588 New Iberia, LA 70562 Counsel for A.A.M.B.
Tamara D. Rahim, Attorney at Law 825 Kaliste Saloom Road Brandywine I, Suite 208 Lafayette, LA 70508 Counsel for State of Louisiana, Department of Children and Family Services PAINTER, Judge.
H.L.T., the biological father of A.A.M.B., appeals the judgment of the trial
court terminating his parental rights and certifying the minor child to be eligible for
adoption. We affirm the trial court’s judgment.
FACTUAL AND PROCEDURAL BACKGROUND
The child, A.A.M.B., was born on September 13, 2008. When the child was
three weeks of age, the Department of Children and Family Services (DCFS) received
a report stating that the child’s mother, S.E.B., was in a treatment facility, that the
child’s father, H.L.T., was incarcerated, and that the child was not being fed properly
and was starving. A.A.M.B. was adjudicated a child in need of care and was taken
into state custody on October 9, 2008. The child was placed in the custody of her
paternal aunt and uncle. DNA testing confirmed that H.L.T. is the biological father
of A.A.M.B. Reunification efforts were made, but S.E.B. ultimately voluntarily
executed an act of surrender on August 13, 2010. H.L.T. filed a written notice of
opposition; however, following a hearing on October 21, 2010, the trial court
approved the surrender of S.E.B.’s parental rights and terminated H.L.T.’s parental
rights.
H.L.T. now appeals the termination of his parental rights. He argues that the
trial court erred in terminating his parental rights where he was a non-offending
parent and had completed several requirements outlined in the case plan. He further
argues that the voluntary surrender by S.E.B. is an absolute nullity. Finally, H.L.T.
argues that the termination of his parental rights while he was incarcerated and unable
to make bail is tantamount to a termination based on his poverty. Finding all of these
assignments of error to be without merit, we affirm the termination of H.L.T.’s
parental rights.
DISCUSSION
In his first assignment of error, H.L.T. argues that the State has not made
reasonable efforts to reunite the family. He asserts that he was without fault in
causing the situation that led to the placement of A.A.M.B. in State custody.
1 H.L.T. was incarcerated at the time A.A.M.B. was taken into State custody. He
was released from jail on March 20, 2008, but re-arrested on July 24, 2009. He
remained in jail from July 24, 2009, to January 29, 2010. He was again arrested on
May 25, 2010, and was incarcerated from that time through the time that his parental
rights were terminated. The State contends that during the time when H.L.T. was not
incarcerated, it made reasonable efforts at reunification. It offered parenting classes,
anger management classes, and individual counseling. The State contends that H.L.T.
failed to substantially comply with the requirements of the case plan in that he failed
to obtain and maintain suitable housing, failed to provide verification of employment,
failed to demonstrate adequate parenting skills, failed to attend anger management
and individual counseling, failed to proved parental contribution for the child, and
failed to bond with A.A.M.B. during visitation and attendance at parenting class.
Louisiana Children’s Code Article 1138 provides:
A. At the hearing of the opposition, the alleged or adjudicated father must establish his parental rights by acknowledging that he is the father of the child and by proving that he has manifested a substantial commitment to his parental responsibilities and that he is a fit parent of his child.
B. Proof of the father's substantial commitment to his parental responsibilities requires a showing, in accordance with his means and knowledge of the mother's pregnancy or the child's birth, that he either:
(1) Provided financial support, including but not limited to the payment of consistent support to the mother during her pregnancy, contributions to the payment of the medical expenses of pregnancy and birth, or contributions of consistent support of the child after birth; that he frequently and consistently visited the child after birth; and that he is now willing and able to assume legal and physical care of the child.
(2) Was willing to provide such support and to visit the child and that he made reasonable attempts to manifest such a parental commitment, but was thwarted in his efforts by the mother or her agents, and that he is now willing and able to assume legal and physical care of the child.
C. The child, the mother of the child, and the legal custodian may offer rebuttal evidence limited to the issues enumerated in Paragraphs A and B of this Article. However, the primary consideration shall be, and the court shall accept evidence concerning, the best interests of the child.
2 D. If the court finds that the alleged or adjudicated father has failed to establish his parental rights, it shall decree that his rights are terminated.
E. If the court finds that the alleged or adjudicated father has established his parental rights, the court shall declare that no adoption may be granted without his consent. The court may also order the alleged or adjudicated father to reimburse the department, or the licensed private adoption agency, or other agency, or whoever has assumed liability for such costs, all or part of the medical expenses incurred for the mother and the child in connection with the birth of the child.
The trial court found that H.L.T. had not frequently and consistently visited
with the child after birth and that he was not able to assume legal and physical care
of the child as required by La.Ch.Code art. 1138(B)(1).
H.L.T. has the burden of proof in this case, and the required elements must be
shown by a preponderance of the evidence. In re R.E., 94-2657 (La. 11/9/94), 645
So.2d 205. We review the trial court’s finding in this regard under the manifest error
standard of review. In re H.M.M., 33,766 (La.App. 2 Cir. 3/7/00), 754 So.2d 425,
writ denied, 00-797 (La. 5/12/00), 762 So.2d 14. “Substantial commitment and
parental fitness are factual findings that are entitled to deference unless the trial court
is clearly wrong.” In re Adoption of J.L.G., 01-269, p. 10 (La.App. 1 Cir. 2/21/01),
808 So.2d 491, 498. Our review of the record reveals no manifest error in the trial
court’s findings.
H.L.T. next argues that the surrender of parental rights by S.E.B. was an
absolute nullity because it was confected contrary to the statutory provisions of
La.Ch.Code art. 1112, specifically in that no contradictory hearing was held.
Louisiana Children’s Code Article 1112 provides that:
A.
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STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
10-1498
STATE OF LOUISIANA
IN THE INTEREST OF
A.A.M.B.
********** APPEAL FROM THE CITY COURT OF KAPLAN, PARISH OF VERMILION, NO. J-3595 HONORABLE FRANK E. LEMOINE, CITY COURT JUDGE
**********
J. DAVID PAINTER JUDGE
Court composed of Ulysses Gene Thibodeaux, Chief Judge, J. David Painter, and Phyllis M. Keaty, Judges.
AFFIRMED.
Nicole Guidry, Attorney at Law 2 South Magdalen Square Abbeville, LA 70510 Counsel for S.E.B.
Jo Ann Nixon, Attorney at Law 129 West Pershing Street New Iberia, LA 70560 Counsel for Appellant: H.L.T.
Julie Rosenzweig, Attorney at Law P.O. Box 9588 New Iberia, LA 70562 Counsel for A.A.M.B.
Tamara D. Rahim, Attorney at Law 825 Kaliste Saloom Road Brandywine I, Suite 208 Lafayette, LA 70508 Counsel for State of Louisiana, Department of Children and Family Services PAINTER, Judge.
H.L.T., the biological father of A.A.M.B., appeals the judgment of the trial
court terminating his parental rights and certifying the minor child to be eligible for
adoption. We affirm the trial court’s judgment.
FACTUAL AND PROCEDURAL BACKGROUND
The child, A.A.M.B., was born on September 13, 2008. When the child was
three weeks of age, the Department of Children and Family Services (DCFS) received
a report stating that the child’s mother, S.E.B., was in a treatment facility, that the
child’s father, H.L.T., was incarcerated, and that the child was not being fed properly
and was starving. A.A.M.B. was adjudicated a child in need of care and was taken
into state custody on October 9, 2008. The child was placed in the custody of her
paternal aunt and uncle. DNA testing confirmed that H.L.T. is the biological father
of A.A.M.B. Reunification efforts were made, but S.E.B. ultimately voluntarily
executed an act of surrender on August 13, 2010. H.L.T. filed a written notice of
opposition; however, following a hearing on October 21, 2010, the trial court
approved the surrender of S.E.B.’s parental rights and terminated H.L.T.’s parental
rights.
H.L.T. now appeals the termination of his parental rights. He argues that the
trial court erred in terminating his parental rights where he was a non-offending
parent and had completed several requirements outlined in the case plan. He further
argues that the voluntary surrender by S.E.B. is an absolute nullity. Finally, H.L.T.
argues that the termination of his parental rights while he was incarcerated and unable
to make bail is tantamount to a termination based on his poverty. Finding all of these
assignments of error to be without merit, we affirm the termination of H.L.T.’s
parental rights.
DISCUSSION
In his first assignment of error, H.L.T. argues that the State has not made
reasonable efforts to reunite the family. He asserts that he was without fault in
causing the situation that led to the placement of A.A.M.B. in State custody.
1 H.L.T. was incarcerated at the time A.A.M.B. was taken into State custody. He
was released from jail on March 20, 2008, but re-arrested on July 24, 2009. He
remained in jail from July 24, 2009, to January 29, 2010. He was again arrested on
May 25, 2010, and was incarcerated from that time through the time that his parental
rights were terminated. The State contends that during the time when H.L.T. was not
incarcerated, it made reasonable efforts at reunification. It offered parenting classes,
anger management classes, and individual counseling. The State contends that H.L.T.
failed to substantially comply with the requirements of the case plan in that he failed
to obtain and maintain suitable housing, failed to provide verification of employment,
failed to demonstrate adequate parenting skills, failed to attend anger management
and individual counseling, failed to proved parental contribution for the child, and
failed to bond with A.A.M.B. during visitation and attendance at parenting class.
Louisiana Children’s Code Article 1138 provides:
A. At the hearing of the opposition, the alleged or adjudicated father must establish his parental rights by acknowledging that he is the father of the child and by proving that he has manifested a substantial commitment to his parental responsibilities and that he is a fit parent of his child.
B. Proof of the father's substantial commitment to his parental responsibilities requires a showing, in accordance with his means and knowledge of the mother's pregnancy or the child's birth, that he either:
(1) Provided financial support, including but not limited to the payment of consistent support to the mother during her pregnancy, contributions to the payment of the medical expenses of pregnancy and birth, or contributions of consistent support of the child after birth; that he frequently and consistently visited the child after birth; and that he is now willing and able to assume legal and physical care of the child.
(2) Was willing to provide such support and to visit the child and that he made reasonable attempts to manifest such a parental commitment, but was thwarted in his efforts by the mother or her agents, and that he is now willing and able to assume legal and physical care of the child.
C. The child, the mother of the child, and the legal custodian may offer rebuttal evidence limited to the issues enumerated in Paragraphs A and B of this Article. However, the primary consideration shall be, and the court shall accept evidence concerning, the best interests of the child.
2 D. If the court finds that the alleged or adjudicated father has failed to establish his parental rights, it shall decree that his rights are terminated.
E. If the court finds that the alleged or adjudicated father has established his parental rights, the court shall declare that no adoption may be granted without his consent. The court may also order the alleged or adjudicated father to reimburse the department, or the licensed private adoption agency, or other agency, or whoever has assumed liability for such costs, all or part of the medical expenses incurred for the mother and the child in connection with the birth of the child.
The trial court found that H.L.T. had not frequently and consistently visited
with the child after birth and that he was not able to assume legal and physical care
of the child as required by La.Ch.Code art. 1138(B)(1).
H.L.T. has the burden of proof in this case, and the required elements must be
shown by a preponderance of the evidence. In re R.E., 94-2657 (La. 11/9/94), 645
So.2d 205. We review the trial court’s finding in this regard under the manifest error
standard of review. In re H.M.M., 33,766 (La.App. 2 Cir. 3/7/00), 754 So.2d 425,
writ denied, 00-797 (La. 5/12/00), 762 So.2d 14. “Substantial commitment and
parental fitness are factual findings that are entitled to deference unless the trial court
is clearly wrong.” In re Adoption of J.L.G., 01-269, p. 10 (La.App. 1 Cir. 2/21/01),
808 So.2d 491, 498. Our review of the record reveals no manifest error in the trial
court’s findings.
H.L.T. next argues that the surrender of parental rights by S.E.B. was an
absolute nullity because it was confected contrary to the statutory provisions of
La.Ch.Code art. 1112, specifically in that no contradictory hearing was held.
Louisiana Children’s Code Article 1112 provides that:
A. Except as provided herein, a parent may not execute a private surrender once custody of that child has been removed from the parent by order of a juvenile court and the child has been placed in the legal custody of any person or agency or if the child is the subject of a pending termination of parental rights proceeding.
B. Upon notice to the department and after a contradictory hearing, if requested by the department, a parent may, with approval of the court, execute a private surrender of a child in the legal custody of the department to the foster parent with whom the child was placed by the department.
3 The State contends that it did not have to request a contradictory hearing
because S.E.B.’s act of surrender was in favor of the DCFS, not a private party, and
because the State had not commenced a termination hearing prior to the execution of
the act of surrender. The State further contends that no action to annul the surrender
was properly brought by H.L.T. within ninety days of the act of surrender as required
by La.Ch.Code art. 1148.
We agree with the State and find that no action to annul the act of surrender
was filed by H.L.T. Therefore, the act of surrender cannot now be nullified by this
court.
In his final assignment of error, H.L.T. argues that the termination of his
parental rights amounted to a termination based on his poverty because he remained
incarcerated while awaiting trial because he was unable to make bail. The State
argues that the basis for the termination of H.L.T.’s parental rights was not the
periods of time that he was incarcerated but because he failed to show that he
manifested a substantial commitment to his parental responsibility and that he was a
fit parent for the child as required by La.Ch.Code arts. 1137 and 1138. We agree with
the State’s assertion.
The record shows that H.L.T. failed to make consistent contributions to the care
and support of A.A.M.B. The case plan required a $10.00 per month parental
contribution. Even though H.L.T. testified that he brought diapers when he visited
A.A.M.B., H.L.T. failed to make the required $10.00 per month parental
contributions. The record is also clear that even though H.L.T. visited with A.A.M.B.
during the periods when he was not incarcerated, case workers observed that H.L.T.
failed to establish a bond with A.A.M.B. H.L.T. could not show that he could obtain
and maintain adequate housing for A.A.M.B. H.L.T. failed to provide verification of
employment. H.L.T. did not follow the recommendations from his psychological
evaluation by attending anger management classes and individual counseling.
As we discussed above, the standard of review is manifest error. Although we
may be sympathetic with H.L.T.’s plight and in no way condone a termination of
4 parental rights based on a parent’s poverty alone, we find no manifest error in the trial
court’s judgment terminating H.L.T.’s parental rights under the facts of this case.
DECREE
For all of the foregoing reasons, we affirm the judgment of the trial court which
terminated H.L.T.’s parental rights and certified A.A.M.B. to be eligible for adoption.