State in the Interest of C. E., K. E., & C.E.

• Court: Louisiana Court of Appeal
• Decided: October 7, 2015
• Docket: JAC-0015-0555
• Status: Unknown

Opinion

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

15-555 & 15-556

STATE IN THE INTEREST OF

C.E., K.E. & C.E.

**********

APPEAL FROM THE FOURTEENTH JUDICIAL DISTRICT COURT PARISH OF CALCASIEU, NO. 25574 & NO. 26692 HONORABLE GUY ERNEST BRADBERRY, DISTRICT JUDGE

ULYSSES GENE THIBODEAUX CHIEF JUDGE

Court composed of Ulysses Gene Thibodeaux, Chief Judge, John D. Saunders, and Marc T. Amy, Judges.

AMY, J., concurs.

AFFIRMED.

James Wade Smith P. O. Box 1706 Lake Charles, LA 70602 Telephone: (337) 436-8424 COUNSEL FOR: Appellants - S.A.E. (mother) and V.E. (father)

Thomas Walter Sanders, Jr. Roger Lafosse State of Louisiana, Department of Children & Family Services 1919 Kirkman Street Lake Charles, LA 70601 Telephone: (337) 491-2067 COUNSEL FOR: Appellee - State of Louisiana, Department of Children & Family Services Dalonshia Thomas-Jordan Assistant District Attorney – 14th Judicial District Court 901 Lakeshore Drive Lake Charles, LA 70601 Telephone: (337) 437-3400 COUNSEL FOR: Appellee - State of Louisiana

Ann McSpadden MHAS/Child Advocacy Program One Lakeshore Drive Suite 1585 Lake Charles, LA 70601 Telephone: (337) 491-2461 COUNSEL FOR: Appellees - C.E. (child), K.E. (child), and C.E. (child) THIBODEAUX, Chief Judge.

S.E. appeals the trial court’s grant of the State’s petition to terminate

her parental rights as to her three children. The trial court granted the petition on

the basis of her failure to substantially complete her case plan and her continuing

failure to financially support her children. On appeal, S.E. contends that the trial

court erred in denying motions to withdraw made by her attorney because a

conflict of interest existed in the joint representation of her and her husband 1 which

prevented effective representation. She further disputes the contention that she did

not complete her case plan. Because we find no abuse of discretion in the trial

court’s denial of the motions to withdraw and no manifest error in the trial court’s

termination of parental rights, we affirm.

I.

ISSUES

We must determine:

(1) whether the trial court abused its discretion in denying two motions to withdraw made by S.E.’s attorney; and

(2) whether the trial court manifestly erred in terminating S.E.’s parental rights.

II.

FACTS AND PROCEDURAL HISTORY

V.E. and S.E. are the parents of C.E., K.E., and C.E., three minor

children. In April 2013, V.E. was jailed for domestic violence and child

endangerment following a dispute with S.E. A report of neglect was filed with the

1 Her husband, V.E., did not appeal the judgment terminating his parental rights. State concerning C.E., K.E., and C.E. Subsequently Bettye Foster, an employee of

the State, conducted an investigation. During her investigation, Ms. Foster visited

the family’s residence and found all three children had soiled diapers and two

children had unexplained bruises. Further, the youngest child had a severe diaper

rash and congestion. Ms. Foster observed that the home was cluttered with

clothes, food, overflowing trash, and soiled diapers. She also observed the two

older children picking food up from the floor and eating it.

Ms. Foster spoke with S.E. S.E. stated that she had been diagnosed as

mildly retarded and dyslexic. S.E. also told Ms. Foster that a babysitter “tore up”

her house and that she did not know the last names or phone numbers of her

babysitters. S.E. stated that she worked nights and slept during the day. During

the day, S.E. would place the youngest child in her bed and lock the older two

children in a room. Ms. Foster also spoke with V.E., who stated that he did the

cleaning and caring for the children.

Ms. Foster learned that V.E. and S.E. had been referred to family

services in July 2012 after S.E. separated from V.E. and left the minor children

with V.E. despite his history of drug use. S.E. reunited with her family, and before

family services could begin, the family moved to Texas. V.E. and S.E. also had a

history with the Texas Department of Children’s Protective Services (“TCPS”). In

December 2012, TCPS had opened an investigation into the family after the

department received information that S.E. had allegedly assaulted V.E. Before

TCPS could begin family services, however, the family left Texas and returned to

Louisiana. TCPS had also removed three other children from S.E. due to neglect.

In light of Ms. Foster’s investigation, an Instanter Order was issued on

May 7, 2013 and C.E., K.E., and C.E. were placed in state custody. The following

2 month, the trial court adjudicated the three children as children in need of care.

The State developed a case plan which entailed several joint and independent

action steps that needed to be completed by V.E. and S.E.

On August 6, 2014, the State filed a petition to terminate the parental

rights of V.E. and S.E. and to certify C.E., K.E., and C.E. for adoption. The State

based its petition on the individual failures of V.E. and S.E. to complete various

aspects of their case plan. At trial, the attorney for V.E. and S.E. made an oral

motion to withdraw. The attorney stated that he was conflicted in his

representation of both V.E. and S.E. in light of their separation, ongoing marital

problems, and the shifting of blame between the parents. The trial court denied the

motion.

At the close of trial, the trial court terminated parental rights as to

each parent. As to V.E., the trial court noted his failure to appear at the hearing.

The court further found that V.E. had not complied with the requisites of his case

plan and had failed to show that he could provide stable housing, support, and

permanency to the children. As to S.E., the trial court found that while she had

made an effort, she had been given ample time and had failed to substantially

complete the necessary components of the case plan. The court further found that

the termination of parental rights was in the best interest of the children due to the

children’s roughly eighteen-month period in State custody, their need for

permanency, and the failure of either parent to make a showing that they would be

able to provide basic food, clothing, and shelter for the children. S.E. appealed.

3 III.

STANDARD OF REVIEW

An appellate court will not disturb a trial court’s ruling on the

withdrawal of counsel after trial has commenced absent a clear abuse of discretion.

State v. Seiss, 428 So.2d 444 (La.1983). Additionally, an appellate court will

review a trial court’s findings on whether or not parental rights should be

terminated under the manifest error standard of review. State in Interest of J.K.G.,

11-908 (La.App. 3 Cir. 1/11/12), 118 So.3d 10. Pursuant to this standard, an

appellate court may not reverse a trial court’s factual finding unless the record

demonstrates both that a reasonable factual basis does not exist for the finding and

that the finding is clearly wrong. Id.

IV.

LAW AND DISCUSSION

Denial of the Motions to Withdraw

S.E. contends that the trial court erred in denying her attorney’s

motions to withdraw because the attorney had a conflict of interest in the joint

representation of her and her husband which violated her right to a fair trial. The

State contends that there was no significant conflict of interest where the attorney

has chosen to continue representing S.E. on appeal.2 For reasons other than those

2 The State further states in its brief “Although not of record, rumor has it counsel might have received remuneration for the instant appeal.” This statement is ethically ill-advised and contrary to well-founded legal principles. “Appellate courts may not review evidence that is not in the appellate record, nor may they receive new evidence.” Shiver v. Lafayette City-Parish Consol. Gov’t, 14-760, p. 2 (La.App. 3 Cir. 12/10/14), 154 So.3d 789, 791; See also La.Code Civ.P. art. 2164. The State’s attempt to introduce “rumor[s]” not of record on appeal is ethically and legally faulty, as is the adoption of the State’s brief which incorporates this statement by counsel for the minor children.

4 cited by either party, we find the trial court did not abuse its discretion in denying

the motions to withdraw.

Pursuant to La.Ch.Code art. 608, “[t]he parents of a child who is the

subject of a child in need of care proceeding shall be entitled to qualified,

independent counsel at the continued custody hearing and at all stages of the

proceedings thereafter.” Further, when the State seeks to terminate the parental

rights of a party, “due process requires that a fundamentally fair procedure be

followed.” State ex rel. C.J.K., 00-2375, p. 7 (La. 11/28/00), 774 So.2d 107, 113.

“[T]his fundamentally fair procedure must be free from conflicted interests.” State

in Interest of K.C.C., 15-84, p. 11 (La.App. 5 Cir. 5/28/15) __ So.3d __.

Here, we find no abuse of discretion in the trial court’s denial of the

motion to withdraw on the basis of a conflict of interest where each parent’s

interest in maintaining their individual parental rights was independent of the

other. In its petition, the State outlined individual grounds for termination of

parental rights as to each parent, and the trial court granted the petition based on

each parent’s individual actions. Further, a presiding case worker verified that

each party could separately complete his or her case plan. The record does

demonstrate that V.E. and S.E. repeatedly accused each other of wrongdoing.

However, as the trial court alluded to in its oral reasons for judgment, highlighting

the wrongdoings of someone else does nothing to prove your own capabilities as a

parent, which is what was required of each parent here to avoid the termination of

their individual rights. Further, the attorney for S.E. and V.E. admitted in his

closing argument that he had no defense for V.E.’s failure to complete his case

plan. The attorney could not have been prejudiced in his defense of V.E. if he did

not, in fact, have a defense to offer. Moreover, there is nothing to suggest in the

5 attorney’s examination of S.E. at trial that the contentious relationship with V.E.

impeded the attorney in his representation of S.E. In light of the independent

nature of each parent’s interest and the lack of demonstrable prejudice, we find no

abuse of discretion in the trial court’s denial of the motion to withdraw and no

violation of S.E.’s right to a fundamentally fair procedure.

S.E. also claims trial court error as to a denial of her attorney’s motion

to withdraw occurring in the child in need of care proceedings in March 2014.

However, other than the court minutes which reflect that some colloquy took place

between the parents and their attorney regarding a potential conflict, S.E. has failed

to provide a transcript of the hearing on this date. Without a transcript of the

hearing on the motion in the record or some other agreed upon narrative of the

facts by the parties, there is nothing to review. Grantt Guillory Enterprises, Inc. v.

Quebedeaux, 12-931 (La.App. 3 Cir. 2/6/13), 110 So.3d 182; See also La.Code

Civ.P. art. 2164. As such, the trial court’s ruling on this motion is presumed to be

correct. Quebedeaux, 110 So.3d 182.

Termination of Parental Rights

S.E. further asks this court to review the trial court’s termination of

her parental rights. S.E. disputes the trial court’s finding that she failed to

substantially complete her case plan. We find the trial court’s termination of S.E.’s

parental rights had sufficient factual support in the record.

In a proceeding to terminate parental rights, the State must first

establish at least one of the statutory grounds enumerated in La.Ch.Code art. 1015

by clear and convincing evidence. State ex rel. J.M., 02-2089 (La. 1/28/03), 837

So.2d 1247. Upon satisfying this evidentiary burden, the State must further show

6 that termination of parental rights would be in the best interest of the child by clear

and convincing evidence. Id.

Here, the trial court terminated S.E.’s parental rights on the basis of

La.Ch.Code art. 1015(5). This determination had a reasonable factual basis in the

record. Louisiana Children’s Code Article 1015(5) cites the following as a ground

for termination:

(5) Unless sooner permitted by the court, at least one year has elapsed since a child was removed from the parent’s custody pursuant to a court order; there has been no substantial parental compliance with a case plan for services which has been previously filed by the department and approved by the court as necessary for the safe return of the child; and despite earlier intervention, there is no reasonable expectation of significant improvement in the parent’s condition or conduct in the near future, considering the child’s age and his need for a safe, stable, and permanent home.

More than one year elapsed between the children’s placement in State

custody by Instanter Order issued May 7, 2013 and the petition filed August, 6,

2014. The State’s petition to terminate parental rights cited several aspects of

S.E.’s case plan that she had failed to complete. These shortcomings included, but

were not limited to, S.E.’s failure to work in an open and honest manner regarding

the welfare of her children, failure to identify possible caretakers for the children,

failure to maintain employment, failure to attain housing stability, failure to make

monthly parental contributions of $25 per child, failure to terminate a domestic

violence relationship, and failure to complete the Wellness Recovery Action Plan

(“WRAP”).

At trial, S.E. admitted that she had not been open and honest with the

State about her husband’s substance abuse. S.E. also testified that when she was

advised that the caregivers she had identified could not meet the requisite criteria,

7 she had failed to identify anyone else. As to employment, S.E. testified that she

had just started a new job, had held several jobs since this case began, that she

never stayed at a job for a long period, and that if she felt that she was being

ignored at work she would quit. Further, S.E. did not contend that she could

currently financially provide for her children and instead based her ability to

provide for her children on potentially getting additional government assistance

and clothing from her church. As to housing, S.E. testified to living in a two

bedroom trailer that she already shared with another woman and her two children.

S.E. later testified that her roommate and her roommate’s children had recently

moved out, but this alleged move had not been confirmed by the State. S.E. also

stated that she had only been at her current residence for roughly three months and

had lived in a women’s shelter and two other residences since the children were

taken into custody. Additionally, S.E. conceded that she had failed to make the

requisite monthly financial contributions to her children under her case plan.

Further, S.E.’s testimony about whether or not her marriage would be terminated

was inconclusive, despite unresolved domestic violence issues. S.E. also conceded

that she had not completed the recommended WRAP program. In light of the

foregoing, we find the trial court had a reasonable factual basis for its

determination that S.E. had failed to substantially complete her case plan and that

there was no reasonable expectation of significant improvement in the near future.

Moreover, the State had the burden of establishing just one statutory

ground of La.Ch.Code art. 1015. State ex rel. J.M., 837 So.2d 1247. The trial

court also terminated parental rights on the basis of La.Ch.Code art. 1015(4) which

cites the following as a ground for termination:

8 (4) Abandonment of the child by placing him in the physical custody of a nonparent, or the department, or by otherwise leaving him under circumstances demonstrating an intention to permanently avoid parental responsibility by any of the following:

....

(b) As of the time the petition is filed, the parent has failed to provide significant contributions to the child’s care and support for any period of six consecutive months.

At trial, S.E. admitted that she had not provided financial support to

her children while they had been in State custody. Such an admission allowed

factual support for the trial court’s termination of parental rights on this ground.

Additionally, the record supports the trial court’s finding that termination was in

the best interest of the children who needed permanency and stability after

spending roughly eighteen months in State custody and, during that time, S.E. had

failed to demonstrate an ability to provide stability and basic necessities for the

children. As the record provides ample factual support for the trial court’s ruling,

we find no manifest error in the termination of S.E.’s parental rights.

V.

CONCLUSION For the foregoing reasons, we affirm the judgment of the trial court.