State in the Interest of K. D. L.

• Court: Louisiana Court of Appeal
• Decided: October 31, 2018
• Docket: JAC-0018-0188
• Status: Unknown

Opinion

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

18-188

STATE IN THE INTEREST

OF

K.D.L., ET AL.

**********

APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF VERMILION, NO. 2014JU115 HONORABLE THOMAS DUPLANTIER, DISTRICT JUDGE

JOHN D. SAUNDERS JUDGE

Court composed of Sylvia R. Cooks, John D. Saunders, and Elizabeth A. Pickett, Judges.

AFFIRMED.

Cooks, J., concurs and assigns written reasons. Nicole M. Guidry Attorney at Law 100 S. Louisiana, Suite 500 Abbeville, LA 70510 (337) 740-2149 COUNSEL FOR OTHER APPELLEE: D. M. - father of K.L.(4) J. L. - father of K.L.(2)& K.L.(3) D. L. - father of K.L.(1) C. S. - father of K.L. (5)

Franchesca Hamilton-Acker Acadiana Legal Service Corp. P. O. Box 4823 Lafayette, LA 70502-4823 (337) 237-4320 COUNSEL FOR OTHER APPELLEE: K. L (1) K. L.(2) K. L.(3) K. L.(4) K. L.(5)

Aimee Hebert Assistant District Attorney Fifteenth Judicial District Court 100 N. State Street, Suite 215 Abbeville, LA 70510 (337) 898-4320 COUNSEL FOR OTHER APPELLEE: State of Louisiana

Chantel Conrad 825 Kaliste Saloom Road Brandywine III, Suite 150 Lafayette, LA 70508 (337) 262-2250 COUNSEL FOR OTHER APPELLEE: State of Louisiana, Department of Children & Family Services

Laticia Lewis In Proper Person 1401 Isreal Parker Dr., Apt 3 Abbeville, LA 70510 (337) 251-8186 COUNSEL FOR OTHER APPELLANT: L. L. - mother SAUNDERS, JUDGE.

Five minor children came into the custody of the State when the Agency

received a report of sexual abuse and neglect. According to the report, the mother’s

boyfriend molested one of the children. At the time, the five children were residing

with their mother in her boyfriend’s home. When the information was given to the

mother, she stated that the child was lying. Due to the child’s statement and the

living arrangements of the family, a safety plan was put in place, and the mother and

children moved into the mother’s maternal aunt’s home. Subsequently, the mother

moved out of that home, but the children remained. The five children, which

includes a pair of twins, have four different biological fathers. At the time, three of

the four fathers were either incarcerated, or their whereabouts were unknown. One

resided in Kaplan, Louisiana, and none of the fathers were providing support for his

child/children. The mother has extensive history with the Agency, and the children

had been placed in the custody of the State on two prior occasions. The mother also

suffers from mental illness or mental deficiency which, based upon expert opinion,

renders her unable or incapable of exercising parental responsibilities without

exposing the minor children to a substantial risk of harm. Citing noncompliance with

the case plan, the State filed a petition to terminate parental rights and certify the

children eligible for adoption. The trial court granted the State’s requested relief and

terminated the parental rights of all the parties involved. The mother now appeals.

For the following reasons, we affirm.

I.

ISSUE

We must determine whether the trial court erred in terminating the parental

rights of the mother for noncompliance with her case plan. II.

STANDARD OF REVIEW

An appellate court may not set aside a trial court’s findings of fact in the

absence of manifest error or unless it is clearly wrong. Stobart v. State, Through

DOTD, 617 So.2d 880 (La.1993); Rosell v. ESCO, 549 So.2d 840 (La.1989). A trial

court’s findings on whether parental rights should be terminated are subject to the

manifest error standard of review. State in the interest of K.G., 02-2886 (La.

3/18/03), 841 So.2d 759.

III.

FACTS AND PROCEDURAL HISTORY

This termination action deals with the mother, L.W.L, and her five minor

children, K.D.L., K.J.L., K.A.D.L., K.A.R.L., and K.A.R.L.(2), who have an

extensive history with the Agency, as the children have been placed into the State’s

custody on two prior occasions. Pursuant to an Instanter Order dated November 3,

2014, the children were placed into the custody of the State when the Agency

received a report that K.D.L. was being molested by L.W.L.’s boyfriend. At the

time, the family was residing with L.W.L.’s boyfriend.

On October 22, 2014, K.D.L. was interviewed at Hearts of Hope and disclosed

that L.W.L.’s boyfriend had touched her inappropriately several times. When the

information was given to L.W.L., she stated that the child was lying. Due to

K.D.L.’s statement and the living arrangements of the family, a safety plan was put

in place, and L.W.L. and her children moved into L.W.L.’s maternal aunt’s home,

to whom she planned to give guardianship.

On October 28, 2014, L.W.L. got into a verbal altercation with her maternal

aunt and moved out of the home but allowed the children to remain. Subsequently,

2 the children were removed from the maternal aunt’s home when she refused to

become a certified caretaker.

The children, which includes a pair of twins, have four different biological

fathers. At the time, three of the four fathers were either incarcerated, or their

whereabouts were unknown, and one resided in Kaplan, Louisiana. None of the

fathers were providing support for their child/children.

The Agency filed a Petition for Termination of Parental Rights and

Certification for Adoption on April 11, 2016. The attorney for L.W.L. filed and was

granted an Exception of No Right of Action at the April 26, 2016 Answer hearing.

The Agency was granted an Order dismissing the Petition without Prejudice on May

9, 2016.

On November 21, 2016, the Agency filed its Second Petition for Termination

of Parental Rights and Certification for Adoption. In its petition, the State alleged

that pursuant to La.Ch.Code art. 1015(6), the parental rights of L.W.L. should be

terminated inasmuch as the conditions that led to the children’s removal and similar

potentially harmful conditions continued to exist as 1) throughout the proceedings,

L.W.L. maintained a relationship with the alleged perpetrator of the sexual abuse on

K.D.L. and continued not to believe the allegations of sexual abuse made by K.D.L.;

2) the Agency had concerns about L.W.L.’s ability to competently parent the

children; and 3) based upon L.W.L.’s pattern of behavior and an expert opinion,

there was no reasonable expectation that L.W.L. would significantly improve in

redressing the problems preventing reunification with her children.

Permanency and Case Review Hearings were held on October 18, 2016,

January 31, 2017, June 20, 2017, and September 27, 2017, in which L.W.L. was

present. Moreover, the fathers were either present, represented by counsel, or had

been personally or domiciliary served and had failed to appear. At each of the 3 hearings, the trial court found that the Agency had made reasonable efforts, based

on the health and safety of the children, to finalize the permanent plan of Adoption.

L.W.L. has a criminal history, and she currently has a pending charge for

contributing to the delinquency of a juvenile. In 2009, L.W.L. was convicted of

cruelty to a juvenile and was on probation for those charges. L.W.L. suffers from

mental illness or mental deficiency which renders her unable/or incapable of

exercising parental responsibilities without exposing the minor children to a

substantial risk of harm.

L.W.L. was provided with a case plan aimed at reunification with a

second/concurrent plan for adoption that addressed the following: maintain stable

housing and income, maintain contact with the agency, address mental health issues,

complete substance abuse treatment, make parental contributions, and complete

parenting classes. Likewise, each of the fathers were provided with a similar case

plan.

The trial was held on November 13, 2017. Judgment was granted terminating

L.W.L.’s parental rights. The father’s parental rights were also terminated, and the

children were certified free for adoption. It is from this termination of parental rights

that L.W.L. appeals. The fathers did not appeal.

IV.

LAW AND DISCUSSION

L.W.L. asserts that the trial court erred in determining that she failed to

substantially comply with her case plan, such that termination of her parental rights

pursuant to La.Ch.Code art. 1015(6) is unwarranted. Specifically, L.W.L. argues

that she had housing; employment; clean screens; was bonded and communicated

with her children; and was cooperative and available.

4 At the time the State filed the current action, La.Ch.Code art. 1015 set forth

eight grounds for termination of parental rights; however, the State need only

establish one ground for termination. In addition, La.Ch.Code art. 1035(A) states

that, “[t]he petitioner bears the burden of establishing each element of a ground for

termination of parental rights by clear and convincing evidence.” “Further, even

upon finding that the State has met its evidentiary burden, a court still should not

terminate parental rights unless it determines that to do so is in the child’s best

interests.” State in the interest of J.M., 02-2089, pp. 9-10 (La. 1/28/03), 837 So.2d

1247, 1253.

“A lack of parental compliance may be shown with proof of either failure to

visit the child, to communicate with the child, failure to contribute to the cost of the

child’s foster care or failure to comply with the required treatment and rehabilitation

services.” State in the Interest of J.K.G., 11-908, p. 6 (La.App. 3 Cir. 1/11/12), 118

So.3d 10, 15 (quoting State In the Interest of M.H. v. K.W.H., 40,332, p. 8 (La.App.

2 Cir. 9/23/05), 912 So.2d 88, 94). L.W.L.’s case plan included certain requirements

that had to be met in order for her to be reunited with her children. These

requirements included: 1) maintain stable housing; 2) income; 3) maintain contact

with the agency; 4) treat the mental health issues; 5) substance abuse treatment; 6)

make financial contributions; and 7) complete parenting classes.

Stable Housing:

The first requirement of L.W.L.’s case plan was that she obtain stable

housing. DCFS caseworker Lindsey Gleason (“Gleason”) testified regarding her

involvement in this matter. Gleason testified that she had been the case worker for

the majority of the life of the case; that the children came into the Agency’s care on

or about November 3, 2014; that they had been in the State’s custody since that time,

and that they were adjudicated “in need of care” on or about February 23, 2015. 5 Gleason testified that during the life of the case, L.W.L. moved several times: 1) first

from her boyfriend’s residence into her maternal aunt’s residence; 2) next into a

different home for approximately five months; (3) again into a different home in

Abbeville; and (4) finally, into her current home where she had been residing for the

past year and a half. Gleason testified that the home is a three-bedroom, furnished,

with running utilities, that overall L.W.L. kept clean. Gleason testified that in

approximately August of 2017, there was a girl living in the home with L.W.L., and

that in September of that same year, there was evidence of some offshore fishing

poles in the home that she believed belonged to L.W.L.’s former boyfriend and

alleged perpetrator of the sexual abuse on K.D.L. Gleason further testified that

L.W.L. had been advised several times that in order to have her children returned

she was not to have contact with her former boyfriend.

Income:

The second requirement of L.W.L.’s case plan was that she provide proof of

income. Gleason testified that L.W.L. verified that her source of income was a

monthly disability check.

Maintain contact with the Agency:

The third requirement of L.W.L.’s case plan was that she maintain contact

with the Agency. Gleason testified that for the most part, throughout the life of the

case, L.W.L. remained in consistent contact with the Agency.

Mental Health Treatment:

The fourth requirement of L.W.L.’s case plan was that she receive treatment

for her mental health issues. Gleason testified that L.W.L. was diagnosed by Dr.

Conception, a psychiatrist, in 2011 with an unspecified disorder for which she was

prescribed Seroquel, Trileptal, and Celexa; that she continues to receive her

medication at his office; and that her treatment is ongoing. Gleason testified that 6 L.W.L. failed to consistently take the medication prescribed to her. Gleason further

testified that Dr. Henry Lagarde, a licensed Clinical Psychologist, rendered a report

on July 21, 2016, that indicated that L.W.L’s parenting skills were deficient and that

she herself currently does not want to raise her children because it would mean less

involvement for her children with DCFS.

Substance Abuse Treatment:

The fifth requirement of L.W.L.’s case plan was that L.W.L. undergo

substance abuse treatment. Gleason testified that L.W.L. tested positive for

marijuana and methamphetamines in January 2017; on January 23, 2017, L.W.L.

was positive for amphetamines, methamphetamines, and marijuana; on January 30,

2017, L.W.L. was positive for marijuana; on February 7, 2017, L.W.L. was positive

for marijuana; on February 15, 2017, L.W.L. was positive for marijuana; and on

February 20, 2017, L.W.L. was positive for marijuana. Gleason testified that L.W.L.

admitted that she used illegal substances during the course of the proceedings.

Gleason further testified that at the time of trial L.W.L. had not completed any

substance abuse treatment program and that she was arrested twice during the life of

the case.

Financial Contributions:

The sixth requirement of L.W.L.’s case plan was that L.W.L. make financial

contributions. Gleason testified that L.W.L. did not make her first financial

contribution until two years and two months after the children came into care.

Gleason further testified that L.W.L. did, at times purchase clothing, food, and other

items for the children.

Parenting Education Classes:

The seventh requirement of L.W.L.’s case plan was that she complete a

parenting class. Gleason testified that L.W.L. did complete a parenting class. 7 However, Gleason testified that L.W.L. exhibited an inability to properly parent her

children during visits with them. Gleason further testified that during the visits the

children were “chaotic.” Angie Comeaux, Court Appointed Special Advocate

(CASA) volunteer assigned to the case for two years at the time of trial, made the

same observation.

Given the above, we find no manifest error in the trial court’s determination

that while L.W.L. made an effort to work her case plan, there are things that are not

fixable with regards to L.W.L.’s abilities and capabilities to parent her children.

The trial court stated, and we agree, that:

[B]ased on Dr. Lagarde’s opinion . . . her parenting capability is deficient, that modulation of cognitive and emotional process is impaired. The problem in this case, as I have had it through history throughout – you can see it from the CASA testimony, from the case worker’s testimony - - I think there’s effort, but there’s something that lacks in your ability to provide safety for these children. The fact that you continue, to this day, to not believe your child’s claims with regards to sexual abuse of a paramour of yours and your continued relationship with that person maybe the last, as I heard it, maybe the last month you have severed that relationship, the idea that you would continue to have a relationship with a man who, at best, your child is telling you a lie, but at best you fail to believe and you continue to have that relationship. So those were some of the things that cause me to be concerned about the expectation for safety for your children should they be returned to you.

Your children have been removed on two occasions prior, you have -- you’ve been convicted of cruelty to a juvenile of one of your children, and presently there’s a charge pending of cruelty to a juvenile. It’s these factors that cause this Court, in addition to any observation during court hearings over the years of this time, that I just believe that these children need a safe place and a place where they can feel safe in their being raised and I believe, for the reasons set forth, that you cannot provide that.

And so for those reasons, the Court is going to terminate your parental rights at this time.

Thus, the conditions which led to the children’s removal continued to exist at

the time of trial.

Best Interests of the Child: 8 A trial court may terminate parental rights only if it finds that termination is

in the best interest of the child. See La.Ch.Code art. 1037(B). See State in the

Interest of D.H.L., 08-39 (La.App. 3 Cir. 4/30/08), 981 So.2d 906. “This analysis

requires a balancing of the child’s interests and the parent’s interests; however, it

has been repeatedly held that the interests of the child are paramount to that of the

parent.” State in the Interest of G.E.K., 14-682, p. 3 (La.App. 3 Cir. 1/14/15), 155

So.3d 713, 716.

With regards to L.W.L., the court found that although L.W.L. substantially

complied with her case plan, and there was a reasonable expectation that with time

L.W.L. could be totally compliant with her case plan, there are things that are not

fixable with regards to L.W.L.’s abilities and capabilities to parent her children. The

court further found that the children’s need to for a place where they can feel safe in

their being raised, outweighed L.W.L.’s substantial compliance with the case plan.

Given the accuracy of the above and the evidence of such in the record, we uphold

the trial court’s finding that terminating L.W.L.’s parental rights is in the best interest

of the children.

CONCLUSION

For the foregoing reasons, the judgment of the trial court terminating the

parental rights of L.W.L., T.Q.B., D.D.M., J.J.L., and C.D.S., and certifying K.D.L.,

K.J.L., K.A.D.L., K.A.R.L., and K.A.R.L.(2) eligible for adoption, is affirmed.

All costs are assessed to L.W.L.

This opinion is NOT DESIGNATED FOR PUBLICATION. Uniform Rules– Courts of Appeal, Rule 2–16.3.

9 STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT (NOT DESIGNATED FOR PUBLICATION) 18-188

STATE IN THE INTEREST OF K.L. ET AL.

Cooks J., Concurs. It is always a weighty decision when deciding whether a parent should be

permanently separated from his or her child. This case is particularly gut-wrenching

because I am satisfied that the mother loves her children and stood before us at oral

argument passionately and earnestly pleading for the right to continue parenting her

offspring. The circumstances she finds herself in today is the sad consequence of

happenstance and the economic misfortune of those born without sufficient means

or ability to earn a living wage. This mother suffers admittedly from mental illness

and, as she explained, the man who is accused of sexually molesting her daughter

provided a place for her and the children to live and he provided enough funds to

take care of the other needs of her family. No charges have been filed by the State

against the alleged perpetrator. But this mother has been dealt a bad deck of cards

even though she insists that she can live without him in her life if she can keep her

children. The mother’s sole income is just over $800 per month in SSI benefits and

she continues to struggle with her mental illness and admitted use of marijuana and

other unprescribed drugs. She also has exceeded, on occasions, the acceptable limits

of parental discipline resulting in criminal charges being lodged against her. I am

moved by her insistence that she did not mean to hurt her child—her response was

probably prompted in large measure by her mental limitations. There is one silver

lining for this mother, though I, too, must join the majority in affirming the decision

1 below—her children are old enough to remember her beyond the age of eighteen and

they will have the right at that age to restore, if desired, their relationship with her.

For these reasons I concur in the majority’s affirmance.