NOT DESIGNATED FOR PUBLICATION
STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
19-163
STATE IN THE INTEREST OF
K.H.
**********
APPEAL FROM THE SIXTEENTH JUDICIAL DISTRICT COURT PARISH OF ST. MARTIN, NO. 16JV-18557 HONORABLE LEWIS H. PITMAN, JR., DISTRICT JUDGE
SHANNON J. GREMILLION JUDGE
Court composed of Sylvia R. Cooks, Shannon J. Gremillion, and Van H. Kyzar, Judges.
MOTION TO WITHDRAW GRANTED, JUDGMENT AFFIRMED. Diane E. Cote 825 Kaliste Saloom Road Brandywine III, Room 150 Lafayette, LA 70508 (337) 262-5913 COUNSEL FOR OTHER APPELLEE: State of Louisiana, Department of Children and Family Services
S. Marie Johnson Attorney at Law 110 French Street, Suite A New Iberia, LA 70560 (337) 849-2556 COUNSEL FOR OTHER APPELLANT: J.H. (mother)
Denise Henderson Mental Health Advocacy Services/Child Advocacy Program 302 Dulles Drive, Room U-47 Lafayette, LA 70506 (337) 262-2030 COUNSEL FOR OTHER APPELLEE: K.H. (child) GREMILLION, Judge.
J.H., the mother of K.H., a Child in Need of Care (CINC), appeals the
judgment that terminated her parental rights and certified K.H. eligible for adoption.
J.H.’s attorney has filed a brief pursuant to Anders v. California, 386 U.S. 738, 87
S.Ct. 1396 (1967), asserting that there exist no non-frivolous grounds for appealing
the trial court’s judgment and seeking to withdraw from representing J.H. For the
reasons that follow, we grant counsel’s motion to withdraw and affirm the trial
court’s judgment.
FACTS AND PROCEDURAL POSTURE
K.H. is not J.H.’s only child; she has another child, A.H., who had already
been adjudicated a CINC. According to a November 7, 2016 instanter order, A.H.
was in foster care on Saturday, November 5, 2016, when K.H. arrived to visit her.
J.H. left K.H. with the foster parent while she visited A.H. The foster parent sought
to return K.H. to her mother, but upon arriving at J.H.’s residence, noted that the
house appeared abandoned. J.H. told the foster parent that she was staying there but
there were no utilities servicing the house. The foster parent took K.H. and left. J.H.
was incommunicado for the next two days, when the trial court issued the instanter
order that placed K.H. in the custody of the Department or Children & Family
Services (DCFS or “the Department”).
A petition to adjudicate K.H. a CINC was filed by DCFS on November 10,
2016. The primary goal of a plan established for J.H. was family reunification. The
plan itself will be discussed later. On June 15, 2018, DCFS filed a petition to
terminate J.H.’s parental rights and to certify K.H. for adoption. No service was
made on J.H., and the Department moved for the appointment of a curator. The
curator answered the petition, and the matter was set for trial on October 5, 2018. J.H. failed to appear at the trial. One witness, Brian Robertson, testified.
Technical issues with the recording devices in the courtroom prevented the complete
transcription of the trial testimony; however, the record was supplemented with a
summary of the testimony to which the parties stipulated.
Testimony of Brian Robertson
Mr. Robertson testified that he was the case manager assigned by the
Department to K.H.’s matter. K.H. was residing with foster parents in an adoptive
resource home at the time of trial and was doing well.
J.H.’s court-approved plan required that she obtain and maintain stable
housing and employment, participate in parenting classes, demonstrate appropriate
parenting skills, complete substance abuse treatment, have a complete mental health
evaluation and follow the recommendations of the providers, comply with mental
health treatment, maintain contact with the Department, visit K.H. per a visitation
schedule, and provide $20.00 per month parental contribution.
The only housing J.H. reported to DCFS was an address in Breaux Bridge,
Louisiana, which had no working utilities and, on June 28, 2018, an address in
Houston, Texas. Appointments were made with J.H. for home visits on December
21, 2016, January 4, 2017, February 23, 2017, March 28, 2017, April 25, 2017, June
15, 2017, December 6, 2017, January 24, 2018, May 18, 2018, June 13, 2018, July
10, 2018, August 3, 2018, and September 17, 2018, none of which J.H. kept. On the
few occasions Mr. Robertson was able to visit the home, J.H. denied him entrance.
She also failed to notify DCFS of her change of address until June 2018, as noted
above.
J.H. was referred to Gulf Coast Social Services in Lafayette, Louisiana, for
parenting classes on five separate occasions. She did not participate at all.
2 Referrals to Keys for Sober Living in New Iberia, Louisiana, were also given
to J.H. to allow her to fulfill the substance-abuse-treatment requirement of her plan.
J.H. did not attend. J.H. also refused random drug screening on twenty-two
occasions. One drug screen she did submit to returned positive for marijuana.
J.H. failed to attend any of the mental health evaluations scheduled for her
because “[s]he had plans for other things.” Bi-weekly visitations were established
for J.H. and K.H. J.H. only visited K.H. on January 26, 2017 and April 15, 2018.
J.H. did speak with K.H. at least weekly by phone, though. She did appear to be
bonded with her children on the occasions J.H. actually visited.
Lastly, J.H. never contributed the $20.00 per month required by the plan.
The trial court found that the Department had met its burden by clear and
convincing evidence that K.H.’s parents had failed to contribute to their child’s care
and support for six consecutive months and had failed to substantially comply with
their plan. It further found that there is no reasonable expectation of significant
improvement in the near future and that terminating the parents’ rights was in the
best interests of K.H.
Judgment terminating J.H.’s parental rights and certifying K.H. for adoption
was signed on November 14, 2018. This appeal followed.
ANALYSIS
Counsel for J.H. has, as mentioned above, filed a brief pursuant to Anders v.
California, 386 U.S. 738, 87 S.Ct. 1396 (1967). In State in the Interest of K.R., 11-
1376 (La.App. 3 Cir. 3/7/12), 85 So.3d 830, we approved this procedure in the
context of a case involving termination of parental rights. In this brief, counsel
asserts that she can find no non-frivolous grounds for appealing the termination of
J.H.’s parental rights.
After a thorough review of the record, we grant counsel’s motion to withdraw. 3 A parent’s right to the care, custody, and management of his or her children is a “fundamental liberty interest warranting great deference and vigilant protection under the law.” State ex rel. Q.P., 94- 609, p. 4 (La.App. 3 Cir. 11/2/94), 649 So.2d 512, 515. The evidentiary standard governing termination cases requires the State to present proof by clear and convincing evidence of each element of the specific grounds for termination as specified in La.Ch.Code art. 1015 before a court may proceed with terminating a parental relationship. State ex rel. D.H., 06-1041 (La.App. 3 Cir. 3/7/07), 953 So.2d 992, writ denied, 07- 673 (La.4/27/07), 955 So.2d 698. An appellate court must review the record for manifest error in determining whether the lower court properly applied the clear and convincing evidentiary standard.
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NOT DESIGNATED FOR PUBLICATION
STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
19-163
STATE IN THE INTEREST OF
K.H.
**********
APPEAL FROM THE SIXTEENTH JUDICIAL DISTRICT COURT PARISH OF ST. MARTIN, NO. 16JV-18557 HONORABLE LEWIS H. PITMAN, JR., DISTRICT JUDGE
SHANNON J. GREMILLION JUDGE
Court composed of Sylvia R. Cooks, Shannon J. Gremillion, and Van H. Kyzar, Judges.
MOTION TO WITHDRAW GRANTED, JUDGMENT AFFIRMED. Diane E. Cote 825 Kaliste Saloom Road Brandywine III, Room 150 Lafayette, LA 70508 (337) 262-5913 COUNSEL FOR OTHER APPELLEE: State of Louisiana, Department of Children and Family Services
S. Marie Johnson Attorney at Law 110 French Street, Suite A New Iberia, LA 70560 (337) 849-2556 COUNSEL FOR OTHER APPELLANT: J.H. (mother)
Denise Henderson Mental Health Advocacy Services/Child Advocacy Program 302 Dulles Drive, Room U-47 Lafayette, LA 70506 (337) 262-2030 COUNSEL FOR OTHER APPELLEE: K.H. (child) GREMILLION, Judge.
J.H., the mother of K.H., a Child in Need of Care (CINC), appeals the
judgment that terminated her parental rights and certified K.H. eligible for adoption.
J.H.’s attorney has filed a brief pursuant to Anders v. California, 386 U.S. 738, 87
S.Ct. 1396 (1967), asserting that there exist no non-frivolous grounds for appealing
the trial court’s judgment and seeking to withdraw from representing J.H. For the
reasons that follow, we grant counsel’s motion to withdraw and affirm the trial
court’s judgment.
FACTS AND PROCEDURAL POSTURE
K.H. is not J.H.’s only child; she has another child, A.H., who had already
been adjudicated a CINC. According to a November 7, 2016 instanter order, A.H.
was in foster care on Saturday, November 5, 2016, when K.H. arrived to visit her.
J.H. left K.H. with the foster parent while she visited A.H. The foster parent sought
to return K.H. to her mother, but upon arriving at J.H.’s residence, noted that the
house appeared abandoned. J.H. told the foster parent that she was staying there but
there were no utilities servicing the house. The foster parent took K.H. and left. J.H.
was incommunicado for the next two days, when the trial court issued the instanter
order that placed K.H. in the custody of the Department or Children & Family
Services (DCFS or “the Department”).
A petition to adjudicate K.H. a CINC was filed by DCFS on November 10,
2016. The primary goal of a plan established for J.H. was family reunification. The
plan itself will be discussed later. On June 15, 2018, DCFS filed a petition to
terminate J.H.’s parental rights and to certify K.H. for adoption. No service was
made on J.H., and the Department moved for the appointment of a curator. The
curator answered the petition, and the matter was set for trial on October 5, 2018. J.H. failed to appear at the trial. One witness, Brian Robertson, testified.
Technical issues with the recording devices in the courtroom prevented the complete
transcription of the trial testimony; however, the record was supplemented with a
summary of the testimony to which the parties stipulated.
Testimony of Brian Robertson
Mr. Robertson testified that he was the case manager assigned by the
Department to K.H.’s matter. K.H. was residing with foster parents in an adoptive
resource home at the time of trial and was doing well.
J.H.’s court-approved plan required that she obtain and maintain stable
housing and employment, participate in parenting classes, demonstrate appropriate
parenting skills, complete substance abuse treatment, have a complete mental health
evaluation and follow the recommendations of the providers, comply with mental
health treatment, maintain contact with the Department, visit K.H. per a visitation
schedule, and provide $20.00 per month parental contribution.
The only housing J.H. reported to DCFS was an address in Breaux Bridge,
Louisiana, which had no working utilities and, on June 28, 2018, an address in
Houston, Texas. Appointments were made with J.H. for home visits on December
21, 2016, January 4, 2017, February 23, 2017, March 28, 2017, April 25, 2017, June
15, 2017, December 6, 2017, January 24, 2018, May 18, 2018, June 13, 2018, July
10, 2018, August 3, 2018, and September 17, 2018, none of which J.H. kept. On the
few occasions Mr. Robertson was able to visit the home, J.H. denied him entrance.
She also failed to notify DCFS of her change of address until June 2018, as noted
above.
J.H. was referred to Gulf Coast Social Services in Lafayette, Louisiana, for
parenting classes on five separate occasions. She did not participate at all.
2 Referrals to Keys for Sober Living in New Iberia, Louisiana, were also given
to J.H. to allow her to fulfill the substance-abuse-treatment requirement of her plan.
J.H. did not attend. J.H. also refused random drug screening on twenty-two
occasions. One drug screen she did submit to returned positive for marijuana.
J.H. failed to attend any of the mental health evaluations scheduled for her
because “[s]he had plans for other things.” Bi-weekly visitations were established
for J.H. and K.H. J.H. only visited K.H. on January 26, 2017 and April 15, 2018.
J.H. did speak with K.H. at least weekly by phone, though. She did appear to be
bonded with her children on the occasions J.H. actually visited.
Lastly, J.H. never contributed the $20.00 per month required by the plan.
The trial court found that the Department had met its burden by clear and
convincing evidence that K.H.’s parents had failed to contribute to their child’s care
and support for six consecutive months and had failed to substantially comply with
their plan. It further found that there is no reasonable expectation of significant
improvement in the near future and that terminating the parents’ rights was in the
best interests of K.H.
Judgment terminating J.H.’s parental rights and certifying K.H. for adoption
was signed on November 14, 2018. This appeal followed.
ANALYSIS
Counsel for J.H. has, as mentioned above, filed a brief pursuant to Anders v.
California, 386 U.S. 738, 87 S.Ct. 1396 (1967). In State in the Interest of K.R., 11-
1376 (La.App. 3 Cir. 3/7/12), 85 So.3d 830, we approved this procedure in the
context of a case involving termination of parental rights. In this brief, counsel
asserts that she can find no non-frivolous grounds for appealing the termination of
J.H.’s parental rights.
After a thorough review of the record, we grant counsel’s motion to withdraw. 3 A parent’s right to the care, custody, and management of his or her children is a “fundamental liberty interest warranting great deference and vigilant protection under the law.” State ex rel. Q.P., 94- 609, p. 4 (La.App. 3 Cir. 11/2/94), 649 So.2d 512, 515. The evidentiary standard governing termination cases requires the State to present proof by clear and convincing evidence of each element of the specific grounds for termination as specified in La.Ch.Code art. 1015 before a court may proceed with terminating a parental relationship. State ex rel. D.H., 06-1041 (La.App. 3 Cir. 3/7/07), 953 So.2d 992, writ denied, 07- 673 (La.4/27/07), 955 So.2d 698. An appellate court must review the record for manifest error in determining whether the lower court properly applied the clear and convincing evidentiary standard. State in the Interest of J.K., 97-336 (La.App. 3 Cir. 10/29/97), 702 So.2d 1154.
Id. at 831. Louisiana Children’s Code Article 1015 sets forth a number of grounds
for the termination of a parent’s rights. It states, in pertinent part:
The grounds for termination of parental rights are:
....
(6) 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.
The evidence supports the trial court’s determination that J.H. has failed to
substantially comply with the court-approved case plan. According to Mr.
Robertson, J.H. failed to attend substance abuse treatment; failed to submit to drug
screening on several occasions and tested positive on one she did submit to; failed
to contribute even the de minimis amount of $20.00 per month toward K.H.’s support;
failed to obtain employment; failed to attend parenting classes; and failed to maintain
stable housing. She only availed herself of two opportunities to see K.H. face-to-
face, and those were fourteen months apart.
Mr. Robertson’s testimony also demonstrates that the trial court did not err in
determining that there was no reasonable expectation of significant improvement in 4 J.H.’s condition or conduct. J.H.’s conduct showed no change between the
institution of the plan and the trial of the matter except her one visit with K.H. in
April 2018. The trial court did not err in determining that it is in K.H.’s best interests
that J.H.’s parental rights be terminated and that K.H. be certified as eligible for
adoption.
Counsel’s motion to withdraw is granted. The judgment of the trial court is
affirmed.
MOTION TO WITHDRAW GRANTED, JUDGMENT AFFIRMED.