STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
09-243
STATE IN THE INTEREST OF L.W., J.W. & L.W.
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APPEAL FROM THE THIRTY-FIFTH JUDICIAL DISTRICT COURT PARISH OF GRANT, NO. J-2125 HONORABLE WARREN DANIEL WILLETT, DISTRICT JUDGE
ULYSSES GENE THIBODEAUX CHIEF JUDGE
Court composed of Ulysses Gene Thibodeaux, Chief Judge, John D. Saunders, and Jimmie C. Peters, Judges.
AFFIRMED.
Robert J. Elliott Department of Social Services P. O. Box 832 Alexandria, LA 71309-0832 Telephone: (318) 487-5227 COUNSEL FOR: Appellee - State of Louisiana, Department of Social Services
Robert L. Kennedy 352 2nd Street Colfax, LA 71417 Telephone: (318) 627-3255 COUNSEL FOR: Appellees - J.W., L.W., and L.W.
James F. Slaughter 403 Second Street Colfax, LA 71417 Telephone: (318) 627-2240 COUNSEL FOR: Appellant - J.M.W. James Patrick Lemoine District Attorney, 35th Judicial District Court Renee W. Dugas Assistant District Attorney, 35th Judicial District Court P. O. Box 309 Colfax, LA 71417-0309 Telephone: (318) 627-3205 COUNSEL FOR: Appellee - State of Louisiana
Joseph P. Beck, III 5527 Monroe Highway Ball, LA 71405 Telephone: (318) 640-9202 COUNSEL FOR: Appellant - A.W.R. THIBODEAUX, Chief Judge.
Defendants-appellants, A.W.R. and J.M.W., appeal the trial court
judgment that terminated their parental rights to their three minor children and
certified the children for adoption. Defendants allege the judgment should be
reversed because the plaintiff-appellee, State of Louisiana, Department of Social
Services (DSS), failed to prove by clear and convincing evidence the grounds for
termination as set forth in La.Ch.Code arts. 1015(4)(b) and (5). Defendants also
allege the trial court erred in accepting psychologist, David G. Adkins, Ph.D., as an
expert witness qualified to offer opinions regarding termination in this case since he
only interviewed the defendants once and his examination methodologies were
unreliable.
We affirm.
I.
ISSUES
1. Did the trial court err in accepting David G. Adkins, Ph.D., as an expert qualified to offer an opinion in this case?
2. Did the DSS prove by clear and convincing evidence the parents’ failure to provide significant contributions of care and support to the children for at least six consecutive months as required by La.Ch.Code art. 1015(4)(b)?
3. Did the DSS prove by clear and convincing evidence the grounds for termination set forth in La.Ch.Code art. 1015(5), which include: (a) the children being in DSS custody for a period of one year; (b) no substantial parental compliance with the case plans for services; and (c) no reasonable expectation of significant improvement in the parents’ conditions or conduct in the near future? II.
FACTUAL BACKGROUND
The DSS confirmed a report of neglect, drug dependency, and inadequate
housing on July 12, 2007, when they responded to a complaint alleging the
defendants’ three minor children (who were then ages one, five, and six) were
unexpectedly left for three days in the care of their aunt by their mother, A.W.R., who
could not be located. The mother left under the false pretense of going to the store
for diapers and failed to return. The children were left with only the clothes they
were wearing. It was also reported that it was not A.W.R.’s first time leaving her
children unexpectedly for an extended period of time. The case worker was advised
that A.W.R. had left her children with another acquaintance for two days, during
which time she could not be contacted.
The children’s father, J.M.W., was incarcerated at the time the report was
made to DSS. Consequently, the aunt placed the children with their paternal
grandmother, but the DSS case worker investigating the complaint found the
grandmother’s home unsuitable for the young children. The home lacked sufficient
food, was without electricity, had little or no furniture, and was in a physical state
deemed unsafe for the children’s ages.
The case worker’s investigation also revealed the defendants’ inadequate
housing situation and their possible drug abuse problems. The home the defendants
lived in with their children was a small, one-bedroom house. There was no running
water in the home at the time of the investigation, and there was a lack of adequate
space or beds for the three children. The mother’s and father’s drug abuse became
a concern during the investigation when the DSS social worker investigating the case
stated that multiple “collaterals” voiced concerns of illicit drug abuse by both of the
2 defendants. In addition, a former babysitter for the children reported having
witnessed the five-year-old child mimic drug use by placing a straw in his nose and
attempting to sniff baby powder. The mother’s drug abuse was confirmed in July,
shortly after the investigation had begun, when she consented to a drug test, which
returned with positive results for opiate use.
On September 26, 2008, DSS filed a Petition for Termination of Parental
Rights and Certification of Minor Children for Adoption, alleging termination was
justified due to the parents’ failure, during the year their children had been in State
custody, to substantially comply with the case plans for services that sought to reunify
the family. It was further alleged that neither of the defendants had contributed any
significant contributions to the care and support of the children during the children’s
entire time in State custody. DSS asserted there was no reasonable expectation of
significant improvement in the near future in the behaviors, conditions, or conduct
of the defendants.
The trial on termination of the parental rights of the defendants was
heard on November 12, 2008, approximately one year and four months after the
children were placed in State custody. After testimony was provided, the trial court
granted the termination. The mother and father have both appealed the judgment.
III.
LAW AND DISCUSSION
Dr. Adkins as an Expert Witness
The defendants argue that Dr. David Adkins, the clinical psychologist
who evaluated the defendants as a requirement of the case plans for reunification of
the family, was erroneously allowed to testify as an expert about their suitability for
regaining custody of, and parenting, their children. Their arguments do not challenge
3 Dr. Adkins’ qualifications as an expert in the field of clinical psychology. The
opposition to his testimony is based on his limited interaction with the defendants and
challenges to the reliability of the data he obtained through his testing of the
defendants.
During Dr. Adkins’ April 22, 2008, evaluation of the defendants, he
reviewed their social histories, which had been obtained by a member of his staff, and
performed a clinical interview with each defendant. He also conducted some
psychological testing, which consisted of a “brief” intelligence test, as requested by
DSS; a parenting inventory; and a personality assessment inventory, which was
administered to the mother, A.W.R., only. According to Dr. Adkins, it was
determined that the father, J.M.W., had a learning disability and was unable to read
and understand the personality assessment inventory. Consequently, he did not
complete this portion of the evaluation.
Based on the results obtained, Dr. Adkins opined that the defendants
both exhibited factors that led him to believe the children were at substantial risk for
maltreatment in their home and should not be in the custody or care of their parents
under the circumstances. He testified at trial that his primary concerns were the lack
of stable housing and income for the family and drug abuse by the defendants. He
advised the court that he had no new information about the defendants’ status in these
regards, but stated if they had shown no improvement during the six months since his
April 2008 evaluation, he would continue to recommend that the children not be
returned to the care of their parents.
Dr. Adkins based his conclusions on specific findings drawn from his
conversations with the defendants and their test results. He testified that the mother,
A.W.R., had an average I.Q. but exhibited signs of a double depression, consisting
4 of dysthymia (mild but ongoing, chronic depression) overlaid with a major depressive
episode (acute but shorter term depression). Moreover, he stated that A.W.R.
presented signs of post-traumatic stress syndrome, possibly related to alleged multiple
episodes of childhood abuse she reportedly suffered. He recognized passive-
aggressive personality traits in her and stated that she scored extremely poorly (16th
percentile) on the scale measuring her ability to relate with empathy to children. He
explained that this means a child’s value and importance is less to the parent than is
normal and that she has problems helping children or finding ways to meet their
needs. He added that the normal developmental demands of children typically seem
bothersome to persons with low empathy scores such as A.W.R.’s. Also, he
diagnosed poly-substance abuse in partial remission. Dr. Adkins explained that the
partial remission portion of the diagnosis was based on A.W.R.’s admission to him
of her history of drug use and her claims to have stopped using many of those drugs
taken in her past. Prior to any attempts to reinstate custody to A.W.R., Dr. Adkins
recommended clinical mental health treatment for the depression; in-house
rehabilitation for the apparent drug-dependency; and, that A.W.R. obtain employment
and complete a parenting program.
According to Dr. Adkins, the father, J.M.W., exhibited characteristics
of an adjustment disorder with depressed mood, a learning disability for which further
testing was needed, and anti-social personality tendencies, manifested as “trouble
with authorities,” a “headstrong” attitude, and non-conformist behaviors. Dr. Adkins
also made a provisional diagnosis of poly-substance abuse in partial remission. He
labeled the drug abuse as provisional because J.M.W. stated he took opiates to treat
residual pain from past hip and/or back injuries. These injuries were verified. Dr.
Adkins did not have information to verify if the narcotics were necessary to treat
5 residual pain or were being used excessively. Dr. Adkins recommended further
evaluation of this drug use by a medical doctor. He further recommended that to
address these concerns, J.M.W. should be required to submit to random drug tests,
complete a parenting program, and maintain employment or seek disability assistance
through the Social Security Administration (if his physical condition necessitated
this).
Both defendants cite Louisiana Code of Evidence Article 702, regarding
testimony by experts, in support of their argument:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.
The defendants contend Dr. Adkins’ testimony should not have been relied upon in
this case because he did not spend sufficient time with them to gain accurate or
reliable information about their abilities to serve as suitable parents. Moreover, they
argue the data upon which he based his opinions—test scores from the parental and
personality assessments—were not established as being accurate. Finally, they assert
that during the formulation of the opinions Dr. Adkins rendered at the trial, he failed
to consider any changes in the defendants’ circumstances that may have occurred
during the six months that had passed since his assessment of them.
This court has recognized “the qualification of an expert witness rests
within the sound discretion of the trial court, and its determination will not be
disturbed on appeal except upon a showing of manifest error.” Succession of
Launius, 503 So.2d 682, 683 (La.App. 3 Cir. 1987) (citing Richardson v. Continental
Ins. Co., 468 So.2d 675, (La.App. 3 Cir. 1985), writ denied, 474 So.2d 1304
(La.1985)). “The weight to be accorded to the testimony of experts depends largely
6 on their qualifications and the facts on which they base their opinions.” Oliver v.
Oliver, 95-1026, p. 19 (La.App. 3 Cir. 3/27/96), 671 So.2d 1081, 1092 (quoting
Durkee v. City of Shreveport, 587 So.2d 722, 728 (La.App. 2 Cir.), writ denied, 590
So.2d 68 (La.1991)). Consequently, expert testimony is to be weighed in the same
manner as any other evidence presented at trial. Lanasa v. Harrison, 02-26 (La.App.
4 Cir. 8/7/02), 828 So.2d 605, writ denied, 02-2512 (La. 11/27/02), 831 So.2d 286.
That is, the trial court may exercise its broad discretion and accept or reject, in whole
or in part, an expert’s testimony. Id. The court of appeal is not to disturb the trial
court’s actions in this regard unless it determines the trial court has committed an
abuse of discretion. Id.
While on the witness stand, Dr. Adkins was questioned about the
thoroughness and reliability of his evaluations of the defendants. He rejected the
notion that the period of the evaluation was too short or that the information elicited
could not accurately be relied upon. He testified that the length of the evaluations of
the defendants was slightly longer than is typical. In addition, he stated that the
evaluation of the defendants was conducted according to the standard procedure he
used in performing an average of 250 to 300 such parental evaluations per year.
According to Dr. Adkins, the tests administered, in addition to the social histories and
interviews conducted, are clinical standards used in his field of clinical psychology
to formulate opinions about the persons being interviewed.
Dr. Adkins further explained that he earned his Ph.D. in clinical
psychology in 1996 and had been licensed in Texas since then. He became a
Louisiana licensed clinical psychologist in 2003. He attested to being qualified as an
expert in the field of clinical psychology in various courts approximately two to three
times per month, on average, in his capacity as a medical consultant performing
7 disability determinations and also due to his regular performance of parental
evaluations for DSS’ Office of Community Services.
Accordingly, we find no merit to the defendants’ argument that the trial
court abused its discretion by allowing Dr. Adkins to provide expert testimony in this
case. Considering Dr. Adkins’ experience and qualifications, he clearly possesses an
expertise in providing assessments in cases involving parental fitness. He testified
that the tests used by him to obtain the personality and parenting information on
which he relied in formulating his opinions were routinely used and accepted as
clinically standardized methods in his field of clinical psychology. This testimony
was not refuted. Further, he adequately qualified his testimony regarding the
defendants, stating that his opinion was based on the information provided to him
during his April assessment of the defendants and revealing that he did not have any
knowledge of any changed circumstances since then. The trial court did not indicate
in its oral ruling what, if any, weight it gave to the testimony offered by Dr. Adkins
and we cannot speculate as to this factor. Regardless, the trial court possessed the
discretion to consider this information, and we find no abuse of the trial court’s
discretion to allow Dr. Adkins to offer this testimony for the court’s consideration.
Termination of Parental Rights
Before a court can involuntarily terminate an individual’s rights and
privileges as a parent, the State must establish at least one of the statutory grounds set
forth in La.Ch.Code art. 1015 by clear and convincing evidence. State ex rel. A.T.,
06-501 (La. 7/6/06), 936 So.2d 79. An appellate court cannot set aside the trial
court’s findings of fact unless the trial court’s findings are manifestly erroneous. Id.
(citations omitted).
8 During the trial in this case, the State sought to establish that the
defendants satisfied the grounds that would allow for involuntary termination of their
parental rights pursuant to La.Ch.Code arts. 1015(4)(b) and (5). Those sections state:
The grounds for termination of parental rights are:
....
(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.
(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.
The defendants contend the State did not establish by clear and
convincing evidence the grounds of La.Ch.Code art. 1015(4)(b)—the parents’ failure
to provide significant care for the children for six consecutive months. We disagree.
The record reflects unrefuted proof that during the more than one-year
period of the State’s custody of the children, neither defendant ever provided any
assistance, monetary or otherwise, for the care of the children as they remained in
9 foster care. Consequently, we find that the grounds for termination set forth in
La.Ch.Code art. 1015(4)(b) were established by clear and convincing evidence.
The State also established that involuntary termination of the defendants’
parental rights was warranted pursuant to La.Ch.Code art. 1015(5). Article 1015(5)
states that each of the following be established: (1) at least one year has elapsed since
the children entered State custody; (2) there is no substantial parental compliance
with the case plan for services; (3) and there is no reasonable expectation of
significant improvement in the parent’s condition or conduct in the near future. The
first element of Article 1015(5) is clearly established based on facts in the record
revealing that the children were in State custody for more than one year when the
termination trial was held and the judgment granting the involuntary termination was
rendered.
The second element—requiring clear and convincing evidence of the
lack of “substantial parental compliance” with the family’s case plan—is established
in the record as well. According to La.Ch.Code art. 1036(C), the lack of parental
compliance with a case plan can be proven by showing one or more of the following:
(1) The parent’s failure to attend court-approved scheduled visitations with the child.
(2) The parent’s failure to communicate with the child.
(3) The parent’s failure to keep the department apprised of the parent’s whereabouts and significant changes affecting the parent’s ability to comply with the case plan for services.
(4) The parent’s failure to contribute to the costs of the child’s foster care, if ordered to do so by the court when approving the case plan.
(5) The parent’s repeated failure to comply with the required program of treatment and rehabilitation services provided in the case plan.
10 (6) The parent’s lack of substantial improvement in redressing the problems preventing reunification.
(7) The persistence of conditions that led to removal or similar potentially harmful conditions.
In this case, multiple instances of the defendants’ failure to comply with these
conditions, which were all a part of the case plan for reunification of the family, exist.
Specifically, the case plan required the parents to do the following:
participate in substance abuse evaluations, which includes providing honest
information regarding drug abuse history and following any recommendations as a
result of the evaluations; submit to random drug testing; participate in psychological
evaluations and follow resulting recommendations, which were included in the case
plan (seek mental health and medical follow-up examinations, complete parenting
classes, and maintain a stable income and home environment); exhibit ability to
maintain adequate housing and food in the home for a minimum period of six months;
demonstrate the ability to maintain a stable income sufficient to care for the children;
visit regularly with the children according to the agreed-upon schedule; and, notify
DSS of any changes in address, telephone number, employment, and household
composition.
The record reflects the unrefuted evidence of both defendants’ failure to
complete any of these requirements. Neither defendant fully completed substance
abuse evaluations and treatment. A.W.R. completed ten days of a detoxification
program, but did not complete the recommended in-house substance abuse treatment
program that followed. In addition, she, thereafter, tested positive on a few other
occasions for opiate use. J.M.W. did not submit to a substance abuse evaluation, but
he contends the evaluation was unnecessary because it was never established that he
abused drugs. All of his tests resulted in negative results. However, the record
11 contains J.M.W.’s admission to having taken illegally obtained narcotics, such as
Lortab and Vicodin, albeit to treat allegedly legitimate pain even after the children
were in State custody. In addition, according to the testimony of case worker, Chris
Koehler, the drug testing that J.M.W. submitted to that resulted in the negative
results, did not constitute random testing. Koehler testified that both defendants
refused requests for drug tests on multiple occasions and would submit themselves
for testing at later times of their own choosing.
The record further establishes that the defendants were both incarcerated
on multiple occasions during the more than one year period the children were in State
custody prior to the termination hearing, and they never maintained a stable address
for a minimum of six months. The defendants lived at different locations, with
multiple relatives, for various periods during the time the case plans seeking
reunification of the family were in effect. According to the case worker, Koehler,
often these relatives would not have knowledge of the defendants’ whereabouts when
contacted. Moreover, the defendants never kept DSS regularly apprised of their
changing addresses or other contact information.
The defendants never provided verifiable proof of incomes that were
stable and suitable to provide the necessary care for their three children. A.W.R. did
not obtain any employment during the children’s tenure in State custody. J.M.W.
testified at trial that he historically worked at random jobs, when not incarcerated, to
obtain income and testified that he was employed at the time of trial. However, he
did not offer any testimony of the amount of his income or how long he could expect
to be employed.
12 We find that all of these failures to comply with the statutorily defined
measures of compliance, constitute a lack of “substantial” parental compliance with
the case plan.
Finally, the record supports a finding, by clear and convincing evidence,
of a “lack of a reasonable expectation of significant improvement” in the defendants’
conduct or conditions in the near future. Louisiana Children’s Code Article 1036(D)
explains that this component of La.Ch.Code art. 1015(5) may be established by proof
of the following:
(1) Any physical or mental illness, mental deficiency, substance abuse, or chemical dependency that renders the parent unable or incapable of exercising parental responsibilities without exposing the child to a substantial risk of serious harm, based upon expert opinion or based upon an established pattern of behavior.
(2) A pattern of repeated incarceration of the parent that has rendered the parent unable to care for the immediate and continuing physical or emotional needs of the child for extended periods of time.
(3) Any other condition or conduct that reasonably indicates that the parent is unable or unwilling to provide an adequate permanent home for the child, based upon expert opinion or based upon an established pattern of behavior.
The State’s expert, Dr. Adkins, provided his unrefuted opinion that the
children were at risk for harm based on the mother’s, and possibly father’s, drug
abuse problems. Moreover, both parties were revealed to be unreliable sources of
stability for the children, based on their repeated episodes of abandonment and
incarceration for criminal activity. In addition, the parents’ pattern of conduct
revealed either an inability or unwillingness to establish a stable home environment
and income suitable for the care of three children. Accordingly, we find that the
grounds for termination of parental rights pursuant to La.Ch.Code art. 1015(5) were
established by clear and convincing evidence set forth in the record. 13 IV.
CONCLUSION
The judgment of the trial court, involuntarily terminating the parental
rights of A.W.R. and J.M.W. to their three children, J.M.W., Jr., L.W., and L.W., is
affirmed. All costs are assessed to A.W.R. and J.M.W.