STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
13-616
STATE IN THE INTEREST OF O.L.R.
**********
APPEAL FROM THE ELEVENTH JUDICIAL DISTRICT COURT PARISH OF SABINE, NO. 2512 HONORABLE STEPHEN BRUCE BEASLEY, DISTRICT JUDGE
ULYSSES GENE THIBODEAUX CHIEF JUDGE
Court composed of Ulysses Gene Thibodeaux, Chief Judge, John D. Saunders, and Phyllis M. Keaty, Judges.
AFFIRMED.
Kimberly S. Smith Department of Children and Family Services 1525 Fairfield Avenue – 8th Floor Shreveport, LA 71101 Telephone: (318) 676-7347 COUNSEL FOR: Appellee - State of Louisiana, Department of Children and Family Services
Renee Paula Cote 720 Travis Street Shreveport, LA 71101 Telephone: (214) 369-0024 COUNSEL FOR: Appellee - O.L.R.
D. Scott Kendrick 1762 Texas Street Natchitoches, LA 71457 Telephone: (318) 354-9146 COUNSEL FOR: Appellant – Hubert Antoine, Jr. Richard Woolbert 750 Southfield Road - Suite C Shreveport, LA 71106 Telephone: (318) 219-3921 COUNSEL FOR: Appellee – Brenda Richardson THIBODEAUX, Chief Judge.
Hubert Antoine, Jr. appeals the trial court’s termination of his parental
rights of O.L.R. Mr. Antoine argues that his incarceration at the Calcasieu Parish
Correctional Center prevents him from completing his case plan, and that the State
should allow him more time to do so. For the following reasons, we affirm the
judgment of the trial court.
I.
ISSUE
We must decide whether the trial court erred in terminating the
parental rights of Mr. Antoine.
II.
FACTS AND PROCEDURAL HISTORY
On August 22, 2010, O.L.R. entered into the State’s custody at birth
after testing positive for cocaine and marijuana. At the time of O.L.R.’s birth,
Brenda Richardson, O.L.R.’s mother, alleged that Mr. Antoine was the child’s
father.1 She was unsure of his whereabouts, although O.L.R. was the second child
born to Ms. Richardson and Mr. Antoine. Ultimately, at two months of age,
O.L.R. was adjudicated as a child in need of care. She never returned to the care of
her mother.
O.L.R. has never had contact with her father. At the time O.L.R.
entered foster care, Ms. Richardson believed that Mr. Antoine was incarcerated for
stabbing his brother, but she was uncertain. At no point did Mr. Antoine attempt to
1 DNA testing has since confirmed that Mr. Antoine is the biological father of O.L.R. formally or informally establish his parental rights to O.L.R. The Department of
Child and Family Services (DCFS) located Mr. Antoine in the Calcasieu Parish
Correctional Center where he remains today. Mr. Antoine is awaiting trial for
attempted first degree murder, two counts of armed robbery, theft of a motor
vehicle, aggravated assault with a firearm, aggravated burglary, and simple
criminal damage to property. He has also been charged with second degree battery
for an incident that occurred during his incarceration.
The State filed a petition to terminate the rights of Mr. Antoine and
Ms. Richardson. At trial, Mr. Antoine testified that he takes medication for
psychiatric issues, but he was recently found competent to stand trial. He denied
any continuing issues with his mental health. He admitted that he has never had
contact with O.L.R. or supported her in any way. He admitted that he was aware
that the State formulated a case plan for him to become involved in O.L.R.’s life
but that he had not undertaken any steps to follow the case plan. He testified that
his incarceration prevented him from following the case plan, and he would be
unable to follow the plan until he was released from prison.
O.L.R.’s foster mother also testified at trial. She stated that she has
been caring for O.L.R. since the child was released from the hospital shortly after
birth. O.L.R. calls her “mama,” and the child is thriving in her care. She seeks to
adopt O.L.R. and provide her a permanent home.
After hearing the testimony and receiving additional evidence, the
trial court entered judgment terminating the parental rights of Mr. Antoine and Ms.
Richardson. Mr. Antoine appeals.
2 III.
LAW AND DISCUSSION
Standard of Review
A trial court’s findings on whether parental rights should be
terminated are subject to the manifest error standard of review. State ex rel. K.G.,
02-2886 (La. 3/18/03), 841 So.2d 759. Moreover, whether a parent has complied
with a case plan, the expected success of rehabilitation, and the expectation of
significant improvement in the parent’s condition or conduct are all questions of
fact that may not be set aside in the absence of manifest error or unless clearly
wrong. State ex rel. S.C.M., 43,441 (La.App. 2 Cir. 6/4/08), 986 So.2d 875.
Termination of Parental Rights
Mr. Antoine argues that the trial court erred in terminating his parental
rights under La.Ch.Code art. 1015(5) because DCFS did not prove its case by clear
and convincing evidence. While parents have a constitutionally protected liberty
interest in establishing and maintaining a meaningful relationship with their
children, the State has a legitimate interest in limiting or terminating parental rights
under certain conditions. State in the Interest of A.C., 93-1125 (La. 1/27/94), 643
So.2d 719, cert. denied, 515 U.S. 1128, 115 S.Ct. 2291. To terminate parental
rights, one of the grounds for termination set forth in La.Ch.Code art. 1015 must be
established by clear and convincing evidence, and termination must be found to be
in the child’s best interest. State ex rel. D.L.R., 08-1541 (La. 12/12/08), 998 So.2d
681.
The State sought termination based on the grounds set forth in
La.Ch.Code art. 1015(5):
3 (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.
Lack of parental compliance with a case plan may be evidenced by
one of the following factors: (1) failure to attend court-approved scheduled
visitations; (2) failure to communicate with the child; (3) failure to keep DCFS
apprised of his whereabouts and significant changes affecting his ability to comply
with the case plan; (4) failure to contribute to the costs of the child’s foster care, if
ordered by the court when approving the case plan; (5) failure to comply with the
required program of treatment and rehabilitation services provided in the case plan;
(6) lack of substantial improvement in redressing the problems preventing
reunification; or (7) persistence of conditions that led to removal or similar
potentially harmful conditions. La.Ch.Code art. 1036(C).
Moreover, lack of any reasonable expectation of significant
improvement in the parent’s conduct in the near future may be shown by a pattern
of repeated incarceration 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. La.Ch.Code art. 1036(D)(2). It may also be shown by other
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STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
13-616
STATE IN THE INTEREST OF O.L.R.
**********
APPEAL FROM THE ELEVENTH JUDICIAL DISTRICT COURT PARISH OF SABINE, NO. 2512 HONORABLE STEPHEN BRUCE BEASLEY, DISTRICT JUDGE
ULYSSES GENE THIBODEAUX CHIEF JUDGE
Court composed of Ulysses Gene Thibodeaux, Chief Judge, John D. Saunders, and Phyllis M. Keaty, Judges.
AFFIRMED.
Kimberly S. Smith Department of Children and Family Services 1525 Fairfield Avenue – 8th Floor Shreveport, LA 71101 Telephone: (318) 676-7347 COUNSEL FOR: Appellee - State of Louisiana, Department of Children and Family Services
Renee Paula Cote 720 Travis Street Shreveport, LA 71101 Telephone: (214) 369-0024 COUNSEL FOR: Appellee - O.L.R.
D. Scott Kendrick 1762 Texas Street Natchitoches, LA 71457 Telephone: (318) 354-9146 COUNSEL FOR: Appellant – Hubert Antoine, Jr. Richard Woolbert 750 Southfield Road - Suite C Shreveport, LA 71106 Telephone: (318) 219-3921 COUNSEL FOR: Appellee – Brenda Richardson THIBODEAUX, Chief Judge.
Hubert Antoine, Jr. appeals the trial court’s termination of his parental
rights of O.L.R. Mr. Antoine argues that his incarceration at the Calcasieu Parish
Correctional Center prevents him from completing his case plan, and that the State
should allow him more time to do so. For the following reasons, we affirm the
judgment of the trial court.
I.
ISSUE
We must decide whether the trial court erred in terminating the
parental rights of Mr. Antoine.
II.
FACTS AND PROCEDURAL HISTORY
On August 22, 2010, O.L.R. entered into the State’s custody at birth
after testing positive for cocaine and marijuana. At the time of O.L.R.’s birth,
Brenda Richardson, O.L.R.’s mother, alleged that Mr. Antoine was the child’s
father.1 She was unsure of his whereabouts, although O.L.R. was the second child
born to Ms. Richardson and Mr. Antoine. Ultimately, at two months of age,
O.L.R. was adjudicated as a child in need of care. She never returned to the care of
her mother.
O.L.R. has never had contact with her father. At the time O.L.R.
entered foster care, Ms. Richardson believed that Mr. Antoine was incarcerated for
stabbing his brother, but she was uncertain. At no point did Mr. Antoine attempt to
1 DNA testing has since confirmed that Mr. Antoine is the biological father of O.L.R. formally or informally establish his parental rights to O.L.R. The Department of
Child and Family Services (DCFS) located Mr. Antoine in the Calcasieu Parish
Correctional Center where he remains today. Mr. Antoine is awaiting trial for
attempted first degree murder, two counts of armed robbery, theft of a motor
vehicle, aggravated assault with a firearm, aggravated burglary, and simple
criminal damage to property. He has also been charged with second degree battery
for an incident that occurred during his incarceration.
The State filed a petition to terminate the rights of Mr. Antoine and
Ms. Richardson. At trial, Mr. Antoine testified that he takes medication for
psychiatric issues, but he was recently found competent to stand trial. He denied
any continuing issues with his mental health. He admitted that he has never had
contact with O.L.R. or supported her in any way. He admitted that he was aware
that the State formulated a case plan for him to become involved in O.L.R.’s life
but that he had not undertaken any steps to follow the case plan. He testified that
his incarceration prevented him from following the case plan, and he would be
unable to follow the plan until he was released from prison.
O.L.R.’s foster mother also testified at trial. She stated that she has
been caring for O.L.R. since the child was released from the hospital shortly after
birth. O.L.R. calls her “mama,” and the child is thriving in her care. She seeks to
adopt O.L.R. and provide her a permanent home.
After hearing the testimony and receiving additional evidence, the
trial court entered judgment terminating the parental rights of Mr. Antoine and Ms.
Richardson. Mr. Antoine appeals.
2 III.
LAW AND DISCUSSION
Standard of Review
A trial court’s findings on whether parental rights should be
terminated are subject to the manifest error standard of review. State ex rel. K.G.,
02-2886 (La. 3/18/03), 841 So.2d 759. Moreover, whether a parent has complied
with a case plan, the expected success of rehabilitation, and the expectation of
significant improvement in the parent’s condition or conduct are all questions of
fact that may not be set aside in the absence of manifest error or unless clearly
wrong. State ex rel. S.C.M., 43,441 (La.App. 2 Cir. 6/4/08), 986 So.2d 875.
Termination of Parental Rights
Mr. Antoine argues that the trial court erred in terminating his parental
rights under La.Ch.Code art. 1015(5) because DCFS did not prove its case by clear
and convincing evidence. While parents have a constitutionally protected liberty
interest in establishing and maintaining a meaningful relationship with their
children, the State has a legitimate interest in limiting or terminating parental rights
under certain conditions. State in the Interest of A.C., 93-1125 (La. 1/27/94), 643
So.2d 719, cert. denied, 515 U.S. 1128, 115 S.Ct. 2291. To terminate parental
rights, one of the grounds for termination set forth in La.Ch.Code art. 1015 must be
established by clear and convincing evidence, and termination must be found to be
in the child’s best interest. State ex rel. D.L.R., 08-1541 (La. 12/12/08), 998 So.2d
681.
The State sought termination based on the grounds set forth in
La.Ch.Code art. 1015(5):
3 (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.
Lack of parental compliance with a case plan may be evidenced by
one of the following factors: (1) failure to attend court-approved scheduled
visitations; (2) failure to communicate with the child; (3) failure to keep DCFS
apprised of his whereabouts and significant changes affecting his ability to comply
with the case plan; (4) failure to contribute to the costs of the child’s foster care, if
ordered by the court when approving the case plan; (5) failure to comply with the
required program of treatment and rehabilitation services provided in the case plan;
(6) lack of substantial improvement in redressing the problems preventing
reunification; or (7) persistence of conditions that led to removal or similar
potentially harmful conditions. La.Ch.Code art. 1036(C).
Moreover, lack of any reasonable expectation of significant
improvement in the parent’s conduct in the near future may be shown by a pattern
of repeated incarceration 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. La.Ch.Code art. 1036(D)(2). It may also be shown by other
conditions or conduct that reasonably indicate that the parent is unable or unwilling
to provide an adequate permanent home for the child for an extended period of
time, based on expert opinion or an established pattern of behavior. La.Ch.Code
art. 1036(D)(3).
4 Our review of the record shows that DCFS proved the grounds for
termination under La.Ch.Code art. 1015(5) by clear and convincing evidence. Mr.
Antoine admitted that he has never had contact with O.L.R. nor has he provided
any type of support. Moreover, Mr. Antoine’s testimony, along with the evidence
introduced into the record, establishes Mr. Antoine’s lack of substantial
compliance with his case plan and the lack of any reasonable expectation of
significant improvement in his conduct. Mr. Antoine admits that he will be unable
to even attempt his case plan until he is released from prison. Considering the
multitude of charges he faces, coupled with his less than favorable behavior while
incarcerated, we have serious doubts about Mr. Antoine’s ability to complete his
case plan.
Mr. Antoine blames his failure to complete his case plan on the fact
that he has been incarcerated most of O.L.R.’s life. Imprisonment is not an excuse
to escape parental obligations. State ex rel. C.M.O., 04-1780 (La.App. 4 Cir.
4/13/05), 901 So.2d 1168. Incarceration is not a defense to failure to support or
maintain contact with one’s children in a termination of parental rights case,
particularly because incarceration results from one’s actions. State ex rel. M.H. v.
K.W.H., 40,332 (La.App. 2 Cir. 9/23/05), 912 So.2d 88. Mr. Antoine’s conduct
and actions led to his incarceration; thus, he cannot use his incarceration as an
excuse for abandoning O.L.R. or failing to substantially comply with his case plan.
He has not made an attempt to contact O.L.R. or to provide support to her in any
way. Considering these failings, the State clearly and convincingly proved Mr.
Antoine’s lack of parental compliance with the case plan and that there is no
reasonable expectation of significant improvement in his conduct in the near
future. Given O.L.R.’s young age and her need for a safe, stable, and permanent
5 home, termination was in her best interest and appropriate under La.Ch.Code art.
1015(5).
IV.
CONCLUSION
For the reasons articulated above, we affirm the judgment of the trial
court. Costs of this appeal are assessed against Hubert Antoine.