State in the Interest of T.S.B.

532 So. 2d 866, 1988 La. App. LEXIS 2054, 1988 WL 105496
CourtLouisiana Court of Appeal
DecidedOctober 11, 1988
DocketNo. 88-CA-0411
StatusPublished
Cited by6 cases

This text of 532 So. 2d 866 (State in the Interest of T.S.B.) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State in the Interest of T.S.B., 532 So. 2d 866, 1988 La. App. LEXIS 2054, 1988 WL 105496 (La. Ct. App. 1988).

Opinion

LOBRANO, Judge.

This is an appeal from a judgment of the Juvenile Court for the Parish of Orleans, which dismissed the State’s petition to terminate the parental rights of Henry Barber as to his minor son, T.S.B. The issue before us is whether due process prohibits the State of Louisiana from proceeding with its action to terminate the parental rights of a deaf father who is unable to hear the proceedings against him and to communicate with his appointed counsel. We find that it does not and reverse the ruling of the Juvenile Court.

T.S.B. was bom on September 1, 1982. He was removed from the custody of both parents due to their incarceration. His mother, Sylvia Wilson, signed a voluntary surrender of parental rights on January 10, 1986. His father, Henry Barber, has a history of criminal behavior consisting of numerous felony convictions. On July 24, 1984, Henry Barber was confined to the custody of the Department of Corrections to serve a sentence of ten years. He is currently incarcerated.

On February 17, 1987, the State filed a petition for termination of parental rights against Henry Barber. Counsel was appointed to represent Mr. Barber.

Mr. Barber is profoundly deaf. Pre-trial hearings were held on April 30, June 30, September 9 and October 2,1987 to discuss the nature and extent of Barber’s deafness and what measures were available to the Court to aid his impairment. Following the June 30, 1987 hearing, the Court ordered that the State be allowed to proceed with the September 9th hearing as long as Barber was equipped with two hearing aids. The Court continued the hearing on September 9th to October 12,1987 and ordered that a second audiologist examine Barber and submit an affidavit to the Court stating whether Barber is able, while using the hearing aids to hear well enough to participate in the proceedings against him. On October 12, 1987, after considering the testimony of Keith Stroud, audiologist with Beltone, the trial court granted defense counsel’s request to dismiss the State’s petition. The Court found that “Mr. Barber’s deafness, coupled with his lack of formal education, preclude his being tried in this very serious proceeding within constitutional guidelines. It is not the deafness alone, but that, coupled with the fact that he has no formal education, leads me to believe that the alternatives that have been suggested by the state, which I think would be a feasible alternative with persons who had an educational background that would permit them to utilize these alternatives, I don’t think apply in Mr. Barber’s case.”

The State appeals the trial court’s judgment asserting the trial court erred in dismissing the petition to terminate parental rights because an attorney was appointed to protect Barber’s interests and other alternatives were available to aid Barber in communicating and understanding the proceedings.

Procedural due process, broadly defined as one of “fundamental fairness”, requires that minimal procedural safeguards must be established before the State may deprive a person of fundamental rights of life, liberty, or property. State In the Interest of A.E., 448 So.2d 183 (La.App. 4th Cir.1984). Whether the procedural safeguards established measure up to due process depends on the nature of the proceedings and the nature of the right or interest affected. The rights of parents to the companionship, care, custody and management of their children is a fundamental liberty interest warranting great deference and vigilant protection under the law. Consequently, proceedings which would irreversibly terminate a parent’s rights must comport with the highest standard of due process. State in the Interest of A.E., supra, citing Cafeteria and Restaurant Workers Union Local 473 v. McElroy, 367 U.S. 886, 81 S.Ct. 1743, 6 L.Ed.2d 1230 (1961); Stanley v. Illinois, [868]*868405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972); Lassiter v. Department of Social Services, 452 U.S. 18, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981); State In Re Delcuze, 407 So.2d 707 (La.1981).

The United States Supreme Court has applied due process standards as set out in Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976) to parental rights termination cases. Mathews requires a consideration of:

“First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burden that the additional or substitute procedural requirement would entail.” 424 U.S. at 334, 335, 96 S.Ct. at 902, 903.

As in any case to terminate parental rights, there are two private interests to be considered: those of the parent and those of the child. These interests are often at odds. Unquestionably, termination of parental rights is a “unique kind of deprivation” which warrants deference and protection. Lassiter v. Department of Social Services, supra. However, the child has an interest in terminating parental rights that prevent adoption and inhibit establishing secure, stable, long term and continuous relationships. State in the Interest of A.E., supra; Lehman v. Lycoming County Children’s Services Agency, 458 U.S. 502, 102 S.Ct. 3231, 73 L.Ed.2d 928 (1982). In balancing these. interests, this Court has consistently found the interest of the child to be paramount over that of the parent. State In the Interest of A.E., supra; State of Louisiana in the Interest of Driscoll, 410 So.2d 255 (La.App. 4th Cir.1982).

In the instant case we believe that the interest of the minor child in being available for adoption where he can enjoy a stable homelife outweighs the difficulty of Barber communicating with his appointed counsel. The record reflects that Barber was represented at all times during the proceedings by competent counsel who adequately and vigorously defended his right to a fair trial. The expert testimony of the audiologist, Keith Stroud, established that although Barber is profoundly deaf, he is able to communicate. Stroud testified that with the use of hearing aids, Barber could hear 30-40% of a conversation that was one on one (such as between himself and his appointed counsel). In addition, Barber can read and write. Stroud testified that both he and the prison guards were able to communicate with Barber via written notes and that Barber had no trouble communicating using this method. Moreover, the Court record contains numerous letters written to the Juvenile Court Judge by Barber indicating his appreciation and understanding of the proceedings against him.

Whether the loss threatened by a particular type of proceeding is sufficiently grave to warrant more than average certainty on the part of the fact finder turns on both the nature of the private interest threatened and the permanency of the threatened loss. Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982).

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532 So. 2d 866, 1988 La. App. LEXIS 2054, 1988 WL 105496, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-in-the-interest-of-tsb-lactapp-1988.