Judgment rendered January 25, 2023. Application for rehearing may be filed within the delay allowed by Art. 2166, La. C.C.P.
No. 54,859-JAC
COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA
*****
STATE OF LOUISIANA IN THE INTEREST OF A.L. and K.L.
Appealed from the Fifth Judicial District Court for the Parish of Richland, Louisiana Trial Court No. J-2020-26
Honorable Clay Hamilton, Judge
CINC APPELLATE PROJECT Counsel for Appellant, By: Douglas Lee Harville F.H., Mother
SHIRLEY GUILLORY GEE Counsel for Appellee, Assistant District Attorney State of Louisiana
LEGAL AID OF NORTH LOUISIANA Counsel for Children, By: Elizabeth Clement Brown A.L. and K.L.
STATE OF LOUISIANA, DCFS Counsel for Appellee, By: Keesha Mason Bordelon State of Louisiana, DCFS
VARHONDA EUGENIA BURRELL Counsel for D.L., Father
Before STONE, COX, and HUNTER, JJ.
HUNTER, J., dissents with written reasons. STONE, J.
This appeal arises from the Richmond Parish Juvenile Court, the
Honorable Clay Hamilton presiding. F.H., the mother of the minor children,
A.L. (born May 4, 2017) and K.L. (born August 13, 2018), appeals a
judgment terminating her parental rights. The trial court found F.H.’s failure
to address her mental health issue as required in the case plan demonstrated
her inability or unwillingness to provide proper care for the children in a safe
environment. For the following reasons, we affirm.
FACTS
On September 8, 2020, the Louisiana Department of Children and
Family Services (the “department”) received a report of neglect regarding
the minor children, A.L. (40 months old) and K.L. (23 months old), whose
parents were listed as F.H. and D.L. In its affidavit in support of an instanter
order placing the children in state custody, the department stated that F.H.
had been transported to Longleaf Mental Hospital under a Physician’s
Emergency Certificate after she began seeing demons, experiencing auditory
hallucinations, and threatening to kill herself and her children. The trial
court entered an instanter order placing A.L. and K.L. in the custody of the
state.
On October 19, 2020, the department filed a petition alleging AL and
K.L. were children in need of care due to neglect. The department alleged
F.H. had been diagnosed with Schizophrenia, but had refused to take her
prescribed medication, and that she had tested positive for
methamphetamine and marijuana when admitted to Longleaf. The
department alleged A.L. and K.L. had suffered neglect due to F.H.’s failure
to take the medication prescribed for her mental condition and her drug 2 abuse, which constituted an unreasonable failure to provide the care
necessary for the health and safety of the children. The trial court found the
children were in need of care and maintained custody with the state through
the department.
On October 22, 2020, the department submitted a case plan, which
was approved by the trial court. The plan stated A.L. and K.L. had been
placed in foster care with a family friend and the case goal was reunification.
The case plan required F.H. to: (1) maintain safe housing with adequate
space for the children; (2) to have sufficient legal income to meet the needs
of the children and provide the department case worker, Jennifer Goldman
(“Goldman”), with proof of such income each month; (3) complete mental
health and substance abuse assessments and complete recommended
treatment, submit to random drug screens, maintain sobriety with no positive
drug screens for at least six months; and (4) attend parenting classes.
On March 3, 2021, the department filed a case report stating F.H. was
refusing to take her psychiatric medication and was smoking marijuana. The
department stated that although F.H.’s residence in Rayville was adequate,
the agency learned she had begun living in Monroe, but she did not provide
the address to the department worker. The agency reported F.H. had
completed the intensive outpatient treatment program at the Northeast
Louisiana Substance abuse facility, but had not attended her mandatory
Narcotics Anonymous meetings.
Later in March, F.H. fired a handgun outside of her residence in
Rayville, located next door to the home of her children and their foster
parent. F.H. then entered the foster residence with a loaded gun in hand and
threatened to kill the foster parent and the children. In April 2021, the 3 department responded with a motion for a judicial determination that
reunification efforts were not required, and in October 2021, filed a petition
for termination of parental rights.1 Goldman and F.H. testified at the first
hearing. Thereupon, the trial court granted the motion obviating required
reunification efforts and ordered the case plan goal to be changed to
adoption in the best interest of the children. At the later hearing regarding
termination of parental rights, Goldman provided basically the same
testimony that she did in the earlier hearing on the motion for declaration
that reunification efforts are not required; however, F.H. did not testify in the
latter hearing. In the following paragraphs, the testimony from these two
hearings is summarized in globo.
F.H. testified that, at the time of the instanter order originally
removing the children from her custody, she was already under a family in
need of care case plan. She denied memory of the September 2020 event
prompting the entry of the instanter order, wherein she experienced
hallucinations and threatened to murder her children and commit suicide.
F.H. also initially denied her March 2021 incident wherein she illegally fired
a gun and, with gun in hand, threatened to murder the foster parent and the
children; however, upon having the fact that the incident was videotaped
called to her attention, she shifted to denying memory of the event and
speculated that she must have been “roofied.”2 Similarly, F.H. at first denied
1 The legal standards for termination of parental rights and obviation of required reunification efforts are exactly the same. 2 F.H. pled guilty as charged in relation to the gun/murder threat incident a couple months after this testimony. Also, Goldman testified that on the night of the gun/murder threat incident, F.H. was standing in the road screaming and cursing about her brother (allegedly) having stolen and wrecked her car; however, her car was right there and had not been wrecked.
4 that she had failed to take her psychiatric medications. However, upon
realizing that pharmacy records showed she had not filled the prescriptions,
F.H. admitted to not taking her medications. She then shifted to blaming her
failure on her lack of a car, but then admitted that her social worker would
have brought the medication to her if she had asked. F.H. admitted that she
has been diagnosed with schizophrenia, but contends that the diagnosis is
incorrect; she insists that she is “normal.” She admitted to having a criminal
record for possession of marijuana.
Goldman testified that, under the case plan, she met with F.H.
individually once per month, and twice per month to chaperone F.H.’s
visitation with the children. During the visitations, Goldman observed that
the younger child, K.L., is bonded with F.H. Contrarily, the older child,
A.L., is not bonded with F.H. — but is bonded with the foster parent. At
the time she was taken into state custody, K.L. had not received any
vaccinations despite being nearly 2 years old. Goldman noted that F.H.
largely ignored A.L. (who has a host of serious medical conditions including
seizures, diabetes, hydrocephalus, cerebral palsy and the inability to speak or
walk) in favor of K.L., to whom F.H. referred as her “normal child.”
Goldman stated that, at the time the children were removed in fall 2020, they
were “severely underweight” and malnourished. In the nine months
following removal, A.L. gained 9 pounds; she went from 21 pounds to 30
pounds. This reflects nearly a 50% increase in body weight from the 40th
month of A.L.’s life to the 49th month of her life. Goldman further stated
that, at the time of removal, A.L.’s health was deteriorating and F.H. was
failing to bring A.L. to her prescribed physical therapy and occupational
therapy. Notably, F.H. objected to the children eating food provided by the 5 foster parent on supposed nutritional grounds, despite the diet having been
prescribed by a physician.
In her conversations with Goldman, F.H. denied her diagnosis of
schizophrenia, denied needing her psychiatric medications, and claimed to
have been managing well without them. However, F.H. failed to attend most
of her required mental health counseling sessions. Additionally, F.H. failed
to comply with her substance abuse rehabilitation program by failing to
attend Narcotics Anonymous meetings and by testing positive for marijuana
on two occasions. On the positive side, she did complete intensive outpatient
treatment; one of her three drug tests were negative, and she attended
parenting classes as required up until the March 2021, incident wherein she
illegally fired a gun and threatened to murder the foster parent and the
children with gun in hand, whereupon she was expelled from the parenting
program. That incident additionally prompted the department to change the
case goal from reunification of F.H. with the children to the foster parent’s
adoption of the children. F.H. discontinued her case plan at that time. (In
late October 2021, F.H. pled guilty as charged to aggravated assault with a
firearm and unlawful use of a weapon in connection with the March 2021,
incident and was, in effect, given concurrent one-year sentences of hard
labor, with an additional three years suspended and subject to supervised
probation).
Goldman’s testimony indicates that the children are bonding with the
foster parent, are being well fed in the foster home, having their medical
needs met, and are pursuing age appropriate education. Finally, she also
testified that the only alleged father was incarcerated as of the time of the
hearing. 6 The department’s petition for the termination of parental rights
asserted the same factual basis as the motion for declaration that
reunification efforts are not required, i.e., that F.H. had failed to complete
her case plan, refused to take her psychiatric medication as prescribed, and
credibly threatened to murder the children and foster parent with a firearm.
As previously mentioned, Goldman’s testimony at the hearing to terminate
parental rights is without any significant difference from her testimony in the
hearing on the motion for declaration that reunification efforts are not
required. The only major additions to the department’s evidence were the
sentencing minutes from F.H.’s criminal case relating to the March 2021
incident and a search certificate from the putative father registry.
In April 2022, the trial court rendered a judgment terminating the
parental rights of F.H. and the father, D.L. The trial court based that
judgment on La. Ch.C. art. 1015(6), finding the children have been in the
custody of the department for more than one year and cannot be safely
returned to either parent because neither the mother nor the father had
substantially completed the case plan or shown significant measurable
progress. F.H. appeals the judgment, urging that the trial court erred
manifestly in finding that the evidence satisfied the applicable legal
standards in finding reunification efforts were not required and in
terminating her parental rights to the children.
DISCUSSION
In particular, F.H. argues that the department failed to prove by clear
and convincing evidence that she had engaged in egregious conduct or that
there was no reasonable likelihood of improvement in her condition in the
near future. 7 Law
In a child in need of care proceeding, when a child is in the custody of
the state, the department may file a motion for a judicial determination that
efforts to unify the parent and child are not required. La. Ch.C. art.
672.1(A). The department has the burden of demonstrating by clear and
convincing evidence that reunification efforts are not required, considering
the health and safety of the child and the child’s need for permanency. La.
Ch.C. art. 672.1(B). “Reunification efforts are not required if…the parent
has subjected the child to egregious conduct or conditions, including but not
limited to any grounds for certification for adoption pursuant to article
1015.” La. Ch.C. art. 672.1(C)(1). (Emphasis added).
La. Ch.C. art. 1015(6) includes among the grounds for certifying an
adoption (i.e., termination of parental rights) the following:
[The elapse of at least one year] 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.
This provision sets forth five essential elements for the termination of
parental rights and determination that reunification efforts are unnecessary:
(1) the removal of the child from the parent’s custody pursuant to a court
order; (2) the passage of at least one year thereafter without reunification;
(3) the department provision of a court-approved case plan to the parent; (4)
failure of the parent to substantially comply with the case plan; and (5) the
absence of a “reasonable expectation of significant improvement in the
8 parent’s condition or conduct in the near future, considering the child’s age
and his need for a safe, stable, and permanent home.” To that end, in
relevant part, La. Ch.C. art. 1036(D) provides:
D. Under Article 1015(6), lack of any reasonable expectation of significant improvement in the parent’s conduct in the near future may be evidenced by one or more of the following:
(1) Any…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 an established pattern of behavior. … (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 an established pattern of behavior.
Additionally, (6) the adoption must be in the best interest of the child for
parental rights to be terminated. La. Ch.C. arts. 1037(B) and 1039(A).
The state bears the burden of proving these elements by clear and
convincing evidence. La. Ch.C. art. 1035. A trial court’s factual findings
underlying a judgment terminating parental rights are subject to manifest
error review on appeal. State ex rel. DLF. v. Phillips, 34,645 (La. App. 2 Cir.
4/4/01), 785 So.2d 155.
Analysis
The first three elements of La. Ch.C. Art. 1015(6) are unquestionably
established: (1) the removal of the children from the parent’s custody
pursuant to a court order; (2) the passage of at least one year thereafter
without reunification; (3) the department provision of a court-approved case
plan to the parent. These elements are clearly proved and do not merit
discussion.
9 Conversely, the latter two elements do merit discussion: (4) failure of
the parent to substantially comply with the case plan; and (5) the absence of
a “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.”
F.H. and her children were already under a family in need of case plan
when F.H. – because she was hallucinating and threatening to kill herself
and her children – was forced into hospitalization and diagnosed with
schizophrenia. Thereupon, her children were taken from her and placed in
state custody (foster care) pursuant to child in need of care proceedings.
With the goal of reuniting the children with F.H., the department filed a case
plan designed to provide F.H. with the resources to establish her fitness to
parent toddlers. The trial court approved the plan, and the department
assisted F.H. to help her comply with the requirements of the plan.
Nonetheless, F.H. denied her schizophrenia, refused to take her psychiatric
medications, refused to maintain attendance of her mental health counseling
sessions, and continued smoking marijuana as an admitted form of “self-
medication.” While under the case plan, F.H. went outside to her back porch
(of her home next door to the foster residence) and illegally fired a gun. She
then went to the foster residence with loaded gun in hand and threatened to
kill the foster parent and her own children. During the incident, she also
stood in the road screaming and cursing about her car having been stolen and
wrecked even though it was parked there in plain view and was not wrecked.
Three months later, law enforcement arrested F.H. for these acts; the delay
was due to their inability to find F.H. despite prompt reporting of the
incident. 10 She pled guilty to illegal use of a weapon and aggravated assault with a
firearm. Furthermore, her testimony at the hearing corroborated the
aforementioned indicia of her lack of fitness to parent her children. She
denied memory of the two occasions on which she threatened to murder her
children (in the first of which she also threatened suicide, and in the latter,
she threatened to kill the foster parent as well) and, multiple times, she
changed her story on the stand when confronted with objective proof that
she was incorrect in her testimony. F.H.’s testimony, overall, demonstrated
her lack of candor, her refusal to acknowledge that she is schizophrenic, and
refusal to take responsibility for her non-compliance with her case plan.
These facts clearly establish that F.H. substantially failed to comply
with her case plan and is a mortal danger to her children. They also amply
prove that there is no reasonable expectation of significant improvement in
F.H.’s condition in the near future, especially in light of La. Ch.C. art.
1036(D)(1), supra. Accordingly, the latter two elements of La. Ch.C. art.
1015(6) are clearly and convincingly established.
Finally, we hold that adoption is in the best interest of the children.
Their interest in not being in the custody of a drug abusing, unmedicated,
schizophrenic who severely underfed them, neglected their medical needs,
and has twice threatened to murder them is paramount. F.H. is incarcerated
and so is the childrens’ father. The children are flourishing in the foster
home and are bonded with the foster parent. The childrens’ needs are being
well satisfied there, and their need for safety, permanency, and stability
makes adoption the course of action that is in their best interest.
11 CONCLUSION
For the reasons stated herein, the judgments of the trial court are
AFFIRMED. All costs of this appeal are taxed to the appellant.
12 HUNTER, J., dissenting.
Considering the best interest of the children with the mother’s interest
in maintaining a meaningful relationship with her children, I conclude the
trial court’s judgments finding reunification efforts were not required and
terminating the parental rights of F.H. must be reversed. Therefore, I
respectfully dissent.
When the state seeks to terminate parental rights, it bears the burden
of establishing each element of a ground for termination of parental rights
under La. Ch. C. art. 1015 by clear and convincing evidence. La. Ch. C. art.
1035; State ex rel. B.H. v. A.H., 42,864, (La. App. 2 Cir. 10/24/07), 968 So.
2d 881; State ex rel. S.C.M., 43,441 (La. App. 2 Cir. 6/4/08), 986 So. 2d
875. This heightened burden of proof requires the state to show not only
that the existence of the fact sought to be established is more probable than
not, but that the fact is highly probable or more certain. State ex rel. B.H.,
supra; Hines v. Williams, 567 So. 2d 1139 (La. App. 2 Cir.), writ denied,
571 So. 2d 653 (1990). Failure of the state to prove any of the statutory
elements for termination of parental rights is a failure of the state to meet its
burden of proof and termination of parental rights cannot be ordered. State
in Interest of JML, 540 So. 2d 124 (La. App. 3 Cir. 1989).
Although there are various grounds for termination of parental rights
set forth in La. Ch. C. art. 1015, only one ground need be established. State
ex rel. SNW v. Mitchell, 01-2128 (La. 11/28/01), 800 So. 2d 809. Once a
ground for termination has been established, the judge may terminate
parental rights if the termination is in the best interest of the child. La. Ch. C.
art. 1039. The trial court’s factual findings, including the finding that a
parent is unfit, and there is no reasonable expectation of reformation, will 1 not be set aside in the absence of manifest error. State ex rel. B.H., supra;
State ex rel. D.L.F. v. Phillips, 34,645 (La. App. 2 Cir. 4/4/01), 785 So. 2d
155.
A parent has a constitutionally protected liberty interest in
establishing and maintaining a meaningful relationship with his or her
children. State in the Interest of A.C., 93-1125 (La. 1/27/94), 643 So. 2d
719. Congruent with the parental interest, the state has a legitimate interest
in limiting or terminating parental rights under certain conditions. State in
Interest of A.C., supra. In an involuntary termination of parental rights
proceeding, courts must proceed with care and caution, as the permanent
termination of the legal relationship existing between natural parents and the
child is one of the most drastic actions the State can take against its citizens.
State ex rel. J.A., 99-2905 (La. 1/12/00), 752 So. 2d 806. Applying this
delicate balancing test with an eye toward the best interest of the child
coupled with ongoing efforts of the parent and potential foster parent, we
now plumb the depths of the current matter before the court.
In the present case, the record shows F.H. was making some progress
in complying with the requirements of her case plan. Her mental illness was
the primary obstacle to her efforts to complete her case plan. Despite her
mental health issues and past substance abuse, F.H. was able to maintain
employment, provide food and clothing for A.L. and K.L., participate in
visits with her children and attend parenting classes. However, her efforts
were interrupted by her incarceration as a result of her guilty pleas to
aggravated assault with a firearm and illegal use of a weapon. These
charges resulted from the incident in March 2021, when she threatened her
children and their foster parent with violence while armed with a handgun. 2 In her brief, F.H. contends this incident occurred within 70 days of a
change in her medication, which included the potential side effects of
suicidal or homicidal ideations. As explained by the state caseworker,
Jennifer Goldman, DCFS chose to use this incident absent any further
rehabilitative efforts as justification to cease services meant to prepare F.H.
for reunification with her children. We find this action by DCFS to be in
error.
The record shows F.H. was making serious efforts to comply with the
case plan and had completed an outpatient substance abuse program. This
progress was interrupted by her incarceration which was in effect at the time
of the hearing on termination of parental rights in February 2022. As a
result, the trial court relied on outdated information in determining whether
F.H. would be able to make substantial progress in improving her condition.
However, the assessment of whether there has been substantial
compliance with the case plan requirements and whether there is a
reasonable expectation of significant improvement in the parent’s condition
or conduct in the near future should be reevaluated after her release from
prison. This approach would allow F.H. the opportunity to demonstrate her
ability to address her mental health issue and complete the other case plan
requirements of employment, housing and sobriety. Such a reevaluation
should include reasonable efforts by DCFS to provide services to F.H. for
the purpose of assisting her to complete the requirements of a case plan with
the goal of reunification with her children.
Because the trial court was limited to considering the information as
to F.H.’s activities prior to her incarceration in June 2021, the evidence
considered at the termination of parental rights hearing was inadequate to 3 support the trial court’s determination F.H. had not substantially complied
with the case plan and there was no reasonable expectation of significant
improvement in her condition in the future. Thus, I must conclude the trial
court erred in terminating the parental rights of F.H. on the basis of this
insufficient evidence.
Based on this conclusion, I would also reverse the judgment finding
reunification efforts were no longer required and changing the case goal to
adoption in order to give F.H. a fair chance at demonstrating her ability to
take the steps necessary to work toward the goal of reunification. This
matter should be remanded to provide all concerned with an opportunity to
reevaluate the current situation of F.H. and the foster parent, with an eye
toward the paramount concern of protecting the best interests of the children.
Reunification of a parent with a child and termination of parental
rights are both significant acts due to the repercussions on the child.
Weighing both those outcomes individually and collectively with the goal of
furnishing and perpetuating an atmosphere conducive to the best interest of
the children is the balancing test the lower court should administer.
For the foregoing reasons, I would reverse the trial court’s judgments
granting the motion for a determination that reunification efforts are not
required and terminating the parental rights of the mother, F.H., with regard
to the minor children, A.L. and K.L., and remand this matter for further
proceedings.