State of Louisiana in the Interest of B.R.C.

• Court: Louisiana Court of Appeal
• Decided: December 21, 2016
• Docket: JAC-0016-0273
• Status: Unknown

Opinion

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

16-273

STATE OF LOUISIANA

IN THE INTEREST OF B.R.C.

**********

APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF LAFAYETTE, NO. JC-2014-210 HONORABLE THOMAS R. DUPLANTIER, DISTRICT JUDGE

ULYSSES GENE THIBODEAUX CHIEF JUDGE

Court composed of Ulysses Gene Thibodeaux, Chief Judge, Sylvia R. Cooks, and John E. Conery, Judges.

AFFIRMED.

Lloyd Dangerfield 703 E. University Avenue Lafayette, LA 70503 Telephone: (337) 232-7041 COUNSEL FOR: Defendant/Appellant - J.W. (Father)

Keith A. Stutes Lafayette Parish District Attorney Tracey Davenport-McGraw Lafayette Parish Assistant District Attorney P. O. Box 3306 Lafayette, LA 70502-3306 Telephone: (337) 232-5170 COUNSEL FOR: Plaintiff/Appellee - State of Louisiana Leah Antoinette Beard 825 Kaliste Saloom Road Brandywine Building 3, Room 150 Lafayette, LA 70508 Telephone: (337) 262-1555 COUNSEL FOR: Other Appellee - Department of Social Services

Diane Elaine Cote 825 Kaliste Saloom Road Brandywine III, Room 150 Lafayette, LA 70508 Telephone: (337) 262-5913 COUNSEL FOR: Other Appellee - State of Louisiana, through the Department of Children & Family Services

Franchesca L. Hamilton-Acker Kimberly Latigue Arvie Acadiana Legal Services P. O. Box 4823 Lafayette, LA 70502-4823 Telephone: (337) 237-4320 COUNSEL FOR: Other Appellee - B.R.C.

Laura Melancon 516 SE Court Circle Crowley, LA 70526 Telephone: (337) 889-5669 COUNSEL FOR: Other Appellee - B.C. THIBODEAUX, Chief Judge.

J.W., 1 the biological father of B.R.C., appeals the trial court’s

judgment terminating his parental rights. At the trial level, the State of Louisiana,

through the Department of Children and Family Services (“DCFS”), contended

that J.W. had not completed any component of his court-approved case plan, with

the exception of attending parenting classes and scheduling a substance abuse

evaluation as trial approached. J.W. claimed that his efforts were sufficient to

maintain his parental relationship. The trial court determined that there was no

reasonable expectation that J.W.’s conduct would significantly improve. Further,

that it was in B.R.C.’s best interest to terminate J.W.’s parental rights. For the

reasons that follow, we affirm.

I.

ISSUES

We shall consider:

1. whether the trial court manifestly erred in terminating J.W.’s parental rights; and

2. whether the trial court erred by refusing to hear testimony and consider evidence regarding B.R.C.’s paternal grandmother’s interest in adopting him, if J.W.’s parental rights were terminated.

1 Pursuant to Uniform Rules—Court of Appeal, Rule 5-2, the initials of the parties will be used to protect and maintain the privacy of the minor child involved in this proceeding. II.

FACTS AND PROCEDURAL HISTORY

B.R.C. and his siblings came into the custody of DCFS because of

their mother’s substance abuse and lack of supervision. At the time, B.R.C.’s

biological father, J.W., could not be located. B.R.C. and his siblings were

adjudicated as children in need of care ten days later. He was placed in a foster

home and currently resides in that home with his sister. A case plan was created

for J.W. with an aim toward reunification with a concurrent goal of adoption. 2

After noncompliance with his case plan, DCFS sought to terminate J.W.’s parental

rights pursuant to La.Ch.Code. arts. 1015(4) and 1015(5) so that B.R.C. can be

freed for adoption.

A termination proceeding was held. Thereafter, the trial court cited

La.Ch.Code. art. 1015(5) and determined that DCFS proved, by clear and

convincing evidence, there was no reasonable expectation that J.W.’s conduct

would improve significantly. Further, that termination of J.W.’s parental rights

was in the best interest of B.R.C.3 J.W. now appeals that ruling.

III.

STANDARD OF REVIEW

A trial court’s findings on whether or not 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. Pursuant to this standard, we may not set

aside any factual findings of the trial court unless the findings are manifestly 2 The original case plan was created on April 14, 2014. It was updated on December 29, 2014, and June 24, 2015, to note J.W.’s progress, or lack thereof, with each element of the case plan. 3 The biological mother stipulated to her parental rights being terminated on November 16, 2015.

2 erroneous or, in other words, are clearly wrong. Rosell v. ESCO, 549 So.2d 840

(La.1989).

IV.

LAW AND DISCUSSION

A. Whether the trial court manifestly erred in terminating J.W.’s parental rights.

J.W. contends that DCFS failed to prove by clear and convincing

evidence that there was no reasonable expectation for significant improvement in

his condition or conduct. J.W. admits that he did not complete his case plan prior

to the termination hearing. However, he states that he put forth effort to complete

the plan. He notes that he and his mother (the child’s grandmother) established a

relationship with the child prior to entering DCFS’s custody. He states that

visiting the child was difficult because he lived more than 100 miles away. Before

the original November 16, 2015, trial date, he maintains that he: (1) visited B.R.C.

in Baton Rouge; (2) had his home inspected; (3) participated in a Family Team

Conference; and (4) appeared at numerous court hearings which required him to

travel from St. Charles Parish to Lafayette Parish for each appearance. Further,

after the trial was continued to December 14, 2015, he began parenting classes and

scheduled a substance abuse evaluation. Given the above efforts, J.W. argues that

the trial court erred in finding that the DCFS proved, by clear and convincing

evidence, that there is no reasonable expectation of significant improvement in his

condition or conduct.

DCFS argues that the trial court did not err in terminating J.W.’s

parental rights. It avers that except for J.W.’s last-ditch effort to attend parenting

classes, J.W. failed to comply substantially with his case plan. It contends that it is

3 in B.R.C.’s best interest to terminate J.W.’s parental rights because: (1) there is no

reasonable expectation that J.W.’s conduct or condition will improve; (2) it has an

obligation to ensure that B.R.C. has safe and stable parental care; and (3) since July

2015, B.R.C. has been with foster parents, who have provided him a “stable, loving

and secure home and proper parental care” and are willing to adopt him.

The Louisiana Supreme Court has held that in an involuntary

termination proceeding, two private interests must be balanced—those of the

parent and those of the child. State in the Interest of J.A., 99-2905 (La. 1/12/00),

752 So.2d 806. “[P]arents have a natural, fundamental liberty interest to the

continuing companionship, care, custody and management of their children[.]” Id.

at 810 (citing Lassiter v. Dept. of Social Services, 452 U.S. 18 (1981)).

Further, “the child has a profound interest, often at odds with those of

his parents, in terminating parental rights that prevent adoption and inhibit

establishing secure, stable, long-term, and continuous relationships found in a

home with proper parental care.” Id. at 810-11 (citing Lehman v. Lycoming

County Children’s Serv.’s Agency, 458 U.S. 502 (1982)).

In balancing these interests, the interest of the child is paramount. It

must be considered over that of the parent. Id. at 806. The primary concern of a

termination of parental rights proceeding is to secure the best interest of the child.

La.Ch.Code art. 1001. “Nonetheless, 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 in the Interest of J.A., 752 So.2d at 811.

Louisiana Children’s Code Article 1015 provides the statutory

grounds by which a court may involuntarily terminate the rights of a parent. Only

4 one ground needs to be established, but the court must also find that termination is

in the best interest of the child. State in the Interest of ML, 95-45 (La. 9/5/95), 660

So.2d 830. The trial court found that DCFS proved by clear and convincing

evidence that termination of J.W.’s parental rights was warranted under

La.Ch.Code art. 1015(5) amended by 2016 La. Acts No. 608, § 1. This article

states that:

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.

Id. (emphasis added). Louisiana Children’s Code Article 1036(C) sets

forth the evidence that may be used to prove a lack of parental compliance with a

case plan. It states:

Under Article 1015(5), lack of parental compliance with a case plan may be evidenced by 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

5 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.

(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.

La.Ch.Code art. 1036(C).

Further, La.Ch.Code art. 1036(D) sets forth the evidence that may be

used to prove a lack of reasonable expectation of significant improvement in the

parent’s conduct or condition. It states, in pertinent parts:

(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.

...

(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.

La.Ch.Code art 1036(D).

Here, it is undisputed that J.W. did not comply substantially with his

case plan. J.W. concedes this fact. Instead, J.W. focuses his argument on whether

the trial court determined properly that there was no reasonable expectation for

significant improvement in his condition or conduct. On this issue, J.W. submits

6 that there is a lack of evidence because he: (1) made recent efforts to comply with

his case plan; (2) made an effort to attend court hearings and be attentive of the

status of the case; and (3) attempted to contact his first attorney but was

unsuccessful which delayed his ability to comply with his case plan.

J.W. cites one case, State ex rel. B.O.G., 08-1103 (La.App. 3 Cir.

3/4/09), 5 So.3d 1018, to support his argument. He uses this case for the

proposition that not completing all components of a case plan does not warrant a

termination of parental rights. In B.O.G., this court reversed the judgment of the

trial court which terminated the parental rights of K.J.G. Id. K.J.G.’s case plan

mandated that he provide child support payments of $50.00 per month, per child;

maintain stable and safe housing; visit the children in accordance with the

visitation plan; participate in a psychological evaluation; and complete domestic

violence, anger management, and parenting skills classes. Id.

On appeal, this court noted that K.J.G. made significant strides

towards completion of his case plan. Id. Despite living in Texas, he would travel

to Lafayette, Louisiana to visit his children. Id. He also maintained contact with

his children in accordance with the visitation plan, secured housing, participated in

a mental health evaluation, completed anger management classes, and qualified his

children to receive financial assistance in the form of Social Security benefits after

he became disabled. Id. However, K.J.G. did not complete domestic abuse

counseling and his psychological evaluation revealed that he suffered from

“dependent personality disorder.” Id. at 1025. Further, there was no evidence that

K.J.G. completed a parenting class. Id. at 1018.

We concluded that the State had not proven, by clear and convincing

evidence, that it was in the best interest of the child to terminate K.J.G.’s parental

7 rights. Id. We reasoned that “[w]hile he was not totally successful, his efforts are

indicative of his intent to maintain a parental relationship with his children.” Id. at

1027. Moreover, his progress illustrated that “there had been an improvement in

his condition and that there was a reasonable expectation for further

improvement.” Id. at 1026.

Conversely, here, J.W. has not completed any element of his case

plan. The case plan mandated that he: (1) maintain safe and stable housing for six

months; (2) provide the State with proof of employment; (3) complete parenting

classes; (4) attend a substance abuse assessment; (5) pay $25.00 in monthly

parental contributions to DCFS; (6) participate in regular visitations with B.R.C.;

and (7) submit to random drug screens.

J.W. did not maintain a stable housing environment. At the time of

trial, he was living with his mother in a home that did not have an adequate

sleeping space for a child. When questioned by a case worker during a home

inspection, J.W. stated that the home has a spare room and that they are “in the

process of cleaning up and getting rid of things.” The case worker attempted to

inspect the room; however, J.W. and his mother refused to allow the worker to see

the room.

He has not provided DCFS with proof of employment, despite his

declarations that he was employed as a part time employee at Wal-Mart in Boutte,

Louisiana, and later at MySpace. Further, there is no evidence in the record that

J.W. paid monthly parental contributions for any month and he has only visited

B.R.C. once since he entered DCFS’s custody. J.W. also failed to submit to a

random drug test on December 4, 2015, citing a work conflict. He was later tested

on December 8, 2015. The results of the test were not available the day of trial.

8 At the time of trial, B.R.C. had been in DCFS’s custody for twenty

months. J.W. did not complete any element of his case plan for nineteen months.

Nineteen months after B.R.C. had been in DCFS’s custody and a month before

trial, J.W. began attending parenting class and scheduled a substance abuse

evaluation. He testified that he completed four of the nine required parenting

classes as of the December 16, 2015, trial date. These last-ditch efforts are the

only progress that J.W. made towards his case plan in the twenty months that

preceded the termination trial. This is not sufficient to show a reasonable

expectation that his conduct or condition will improve in the future.

Additionally, it is in B.R.C.’s best interest to terminate J.W.’s parental

rights. Based on the testimony of Keisha Benoit, who is the child welfare

specialist for this matter, B.R.C. is currently in a stable foster home with foster

parents who are willing to adopt him should J.W.’s parental rights be terminated.

He is also placed with his sister. Ms. Benoit noted that B.R.C. is thriving in his

foster placement. Given that B.R.C. is in a stable home and doing well in his

current placement, it is in his best interest to terminate J.W.’s parental rights so he

can be freed for adoption.

Therefore, we find no manifest error in the trial court’s judgment that

DCFS proved by clear and convincing evidence that there is no reasonable

expectation of significant improvement in J.W.’s condition or conduct. It is also in

B.R.C.’s best interest to terminate J.W.’s parental rights.

9 B. Whether the trial court erred by refusing to hear testimony and consider evidence regarding B.R.C.’s parental grandmother’s interest in adopting him, if J.W.’s parental rights were terminated.

J.W. next argues that the trial court erred when it did not allow J.W.’s

mother (B.R.C.’s paternal grandmother) to testify regarding her willingness to

adopt B.R.C. He cites State ex rel. Department of Social Services v. Howard, 03-

2865 (La.App. 1 Cir. 12/30/04), 898 So.2d 443 to argue that remand is necessary

when “a trial court does not permit the presentation of evidence at the hearing as to

whether a ground exists for the continued custody.”

DCFS maintains that the issue at trial was whether J.W.’s parental

rights should be terminated. The issue was not whether the grandmother would be

a suitable adoptive placement. It argues that the placement of the child is more

appropriate for a “review hearing or permanency hearing at the child in need of

care proceeding.”

Louisiana Children’s Code Article 1037(D) (emphasis added) states:

A judgment terminating the parental rights of the parent shall grant custody of the child to the department, a relative who is of the age of majority and who is willing to adopt the child without an adoption subsidy, or other suitable person, in accordance with the best interest of the child.

Louisiana Children’s Code Article 1037(D) does not impose an

evidentiary requirement for a trial court to consider testimony at a termination

hearing from persons who seek to adopt the child. Based on the trial transcript,

when counsel for J.W. attempted to elicit testimony regarding the grandmother’s

willingness to adopt the child, counsel for DCFS objected. The trial court

sustained the objection. The court noted that it was a termination proceeding and

not a placement hearing. It determined that testimony regarding the grandmother’s

10 willingness to adopt B.R.C. was irrelevant. In its judgment, the trial court

terminated J.W.’s parental rights, ordered that B.R.C. shall remain in DCFS’s

custody, and authorized DCFS to place B.R.C. for adoption.

The trial court’s ruling on the objection is bolstered by the fact that

B.R.C. is currently in a stable and safe home with foster parents who are willing to

adopt him. It is also noteworthy that at the time of trial, J.W. was living with his

mother. If B.R.C. were placed with his paternal grandmother, it would be contrary

to the court’s ruling to terminate J.W.’s parental rights. It would place B.R.C. in a

home setting that the court is wary of for the reasons stated above.

Further, the case cited by J.W. in his brief has no bearing on this issue.

In State ex rel. Department of Social Services, 898 So.2d at 443, the issue was

whether the State can require an alleged biological father to take a paternity test

when the mother of the child was married to another man at the time of the child’s

birth. Id. The trial court denied the request for paternity testing. Id. The appellate

court vacated the trial court’s judgment and reasoned, in part, that the concept of

dual paternity allowed the State to establish paternity despite the presumption that

the husband of the mother of the child, who was born during the marriage, was the

father of the child. Id.

J.W.’s citation to this case is puzzling, as that matter did not involve

La.Ch.Code art. 1037(D), a termination of parental rights hearing, or a person’s

willingness to adopt. For the reasons stated, we find no error in the trial court’s

ruling to prohibit testimony from the paternal grandmother regarding her

willingness to adopt B.R.C.

11 V.

CONCLUSION

Based on the foregoing, the decision of the trial court to terminate the

parental rights of J.W. is affirmed. Costs of this appeal are assessed to J.W.