Judgment rendered February 5, 2020. Application for rehearing may be filed within the delay allowed by Art. 2166, La. C.C.P.
No. 53,432-JAC
COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA
*****
STATE OF LOUISIANA IN THE INTEREST OF J.D.
Appealed from the Twenty-Sixth Judicial District Court for the Parish of Bossier, Louisiana Trial Court No. J-14,842
Honorable Michael Owen Craig, Judge
TWENTY-SIXTH JUDICIAL DISTRICT Counsel for Appellant, PUBLIC DEFENDERS OFFICE F.D.H., Mother By: Laurie Richardson Wilson
ACADIAN LEGAL SERVICES Counsel for Appellee, OF LOUISIANA J.D., Minor Child By: Jerry W. Deason, Jr.
JOHN MICHAEL LAWRENCE Counsel for Appellee, WILLIAM MATTHEW ALTIMUS State of Louisiana
KIMBERLY S. SMITH Counsel for Appellee, State of Louisiana DCFS
Before PITMAN, GARRETT, and COX, JJ. COX, J.
F.D.-H. appeals a judgment of the Twenty-Sixth Judicial District
Court, Parish of Bossier, State of Louisiana, terminating her parental rights
to her minor child, J.D. For the following reasons, we affirm the district
court’s judgment.
FACTS
On December 11, 2010, J.D. entered foster care due to “dependency”
by his biological mother. On December 15, 2010, he was placed in the
certified foster home of F.D.-H. On September 10, 2012, F.D.-H. adopted
J.D. after 2 years of fostering him. J.D. was three at the time. According to
F.D.-H., as early as the age of three or four, J.D. began to simulate
masturbation at daycare. F.D.-H. claimed that by the age of five or six, J.D.
was going under tables in the cafeteria looking under dresses of women.
From November 12-16, 2016, J.D. was hospitalized at Longleaf Hospital in
Alexandria, Louisiana. F.D.-H. reported that J.D. was physically violent
toward her five-year-old niece and exhibited sexual aggression toward males
and females. At this time J.D. received homebound services due to the
severity of his condition. From January 5, 2017 to January 12, 2017, J.D.
received treatment again at Longleaf for homicidal thoughts. He was
diagnosed with intermittent explosive disorder and conduct disorder,
childhood onset.
On January 30, 2017, F.D.-H. placed J.D. in the Methodist Children’s
Home of Greater New Orleans. On May 3, 2017, the facility deemed J.D.
ready for discharge. F.D.-H. refused to pick up her son because he allegedly
called her and expressed homicidal tendencies toward her. The Methodist
Children’s Home decided to push back J.D.’s removal until June 13, 2017. F.D.-H. still refused to pick up J.D. from the Methodist Children’s Home,
and as a result, J.D. went into the custody of DCFS. On June 20, 2017, the
Methodist Children’s Home documented that J.D. no longer met medical
necessity criteria for treatment due to lack of guardian involvement and
turned him over to DCFS. On July 3, 2017, DCFS filed an affidavit in
support of an instanter order in Bossier Parish Juvenile Court alleging that
F.D.-H. was afraid of her child. On July 17, 2017, a rule to show cause was
held and F.D.-H. received custody of J.D. again. From August 17, 2017 to
October 30, 2017, F.D.-H. placed J.D. in Crescent Pines Hospital in Georgia
for homicidal thoughts. Later, F.D.-H. claimed that J.D. was sexually
assaulted while in treatment.
On February 23, 2018, DCFS received a report from R.H., F.D.-H.’s
neighbor, that J.D. was being emotionally abused by F.D.-H. As a result,
DCFS Worker Maurice Watkins opened an investigation into F.D.-H.
Watkins stated that there was concern J.D. was being emotionally abused by
his mother and it was resulting in observable and substantial impairment of
the child’s psychological and emotional well-being. He pointed out that
because the child had been pulled from school, there were no statements
from educators indicating how the child was doing in school. Watkins then
cited to a report written by Dr. Perry Hill. Though the actual report is not in
the record, Watkins wrote that Dr. Hill believed that J.D. was suffering from
maltreatment by his adoptive mother. According to Dr. Hill, the child would
become stabilized outside of his mother’s care, but once he returned home,
the mother continuously reminded J.D. of his past traumas and he would
begin to spiral.
2 Watkins also wrote that Georgia police had investigated the sexual
assault allegation and J.D. had been through a forensic interview. The
interviewer recommended that J.D. go through follow-up counseling
sessions at the CARA Center in Shreveport. J.D. attended only two such
sessions and in one of them, F.D.-H. forced J.D. to sit through the session
after he had urinated on himself.
In conjunction with DCFS’ investigation, Aaron Phillips, a CPS
worker from Ouachita Parish, conducted interviews of J.D.’s former
teachers, F.D.-H., J.D., a former psychiatrist, F.D.-H.’s oldest daughter, and
a forensic interviewer.
First, Phillips spoke with Janice Williams, an educator at the school
J.D. attended from 2015-2017. Dr. Williams stated that F.D.-H. informed
her of J.D.’s hypersexual behavior as well as his various medical diagnoses.
Dr. Williams described J.D. as a very respectful and intelligent gentleman.
She acknowledged that he is at times dishonest, particularly when dealing
with his grades. Dr. Williams believed that F.D.-H. can fabricate stories and
come up with “far-fetched things.” She believed that her last conversation
with F.D.-H. was rehearsed.
Next, Phillips and his supervisor interviewed F.D.-H. and J.D.
individually. F.D.-H. reiterated her early claims that J.D. was hypersexual,
abused, and showed homicidal tendencies against her six-year-old niece.
J.D. admitted that he wore pull-ups because he urinates on himself, both on
accident and on purpose. He also told Phillips that he wanted to suck other
men’s privates. He admitted that he had thoughts of killing other men and
stated that he was sexually assaulted in Georgia. During the interview with
J.D., Phillips noted that initially J.D. behaved like a normal nine-year-old 3 boy. But, when F.D.-H. entered the home to search for a piece of paper,
J.D.’s behavior changed. He immediately started to exhibit the hypersexual
characteristics that F.D.-H. claimed J.D. had. Once F.D.-H. entered the
home, she forced J.D. to remain by her side during the remainder of the
interview.
Phillips also spoke with Dr. Gregory Brown, a psychiatrist who saw
J.D. once as a private patient. Dr. Brown did not believe this to be a case of
Munchausen. He stated that J.D. needed inpatient treatment due to his
homicidal tendencies and vivid description of sexual acts he wished to
perform on men.
Phillips then spoke with Cheryl Moore from AETNA. Moore stated
that her department had called DCFS on F.D.-H. for failing to pick up J.D.’s
prescription. She stated that she believed this to be a case of Munchausen
disorder.
Phillips spoke with F.D.-H.’s oldest daughter, K.D., who babysat J.D.
for her mother. She verified her mother’s statements regarding J.D.’s
homicidal tendencies.
Phillips also interviewed Heather Strickland from the Gingerbread
House in Shreveport, Louisiana. Strickland stated that on December 5,
2017, J.D. showed up for a forensic interview wearing clothes in which he
had urinated. Strickland wanted to speak with J.D. about the sexual assault
allegation in Georgia. Due to J.D. urinating in his pants, Strickland decided
to reschedule the interview for January 4, 2018. On that day, F.D.-H. and
J.D. showed up, but F.D.-H. decided that she did not want to proceed with
the interview.
4 Phillips’ final interview was with Jessica Feeback, J.D.’s at-home
teacher. Feeback stated that she was not aware of any issues with F.D.-H.
and believed her to be an excellent foster mom. Feeback stated that she had
seen F.D.-H. raise several other foster children with much success.
On May 18, 2018, Watkins interviewed F.D.-H., Officer Chad
Johnson, Feeback, and J.D. F.D.-H. reiterated her earlier claims. She also
stated that J.D. had a meeting with Dwayne Williams, a counselor with
Choice Counseling. After one session, F.D.-H. stated that Williams could
not provide the help J.D. needed. She did not take him back to Choice
Counseling. She claimed that DCFS “hates her guts” because she loaned an
agency worker $100 and the worker refused to pay her back.
Next, Watkins spoke with Officer Johnson. He stated he did welfare
checks because he has been called to the house several times. In a second
interview, Johnson said that he tried to develop a relationship with J.D. and
fears that J.D. may one day hurt F.D.-H.
Watkins then spoke with Ms. Feeback. She stated that she had
attempted to meet with J.D. for his homebound lessons but had only been
able to meet for three of the scheduled 14 sessions because F.D.-H.
cancelled the other sessions. She stated that F.D.-H. claimed J.D.
masturbates during the lessons. Feeback said that she was unaware of such
things, though J.D. confessed to Feeback that he did this. At the time of the
interview, Feeback was looking for a place where she felt comfortable
enough to meet with J.D. Feeback said that she is heartbroken over the
situation. She described F.D.-H. as a shell of herself and expressed fear that
J.D. may harm her or others in the house.
5 Based on this information, the district court granted an instanter order
placing J.D. in the temporary custody of DCFS. On July 6, 2018, the State
filed a petition to have J.D. declared a child in need of care, which was
granted. As a result, DCFS placed J.D. in foster care in Natchitoches and
gave F.D.-H. a case plan to work in order to be reunified with J.D. As a part
of her case plan, F.D.-H. was expected to: 1) maintain safe and stable
housing; 2) maintain a legal source of income; 3) provide parental support of
$155 a month; 4) keep the agency informed of her whereabouts; 5)
participate in a psychological evaluation and follow recommendations; 6)
participate in counseling; 7) release information prepared by service
providers; and, 8) participate in family counseling. Initially, F.D.-H.
received supervised visits twice a month with J.D. However, supervised
visits were suspended as of August 1, 2018, pending a psychological review
from Dr. John Simoneaux. DCFS agreed to provide weekly updates from
J.D. to F.D.-H. After one of the last supervised visits, F.D.-H. called the
police and stated that her son had told her he had sex during a sleepover at
his foster home. DCFS investigated this and in a Gingerbread interview,
J.D. stated that this did not happen.
F.D.-H. met with Dr. Simoneaux on September 18 and October 31,
2018. On December 21, 2018, Dr. Simoneaux rendered a report, which
recommended that F.D.-H. not have in-person visits with J.D. for another six
months. He believed that many of J.D.’s abnormal behaviors would subside
after that. Dr. Simoneaux believed that if these behaviors did subside, then
reunification would not be in J.D.’s best interest. F.D.-H. was not allowed to
have supervised visits but could write letters or call J.D., which she chose
not to do. Additionally, F.D.-H. failed to make any of the parental support 6 payments. In the fall of 2018, J.D. attended school in Natchitoches Parish,
where he was slowly reintegrated as a full-time student. Additionally, J.D.
made the “A” honor roll and was placed into the gifted program. J.D.
continued to attend therapy through Guidance Through Life Counseling
Center. During this time, J.D. consistently stated that he did not want to live
with F.D.-H. but instead wanted to live with his former neighbor R.H. on a
permanent basis. During this time, R.H. and his wife began the process of
becoming foster parents with the intention to eventually adopt J.D. In June
of 2019, DCFS place J.D. in R.H.’s home.
Based on J.D.’s continued improvement, R.H. and his wife’s
willingness to adopt J.D., and F.D.-H.’s unwillingness to work her case plan,
the State moved to terminate F.D.-H.’s parental rights. The trial took place
on September 23, 2019.
First, F.D.-H. testified. During her testimony, she admitted to not
working the case plan. She claimed that she refused to do so because it was
biased and the entire process was unconstitutional. She refused to go to
counseling because she was not the reason that J.D. had his issues and the
counselors wanted to blame her. She also pointed to her independent
psychological evaluation from Dr. Lionel Gillaume as evidence that she did
not need psychological counseling. In his independent report, Dr. Gillaume
stated that he did not believe that F.D.-H. needed counseling. She agreed
that she did not pay the parental support. She reasoned that since she no
longer received a check for $520 from Social Security for J.D., she did not
need to send any more money. F.D.-H. explained that she never agreed with
the case plan even though she initially signed it. When asked about her
finances, F.D.-H. stated she received an additional $371 per month for 7 adopting J.D., $1100 a month for spousal support from a divorce, and money
for disability for a suspected cancer diagnosis. She also mentioned the loan
that she had previously given a DCFS worker and how she believed this
entire incident stems from this loan. She disputed any claims that she was
isolating J.D. She claimed that her neighbor, R.H., used to watch J.D. on the
weekends. But, after J.D. told her that R.H. let him watch porn, she would
not allow J.D. to go to his house. She asserted that this is why R.H. reported
her for negligence. She further asserted that she had not seen J.D. since July
of 2018 because DCFS or “the agency” is working against her.
Next, the State called Jessica Smith, J.D.’s DCFS case manager.
Smith testified that F.D.-H. had not been compliant with her case plan. She
also testified about F.D.-H.’s claim that J.D. was sexually active in his foster
home. She said that during the supervised visit, F.D.-H. first requested to
meet with J.D. alone. After this request was denied, she later said that Smith
needed to call the police. When Smith asked why, F.D.-H. left the building
and called them herself. When police arrived, F.D.-H. told police that J.D.
had whispered to her that he had sex with a boy in his foster home. During
the trial, Smith testified that J.D. was not left alone with F.D.-H. So, J.D.
would not have had time to tell F.D.-H. about such an incident without
Smith hearing it. She also pointed to a Gingerbread interview in which J.D.
said that his mother fabricated the incident.
Smith then testified about J.D.’s current emotional state. She told the
district court that J.D.’s counseling sessions have lessened in frequency due
to his success. Additionally, she asserted that J.D. is no longer on any
medication and he is successful in school. He has been so successful that he
has been moved into a gifted and talented classroom. She confirmed that 8 R.H. and his wife are a good placement for J.D. and that they would make
excellent adoptive parents. She affirmed that J.D. had not displayed any
highly sexualized behavior, homicidal tendencies, or any unusual behavior
since being placed in foster care. Finally, Smith explained that while DCFS
suspended F.D.-H.’s visitation, she could have sent him letters as a form of
communication. Smith stated that F.D.-H. has not sent letters, money, or
birthday gifts to J.D. since July of 2018.
Next, R.H. testified. He stated that he initially contacted DCFS about
J.D. because he noticed that F.D.-H. isolated J.D. He said that he noticed
that J.D. was terrified of F.D.-H. and he felt that something was amiss. R.H.
used to keep J.D. for the weekends and served as a mentor for J.D. He
disputed F.D.-H.’s claim that he allowed J.D. to watch pornography on the
weekends and he was no longer allowed to see J.D. He echoed Smith’s
claims that J.D. was successful in school. R.H. stated that he and his wife
had been through foster training with the desire to adopt J.D., despite their
advanced age and the fact that they had already raised one child to
adulthood.
F.D.-H. called her oldest son, J.S., to testify. J.S. testified that F.D.-H.
had adopted him when he was 17 and provided him with a loving home. He
said that he lived with F.D.-H. and J.D. in 2014 and 2015. He claimed that
he never saw any of the sexual behavior that F.D.-H. described and only saw
J.D. steal things occasionally. He reiterated that F.D.-H. was an excellent
mother and was confused why there would be allegations of her being a bad
mother.
Finally, J.D.’s attorney, Jerry Deason, made a statement on J.D.’s
behalf. He stated that J.D. is a different child from when he first came into 9 the system. He stated that in their first meeting J.D. told Deason that he
wanted to suck his penis. Recently, J.D. apologized to Deason and
explained that his mother had forced him to say those things and that he was
scared to be placed back with F.D.-H. because she will force him to sleep on
the floor or not allow him to eat food. Deason claimed that J.D. is 100%
adamant that he does not want to see F.D.-H. ever again and wants to live
with R.H.
After hearing all of the testimony and listening to closing arguments,
the Judge stated: 1) the State had shown that J.D. had been removed from
F.D.-H.’s home for over a year; 2) the child had been adjudicated a child in
need of care; 3) F.D.-H. failed to comply with the case plan because she
failed to provide financial support to the child, go to court-ordered therapy
sessions, or follow any of the recommendations of the evaluator, Dr.
Simoneaux; 4) F.D.-H. had shown she will continue to ignore the case plan;
and, 5) it was in the best interest of J.D. to terminate F.D.-H.’s parental
rights. He also stated that F.D.-H. had the opportunity over the past year to
communicate with J.D. via phone calls and simply did not. The Judge
recognized some validity to F.D.-H.’s argument she no longer received $520
as a monthly payment to J.D., but pointed out that it was never “her” money,
it was explicitly money for J.D. from the federal government and as such, it
does not count as payments from her toward J.D. Therefore, the Judge
terminated F.D.-H.’s parental rights. F.D.-H. now appeals.
DISCUSSION
F.D.-H. argues that the State failed to meet its burden of proof
because: 1) she had already taken steps to complete her case plan; 2) she had
no intention of permanently abandoning J.D.; 3) she was capable of 10 completing her case plan if given the time to do so; and, 4) it was not in the
best interest of J.D. to terminate F.D.-H.’s parental rights.
The State argues that the district court was not manifestly erroneous in
terminating F.D.-H.’s parental rights. The State claims that F.D.-H.
abandoned J.D. and openly admitted that counseling was required but failed
to attend these meetings. The State maintains that F.D.-H.’s own testimony
shows a clear refusal to work the case plan. Further, the State contends that
the district court’s ruling was in J.D.’s best interest. It points to J.D.’s
remarkable recovery since being removed from the home of F.D.-H. as proof
of such.
The termination of parental rights involves a two-pronged inquiry.
First, the State must establish the existence of at least one ground for
termination under La. Ch. Code art. 1015. If a ground for termination is
found, then the trial court must determine whether the termination is in the
best interest of the child. State in Interest of C.F., 2017-1054 (La. 12/6/17),
235 So. 3d 1066.
Because the termination of parental rights is a severe and terminal
action, the legislature has mandated that in order to terminate these rights,
the State must satisfy an onerous burden of proof. State in Interest of
T.A.G., 52,722 (La. App. 2 Cir. 4/10/19), 269 So. 3d 1159; State ex rel. B.H.
v. A.H., 42,864 (La. App. 2 Cir. 10/24/07), 968 So. 2d 881. Proof by clear
and convincing evidence requires a showing that the existence of the
disputed fact is highly probable, meaning more probable than its
nonexistence. State in Interest of T.A.G., supra; State in Interest of C.E.K.,
2017-0409 (La. App. 4 Cir. 12/21/17), 234 So.3d 1059, writ denied, 2018-
0143 (La. 3/9/18), 237 So.3d 523. Even upon finding that the State has met 11 its evidentiary burden, a court should not terminate parental rights unless it
determines that termination is in the child’s best interest. La. Ch. C. art.
1037(B).
In a proceeding for termination for parental rights, the issue of
parental compliance with a case plan, the parent’s expected success of
rehabilitation, and the expectation of significant improvement in the parent’s
condition and conduct are questions of fact. An appellate court cannot set
aside a trial court’s findings of fact in the absence of manifest error or unless
those findings are clearly wrong. State in Interest of C.R.F., 52,912 (La.
App. 2 Cir. 7/17/19), 278 So. 3d 435; State in Interest of M.L.H., 51,956 (La.
App. 2 Cir. 1/10/18), 247 So. 3d 929.
F.D.-H. Abandoned J.D.
F.D.-H. first argues that the State failed to prove that she abandoned
J.D. within the meaning of La. Ch. C. art. 1015(5). We disagree. La. Ch. C.
art. 1015 lists the grounds for termination of parental rights. Specifically,
La. Ch. C. art. 1015(5) lists abandonment as grounds for termination of
parental rights. La. Ch. C. art. 1015(5)(b) and (c) define abandonment:
(5) 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.
(c) As of the time the petition is filed, the parent has failed to maintain significant contact with the child by visiting him or communicating with him for any period of six consecutive months.
12 F.D.-H. asserts that the record shows that she had no intention to
permanently avoid parental responsibilities. She claims the only reason she
did not maintain visitation with her son was because DCFS used the court
system to prevent her from seeing her son in an effort to destroy the family
ties. We find this argument to be without merit.
While the record does indicate that DCFS ceased supervised visits
after July of 2018, F.D.-H. still could have sent her son letters, contacted
him via phone, or given him small tokens of affection to maintain a
connection with J.D. Yet, F.D.-H. did none of these things. In fact, by the
time of the trial, J.D. had spent two birthdays without receiving a single
letter, birthday gift, or phone call from his mother.
Furthermore, F.D.-H. failed to provide any financial contributions to
J.D. even though she had sources of income. According to the record, F.D.-
H. failed to make a single monthly payment to J.D. When questioned about
this, she claimed that her loss of a social security benefit should count as a
monthly payment to J.D. At trial the Judge properly dispensed with this
argument, stating:
The fact that you did not make any financial effort to provide any contribution towards the child I can almost see your argument in so much as you felt like that because the State was receiving the social security benefits that you didn’t need to pay anything towards that contribution. The problem with your analogy is the $520 you keep saying was mine, was mine, it was coming from me. It was never coming from you. It was coming from the Social Security Administration. It was coming from the federal government. It was money that was coming from the tax payers of the United States; never from you… It was always meant for [J.D.’s] benefit so it was never your money to start with so it was never attributed to you as contribution for the benefit of [J.D.].
13 The simple truth is that F.D.-H. failed to communicate with J.D. and
failed to make any contribution to J.D. for well over six months. As such,
F.D.-H. abandoned J.D. as defined in La. Ch. C. art. 1015(5).
F.D.-H. Failed to Comply with Her Case Plan
Next, F.D.-H. claims that she had substantially complied with her case
plan and, if given enough time, would have complied with the rest. Under
La. Ch. C. art. 1015(6), parental rights may be terminated:
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.
Under 1015(6) the State had to prove three elements: 1) it had been
one year since J.D. had been removed; 2) F.D.-H. had not substantially
complied with the case plan for services; and, 3) there was no reasonable
expectation of significant improvement in F.D.-H.’s condition or conduct in
the near future. See State in the Interest of A.L.D., 2018-1271 (La. 1/30/19),
263 So. 3d 860.
La. Ch. C. art. 1036(C) states that 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 do so by the court when approving the case plan.
14 (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.
Here, F.D.-H. failed to comply with her case plan. As a part of her
case plan, F.D.-H. was expected to: 1) maintain safe and stable housing; 2)
maintain a legal source of income; 3) provide parental support of $155 a
month; 4) keep the agency informed of her whereabouts; 5) participate in a
psychological evaluation and follow recommendations; 6) participate in
counseling; 7) release information prepared by service providers; and, 8)
participate in family counseling. F.D.-H. contends that she maintained safe
and stable housing, maintained a legal source of income, and participated in
a psychological evaluation. As such, she argues that she substantially
complied with her case plan. We are not swayed by this argument. While it
is true she attended the psychological evaluation and it was not disputed that
her home was in working condition (though according to the record, social
workers were unable to actually visit her home due to their issues working
with F.D.-H.), F.D.-H. refused to attend any counseling sessions or make a
single payment of parental support. During her testimony, F.D.-H. openly
acknowledged that she did not attend counseling sessions, claiming that she
did not need counseling. F.D.-H.’s failure to pay parental support and attend
court-mandated counseling sessions are indicative of a failure to work her
case plan.
15 Furthermore, F.D.-H. expressed to the court that she had no interest in
working her case plan in the near future. During her testimony F.D.-H. was
asked her if she would ever attend counseling. She said:
Well I’m not gonna say I said I will not do it. I said that I’m not gonna have counseling for causing harm to my son. Now if you wanted me to go counseling because I adopted a kid from DCFS with issues we can do that, but I’m not gonna go saying that I caused my son harm.
Ch. C. art. 1036(D) provides that 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 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.
After reviewing the record, we find that F.D.-H. shows a pattern of behavior
that appears contradictory to one who desires to have her child returned
home. During her own testimony she admitted that she had not worked
portions of the case plan and actually stated that she would not do certain
parts of her plan. F.D.-H. argues that because she went through a two-day
psychological evaluation and sought an independent psychological review
from Dr. Gillaume, she has shown an intent to make changes to regain
custody. However, her own testimony indicates F.D.-H. is not willing to do
what the district court found necessary for her to regain custody. F.D.-H.
16 seems to be willing to work parts of her case plan that are either convenient
for her or do not assign any blame to her. She is quick to point to a report
from Dr. Gillaume who appears to believe she is not in need of counseling,
but ignores any other professionals who believe she does need counseling or
believe that she is responsible for J.D.’s alleged conditions. F.D.-H. has
consistently rejected doing parts of her plan that may assign blame to her
(like going to counseling weekly) or may be inconvenient (like paying
parental support). As such, F.D.-H. has failed to comply with her case plan.
The District Court Acted in the Best Interest of J.D.
Finally, F.D.-H. claims that the State failed to act in the best interest
of the child. The focus of an involuntary termination proceeding is not
whether the parent should be deprived of custody, but whether it would be in
the best interest of the child for all legal relations with the parent to be
terminated. As such, the primary concern of the courts and the State remains
to secure the best interest of the child, including the termination of parental
rights if justifiable grounds exist and are proven. State ex rel. S.M.W., 2000-
3277 (La. 02/21/01), 781 So. 2d 1223; State in Interest of S.A.T., 49,143 (La.
App. 2 Cir. 5/14/14), 141 So. 3d 816.
When J.D. first entered DCFS’ care, F.D.-H. claimed he had exhibited
hypersexual and homicidal tendencies. She claimed that he urinated on
himself frequently and needed serious psychological help. J.D. has spent
much of his early life in and out of hospitals and on medications for mental
issues F.D.-H. believed he had. He was not allowed to attend school at his
mother’s behest, for she believed that he was a danger to the students in the
classroom. At trial, the district court heard from his social worker, J.D.’s
attorney, and his new adoptive father. All three spoke of tremendous 17 successes that J.D. is having now that he is apart from F.D.-H. J.D. is no
longer on medications, his meetings with a counselor have been reduced to
an as-needed basis, and he is completely reintegrated into school. At the end
of the trial, J.D.’s attorney, Jerry Deason, spoke on behalf of J.D. and
provided the clearest description of what was in the best interest of J.D.
Your honor, uh, [J.D.]—the first day I met [J.D.] um, in- in a personal environment was a couple of year ago uh, at a meeting at Laurie’s office with [F.D.-H.] there and um, after sitting there for two and a half hours every time it—he was forced to say things that he—that he wasn’t volunteering to say. So you know I of course knew where the case was gonna go next cause I knew you know the case wasn’t over even though that case had been dismissed so I got to know [J.D.] over the years uh, since then and he’s gone into great detail that—that’s – that he’s actually overcome, but there’s still a very tragic and he just wanted the court to know that when I went to Natchitoches to meet him back last year again and you know one on one uh, the first thing he said was he walked in the room and he said hey Mr. Deason, I remember you and I apologize for all those crude things I told you in that attorney’s office in Benton that day and he said you know she was making me say everything you know or she made me agree to everything before I got in there. He says because she—I was afraid she’ll either force me to lay on the floor and not sleep in the bed or she wouldn’t allow me to eat food.
Based on the record, J.D. has the opportunity for a normal life with his new
adoptive parents. Not only is this in J.D.’s best interest, but it would be a
detriment to J.D.’s future to overturn such a ruling from the district court.
CONCLUSION
Considering the foregoing, we affirm the district court’s judgment
terminating the parental rights of F.D.-H. as to her minor child J.D. No costs
are assessed in this appeal.
AFFIRMED.