Judgment rendered March 30, 2022. Application for rehearing may be filed within the delay allowed by Art. 2166, La. C.C.P.
No. 54,429-JAC
COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA
*****
STATE OF LOUISIANA IN THE INTEREST OF N.L. AND S.W.
Appealed from the Monroe City Court Parish of Ouachita, Louisiana Trial Court No. 2019J00111
Honorable Aisha S. Clark, Judge
MANNING LAW FIRM Counsel for Appellant, By: Bobby R. Manning M.W., Father
VARHONDA E. BURRELL Counsel for Appellant, A.L., Mother
RAMSEY L. OGG Counsel for Appellee, State of LA, District Attorney
SUSAN E. SKIDMORE Counsel for Appellee, State of LA, DCFS
ELIZABETH C. BROWN Counsel for Appellees, N.L. and S.W.
Before STEPHENS, HUNTER, and O’CALLAGHAN (Pro Tempore), JJ. O’CALLAGHAN (Pro Tempore), J.
The parents of two minor children who entered state custody due to
allegations of sexual and physical abuse by the father and neglect by the
mother appeal a trial court judgment granting guardianship of the minor
children to their aunt. We affirm the trial court judgment placing the
children under the guardianship of their aunt as the most appropriate
permanent plan for them. However, we remand for the trial court to set
specific supervised visitation with the parents, as required by La. Ch. C. art.
723(B).
FACTS AND PROCDURAL HISTORY
In June 2019, the mother, A.L., left her young sons, N.L. (DOB
10/19/12) and S.W. (DOB 7/11/14), with their father, M.W., while she was
incarcerated. In early August 2019, the Department of Children and Family
Services (“DCFS”) received a report of sexual and physical abuse of the
children. The father was accused of forcing S.W. to perform oral sex on him
and pushing the child’s head under water, as well as punching and kicking
both boys. After these complaints were received, the children were placed
with their mother, who had been released from jail, pursuant to a “safety
plan.” However, the mother failed to uphold her duties under the plan – she
tested positive for several drugs, including methamphetamine and cocaine,
and, despite being told that the children were not to be left alone with the
father, she allowed them to go to the father’s home unsupervised, where he
hit them again. Bruises on the boys were observed by the DCFS investigator
who executed the affidavit supporting the instanter order.
The children were placed in foster care on August 27, 2019, pursuant
to an oral instanter order, which was confirmed the following day in a written instanter order. At the continued custody hearing on August 29,
2019, the parents were present, and, following stipulations of counsel
without admissions, the trial court signed a judgment continuing the children
in DCFS custody. The children were soon placed with their maternal aunt, a
certified foster parent. In September 2019, the State filed a petition to
declare the boys children in need of care as a result of neglect due to
dependency (mother) and abuse/neglect (father). The parents appeared at
the subsequent answer hearing and entered denials. At a December 2019
hearing, the boys were adjudicated children in need of care pursuant to
stipulations without admissions by the parents, both of whom were present.
Case plans were approved by the trial court several times.1 The case
plans required each parent to demonstrate emotional stability and freedom
from illegal drug use in order to meet the children’s needs. The father’s plan
also included components designed to address his violence/sexual
perpetrator issues. The permanency case goal in the first two case plans was
reunification with a concurrent goal of adoption. In the case plan submitted
in September 2020, the goal was reunification with a concurrent goal of
guardianship. In the case plans submitted in November 2020 and March
2021, the goal was guardianship with a concurrent goal of reunification. 2
While the goal was reunification in the February 11, 2020 case review
judgment, it was guardianship in the March 4, 2021 case review judgment.
1 The dates of approval were January 21, 2020; June 11, 2020; September 30, 2020; December 8, 2020; and April 5, 2021. 2 In preparation for various hearings, DCFS submitted reports to the court with updates on the parents’ progress on their case plans. These court reports were submitted in August 2020, May 2021, and June 2021. In the August 2020 court report, DCFS recommended changing the case plan goal to adoption. However, the agency changed its recommendation to guardianship prior to the October 20, 2020 permanency hearing, as discussed infra.
2 A review hearing was held on February 11, 2020, at which the trial
court was updated on the parents’ initial progress. A permanency hearing
was held on August 25, 2020. Among other issues, there was discussion
about the father’s two daughters with his live-in girlfriend being recently
placed in foster care. The DCFS court reports indicated that the girls, a
newborn and a one-year-old, were removed from their parents’ care in early
August 2020 because the newborn was drug-affected and failing to thrive.
In order to allow more evidence to be obtained, the permanency hearing was
recessed until September 18, 2020, at which time several preliminary issues
were discussed.
The permanency hearing resumed on October 20, 2020; testimony
was given by Mary Lowens, a DCFS caseworker, and Billy Foster, the
licensed social worker who conducted the father’s sex offender treatment
course. Lowens’ testimony established that the mother had complied with
some basic aspects of her case plan (housing, income, visitation) but not
those pertaining to mental health and substance abuse assessments and
parenting classes, i.e., the main issues which caused her children to come
into foster care. While insurance issues might have played a role in some of
those deficiencies, she also had failed to comply with requested monthly
drug screens. Lowens testified that the mother visited the children (who
loved her) regularly except when precluded by work. As to the father, he
was in compliance with the housing, income, mental health, substance
abuse, parenting, and visitation aspects of his case plan. While he had also
completed court-ordered sexual perpetrator therapy, significant issues
remained as to his parenting (including the case involving his infant
daughter) and the boys’ perceptions of him. S.W., in particular, was afraid
3 of the father. According to Lowens, while the father denied any sexual
abuse, he had admitted to physical abuse. Lowens testified that DCFS
wanted to change the case plan goal to guardianship based on several
factors, including a report by the children’s trauma counselor which
expressed special concern for S.W’s well-being.3 Foster testified that the
father had completed the 12-class course, but he denied any wrongdoing.
Foster indicated that was common when dealing with sex offenses.
At the conclusion of the evidence, during a colloquy between the
attorneys and the trial judge, the father interrupted the trial judge. The trial
judge indicated that the “outburst” the father directed at her was instructive
as to whether the father had just “check[ed] the box” by completing
parenting classes or actually learned patience or how to handle difficult
situations. The trial judge further stated that she was presiding over the case
involving the father’s daughters and, while the cases were “totally different”
with the father being the only commonality, it was “[s]ame similar outburst,
every single time.” The trial court also expressed disappointment with the
mother who, despite her children’s love for her, was failing to “stand up” for
them and work her case plan. The trial court found that guardianship with a
relative was in the best interest of the children, as such an arrangement
allowed them to receive proper care while maintaining contact with family
members, including the parents. On the day of the hearing, the trial court
signed a permanency judgment which granted DCFS’s request to change the
goal to guardianship but maintained a concurrent goal of reunification. The
3 Other factors included the need to give the children permanency, the maternal aunt’s preference for guardianship over adoption, and the fact that guardianship would not involve termination of parental rights.
4 children remained in the care of their maternal aunt, who was willing to be
named as their guardian.
In order to give the parents additional time to work their case plans,
the trial court did not immediately grant guardianship, and review hearings
continued to be held. However, as shown in the case plan notes and the
updates in the DCFS court reports, there were continuing failures by both
parents in making progress. Neither parent fully accepted responsibility for
the children being in foster care. The mother’s employment and housing
situations fluctuated wildly and she continued to avoid drug screening. In
early 2021, the father was referred to the Family Resource Center (“FRC”)
for visit coaching, a service designed to help parents determine what their
child needs from them at a visit. As the father’s visits with the children
increased, there was a notable regression in the boys’ behavior, and they
began acting out at home and school. Due to the father’s behavior at the
visits – which was described as erratic, unpredictable, and authoritative – the
FRC refused to continue working with the father on parenting issues. At a
review hearing on May 25, 2021, the visitation situation was discussed in
detail, and the trial court indicated it was prepared to implement the
guardianship. Counsel for the father requested that the father be given 30
days to find a new visiting coach. Stating that it was giving the father the
opportunity to address the visitation issues and rehabilitate himself, the trial
court granted the request but halted his visits with the children until he found
a new visiting coach. However, it informed the father (the mother was not
present) that, if there was no “moving forward,” guardianship would be
awarded to the maternal aunt. Accordingly, it ordered that a hearing be held
in 30 days, on June 25, 2021.
5 In preparation for the June 25, 2021 review hearing, a court report was
submitted by the DCFS child welfare supervisor on June 24, 2021. It
outlined the various issues pertaining to each parent. The father had anger
issues, repeatedly demonstrated his inability to listen to authority figures,
and failed to understand the impact of his actions on the children. He
refused drug screens in April and May 2021 which were requested after he
behaved erratically during an April 2021 visit with the children and he was
“hostile” and “combative” with a caseworker despite his children being
nearby. While the children demonstrated a “great bond” with their mother
during visits, she was unstable as to housing and income, failed to obtain
mental health or substance abuse assessments, failed to do drug screens, and
had questionable compliance as to parenting class attendance.
Due to an emergency involving one of the attorneys, the hearing on
June 25, 2021, had to be reset to August 10, 2021. At the permanency and
case review hearing held on August 10, 2021, counsel for the father
informed the trial court that they had been unsuccessful in finding a new
visiting coach. The trial court reminded counsel for the father that it had
held the matter open at the father’s request in order to give him an
opportunity to deal with the visitation matter. The trial court then asked the
parties present (the mother was absent) if they wanted a hearing or if they
were ready for its ruling. Counsel for the State announced that it stood on
the June 24, 2021 report and did not need a hearing. Counsel for the father
neither objected on the record nor requested a hearing. Counsel for the
mother said she did not have a position. She noted her client’s court
absences and stated that she did not think the mother had continued her case
plan. She then objected “out of an abundance of caution.” The trial court
6 acknowledged the objection. It then discussed on the record the long path
the case had followed and the many opportunities given to the parents. The
court granted guardianship in favor of the aunt as the most appropriate
permanent plan for the children. Counsel for the father objected to the trial
court’s ruling; the court also noted an objection of the mother’s counsel for
the record. The trial court signed a judgment of guardianship and a
permanency judgment on the day of the hearing.4 Each parent appealed
separately.
GUARDIANSHIP
Law
The purpose of guardianship is to provide a permanent placement for
children when neither reunification with a parent nor adoption has been
found to be in their best interest; to encourage stability and permanence in
the lives of children who have been adjudicated to be in need of care and
have been removed from the custody of their parent; and to increase the
opportunities for the prompt permanent placement of children, especially
with relatives, without ongoing supervision by the department. La. Ch. C.
art. 718(A). It is intended to ensure that the fundamental needs of children
are met and the constitutional rights of all parties are recognized and
enforced. La. Ch. C. art. 718(B).
The court must determine the permanent plan for the child that is most
appropriate and in the best interest of the child in accordance with certain
priorities of placement, guardianship being below reunification and
adoption. La. Ch. C. art. 702(C). In most permanent plan determinations,
4 We note that the judgment awarded guardianship to the aunt and her husband.
7 the court is required to determine whether the department has made
reasonable efforts to reunify the parent and child or to finalize the child’s
placement in an alternative safe and permanent home in accordance with the
child’s permanent plan. The child’s health and safety is the paramount
concern in the court’s determination of the permanent plan. La. Ch. C. art.
702(E); State in Int. of K.P., 51,853 (La. App. 2 Cir. 11/15/17), 246 So. 3d
627. More than simply protecting parental rights, our judicial system is
required to protect the children’s rights to thrive and survive. State in Int. of
D.E., 52,305 (La. App. 2 Cir. 8/15/18), 253 So. 3d 877; State in Int. of K.P.,
supra.
After a child has been adjudicated to be in need of care, the
department may submit a case plan along with the case review report to the
court and all counsel of record recommending guardianship. La. Ch. C. art.
720. According to La. Ch. C. art. 722(A), a mover for guardianship shall
have the burden of proving all of the following by clear and convincing
evidence:
(1) The child has been adjudicated to be in need of care.
(2) Neither adoption nor reunification with a parent is in the best interest of the child.
(3) The child has resided for at least six months with the proposed guardian, unless the court waives the residence requirement for good cause.
(4) The proposed guardian is able to provide a safe, stable, and wholesome home for the child for the duration of minority.
In order for reunification to remain the permanent plan for the child,
the parent must be complying with the case plan and making significant
measurable progress toward achieving its goals and correcting the conditions
requiring the child to be in care. La. Ch. C. art. 702(C)(1); State in Int. of
8 K.P., supra. Mere cooperation by a parent is not the sole focus of the
evaluation of a permanency plan. Rather, the courts must assess whether the
parent has exhibited significant improvement in the particulars that caused
the State to remove the children from the parent’s care and custody. State in
Int. of E.M., 51,511 (La. App. 2 Cir. 6/2/17), 224 So. 3d 1122.
To reverse a trial court’s permanency plan determination, an appellate
court must find from the record that the trial court’s finding is clearly wrong
or manifestly erroneous. State in Int. of D.E., supra. In a manifest error
review, it is important that the appellate court not substitute its own opinion
when it is the juvenile court that is in the unique position to see and hear the
witnesses as they testify. State in Int. of E.M., supra.
Discussion
On appeal, the parents claim that the trial court erred in changing the
case plan goal to guardianship and granting guardianship of the children to
the maternal aunt. The father asserts that he complied with his case plan,
that he has adequate housing and income to care for the children, and that he
made significant measurable progress toward correcting the conditions that
led to the children being placed in foster care. The mother alleges that she
was not given a proper chance to reunite with her children because the
agency was working toward adoption. According to her, all court reports
stated that she had a bond with the children, who felt safe with her. She
contends that, due to the COVID pandemic, many services could not be
completed.
In their joint brief, the State and DCFS dispute the veracity of several
statements in the father’s brief, particularly his claim to have addressed in
counseling being responsible for his actions and identifying his behavior that
9 contributed to the allegations against him. The State and DCFS assert that,
despite the numerous chances given to him by the court, the father failed to
address the abuse and trauma the children suffered at his hands, his erratic
behavior, and the children’s fear of him. He continued to demonstrate
physical aggression around the boys during visitation and he never
adequately addressed his inappropriate sexual behavior. As to the mother,
even though she repeatedly requested and received additional time to work
on her case plan, she too failed to follow through and achieve any
measurable level of rehabilitation. The attorney for the children made
similar arguments in their brief, emphasizing the father’s questionable
behavior during visitation and the mother’s failure to comply substantially
with her case plan.
The record before us demonstrates that, at different points after the
children were placed in foster care, each parent made some efforts – of
varying degrees and longevity – to comply with the case plans established
by DCFS. However, they both ultimately failed to make significant
measurable progress toward correcting the conditions which caused the
children to be removed from their care and custody.
The mother’s compliance with her case plan was sporadic at best. Her
employment and housing situations swung back and forth repeatedly –
between employed and unemployed, from having an acceptable home for the
children to homelessness. The amount of effort she expended on obtaining
required assessments was questionable. Sadly, the one area in which the
mother was consistent was her persistent refusal to submit to drug screening,
a crucial element of her case plan designed to monitor the primary reason
her young children were removed from her care. As time passed, the
10 mother’s determination to comply with the case plan appeared to wane to the
point that she even began to miss court appearances. While the love
between her and her children was never in doubt, her ability to control her
drug issues and her lack of stability were serious matters of grave concern to
the trial court.
After the boys were placed in foster care, the father initially complied
with the terms of his case plan. However, the trial court was concerned that
his compliance consisted more of “checking the boxes” than actually
learning from the classes and programs he was required to attend.
Unfortunately, the trial court’s apprehensions were validated by the father’s
actions as time progressed. On more than one occasion, the father
disrespectfully interrupted the trial judge in court, demonstrating both a
significant lack of impulse control and poor judgment. Instead of allowing
his attorney to represent him, he repeatedly insisted on personally addressing
the trial judge to “clear up” matters, despite her many admonitions to him
that he was “ruining [his] own case” and that he needed to learn to control
himself. Even more disquieting was the father’s conduct during his
supervised visits with his sons, which tended to show that, despite his
technical compliance with the case plan, he had not achieved meaningful
change as to the circumstances that led to the children being taken into foster
care, i.e., his anger and violent tendencies. He frequently made intimidating
and coercive statements to the boys. They included blaming S.W. for the
family’s continuing separation and demanding that the child tell the judge he
wanted to live with him. After one family visit was ended, he engaged in an
angry verbal altercation with a caseworker, oblivious to the fact that the
children were in the next room. Even though random drug screening was a
11 component of his case plan, when his “erratic” behavior during a visit raised
serious and valid concerns, he refused to submit to drug screening, which
was sought to rule out substance abuse. At best, the father’s relationship
with his sons continued to be strained, and S.W., who accused his father of
sexual abuse, remained afraid of him. Even worse, the boys’ interaction
with the father affected them to the point of causing regression in their own
behavior, which included violence and aggression toward other children.
While the father attended the required sex offender course, nothing in the
record indicates that he ever acknowledged any responsibility for that aspect
of S.W.’s abuse.
Based on the foregoing, we find that the record fully supports the trial
court’s actions. It repeatedly encouraged and exhorted the parents to make
their best efforts for the sake of their children. The trial court gave both
parents multiple opportunities to rectify the issues that caused the children to
be removed from their care and custody. Lamentably, it was ultimately to
no avail. Consequently, we affirm the trial court judgment placing the
children under their maternal aunt’s guardianship as their permanent
placement.
However, La. Ch. C. art. 723(B) requires that the guardianship
judgment address the frequency and nature of visitation or contact between
the children and their parents as necessary to ensure the health, safety, and
best interest of the children. The judgment of guardianship in the instant
case merely stated, “Any visits between the parents and minor children shall
12 be supervised by the Guardian.”5 It was error for the trial court to leave
specific terms of visitation to the guardian’s discretion. State in Int. of K.W.,
54,304 (La. App. 2 Cir. 1/12/22), 332 So. 3d 825; State in Int. of D.E.,
supra. Accordingly, we remand this matter to the trial court to set specific
supervised visitation periods, if any, and conditions for the parents. 6
CONCLUSION
The trial court judgment placing N.L. and S.W. under the
guardianship of their maternal aunt is affirmed. However, the matter is
remanded to the trial court to set specific supervised visitation, if any. Costs
are assessed to the appellants, A.L. and M.W.
AFFIRMED AND REMANDED WITH INSTRUCTIONS.
5 Also, the permanency judgment signed on August 10, 2021, stated that “[t]he parents shall have the right of supervised visitation in accordance with the attached visitation plan and other court orders.” No such visitation plan was attached. 6 However, see the 2011 Comment to La. Ch. C. art. 723, which provides: “The court’s authority to limit frequency of visitation includes the authority to forbid contact with the parent altogether. If there is proof by clear and convincing evidence that parental contact would cause substantial harm to the child, contact can be constitutionally eliminated. Troxel v. Granville, 530 U.S. 57 (2000); Santosky v. Kramer, 455 U.S. 745 (1982).”