State of Louisiana in the Interest of Z.J. M.J.

• Court: Louisiana Court of Appeal
• Decided: August 23, 2023
• Docket: 55,335-JAC
• Status: Published

Opinion

Judgment rendered August 23, 2023. Application for rehearing may be filed within the delay allowed by Art. 2166, La. C.C.P.

No. 55,335-JAC

COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA

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STATE OF LOUISIANA IN THE INTEREST OF Z.J., M.J.

Appealed from the Fifth Judicial District Court for the Parish of Richland, Louisiana Trial Court No. J-2021-30

Honorable Clay Hamilton, Judge

VARHONDA E. BURRELL Counsel for Appellant, L.D.B., Father of Z.J.

SHIRLEY GUILLORY GEE Counsel for Appellee, Assistant District Attorney State of Louisiana

DEPARTMENT OF CHILDREN Counsel for Appellee, AND FAMILY SERVICES State of Louisiana, DCFS By: Keesha Mason Bordelon

LEGAL AID OF NORTH LOUISIANA Counsel for Appellees, By: Elizabeth Clement Brown Z.J. & M.J., Children

CARMEN ELYSE RYLAND Counsel for Appellee, L.J., Mother of Minor Children

Before STONE, THOMPSON, and HUNTER, JJ.

HUNTER, J., dissents with written reasons. STONE, J.

INTRODUCTION

This appeal arises from the Fifth Judicial District Court, the

Honorable Clay Hamilton presiding. Lorenzo Bee (the “appellant”) is

biologically the father of the minor child, Z.J., who was born in 2019.

Apparently, Z.J. is an older half-sibling of M.J., the other minor child

involved herein, who was born with cocaine in her system in 2021. (M.J. and

Z.J. are collectively referred to herein as “the children”). After learning of

M.J.’s subjection to cocaine in her mother’s womb, the DCFS removed Z.J.

and M.J. from the custody of their parents, had the children adjudicated in

need of care, filed and obtained approval of the case plan, and gave the

parents opportunity to complete the case plans. After the children had been

in state custody for more than a year and the parents demonstrated failure to

follow their case plans, the DCFS filed a petition to terminate parental rights

to clear the children for adoption. After a trial, the court terminated the all

parental rights to Z.J. and M.J. This judgment named the biological mother,

another man, and the appellant as parties whose parental rights were

terminated.

Only the appellant, Lorenzo Bee, appeals; he urges two assignments

of error: (1) he was denied due process in that the court refused to allow him

to testify when he left the courtroom during trial – then left the area without

informing the court – and reappeared to testify after the court had already

ruled on the case; and (2) the judgment is invalid because the children were

not in custody of the DCFS for at least one year prior to the filing of the

petition to terminate parental rights. FACTS

On August 10, 2021, after learning that M.J. was born with cocaine in

her system, the state obtained an instanter order removing the children from

parental custody and placing them in the care and custody of the state. On

October 28, 2021, the court rendered a judgment adjudicating Z.J. and M.J.

in need of care and ordering that the children remain in the custody of the

DCFS. The October 28, 2021, judgment also approved the DCFS’ proposed

case plans for the parents. This initial case plan had the goal of reunification

after the mother and appellant completed parenting classes and domestic

violence counseling, as well as treatment for their drug addiction and mental

health problems.

The appellant and mother repeatedly failed to work their case plans

and showed no significant improvement; on the contrary, they repeatedly

tested positive for illegal drugs such as cocaine, methamphetamine, and

marijuana (or refused testing) while under the case plan. The appellant

completed inpatient rehab, but relapsed shortly thereafter and began refusing

drug tests because he said there was no point in testing: he admitted he

would test positive for methamphetamine. The appellant, who was

diagnosed with schizophrenia and bipolar disorder, was banned from two

different mental health programs because he was loud, aggressive, and

frightened people there. The appellant does have a residence; however, it is

cockroach-infested and is a place of habitual narcotics use. The mother is

somewhat of a resident of the appellant’s household; the appellant beats her,

frequently kicks her out of the house, and forces her to watch him have sex

with other women under threat of physical violence if she turns her head to

avoid watching. Furthermore, the appellant does not work, does not provide 2 monetary support for the children, is habitually drunk, and is manifestly

incapable of providing for Z.J.’s basic material needs.

On December 28, 2022, the DCFS filed a petition to terminate

parental rights to M.J. and Z.J. and named the appellant as a respondent

thereto. On February 16, 2023, the court held a hearing on the matter and

granted judgment as prayed for by the DCFS. The appellant attended the

hearing. During his attorney’s cross-examination of the DCFS caseworker

(the state’s witness), the appellant interrupted with outbursts accusing the

witness of lying. With his attorney’s permission, the court permitted the

appellant to go outside the courtroom to wait until the cross-examination

ended. However, when the time came, the appellant was nowhere to be

found – the bailiff reported that the appellant had left. As a result, the

appellant’s attorney had no witness to call, and rested the appellant’s case.

The court orally ruled on the matter, terminating all parental rights to the

children. Thereafter, the court and attorneys took up sundry housekeeping

matters, and during that discussion, the appellant returned to the courtroom

and indicated he wanted to testify on his own behalf. The court refused to

reopen the case to allow the defendant to testify (after he disappeared during

his regular opportunity to do so).

The appellant asserts that the trial court’s judgment terminating his

parental rights is erroneous because: (1) the trial court violated appellant’s

due process rights when, during the hearing on termination of his parental

rights, it allowed appellant to leave the courtroom upon his request (and with

the consent of his lawyer), and refused to allow him to testify when he

returned after the trial was over and the court had already given an oral

ruling; and (2) according to the appellant, the DCFS was not in custody of 3 the children for a full year as of the time of the judgment terminating

parental rights, and therefore, the termination was invalid.

DUE PROCESS

“Parental rights do not spring full-blown from the biological

connection between parent and child.” Caban v. Mohammed, 441 U.S. 380,

397, 99 S. Ct. 1760, 1770, 60 L. Ed. 2d 297 (1979) (Stewart, J., dissenting).

Instead, a biological father must demonstrate “a full commitment to the

responsibilities of parenthood by coming forward to participate in the

rearing of his child” before “his interest in personal contact with his child

acquires substantial protection under the due process clause.” Lehr v.

Robertson, 463 U.S. 248, 261, 103 S. Ct. 2985, 2993, 77 L. Ed. 2d 614

(1983). The Louisiana Supreme Court, in Matter of R.E., stated

[U]nder the circumstances herein the unwed father does not have a fully

established protected right to a parental relationship with his child until he

demonstrates his fitness and commitment according to the standards

provided by law and our decisions. Due process guarantees him notice,

hearing and an adequate opportunity to make such a showing; it does not

require, however, that he be presumed fit and committed to parental

responsibilities or that the burden of proving otherwise be allocated to the

parties supporting the surrender and adoption of the child

Matter of R.E., 94-2657 (La. 11/9/94), 645 So. 2d 205, 208.

Assuming arguendo that the appellant has established his paternal due

process rights in accordance with the Lehr, supra, (which is a quite

charitable assumption), the appellant’s due process rights were not violated.

The appellant clearly was given the opportunity to testify on his own behalf

according to regular trial procedure. He did not, however, use that 4 opportunity. Instead, without providing notice to the trial judge, the

appellant absquatulated from the trial at the precise time when his testimony

was to be given. Accordingly, this assignment of error lacks merit and is

rejected.

GROUNDS FOR TERMINATION OF PARENTAL RIGHTS

La. Ch.C. art. 1015(6) allows termination of parental rights if:

Unless sooner permitted by the court, [1] at least one year has elapsed since

a child was removed from the parent’s custody pursuant to a court order; [2]

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 [3] 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.

The DCFS obtained an instanter order on August 10, 2021, whereby

the children were removed from parental custody; several interim orders

continuing the children in DCFS custody were rendered thereafter. It was

not until December 28, 2022, that the DCFS petitioned for the termination of

parental rights, and the judgment terminating those rights was not rendered

until March 16, 2023. The children were in continuous legal custody of the

DCFS for more than one year prior to the rendition of the judgment

terminating parental rights. (Furthermore, the DCFS allowed the appellant

more than a year to work his case plan before it filed for termination of his

parental rights). Therefore, this assignment of error is without merit and is

5 CONCLUSION

For the foregoing reasons, the judgment of the trial court is

AFFIRMED. All costs of this appeal are taxed to the appellant.

6 HUNTER, J., dissenting.

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.

The sole witness to testify at the hearing was the DCFS caseworker.

Her testimony contained hearsay testimony, most of which the mother

allegedly told her. Additionally, there was no testimony or meaningful

inquiry into the “best interests of the child.”

This father has struggled with long-term substance abuse and mental

health issues, and I agree reunification is not in the child’s best interests at

this time. However, I have serious reservations about the State’s subpar

effort in proving the grounds for termination, as well as the trial court’s

unwillingness to allow the father to testify.

In light of the dire consequences of a termination proceeding, I would

reverse the trial court’s judgment. The record shows the father exited the

courtroom to calm himself down, and no meaningful effort was made to

ascertain his whereabouts. The court could have easily ordered a short

recess to, at the very least, attempt to locate the father, or it could have

allowed him to testify after he returned.