State of Louisiana in the Interest of J.L. DOB: 03/10/16 E.L. DOB: 06/02/17 ( 2020 )

STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT
NUMBER 2020 CJ 0782
STATE OF LOUISIANA
IN THE INTEREST OF J. L. AND E.L.
Judgment Rendered:
DEC 3 0 2020
On appeal from the
Denham Springs City Court
In and for the Parish of Livingston
State of Louisiana
Docket Number 12002
Honorable Jerry L. Denton Jr., Judge Presiding
Laura Slocum Counsel for Plaintiff/Appellee
Livingston, LA Department of Children and Family
Services
Brad Cascio Counsel for Plaintiff/Appellee
Livingston, LA State of Louisiana
Alice Montestruc Council for Plaintiff/Appellee
Baton Rouge, LA J.L. and E. L. minor children
Rodney Erdey Counsel for Defendants/ Appellants
Denham Springs, LA Parents of J. L. and E.L.
BEFORE: GUIDRY, McCLENDON, AND LANIER, JJ.
GUIDRY, J.
The mother and father of two minor children appeal from a trial court
judgment, which terminated their parental rights and freed their children for
adoption. For the reasons that follow, we affirm.
FACTS AND PROCEDURAL HISTORY
J. C. L., who was born on March 10, 2016, and E. W.L., who was born on
June 2, 2017, are the children of N.B. ( mother) and J.L. ( father). On September
25, 2017, the Department of Children and Family Services ( DCFS) received a
report of alleged neglect concerning E.W.L. Thereafter, DCFS obtained an oral
instanter order removing J. C.L and E. W.L. from the custody of their mother and
father, placing them in the custody of DCFS. According to the affidavit filed in
support of the instanter order, DCFS alleged that N.B. had not followed through on
required services for the newborn' s, E. W.L.' s, severe head and neck deformities.
DCFS further alleged that E.W.L.' s skin was breaking down due to lack of
cleaning and that on September 29, 2017, the DCFS worker found the family in a
hotel room overwhelmed by stench, and that DCFS had good cause to believe the
children could not be protected if they remained in their present situation. The oral
instanter order was followed by a written order signed on October 2, 2107.
Thereafter, the children were continued in the custody of the state.
On October 24, 2017, the state filed a child in need of care petition alleging
that the parents were dependent and had failed to provide adequate supervision and
shelter. Following, at the November 9, 2017 answer hearing, both parents
stipulated that the children were in need of care without admitting to the
allegations of the petition.' Thereafter, DCFS developed, and the court approved,
an initial case plan wherein the goal for the children was stated as reunification
The disposition hearing was held on December 7, 2017.
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with the parents. However, approximately one and one- half years later, the goal
was changed to adoption, with approval of the court.
On May 28, 2019, DCFS filed a petition to terminate the parental rights of
N.B. and J. L. as to the children J. C. L. and E. W.L. DCFS alleged that there was no
substantial compliance with the case plan, no reasonable expectation for significant
improvement in the parents' condition, and no substantial change in behavior. A
trial was held on August 22, 2019. The court reconvened on September 12, 2019,
issuing a ruling to terminate the parental rights of N.B. and J. L pursuant to La.
Ch. C. art. 1015( 6). The judgment, which was signed on September 12, 2019, also
stated that it was in the best interest of the children that the parents' rights
be terminated and the children declared free and eligible for adoption. That
judgment is now being appealed by N.B. and J. L. The parents essentially claim the
trial court erred in finding that the grounds for the termination of their parental
rights were met. They also contend that the trial court erred in maintaining the
child in need of care petition.'
DISCUSSION
Title X of the Louisiana Children' s Code governs the involuntary
termination of parental rights. The grounds for termination of parental rights, as
applicable to this matter, are found in La. Ch. C. art. 1015( 6) as follows:
6) 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
2 In this appeal, N.B. and J. L. seem to challenge the child in need of care petition. However, the
trial court signed the child in need of care adjudication judgment on November 9, 2017, and that
judgment contains a stipulation of the parents, through their respective attorneys, that the
children were in need of care. Accordingly, we note that the adjudication judgment is a consent
judgment from which an appeal may not be taken. See La. C. C. P. art. 2085. Neither was the
child in need of care adjudication judgment timely appealed. See La. Ch.C. art. 332.
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conduct in the near future, considering the child' s age and his need for
a safe, stable, and permanent home.
In order to terminate parental rights, the petitioner must prove each element
of a ground for termination of parental rights by clear and convincing evidence.
See La. Ch.C. art. 1035( A). In addition, La. Ch. C. art. 1037( B) provides, in
pertinent part:
When the court finds that the alleged grounds set out in any Paragraph
of Article 1015 are proven by the evidentiary standards required by
Article 1035 and that it is in the best interests of the child, it shall
order the termination of the parental rights of the parent against whom
the allegations are proven. The court shall enter written findings on
both issues. The consideration of best interests of the child shall
include consideration of the child' s attachment to his current
caretakers.
Whether termination of parental rights is warranted is a question of fact, and
a trial court' s determinations will not be set aside in the absence of manifest error.
State ex rel. H.A.B., 10- 1111, p. 31 ( La. 10/ 19/ 10), 49 So. 3d 345, 368. Regarding
the failure to comply with a case plan, La. Ch.C. art. 1036 provides, in relevant
part:
C. Under Article 1015( 6), 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.
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.
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7) The persistence of conditions that led to removal or similar
potentially harmful conditions.
8)( a) The parent' s failure to provide a negative test result for all
synthetic or other controlled dangerous substances, except for any
drug for which the parent has lawfully received a prescription, at the
completion of a reasonable case plan.
b) For purposes of this Article, " controlled dangerous substance"
shall have the meaning ascribed in R.S. 40: 961.
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 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.
Emphasis added.)
In the matter before us, we find no manifest error in the trial court' s finding
that DCFS proved by clear and convincing evidence that N.B.' s and J.L.' s parental
rights should be terminated under La. Ch. C. art 1015( 6). At trial, DCFS presented
documentary evidence and testimony in support of its petition to terminate parental
rights. According to the case plans filed into the record, DCFS required N.B. and
J. L. to, among others: maintain housing adequate to meet the children' s basic
needs; contribute payments toward the cost of the children' s care while in foster
care in the amount of $ 100. 00/ month; and work towards achieving permanency
before or within 12 months of the children' s placement in foster care. The case
plan dated February 25, 2019, changed the permanency goal from reunification to
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adoption due to insufficient behavior change.' As evidenced by testimony at trial,
issues remained with the parents' parental contributions, housing, employment,
and more.
Regarding the parents' ability to provide for the children, J. L. admittedly did
not pay parental contributions in the amount of $ 100/ month during the period of
October 2017 to August 2018. However, from the dates of February 2018 to July
2019, payments were made totaling $ 400. 00, which DCFS found to be
insignificant contributions. 4 Regarding employment, N.B. and J. L. did not provide
to DCFS documentation, as required, evidencing their financial income on a
monthly basis. J. L. provided no proof of income from September 2017 to
December 2018. DCFS then received a handwritten letter from J.L.' s landlord
stating that J. L. worked for him and earned $ 150/ week. Thereafter, J. L.' s legal
counsel provided two pay stubs from J. L.' s employer, Circle K.
In terms of housing, the testimony of DCFS was that it was never provided
with a lease agreement. According to the agency, although the parents have
maintained housing since 2018, their housing situation remains tenuous based upon
the lack of a lease agreement, which could result in eviction at any time.
As it concerns parenting behavior, the DCFS worker noted that while N.B.
had successfully completed parenting services, she had failed to demonstrate what
she had learned: " Although [ N.B.] participated in services and received a
certificate there' s still been concerns, we' ve still had to have numerous occasions
where we are redirecting having the same conversations over and over about child
proofing, about safety, about different types of parenting techniques and about
nutrition." As it concerns both parents, the DCFS worker explained " it' s about
3 The change in the permanency goal was approved by the court on December 6, 2018.
a We note that as of September 2018, N. B. was no longer required to pay the parental
contribution, due to disability.
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their ability to show that they have taken in the information that has been given to
them by service providers and demonstrating their understanding of the importance
of it." The worker also stated that lack of behavior change is evidenced by " the
totality of looking at this case over time." With regard to anger management,
while the DCFS worker stated that N.B. had completed her anger management
course, she expressed concerns about two incidents at a doctor' s office when N.B.
became irate and disruptive, having to be relocated during one incident.
Furthermore, DCFS testified that N.B.' s and J.L.' s lack of behavior change
and inability to improve is evidenced by a prior history with older siblings coming
into care on substantially similar circumstances where a failure to change behavior
resulted in N.B.' s termination of parental rights as to those children. While J. L.
was not the biological father of the aforementioned children, he was nonetheless
involved in the household and was a support system to N.B. during that time.
When asked why termination of parental rights is in the best interest of the
children, the DCFS worker stated:
A] lthough the parents have made efforts to complete the services in
their case plan the agency has continued concerns and reservations
about their ability to provide appropriate care for these children. ...
A] s we stated earlier the parents have had repeated history with the
agency for neglect going on 5 years now and the services
implemented both during the last case and the current case do not
seem to have resolved any of these issues substantially. There' s been
some improvement but not what we would need to see when we are
looking at the fact that these children have been in custody for two
years. Despite the fact that the agency and service providers have
made numerous attempts to enlighten the parents to areas of concern
they have maintained the mindset that basically that they did not do
anything wrong, their children were unfairly taken from them, they
don' t see a problem in the, and this is what they' ve verbalized to us is
they don' t see a problem with the way that they cared for their
children.
Also, during her testimony, the worker stated, " What we are looking at in this case
is a pattern of ultimately not just the past two years but five years of these
problems going on."
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Additionally, Brian Murphy, Ph.D., an expert in psychology, testified that
N.B.' s mental age calculation was 7 to 10 years of age and that "[ t] here' s a whole
array of things that were evaluated and they were all subpar." Dr. Murphy stated
that he had concerns about N.B.' s ability to competently parent her children. Dr.
Murphy also testified that he was not surprised to learn that the parents had
participated in services, but presented no marked improvement in behavior.' Dr.
Murphy stated that he had hoped it would go better, but if DCFS told him there
was a federal requirement as a protective agency, he would go along with their
recommendation.
After a review of the entire record herein, we cannot say the trial court was
manifestly erroneous in finding that the parental rights of N.B. and J. L. should
be terminated under La. Ch. C. art. 1015( 6). Additionally, we find no error in the
trial court' s determination that the termination of N.B.' s and J. L.' s parental rights
is in the best interest of the children. At the time of trial, J. C. L. was three years
old, after coming into care at eighteen months; E. W.L. was two years old, after
coming into care at three months. Both children had lived with the same foster
parent during the duration of their time in care, and that foster parent was willing
to adopt.6 As noted by the DCFS worker, while the parents may have checked
boxes, not enough behavior change had occurred given the time, ages, and needs of
the children.
CONCLUSION
For the foregoing reasons, the September 12, 2019 judgment of the trial
court is affirmed. All costs of this appeal are assessed to N.B. and J. L.
AFFIRMED.
Dr. Murphy testified that U.'s IQ scores were in the low average range, at the sixteenth
percentile. The fiftieth percentile is average.
The children' s attorney argued that it was in the children' s best interest that they be adopted.
E