S.J.G. VS A.A.G.

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STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2007 CJ 0625 S JG VS AA G JUDGMENT RENDERED SEPTEMBER 19 2007 ON APPEAL FROM THE TWENTY FIRST JUDICIAL DISTRICT COURT DOCKET NUMBER 89 580 DIVISION B PARISH OF LIVINGSTON STATE OF LOUISIANA HONORABLE BRUCE C BENNETT JUDGE MELANIE NEWKOME JONES ATTORNEY FOR PLAINTIFF APPELLANT BATON ROUGE LA SJ G MOTHER D BLAYNEHONEYCUTT DENHAM SPRINGS BEFORE fI j4 CCjr r1 LA ATTORNEY FOR DEFENDANT APPELLEE AA G FATHER GAIDRY MCDONALD AND MCCLENDON n J CcrnWlJ h Vt 1 eJuJ f Utdd Ai J fIJJ MCDONALD J This is the child a the affirm in judgment circumstances under terminate the parental rights A A G married 12 on 1991 father herein 23 1992 and their son 1 Their NA G Some time thereafter A A G and S J G joint custody of the children 100 00 can workplace Welsh to On custody was Fmiher the perfonn July daughter a as born KMG 28 attached to are no to on stipulated January interim born 31 or on 1999 judgment that gave them and provided going to judgment appointed psychologist Dr J that issued were the other s home Steven evaluation of the parents and the children 2000 SJ G filed the petition non a petition to A A G In with for divorce Dr Welsh s asking for sole 1999 evaluation report dated October 20 a domiciliary custody supervised visitation to SJ G that the names 2 and parties attend Appeal minor children he 1999 A A G to involved in this matter will be used instead of their parties privacy of the September June 14 Pursuant to Rules 5 1 and 5 2 of the Uniform Rules Courts of the were 1994 domiciliary parents co on monthly child support Injunctions joint custody frequent liberal part proceeding a was parties separated and with reasonable visitation recommended 1 an there in the mother herein prohibiting each party from harassing the other or judgment institute and S J G was the entered into A A G pay S J G between them that finding terminate of the other parent the May parent one to parent sought lengthy litigation and remand part which one We vacate the the termination granted court wherein case of the other parent after parental rights The trial custody the initials of to protect the that S J G counseling therapy consider and payments to SJ G reduced the AA G assessing filed the asserting that rule a children occasions because S J G of A A G employment and S J G had no date 480 00 on November 19 missed school on able a 2001 numerous were A A G visitation to S J G new re enrolled the children in school he to provide for the children but that history of depression and prescription was arrested for DWI while the custody of the children asked for sole in to go out living with her and that she had failed to show up for her were supervised divorce and them and that both children He further asserted that S J G abuse children was live and had to a left the children alone with her S JG asserted that he had place or granted and that S J G had left the children had stable drug not wake failing in school that husband while she traveled drinking tardy were did to 2001 change custody to to monthly temporary child support 500 00 judgment dated March 27 A judgment consent a alternate weekend visitation giving monthly child support payment A A G danger entered into parties SJ G to giving temporary custody A A G the 2000 substance abuse and possible probable alcohol abuse that A A G consider intervention for On October 30 for and asked for a reduction court with reasonable or tennination of child support A A G November 19 was 2001 stipulated judgment primary awarded temporary sole and a hearing gave the custodial parent with school year and during the school terminated granted year retroactive was custody On December 21 set parties joint custody physical custody S JG November 1 3 2001 to 2001 named A A G of the children physical custody Child support payments to of the children on as on a the during the alternate weekends S J G by A A G were the date the children became domiciled with A A G and the parties reserved the right litigate child to support A A G filed the to establish child support consent a 498 00 per month child pay A A G filed asserting rule thereafter entered into parties A A G a rule a that SJ G On April visitations 4 been arrested 2003 again and April amount of 2003 arrears filed a rule to court executory 2 226 06 and sentenced suspend S JG 2003 to that S J G was had overnight s drug abuse problem a attempting to jail have male guests as a and had overnight present 24 2003 I 800 00 she would be parties after S JG a hearing was the past due through April on have child support 15 2003 that she were purged of the contempt of not to entered into pmiies made was overnight guests when consent to A A G in current The court a in contempt of by June 30 judgment also the minor children with them A A G filed another rule to support and for contempt of comi was contempt of that if the child support payments ordered the were A A G S JG judgment providing that comi and 21 Febluary on owed past due child support payments of conduct s with the children the that S J G asserting that the children had sustained emotional problems result of S J G On Then and make arrears A A G asked that SJ G be found in time judgment providing support accumulate to October 7 2002 and on in arrears and that she the children for was to 11 arrears 2004 for past due child He asserted that S J G jailed for contempt of comi contempt of court for having male guests ovelnight with present S J G filed she had May 00 that she should be 474 6 in on accumulate a motion for continuance prepare for a criminal on proceeding 4 August 5 2004 and could not asserting that properly prepare for the child support The trial hearing court granted two a month continuance After finding S lG pay child 498 00 were a hearing in ordering her monthly and paid ordering an ordering that Thereafter on child support should substantially her on finding to 90 not days 750 00 in in October 8 2004 jail for failure amount atlOlney s produce the children before the that S J G amount was was in arrearages for to of fees plus court on 6 474 00 executory a rule to show be decreased and for contempt of cause comi why asseliing in circumstances and her income had decreased and that fmiher A A G had failed numerous on 200 00 per month until her arrearages October 20 2004 SJ G filed change a judgment child suppOli in the to pay pay A A G A AG support and that the there had been rendered additional that S lG November 15 2004 and for child court contempt and sentencing her support court costs the trial occasions for visitation to S lG provide the children to asked that A A G be punished for contempt and that she be given additional visitation with the children Further she asserted that A A G had failed infonnation regarding the children s to provide her with health and school and that he interfered with her telephone contact with the children By stipulated judgment dated February custody of the children remained with A A G months S lG S lG child 14 would have immediately 2005 and that for the next six only alternate weekend visitation ordered return the children to A A G that and ordered that S lG s support payments be reduced to 275 00 per month On luly 5 2006 A A G filed another rule to for past due child suppOli and for contempt of court sole the court ruled that custody and or tennination of parental rights 5 accumulate arrearages as well as a A A G petition for asselied that S lG failed to arrears in the amount make have male guests that SJ G child support payments that she numerous 12 991 00 and that she had violated of overnight when the children be held in contempt and sentenced payments of had failed 12 991 00 be made to pay child suppOli in excess Thereafter A A G filed and A A G to was to have stipulated judgment had male After a days interest and her actions in were times that S lG alternatively to s WalTant asserting summer divide the K M G the entire vacation and refused summer civil warrant be issued to law enforcement a retrieve K M G to court court ruled for failure jail finding her amount in S lG s arrears The civil warrant was September misdemeanor 19 a September 5 2006 child support and in the amount of finding sentencing 13 816 00 plus executory finding S lG in contempt for parental rights S lG filed on to pay during trial and sentencing S ruling that On kept the trial hearing making that child support numerous 18 2006 S lG in contempt of her to 90 or DWI and physical custody of the children during the school accompany him granted on August s of 12 months had failed to exercise custody judgment the parties and he asked that to personnel S lG jail that child support motion and order for civil a year but that nonetheless S lG to retmTI her to be tenninated parental rights that pursuant order not present A A G asked overnight guests and had been arrested for He asked that he be awarded sole and to in executory and further asserted that SJ G visitation since the rendition of the female were an was motion for were new 2006 the trial sentence to lG to an additional 90 days in jail terminated for failure trial which was denied comi signed probation ruling an order commuting that she had purged herself of the contempt by paying all financial obligations 6 to pay partially to A A G and with from jail consent and placed SJ G is her of counsel the trial on two years following assignments ordered that SJ G be released unsupervised bench probation appealing the September parental rights and found 1 court her in 5 2006 judgment that terminated contempt of She makes the court of error The Trial Court erred in terminating Appellant s parental there is no basis in the law for such a penalty and no rights evidence was presented that justified this punishment as The Trial Court erred in 2 request for continuance involved one appellant s of the most parental rights failing paliicularly to grant the Appellant s because drastic consequences and incarceration 3 hearing termination of The Trial Court erred in 4 the The Trial Court erred in imposing jail time to appellant for non payment of child support without allowing for any ability for appellant to purge herself by payment of said sums imposing jail time to appellant for contempt of comi as appellant s actions while frustrating to the court did not arise to the level of contemptuousness and complete disruption of the court proceeding to justify such a drastic punishment ASSIGNMENT OF ERROR NO 1 SJ G rights asserts She is that the trial A At any time erred in terminating her parental Code article 1004 s provides for the rights in any hearing in a child in need of the comi on its own motion may order the including proceeding filing of a petition care B Children correct tennination of parental court on any ground authorized by Article 1015 Counsel appointed for the child pursuant to Article 607 may petition for the tennination of parental rights of the parent of the child if the petition alleges a ground authorized by Article 1015 4 5 and although eighteen months have elapsed or 6 since the date of the child s adjudication as a child in need of care no petition has been filed by the district attorney or the department C The district attorney may parental rights of the parent authorized by Article petition for the termination of of the child on any ground 1015 7 D The rights department of the may petition for the termination of parent of the child when any of the parental following apply 1 The child has been subjected child is returned department to abuse or neglect after the the parent s care and custody while under supervision and termination is authorized by AIiicle 1015 3 to G 2 The parent s parental rights to one or more of the child s siblings have been terminated due to neglect or abuse and prior attempts to rehabilitate the parent have been unsuccessful and termination is authorized 3 by by Article 1015 3 The child has been abandoned and tennination is authorized Article 1 015 4 4 The child has been termination is 5 k placed in the custody authorized by Article 1015 5 The child is in foster of the state and the because the parent is incarcerated the termination is authorized by Article 1015 6 E care When termination is authorized by Article 1015 other than the grounds specified by Paragraph D of this Article by special appointment the district attorney may designate counsel for the depmiment as a special assistant authorized to act in his stead in all such tennination actions or in a particular case on F By special appointment for a particular case the court or the district attorney may designate private counsel authorized to petition for the termination of parental rights of the parent of the child on the ground of abandonment authorized by AIiicle 1015 4 G Foster parents who intend adopt the child may petition for the tennination of parental rights of the foster child s parents when in accordance with Article 702 D adoption is the permanent plan for the child the child has been in state custody to under the foster parent s care for seventeen of the last twenty two months and the department has failed to petition for such termination H When termination is authorized by Article 1 1015 or 2 and no petition is filed to terminate the parental rights of the surviving parent pursuant to Paragraph A C or E of this Article after written request to file such action is made to the district attorney by any interested person and no petition is filed within sixty days by the district attorney that person may file suit to a terminate the parental rights 8 of the surviving parent Louisiana Children parental rights where Code article 1015 4 The 4 Code Article s 1015 4 parent has abandoned a b permits termination child a of Louisiana Children s provides for grounds termination of parental rights are Abandorunent of the child custody of nonparent a or by placing him in the physical the department or by otherwise him under circumstances leaving permanently avoid demonstrating parental responsibility an by intention to of the any following b As of the time the petition is filed the parent has failed provide significant contributions to the child s for any period of six consecutive months At the made the 18 2006 previous b comi judgment State proceedings her children s parental rights for this s or La terminate another under which one another parent an s Ch C support found that S J G had care 2004 and support since Under La Ch C by the parent and the trial mi court reason Code however makes 1004 mi There is no abundantly private right parent s parental rights and there parent may file 1220 and clear that authorized State official may institute termination Mouret 886 S02d 1217 01 to of November 15 The Louisiana Children 14 3 court this constitutes abandonment terminated S J G only the the trial hearing significant contributions no 1015 4 August care to 785 So 2d 857 State 858 ex see circumstances petition to terminate the parental rights Godeaux 2004 496 v see a are no of action to reI D M also In re La App 2000 0451 of 3 Cir 11 10 04 La Dantzer 99 0625 4 Cir App La App Cir 6 25 99 739 So 2d 907 writ denied 99 2228 La 8 2 99 747 So 2d 38 Furthennore flexible parental custody interest procedural requirements are not Courts have widely acknowledged the sanctity of rights stating that p Jarental rights to the care and management of children is a fundamental liberty deference and vigilant protection warranting great under the law Cir 12 2 these 03 State ref A CH 02 1014 p 4 La App 3 846 So 2d 791 794 writ denied 03 566 La ex 9 1 14 3 of 03 839 So 2d 50 quotation omitted Thus termination parental rights is one of the most drastic actions the State take against its citizens State ex reI JA 99 2905 p 9 can La 1 12 00 752 So 2d 806 811 As a result the Louisiana legislature has imposed strict procedural and evidentiary requirements that must be met before the issuance of a State ex reI E c 99 judgment tenninating parental rights 629 p 5 La App 1 Cir 6 25 99 739 So 2d318 321 A CH 846 So 2d 791 Mouret Godeaux 886 So 2d v In this case the trial termination under La termination petition did the nor Finally special private Ch court C court neither the counsel to at 1220 did follow the proper 1004 art on not its court The State did own nor bring such petition a of such a authorized a filing Attorney See Mouret for petition for not motion order the the District procedures Godeaux v 886 So 2d at 1220 Rather the court petition brought by requirements based its tennination of S J G A A G of tennination safeguard parental rights This contravenes parental rights of S See Mouret JG See La Ch C art 1004 motion La C C P remedy custody See State Thus that S J G is vacated to terminate ex AA G reI D M s right no by 927 the strict Godeaux 886 So 2d v action to initiate suit may be noticed mi parental rights on a procedural proceedings implemented by the legislature Thus the law is clear that A A G has the s the at 1220 of action to tenninate The lack of appellate court is to seek a a on right its modification of 785 So 2d at 859 a parental rights thus further proceedings in the of own pOliion of the judgment terminating the parental rights A A G filed to petition for sole custody and we remand the custody dispute previous stipulated judgment in this case 10 case to the or a trial of petition court for In the interim in accord with the dated February 14 2005 custody of the children remains with A A G and S lG S lG has alternate weekend visitation child support payments remain s at 275 00 per month ASSIGNMENT OF ERROR NO 2 S lG asserts we court find ened in court her request for denying After careful consideration of the record and continuance trial that the trial had already granted S lG abuse of discretion no a two month finding that the continuance in this the trial court in by a its case denial of the continuance ASSIGNMENT OF ERROR NO 3 S lG asserts that the trial court ened in imposing jail payment of child support without allowing appellant payment of said opportunities We find no to pay her to purge The record shows that S lG sums child support abuse of discretion by the during the trial court non herself had of the course in this time for by numerous proceedings matter ASSIGNMENT OF ERROR NO 4 S lG asserts contempt of proceeding to of discretion ened in while of contemptuousness and justify such shows that S lG court because her actions court arise to the level that the trial a drastic by the frustrating to the time for court did not complete disruption of the court punishment intenupted the hearing imposing jail numerous A review of the record times We find no abuse trial court in this matter DECREE Therefore for the foregoing that terminated S lG s reasons that parental rights portion of the trial court judgment is vacated and in all other 11 aspects the trial court judgment is affirmed The prevIOUS judgment dated February 14 remanded for fmiher Costs are to the trial assessed VACATED court against A A IN 2005 remains stipulated in child effect and the proceedings in the custody case IS custody dispute G PART AFFIRMED REMANDED 12 IN PART AND

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