State of Louisiana In The Interest of T. R., W. R. and P. R.
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STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2009 CJ 2203 STATE OF LOUISIANA IN THE INTEREST OF T W AND P RR R Judgment Rendered MAY 13 2010 On Appeal from the Juvenile Court In and for the Parish of East Baton Rouge State of Louisiana Docket No JU10220 Honorable Pamela Taylor Johnson Judge Presiding Sherry Ann Powell Baton Rouge Louisiana Counsel for Plaintiff1 Appellant State of Louisiana Department of Social Services Devonna Ponthieu Counsel for 2 Appellant nd Denham Springs Louisiana W L Kimberly Morgan Baton Rouge Louisiana Counsel for DefendantAppellee 13VgRE WR DOWNING G IDRY AND McCLENDON qJ MCCLENDON J This is a proceeding to involuntarily terminate parental rights The lower court terminated the parental rights of the mother but did not terminate the parental rights of the father For the reasons that follow we affirm in part reverse in part and render FACTUAL AND PROCEDURAL HISTORY On June 1 2007 the State of Louisiana Department of Social Services Office of Community Services OCS filed a Petition for Certification for Adoption and Termination of Parental Rights regarding three minor children T W R R Jr and P The mother of the children L is hospitalized at the Eastern R W Louisiana Mental Health System known as the Feliciana Forensic Facility in Jackson and the father W last resided in St Francisville In its petition OCS R alleged that the children first entered foster care on February 24 2005 due to neglect by their father The trailer in which they were living was in deplorable condition and they were threatened with eviction The father refused to move his family to a shelter because he could not take his dogs The petition further alleges that the children were returned to their father custody on May 17 s 2005 pursuant to an Informal Adjustment Agreement The children were returned to foster care on August 16 2005 after the father was arrested for simple battery on T outside the child school R s s state custody since that time They have remained in the On November 28 2005 the children were adjudicated children in need of care With regard to the mother OCS alleged that L was arrested for W attempted murder in 2000 and as a result she was involuntarily committed for an indefinite time to the Feliciana Forensic Facility W L remains committed without a release date Thus according to OCS L is unable to care for her W children OCS further asserted that L understands that she cannot presently W care for her children and would like them to remain in foster care However R T was born on September 16 1995 W Jr was born on December 5 1997 and P was R R born on August 16 1999 2 OCS contends that this is not an acceptable permanent plan Further OCS asserted that because of her confinement L has not substantially complied W with her case plan and it is unlikely that there will be significant improvement in s W L condition in the near future As to the father OCS sought termination of W parental rights s R asserting that he has not substantially complied with the case plans over the course of the case Specifically OCS alleged 1 W was ordered to obtain and demonstrate that he maintain R safe and stable housing He was incarcerated from July 2006 until December 2006 He was arrested for cocaine possession Prior to his arrest he was living rentfree in a friend storage trailer Since s being released from prison he has been residing with his mother and this was intended as temporary W has failed to obtain R and demonstrate that he can maintain safe and stable housing suitable for his children 2 W was ordered to obtain and maintain stable employment He R now states he is employed but has been unemployed more than he has worked W did not pay the requested 100 child support R In fact it was learned W had continued to receive W Jr R Rs social security check of 600 per month although W Jr was in R the custody of OCS W could have contributed those funds R towards the costs of care but he did not 3 W was ordered to remain drug free On June 8 2006 he R tested positive at court on his drug screen He was arrested for cocaine possession in August 2006 W failed to schedule a R substance abuse evaluation before his arrest R W reports keeping two appointments at Capital Area Center for Addictive Disorders The case manager was ordered to receive the reports R W stopped attending the classes when he started work R W has yet to demonstrate that he has remained drug and alcohol free 4 W did participate in a psychological evaluation with Dr R Toldano who recommended completion of parenting classes and progress in therapy should be ascertained before consideration is given to returning his children to his care W attended only 1 R of 3 sessions at Family Roads for parenting He only made 7 of 15 sessions of parenting classes held at Discovery W has not R completed therapy Most recently W has engaged in R parenting classesanger management at Discovery 5 W has not been consistent in exercising visitation with P R R and W Jr His visits with T were suspended by the Court R R on the recommendation of her therapist Most recently since the Court set the goal as adoption W has been more deliberate in R his visits 6 W has not fully complied with his case plan There is no R reasonable expectation of improvement in his compliance in the 3 near future Based upon his history of substance abuse and incarcerations the likelihood of reformation is minimal The adjudication hearing for the termination of the parental rights of L W and W was held on September 24 and 25 2007 Oral reasons were rendered R on October 30 2007 terminating the parental rights of L but dismissing the W petition as to the father W Judgment was signed in accordance with the R ruling on December 7 2007 OCS and L each appealed W On appeal OCS contends that the trial court erred in finding that it had not proven by clear and convincing evidence the grounds for termination of s R W parental rights In her appeal L asserts that the trial court erred in W finding that OCS had proven by clear and convincing evidence that the grounds for the termination of her parental rights were met APPLICABLE LAW An appellate court reviews a trial court findings as to whether parental s rights should be terminated according to the manifest error standard State ex rel D 081541 p 11 La 12 998 So 681 687 The Louisiana R L 08 2d Supreme Court has repeatedly expressed its concerns regarding the involuntary termination of parental rights In any case to involuntarily terminate parental rights there are two private interests involved those of the parents and those of the child The parents have a natural fundamental liberty interest to the continuing companionship care custody and management of their children warranting great deference and vigilant protection under the law and due process requires that a fundamentally fair procedure be followed when the state seeks to terminate the parentchild legal relationship However the child has a profound interest often at odds with those of his parents in terminating parental rights that prevent adoption and inhibit establishing secure stable long term and continuous relationships found in a home with proper parental care In balancing these interests the courts of this state have consistently found the interest of the child to be paramount over that of the parent The State parens patriae power allows intervention in the s parentchild relationship only under serious circumstances such as where the State seeks the permanent severance of that relationship in an involuntary termination proceeding The fundamental purpose of involuntary termination proceedings is to provide the greatest possible protection to a child whose parents are unwilling or unable to provide adequate care for his physical emotional and mental health needs and adequate rearing by providing an expeditious judicial process for the termination of all parental rights and 12 responsibilities and to achieve permanency and stability for 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 parents to be terminated As such the primary concern of the courts and the State remains to secure the best interest for the child including termination of parental rights if justifiable grounds exist and are proven Nonetheless 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 The potential loss to the parent is grievous perhaps more so than the loss of personal freedom caused by incarceration Citations omitted State in the Interest of J 99 2905 pp 79 La 1 752 So 806 A 00 12 2d 810 11 See also State ex rel D 081541 at p 11 998 So at 687 88 R L 2d State ex rel K 02 2886 pp 4 5 La 3 841 So 759 762 63 G 03 18 2d State ex rel C 002375 pp 78 La 11 774 So 107 113 K J 00 28 2d Title X of the Children Code governs the involuntary termination of s parental rights Article 1015 provides the statutory grounds by which a court may involuntarily terminate the rights and privileges of parents The state need establish only one ground but the court must also find that the termination is in the best interest of the child Additionally the state must prove the elements of one of the enumerated grounds by clear and convincing evidence to sever the parental bond State in the Interest of J 992905 at p 9 752 So at A 2d 811 Thus a court considering a petition to terminate parental rights must make two findings 1 that OCS established one of the enumerated grounds for termination set forth in LSACh art 1015 by clear and convincing evidence C and 2 that termination is in the best interest of the child State ex rel D R L 081541 at p 12 998 So at 688 2d Pertinent to this matter is LSA Ch art 1015 which provides C 5 The grounds for termination of parental rights are Unless sooner permitted by the court at least one year has elapsed since a child was removed from the parent custody s 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 5 the safe return of the child and despite earlier intervention there is no reasonable expectation of significant improvement in the s parent condition or conduct in the near future considering the s child age and his need for a safe stable and permanent home s Children Code article 1036C provides C Under Article 1015 lack of parental compliance with a 5 case plan may be evidenced by one or more of the following 1 The parent failure to attend courtapproved scheduled s visitations with the child 2 The parent failure to communicate with the child s 3 The parent failure to keep the department apprised of s the parent whereabouts and significant changes affecting the s s parent ability to comply with the case plan for services 4 The parent failure to contribute to the costs of the s sfoster care if ordered to do so by the court when approving child the case plan 5 The parent repeated failure to comply with the required s program of treatment and rehabilitation services provided in the case plan 6 The parent lack of substantial s redressing the problems preventing reunification improvement in 7 The persistence of conditions that led to removal or similar potentially harmful conditions Additionally LSACh art 1036D provides C Under Article 1015 lack of any reasonable expectation of 5 significant improvement in the parent conduct in the near future s 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 Termination of W Parental Riohts s R In this appeal OCS contends that it proved by clear and convincing evidence each and every element required by LSACh art 1015 as to W C 5 R and that the trial court manifestly erred in its conclusions It is undisputed that the children have been in the state custody since s August 16 2005 a period of more than two years at the time of trial and thus clearly for more than a year as required by LSACh art 1015 C 5 Numerous case plans were approved over the course of this matter The case plans set forth the issues that W needed to address 1 housing 2 R employment 3 parenting 4 visits and 5 substance abuse OCS argues that there was no evidentiary support for the trial court conclusion that W s R substantially complied with the case plans and that the court failed to recognize the overwhelming testimony and evidence presented that W did R not substantially comply Thus according to OCS the trial court was clearly wrong OCS also maintains that the trial court manifestly erred in concluding that OCS did not meet its burden of proof with regard to the third prong as the evidence clearly showed that there was no reasonable expectation of significant improvement in W conduct in the near future s R To establish W failure to substantially comply with the case plans and s R to establish the lack of any reasonable expectation of significant improvement in his conduct OCS offered the testimony of several witnesses Linda Singleton an OCS child investigator first testified She stated that in February 2005 she received a report alleging inadequate shelter regarding W home s R Upon investigation Ms Singleton stated that the home was in deplorable condition R W however was cooperative and answered all questions The final findings were inadequate shelter and inadequate food W initially agreed to participate R in all family services requested by OCS but later became irate and declined any services Ms Singleton testified that based on his failure to voluntarily participate she requested and received a verbal hold order taken into state custody on February 24 2005 7 The children were Betty Wright an OCS case manager testified that she was assigned the case on February 24 2005 She testified that initially she was not sure where R W was living as he would not give her an address but she later determined that he moved into a family friend home in Baton Rouge W was told to look s R for housing and employment He made sketchy progress as he was living with a friend and had no stable employment On May 17 2005 OCS and W R entered into an informal adjustment agreement and the children were returned to his care The conditions of the agreement were that W would be employed R within thirty days W would find a residence within sixty to ninety days OCS R would provide daycare assistance upon W employment W would take the s R R children to a doctor for examination and provide proof of such the parents would cooperate with OCS W and the children would continue to reside at the R Baton Rouge address unless prior notice was given to OCS and W would R comply with visitation by the children with the mother Ms Wright testified that R W complied with some of the conditions employment but he found housing He was not able to find stable Ms Wright involvement with the case s ended on June 23 2005 Joseph Price an OCS investigator testified that he investigated an August 15 2005 report of physical abuse by W upon T in front of her school W R R R said he did not hit T Mr Price testified that the report was validated for the R abuse and there was also a finding of neglect because of the condition of the trailer that they were living in He stated it was not a safe environment for the children W was arrested and the children were taken into state custody and R subsequently adjudicated to be children in need of care Henrietta Esedo a former case manager at OCS testified that she was assigned the case in August 2005 R W was incarcerated and L was W confined in the Feliciana Forensic Facility On September 9 2005 an initial family team conference was held and a six month case plan developed R W was to obtain a safe and stable home obtain stable employment maintain contact with the children learn parenting skills participate in a psychological evaluation have a substance abuse evaluation and maintain contact with OCS Ms Esedo testified that in reference to W she arranged for psychological R testing with Dr Toldson arranged for parenting classes and provided him information regarding housing and employment She also testified that she gave him bus tokens and money She stated that it was hard to make contact with him although he gave her an address At some point he gave her a phone number where she could leave a message Ms Esedo also had a problem with R W complying with the substance abuse evaluation requirement W missed R some of the parenting skills classes and some visitations with the children and he did not comply with the job search requirement Ms Esedo testified that R W always had excuses and stated he was doing the best he could A family team conference was held in February 2006 but W was not R present as he was incarcerated The new case plan had additional requirements for W including providing documentation of his job search to include contact R persons and telephone numbers and addresses It also provided that he was to maintain contact with the case manager Ms Esedo stated she had difficulty contacting him and was the one chasing him everywhere to try to meet with him She testified that it was a battle trying to get him to do what he needed to do Ms Esedo also stated that there was no move to get a safe and stable home by W even with his employment R As far as compliance with the February 2006 case plan Ms Esedo testified that W missed eight of the fifteen scheduled parenting classes and R missed four of sixteen visits with the children She stated he had yet to supply documentation regarding his job search nor had he complied with maintaining contact with her Additionally he did not follow through with a substance abuse evaluation Ms Esedo testified that W was in court for a hearing on June 8 R 2006 and a drug test was ordered by the court After the test came back positive W told the court that he had already arranged for substance abuse R treatment At a later date W told her he did not follow through because he R did not need it Q Ms Esedo left OCS in September 2006 at which time it was OCS s recommendation that adoption as a permanent plan was in the best interests of the children Janice Coleman is an OCS child welfare specialist who was assigned the case from September 2006 until January 2007 She testified that W was R incarcerated for possession of cocaine when she took over the case 24 2006 case plan by Ms Esedo was in effect at that time The July Ms Coleman testified that W made very little progress with the case plan primarily because R he was incarcerated and not released until December 2006 At that time he contacted her to arrange a visit with his children and he started to try to comply with the plan residence R W R W gave Ms Coleman his mother address as his place of s She stated they went over the case plan and the things required of Ms Coleman testified that W did start to visit his children and attended R some parenting classes She was told by W that he found a job but he never R supplied documentation to verify that he was employed Ms Coleman also testified that W Jr received a 600 per month social security check that R would normally go to the state since he was in the state custody however s through a mix up W continued to receive it for more than a year At that R time W was living in an abandoned trailer and she did not know what he did R with the money Also as far as Ms Coleman knew W never underwent a R substance abuse assessment as he said he would In Ms Coleman opinion the s most significant issues were W lack of a stable place to live stable s R employment and substance abuse treatment Alba MeltonBrown was the OCS foster care worker assigned to this case in March 2007 A family team conference was held on July 26 2007 and W R was not present The case plan developed at that time was similar to the last one with the exception that W had completed parenting classes R At the 2 The July 24 2006 case plan was approved by the trial court at a permanency hearing held on August 28 2006 The trial court also determined that the permanent plan that was the most appropriate and in the best interest of the children was adoption The court further ordered OCS to file a petition for termination of parental rights 10 family visit on September 18 2007 W reported that he was living at an R address on East Mason Street in Baton Rouge When Ms Melton Brown went by the house being unable to reach W by telephone the individuals sitting on R the porch did not know W by either name he used In her opinion the home R did not look to be appropriate housing for his children Ms Melton Brown testified that she made contacts regarding low income housing for W but R because of his criminal record she could not find anything for him Also W s R mail was being returned from the St Francisville address even though he said he lived there Ms Melton Brown also testified that on one occasion she asked R W about doing a home study at his mother house but his mother home s s was never offered as a possible placement When Ms MeltonBrown called his s mother home most of the time his mother answered but W was never R there Ms MeltonBrown continued to ask for a telephone number where W R could be reached R W gave her two different numbers One number was disconnected and no one knew W at the other number R Ms Melton Brown testified that W never asked her for assistance for housing and that she never R could actually locate where he was living She stated that W still had not met R the goal of obtaining housing for his children R W told Ms MeltonBrown that he was working and she asked him for verification of his employment W stated he would bring her verification but R he never did In her opinion he had not achieved the goal of employment Ms MeltonBrown believed however that he had substantially complied with the case plan with regard to the visits with his children With her help in locating a center W underwent a substance abuse assessment on May 4 2007 He did R not follow through with the recommended services He was discharged from the program due to lack of attendance When Ms MeltonBrown asked W about R the discharge he stated that he was really stressed out and going through a lot Ms MeltonBrown summarized that in reviewing the case plan W still R had shown no documentation of employment or income no documentation of 11 safe and adequate housing and no documentation of the completion of a substance abuse program s OCS recommendation was for adoption as there has not been any significant change in progress Dr Ivory Toldson an expert in counseling psychology testified that he assessed W on October 27 2005 after W was referred to him by OCS Dr R R Toldson testified that W was cooperative in answering his questions but he R was not able to assume any personal responsibility for his circumstances feeling that he was a victim of wrongful persecution W reported a desire to father R his children and have them in his care W was aware that his living conditions R and capacity to provide revenue for the family were deficient W wanted OCS R to do more to help in those regards Dr Toldson stated that he was concerned that W initiative in those regards was less than what was expected of an s R adult male who wished to father his children seemed to have been there He stated that while the desire the effort was more one of seeking help rather than real pro active looking and searching for ways to remedy his inadequate circumstances to make better provisions for the children Dr Toldson stated that from a mental health standpoint however that was not considered a mental disorder What he saw were lots of feelings of persecution and a lot of blaming externally for his circumstance and certainly a failure to assume any ownership of any problems that he found himself with At that time Dr Toldson believed that if W could have secured gainful employment and a R decent place to live coupled with his seemingly sincere desire to care for his children the children could be returned to his care Substance abuse was not an issue the first time W was interviewed R Dr Toldson saw W again on April 5 2006 when he was asked by OCS R to see W and his children together in order to give a more definitive opinion R about W ability to assume custody of his children Dr Toldson testified that s R there was no change The children were encouraged to express their feelings about returning to their father care The two younger children were certainly s favorable towards that prospect The oldest child was adamantly opposed 12 however and that created a little bit of discord because W felt that she had R been negatively influenced by the foster parents Dr Toldson stated that W R was defensive and verbally aggressive towards T Dr Toldson also reported R however that W did exhibit positive parenting responses to W Jr who was R R having the most difficulty in adjusting W responses to him were appropriate s R and demonstrated an ability to exhibit positive parenting responses Because s R W circumstances had not changed reunification was still not possible and continued family therapy was recommended When asked what his prognosis for R W would be if he was told that W still had no stable employment or R housing at the time of trial Dr Toldson responded that it would certainly reduce the level of optimism for a positive conclusion Celia Mallad a licensed social worker and an expert in the field of clinical social work testified that OCS referred the case to her because of issues with R R T T was unwilling to see her father and those visits were suspended She saw all the children and W Her initial observations were that W had a great R R interest in his children and the younger two children interacted with him in a positive way W indicated to her that he was wrongly accused of hitting T R R During her first contact with W on May 15 2007 he was very cooperative R with everyone involved and appeared to be meeting expectations Ms Mallad s last contact with W was on June 19 2007 He had finished parenting classes R told her that he was working but what stood out to her was that he had not yet secured adequate housing money for gas In that last session W also asked her for some R By the time of the last visit Ms Mallad had some concern because she understood that W was missing family and substance abuse R meetings She believed that W was perfectly capable of getting back on R track for his children if he really wants to do that She also stated that the children seemed to be doing well in foster care R W testified on his behalf temporary work He testified that he was currently doing R W testified that beginning in 2005 he worked at Georgia Pacific doing contract work and then for Turner building scaffolds He stated he 13 gave a copy of his check stubs to Ms Esedo and also to Ms Brown He said he also gave a copy of a check stub to the court in February 2007 W stated he R was laid off from Turner because his car broke down He next worked for G M Cable out of Central After G M Cable W testified that he was doing R temporary home repair work for the Browns friends he met through church When discussing the incident with T he denied punching her but said he was R arrested the next day and spent about fifteen days in jail W testified that he R was also incarcerated in June 2006 for about six months on a charge of possession of cocaine He stated that the case was dismissed With regard to substance abuse treatment W stated that Ms Brown did not give him any R information until a few weeks before trial treatment until his car broke down He stated he did attend some drug R W stated that OCS has done nothing to assist him in finding housing He testified that he received one list in 2006 but it was for senior citizens R W further stated that he has talked to OCS from the beginning about finding him housing and that it has been his number one priority W stated he visits his children twice a month and has taken off work R to do so On two or three occasions the children were not present for the visit On cross examination when asked where his children would stay if they were immediately returned to him W stated that the only place he could take R them would be to his mother home s He stated he lives in St Francisville but sometimes stays at the trailer on East Mason Street He stated it was not a drug house and when asked if it was in a drug area he answered by asking what place in Baton Rouge is not a drug area W testified that he used to use R cocaine because he was stressed but no longer uses it On cross examination R W was asked why he did not have a place to live R W responded that he had a lot of bills to pay to stay out of jail Also he stated that his car broke down and he could appointments not get to scheduled substance abuse treatment Ms Mallad had recommended that W participate in a R substance abuse program for six consecutive months on a weekly basis He told her he would do whatever it took to get his children back 14 When asked if he complied W stated he did what he could but admitted that he has not R enrolled in any substance abuse since the recommendation was made in July 2007 With regard to foster care W stated that a this is being perpetrated R II and all of this is a lie because from the beginning they said I had punched my daughter in the mouth okay there no proof of me punching my daughter s Regarding why his children were first placed in custody in February 2005 R W stated There was a problem that occurred Okay I whipped my daughter okay she was running she fell over a bed okay and bruised her leg okay so I was talking to an OCS worker and I was asking her for help with my children okay so my children were at school okay so I told her that if I couldn get no help from OCS I was t going to take my kids and go back to California Okay so by the time I went to the school to get my kids OCS had took my kids already There was no problem for them taking my kids from the beginning There was no problem for them taking my kids the second time Also he stated the house was not in a deplorable condition After W was R evicted from his house and Volunteers of America offered the family shelter R W declined He explained Why I wouldn tgo was because that I had two animals two dogs so I wasn t which was the kids pets and the kids loved the pets going to take that from my kids okay so me I the type of father m like this I provide whatever type of love I can for my kids okay He also explained that the reason he was evicted was because there were holes in the floor and the landlord would not fix the problem s That why it was deplorable W also testified that he used W Jr SSI checks to continue to R Rs support his children with clothes VCRs Play Stations and bicycles them money He gave He testified that the majority of the money went towards the children When asked why he did not take the 600 per month to rent a house R W stated that he did not do that because at the time he was trying to accommodate them When explaining his different addresses W stated that R sometimes he stayed in Baton Rouge because of work He then said that the address on East Mason he gave to OCS was not where he was living but that he was living down the street Also the telephone numbers he gave to OCS were contact numbers since the trailer down the street did not have a phone W The trial court gave its oral ruling on October 30 2007 With regard to R W the court concluded Although W did not fully comply in every area one hundred R percent he did make significant efforts and strides in all the areas mentioned such as housing employment parenting classes therefore the second prong of 1015 has not been met 5 Furthermore since W did make numerous efforts to comply R with the case plan there exists a reasonable expectation of some significant improvement Therefore the third prong of 1015 5 has not been happening In the present case W has made R substantial compliance with his case plan Testimony revealed that R W has been persistent in applying for obtaining services necessary to place him in a position to regain custody of his children Thus as it relates to W I find that the state has R not met its burden of proof by clear and convincing evidence to terminate W parental rights s R We disagree with the trial court that W had made significant efforts R and had been persistent in applying for obtaining services necessary to place him in a position to regain custody of his children Although the trial court mentioned some compliance with the case plans this is clearly outweighed by the noncompliance and lack of improvement in the problem areas that caused removal and prevented reunification The case plans addressed the myriad of problems that needed to be remedied before the children could be returned home especially the problems with stable employment and substance abuse treatment housing stable and verified These concerns have not been adequately addressed and complied with by W R While some improvements may have been made in some areas such as parenting classes and visitation significant problems remain Further OCS has tried to assist W throughout R this process but the same concerns remain The conditions that led to the removal of the children persist despite the passage of more than two years Based on the foregoing and after thorough review of the record we find manifest error in the trial court conclusion that OCS did not present clear and s convincing evidence of grounds for the termination of W parental rights We s R determine that the trial court manifestly erred in finding that there was substantial parental compliance by W with the case plans R Further W s R 3 The children first entered foster care on February 24 2005 The Petition for Certification for Adoption and Termination of Parental Rights was filed on June 1 2007 16 established pattern of behavior evinces a lack of any reasonable expectation of significant improvement in W conduct in the near future W has shown s R R no substantial improvement for more than two years in redressing the problems that prevent reunification with his children Thus based on our review of the record we also find manifest error in the trial court determination that OCS had s not met its burden of proof by clear and convincing evidence that there was a lack of any reasonable expectation of significant improvement in W conduct s R in the near future We conclude that the record shows that OCS has sufficiently established one of the enumerated grounds set forth in LSACh art 1015 for the C termination of W parental rights We also conclude that said termination is s R in the best interests of the children The children have been in the custody of OCS since August 2005 The testimony established that they are doing well with their current foster families W states that he loves his children and surely he R does However his interests are not the standard by which this case must be resolved The best interests of the children must control the outcome Moreover OCS has attempted to work with W for over two years and as one R OCS worker put it it was always a battle There simply has been little improvement and likelihood for nothing to evidence any improvement Termination of W parental rights is in the best interest of the children s R Termination of L Parental Rights s W With regard to the mother Dr Jason Thomas a staff psychiatrist at Feliciana Forensic Facility and an expert in forensic psychiatry testified that L W was admitted to the hospital in December 2002 and that she has continuously remained there since that time He stated that L was found not guilty by W reason of insanity to a charge of aggravated battery in August 2003 Dr Thomas testified that he sees L at least one a month and that L has been W W diagnosed medications with schizoaffective disorder She is currently on multiple The latest court review of judicial commitment prepared by Dr Thomas in August 2007 indicated that L treatment response had recently s W 17 been poor Dr Thomas testified to a history of violence paranoia and noncompliance with medication current mental status He stated that he was concerned about her W L was also transferred to a more restrictive unit in June 2007 He further reported that L has limited to poor insight regarding W her illness and past actions When asked if L could care for her children Dr Thomas responded W that although he did not assess her in that role he believed that she was impaired because of her mental illness Dr Thomas did find some positives stating that L currently was taking her medication recently went on an W excursion and was working as a housekeeper on the unit Although Dr Thomas conceded that it was possible that L could be released and go home in less W than a year he also believed that would be very difficult given her history and current mental state The trial court determined that L has been unable to comply with her W case plans because of her commitment The court further found that L had W been unable to care for her children for the past seven years and that the testimony at trial indicated that there was no expectation of significant improvement The court concluded that OCS had met its burden of proof under LSACh art 1015 and additionally that it was in the best interests of the C children to terminate the parental rights of L W Based upon our thorough review of the record we cannot say that the court was clearly wrong in its factual findings as to L W CONCLUSION Based on the facts and evidence presented we conclude that it is in the best interests of the children to terminate the parental rights of W and L R W Accordingly we reverse that portion of the trial court judgment dismissing OCS s petition to terminate the parental rights of W In all other respects including R the termination of the parental rights of L the judgment is affirmed W Judgment is rendered totally and irrevocably terminating the parental rights of R W and certifying the children T W Jr and P free and eligible for R R R 1H adoption See LSACh art 1037F Costs of this appeal are assessed onehalf C to W and onehalf to L R W REVERSED IN PART AFFIRMED IN PART AND RENDERED 19 STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2009 CJ 2203 STATE OF LOUISIANA IN THE INTEREST OF T W AND P RR R DOWNING J concurs and assigns reasons I respectfully concur with the majority opinion out of respect for the opinion of my colleagues Even so the trial court was not clearly wrong in finding that grounds do not exist for the termination of W parental s R rights to his children and termination of his rights is contrary to the s children best interest Expectation ofImprovement In its petition to terminate W parental rights the Department of s R Social ServicesOffice of Community Services stated that W parental s R rights should be terminated pursuant to La Ch art 1015 which is set C 5 out in the majority opinion I agree with the majority to the extent it concludes that significant efforts do not equate to substantial compliance But OCS needs to prove more than this It must also prove by clear and convincing evidence that there is no reasonable expectation of significant improvement in the parent condition or conduct in the near future s In this regard the trial court specifically found that since W did R make numerous efforts to comply with the case plan there exists a reasonable expectation of some significant improvement In so finding the trial court credited the testimony that W made efforts to obtain housing R but OCS did not provide requested assistance Nor did it perform a requested home study of W mother home The trial court credited s R s s R W testimony regarding his employment and his efforts to remain employed W participated in psychological evaluations and completed R parenting classes The trial court found that W visited and attempted to R visit his children on numerous occasions Consequently the trial court found that while W did not fully comply in every area one hundred R percent he did make significant efforts and strives in all mentioned such as housing employment parenting the areas classes Contradictory evidence exists on some of these issues but the trial court s determinations of credibility and findings of fact should not be reversed on appeal unless they are clearly wrong which they are not In determining that a reasonable expectation of improvement exists the trial court found that i n addition to his compliance somewhat with his case plan the testimony of Celia Mallard indicated that there was some compliance and there was some hope of reformation There was some expectation that he will be able to comply Ms Mallard is a licensed social worker and an expert in the field of clinical social work referred by OCS who last saw W approximately three months prior to the trial of this R matter Ms Mallard ultimate recommendation was that W be given six s R months to prove that he could consistently maintain a job get back on track with substance abuse and find a place that would be suitable for his family Her testimony reveals the following She met with all three children She observed that W had great R interest in his children and his children interacted with him in a positive way In connection with taking his children back Ms Mallard stated See Stobart v State Department of Transportation and Development 617 So 880 883 La 1993 2d quoting Canter v Koehring Co 283 So 716 724 La 1973 2d 2 Initially he appeared to be on target at the time that we met He wasn t finished Speaking of the times she met with W she continued And at that R time he pretty much was very cooperative with everyone involved and appeared to be meeting expectations at the time and what I mean by that is that he was involved in the parenting classes offered by Discovery and also at the time I think he was attending substance abuse sessions at the local church He also had a job at that time he said and appeared to have one when he showed up for those visits Ms Mallard observed that at the time of their last meeting tonly real thing that stood out is the fact that he he had not yet secured adequate housing for his children during that last session Regarding the children she stated I think W tried his best to R engage them in conversation and activity paid a lot of attention to what was going on at school was it all positive and 1 felt the kids behavior uh was pretty much normal given the length of time of the visit which was an hour two times it was an hour I think the last time was abbreviated Regarding the oldest child she recommended that visits be suspended temporarily because ofthe problems she was having moving from school to school and from foster home to foster home Regarding W likelihood of success in achieving the plans set out s R for him Ms Mallard affirmed I think W is perfectly capable of doing R that if he wants if he really wants to do that would stop him from I don see anything that t from doing those things that were required of him Despite this prognosis OCS did not allow W the six months R suggested to firm up his compliance with OCS requirements s 3 Further the trial court assessed as good the expectation of W s R reformation The trial court observed A reasonable expectation of your reformation is found to exist if a parent has cooperated with the state officials and has shown some improvement although there are still some problems that exist and this is what we find in W situation See In re s R M B 080996 p 8 La 1 Cir 10 994 So 156 Table App 08 31 2d unpublished This rule is consistent with La Ch art 1036 as set C 3 D out in the majority opinion See Id Considering all these factors together with the trial court reasonable s factual findings and credibility calls the trial court was not clearly wrong in finding that OCS failed to establish the grounds necessary to terminate s R W parental rights Best Interest Under the particular facts ofthis case if grounds for termination were to exist it is still in the children best interest for W to retain his parental s R rights These children will be 15 13 and 11 this year They suffer learning and behavioral deficiencies How is making orphans of them in their best interest The trial court did not rule on best interest of the children since it found that OCS had not proven grounds for termination None of the parties addressed best interest in their briefs Even so in the transcript OCS suggested no ready or possible adoptive placement for these children If a loving stable adoptive home were available I could possibly consider otherwise If W were not interested in his children I could possibly R consider otherwise But the trial court found and the record supports that R W though a very imperfect parent loves and is committed to his children If the children lives were disrupted by W continued s s R involvement I could perhaps consider otherwise but he has a good relationship with the two younger children And while the oldest child does not presently want to see her father nothing in the record suggests that W R exacerbates her behavioral problems He will be there if and when she is ready Dismissing OCS petition to terminate W parental rights does s s R not mean that the children are to be returned to him before he is ready to re assume the full responsibilities of parenthood The children will remain in their two respective foster homes until such time or until they reach the age of majority OCS can file a new petition for termination of W rights if s R conditions deteriorate and if termination becomes the best interest for the children But leaving the children in the foster care system with no parent when they have one committed to them albeit imperfectly does not seem to be in their best interest 5
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