State of Louisiana In The Interest of D. M. S.
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NO 2011 CJ 0268 STATE OF LOUISIANA IN THE INTEREST OF S M D DOB MAY 6 2008 Judgment rendered June 10 2011 1 Appealed from the City Court of Slidell Juvenile Division in and for the Parish of St Tammany Louisiana V Trial Court No 10 JS 3301 Honorable James Jim Lamz Judge JOSEPH B HARVIN ATTORNEY FOR SLIDELL LA APPELLANT B M S MOTHER P ANNE THOMPSON ATTORNEY FOR COVINGTON LA APPELLEE LOUISIANA DEPARTMENT OF CHILDREN AND FAMILY SERVICES NAN BOUSFIELD ATTORNEY FOR SLIDELL LA S M D BEFORE KUHN PETTIGREW AND HIGGINBOTHAM 33 PETTIGREW J Appellant S seeks review of the trial court judgment terminating her B M s parental rights as to the minor child D pursuant to La Ch Code art 1015 S M k 3 B M S argues on appeal that the State of Louisiana Department of Children and Family Services State failed to prove by clear and convincing evidence that prior attempts to rehabilitate her were unsuccessful and that termination was in the child best interest s For the reasons that follow we affirm According to the record D who was nine months old at the time originally S M entered the State custody by Instanter Order on February 26 2009 Her parents who s were arrested two days earlier for domestic violence had arranged to leave D in the S M care of a neighbor However on the following day D somehow ended up with her S M grandfather who advised the State that he could not take care of D This led to the S M February 26 2009 Instanter Order D was subsequently adjudicated a child in need S M of care on May 4 2009 and was continued in the State custody A case plan with s services for the parents was approved by the trial court and the child parents S s B M and K were ordered to comply so that reunification with D might be achieved S M S M At the 12Month Dispositional Case Review Hearing on March 2 2010 the trial court found that inadequate progress had been made toward alleviating or mitigating the causes necessitating placement in foster case and that reunification was impossible at 1 The grounds for involuntary termination of parental rights are set forth in La Ch Code art 1015 in pertinent part as follows 3 Misconduct of the parent toward this child or any other child of the parent or any other child in his household which constitutes extreme abuse cruel and inhuman treatment or grossly negligent behavior below a reasonable standard of human decency including but not limited to the conviction commission aiding or abetting attempting conspiring or soliciting to commit any of the following k The parent parental rights to one or more of the child siblings have been s s terminated due to neglect or abuse and prior attempts to rehabilitate the parent have been unsuccessful Z See La R 36 471 creating the department and La Acts 2010 No 877 S 3 directing the Louisiana Law Institute to change all references to the Department of Social Services to the Department of Children and Family Services and all references to either the Office of Community Services or the Office of Family Support to the Office of Children and Family Services throughout the Louisiana Revised Statutes of 1950 FA this time The trial court then changed the plan for permanent placement for D S M from reunification to adoption A petition for termination of parental rights and certification for adoption was filed on June 24 2010 seeking to terminate the rights of S and K The State sought B M S M termination based on La Ch Code art 1015 and 5 noting in part as follows k 3 VI UNDER 1015 3 K The misconduct of S toward this child B M any other child of hers or any other child in her household which constitutes extreme abuse cruel and inhuman treatment or grossly negligent behavior below a reasonable standard of human decency including but not limited to The parental rights of the mother S to this child B M s siblings were involuntarily terminated due to abuse or neglect on the 5th day of May 2008 and prior attempts to rehabilitate the mother have been unsuccessful 011 UNDER 1015 5 On February 26 2009 the child entered state custody pursuant to Court Order The child has remained in custody since that time a period of more than one year S has not substantially B M complied with the case plan for services filed by the Department and approved by the Court as necessary for the safe return for the child as evidenced in part by 1 S repeated failure to comply with the required s B M program of treatment and rehabilitation services provided in the case plan 2 S lack of substantial improvement in redressing s B M the problems preventing reunification and the persistence of conditions that led to removal a she has not acknowledged her for the circumstances responsibility necessitating state custody for the child instead choosing to blame the state the child caretaker her mother and s S M K b she has not cooperated with the epartment D even while under Court scrutiny and facing termination of her parental rights c she appeared at a family gathering under the influence of either drugs or alcohol d despite her prior termination of parental rights due to her substance 3 We note that K has not appealed the judgment below Thus the judgment is final as it relates to the S M termination of his parental rights to D S M 3 abuse and failure to rehabilitate she still has not significantly changed the behaviors which necessitated the child s removal The matter proceeded to a hearing on October 12 2010 at which time the trial court heard testimony from various witnesses including S B M After considering the testimony and evidence in the record the trial court found that the State had proven by clear and convincing evidence that S parental rights had previously been s B M terminated as to two of her other children because of substance abuse and that prior B M attempts at rehabilitation had been unsuccessful The trial court ruled that S was not a credible witness and that she was feigning the mental health problems in order to get the substances that she craves so desperately The trial court further found that short of locking S up 24 hours a day to protect her from herself there was not B M much more the State could have done to help her as she has refused to recognize that she has a continuing substance abuse problem Thus the trial court concluded that it was in the child best interest to terminate S parental rights pursuant to Article s s B M k 3 1015 The trial court signed a judgment terminating S parental rights and s B M freeing D for adoption on October 22 2010 This appeal by S followed S M B M On appeal S argues that the State failed to meet its burden of proof by B M establishing each element of Article 1015 by clear and convincing evidence S k 3 B M does not contest that her parental rights to two of her other children were involuntarily terminated However she contends that the State has failed to prove that prior attempts at rehabilitation were unsuccessful A court of appeal may not overturn a judgment of a juvenile court absent an error of law or a factual finding that is manifestly erroneous or clearly wrong Stobart v State Through Department of Transportation and Development 617 So 2d 880 882 La 1993 State In Interest of GA 942227 p 4 La App 1st Cir 95 27 7 664 So 106 110 An appellate court reviews a trial court findings as to 2d s whether parental rights should be terminated according to the manifest error standard State ex rel K 20022886 p 4 La 3 841 So 759 762 G 03 18 2d 4 The Louisiana Supreme Court has expressed the unique concerns present in all cases of involuntary termination of parental rights as follows 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 parent s child relationship only under serious circumstances such as where the State seeks the permanent severance of that relationship in an involuntary The fundamental purpose of involuntary termination proceeding 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 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 Title X of the Children Code governs the involuntary termination s of 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 judge 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 ex rel J 99 2905 pp 7 9 La 1 752 So 806 810811 citations A 00 12 2d omitted The fundamental liberty interest of natural parents in the care custody and management of their child does not evaporate simply because they have not been 01 28 model parents State ex rel SNW v Mitchell 2001 2128 p 8 La 11 800 I 2d SO 809 814 quoting Santosky v Kramer 455 U 745 753 102 S 1388 S Ct 13941395 71 L 599 606 1982 A corollary principle is that in an involuntarily 2d Ed termination of parental rights proceeding a court must delicately balance the natural s parent fundamental right and the child right to a permanent home Mitchell 2001 s 2128 at 8 800 So at 814815 2d We have thoroughly reviewed the record in this matter and the history leading up to the State petition for termination of S parental rights The record clearly s s B M and convincingly demonstrates that it was in the best interest of D that S S M s B M parental rights be terminated and she be cleared for adoption The trial court s conclusion is supported by the evidence and therefore not manifestly erroneous For the above and foregoing reasons the judgment of the trial court is affirmed All costs associated with this appeal are assessed against appellant S B M We issue this memorandum opinion in accordance with Uniform RulesCourts of Appeal Rule 2 16 AFFIRMED P
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