State of Louisiana in the Interest of D.L.G., D.P.B, D.M.G, D.J.G
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2012 C 1609 STATE OF LOUISIANA IN THE INTEREST j I OF D D D AND D GB G LP M G J Y On Appeal from the 17th Judicial District Court Parish of Lafourche Louisiana Special Juvenile Docket Nos 10121 11351 and 10068 Division C Honorable Walter I Lanier III Judge Presiding David G Arceneaux Attorney for Appellant Thibodauz G B Sr LA Linda A Mitchell Attorney for Appellee State of Louisiana Department of Children and Family Services Houma LA Collin P Constantin Southeast Louisiana Legal Services Houma LA Attorney for G B G L P M D D D and D G I AND KLINE udgment BEFORE rendered PARRO WELCH J MAY 3 1 2013 1 Initials of the minors are used in accordance with LSA 46 S W R 1844 3 udge Z William F Kline rretired is serving as judge ad hoc by special appointment of the Louisiana Supreme Court PARRO J The father of four minor children adjudicated in need of care appeals the judgment of the juvenile court which terminated his parental rights as to those children and further determined that it was in the best interest of the minor children that they be freed for adoption For the reasons that follow we affirm the judgment of the juvenile court FACTUAL BACKGROUND AND PROCEDURAL HISTORY G B Sr B and S are the parents of five children D D D G M G LP G B G M D and D On June 21 2010 the State of Louisiana through the Department G J of Children and Family Services DCFS obtained an oral instanter order removing these children from the custody of their parents and placing them in the custody of DCFS based on allegations of physical abuse and neglect by the parents More specifically it was alleged that B had attempted to strangle D and that as a G G result B was arrested and charged with cruelty to a juvenile In addition DCFS G contended that S had neglected the children because she had alleged that B had M G previously abused all of the children but she had failed to protect them by filing a civil rule to gain custody of her children Furthermore DCFS alleged that S had not M provided any clothing or any financial medical dental or psychological support for her children The children were subsequently maintained in the custody of DCFS pursuant to a continued custody order signed by the juvenile court on July 1 2010 and they were again adjudicated in need of care pursuant to a judgment rendered in open court 3 The Seventeenth Judicial District Court exercises original juvenile jurisdiction for the parish within its district pursuant to LSA art 302 As a court exercising juvenile jurisdiction it has exclusive C Ch 2 original jurisdiction in conformity with any special rules prescribed by law over any child alleged to be in need of care and the parenks of any such child LSA art 604 C Ch 4 The children and their parents are referred to by their initials to preserve tneir anonymity in this confidential proceeding 5 The children had previously been removed from the custody of their parents pursuant to an instanter order dated August 17 2007 and had been adjudicated in need of care by judgment signed September 26 2007 The children were later returned to the custody of their father by judgment signed January 21 2009 6 B remained incarcerated on this charge from June 21 2010 the day the children were taken into the G custody of DCFS until October 2010 The charges against B were ultimately dismissed G 2 on August 10 2010 A case plan was developed for the parents and approved by the juvenile court which was designed to remove the need for the children to remain in DCFS custody According to the case plan B and S who were not living together were required G M to secure and maintain housing that was physically safe and met the needs of their children Each parent was further required to verify employment and to support the children financially while they were in foster care by making individual contributions of 125 per month toward the maintenance and care of the children The parents were required to submit to psychological evaluations parenting classes and substance abuse assessments and treatment if necessary In addition the juvenile court ordered B G to enroll in an anger management program In the initial case plan the permanent plan for the children was stated as reunification with the parents however several months later this goal was changed to adoption after the parents failed to comply with all aspects of the case plan On February 29 2012 DCFS filed a petition for termination of the parental rights of S M and B as to D D D and D After a hearing which took place on G GBG LP M G J May 15 and June 26 2012 the juvenile court found that DCFS had proven by clear and convincing evidence that S and D had abandoned their children within the M G meaning of certain provisions of LSA art 1015 C Ch 4 The juvenile court further found that DCFS had proven by clear and convincing evidence that S and B had M G failed to successfully complete their case plans See LSA art 1015 After C Ch 5 finding that it was in the best interests of the minor children that they be freed for adoption the juvenile court terminated the parental rights of S and B as to D M G G L As part of the case plan the parents were also required to attend all family team conferences with the children and DCFS representatives all court hearings and all visits with their children e D was not a party to that proceeding therefore the parental rights of S and B as to him are G M G not at issue at this time 3 BG PM D D and D It is from this judgment that B has appealed S has G J G M not appealed the judgment accordingly the judgment is final with regard to the issue of the termination of S parental rights as to D D Dand D s M G B G L P M G J DISCUSSION Title X of the Louisiana Children Code governs the involuntary termination of s parental rights The grounds for termination of parental rights as applicable to this matter are found in paragraphs 4 and 5 of LSA Cart 1015 as follows Ch 4 Abandonment of the child by placing him in the physical custody of a nonparent or the department or by otherwise leaving him under circumstances demonstrating an intention to permanently avoid parental responsibility by any of the following b As of the time the petition is filed the parent has failed to provide significant contributions to the child care and support for any s period of six consecutive months 5 Unless sooner permitted by the court at least one year has elapsed since a child was removed from the parenYs 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 condition or conduct in the near s future considering the child age and his need for a safe stable and s 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 LSA C Ch art 1035 The method of proving parental misconduct under LSA A Cart Ch 5 1015 is found in LSA art 1036 C Ch Cand D which provide C Under Article 1015 lack of parental compliance with a case 5 plan may be evidenced by one or more of the following 1 The parent failure to attend s approved court scheduled visitations with the child 9 According to his birth certificate D father was D who was previously married to S s B P B R M However B testified at trial that he had previously formally acknowledged D and he further G B P acknowledged at trial that he was D biological father Although S testified that D was s B P M B R deceased a curator was appointed for him and attempts were made to notify him about the termination proceedings When D to appear and contest the proceedings his parental rights as to D failed B R B P were terminated He has not appealed 4 2 The parent sfailure to communicate with the child 3 The parent failure to keep the department apprised of the s s parent whereabouts and significant changes affecting the parent ability s to comply with the case plan for services 4 The parent failure to contribute to the costs of the child s s foster care if ordered to do so by the court when approving 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 improvement in redressing the s problems preventing reunification 7 The persistence of conditions that led to removal or similar potentially harmful conditions D Under Article 1015 lack of any reasonable expectation of 5 significant improvement in the parenYs 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 e periods of time ended 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 In the judgment the juvenile court specifically found that DCFS had proven the elements of two of the grounds for termination by clear and convincing evidence Specifically the juvenile court determined that B had abandoned his minor children G pursuant to LSA art 1015 in that he had failed to provide significant C Ch b 4 financial contributions for the children care and support for a period in excess of six s consecutive months The juvenile court further found that DCFS had proven by clear and convincing evidence that B had failed to successfully complete his case plan and G that his parental rights should be terminated in accordance with LSA art 1015 C Ch 5 5 On appeal B challenges these findings by the juvenile court contending that DCFS G failed to meet its burden of proof by clear and convincing evidence It is well that an appellate court cannot set aside a juvenile court settled s findings of fact in the absence of manifest error or unless those findings are clearly wrong In re 2d F J 0948 A 00 La 6 764 So 47 61 00 30 Pursuant to this standard the two test for the appellate review of a factual finding is 1 whether part there is a reasonable factual basis in the record for the finding of the juvenile court and 2 whether the record further establishes that the finding is not manifestly erroneous See Mart v Hill 505 So 1120 1127 La 1987 Thus if there is no 2d reasonable factual basis in the record for the trier of fact fnding no additional inquiry s is necessary to conclude there was manifest error However if a reasonable factual basis exists an appellate court may set aside a factual finding only if after reviewing the record in its entirety it determines the factual finding was clearly wrong See Stobart v State Through Department of Transoortation and Development 617 So 2d 880 882 La 1993 Moss v State 07 La App lst Cir 8 993 So 687 1686 08 2d 693 writ denied 08 La 11 996 So 1092 Even though an appellate 2166 08 14 2d court may feel its own evaluations and inferences are as reasonable as the fact finder s reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review where conflict exists in the testimony Rosell v ESCO 549 So 2d 840 844 La 1989 Proof by clear and convincing evidence requires a party to persuade the trier of fact that the fact or causation sought to be proved is highly probable i much more e probable than its non Chatelain v State Through DOTD 586 So 1373 existence 2d 1378 La 1991 This burden of proof is an intermediate one between the burden of proof by a preponderance of the evidence and the burden of proof beyond a reasonable doubt See Louisiana State Bar Ass v Edwins 329 So 437 442 La 1976 Proof n 2d by clear and convincing evidence requires more than aof the preponderance evidence the traditional measure of persuasion but less than beyond a reasonable 6 doubt the stringent criminal standard Succession of Bartie 472 So 578 582 La 2d 1985 Succession of Lvons 452 So 1161 1164 La 1984 2d 65 The initial case plan developed for B which was dated December 6 2010 G required him to 1 secure and mair housing that was physically safe and met the tain basic needs of his children 2 provide verification of income 3 support his children financially by making contributions of 125 per month toward the cost of their care while they were in foster care 4 submit to a psychological evaluation and follow up with therapy if recommended 5 complete a substance abuse assessment 6 participate in parenting classes 7 attend all family team conferences court hearings and visits with his children and 8 enroll in an anger management program As noted above the juvenile court found that DCFS had proven by clear and convincing evidence that B had failed to successfully complete his case plan and that G his parental rights should be terminated in accordance with LSA art 1015 C Ch 5 There is no dispute that the first element of this provision had been met in that more than one year had elapsed from June 2010 the date the children had been removed from the parents custody pursuant to a court order In determining that there had been no substantial compliance with the case plan that had been previously filed and approved by the court as necessary for the safe return of the children the juvenile court first acknowledged that B had complied with G various aspects of the case plan The juvenile court noted that B had completed the G psychological evaluation substance abuse assessment and parenting classes required of him The juvenile court also noted that B was in contact with his children and G attended the meetings and visitations as set forth in the case plan However the juvenile court determined that B had failed to comply with his case plan in three G ways 1 by failing to contribute to the costs of the children foster care after being s ordered to do so by the court when approving the case plan 2 by repeatedly failing to According to the case plan which was approved by the juvenile court the payments were to be made by money order and sent to DCFS State Office Parental Contributions by the 15th of each month 11 The petition to terminate was filed on February 29 2012 and the hearing on the petition was held in May and June 2012 7 comply with the required program of treatment specifically an anger management program provided in the case plan and 3 by his lack of substantial improvement in redressing the problems preventing reunification See LSA art 1036 C Ch 5 4 C and 6 The case plan required B to secure and maintain housing that was physically G safe and met the basic needs of his children At the time of the hearing on the petition to terminate parental rights B was living in a three bedroom one bath trailer with G his cousin her boyfriend and their two children The trailer was inspected by Rebecca Silverii the DCFS foster care worker for the family and CASA supervisors Tiffany Lee and Aimee Lemon who stated that it was not a suitable or healthy place for the children to live According to the record there was a dirty mattress on a box spring in the living room of the trailer which was where B had been sleeping since he had G hurt his leg at work although there was a bedroom set aside for his use There were no sheets or any other bedding on this mattress The two children were sharing one bedroom which contained only a mattress without any sheets or other bedding and s G B cousin and her boyfriend were in the third bedroom The one bathroom was dirty and there was mildew in the tub The women who inspected the trailer noted that the walls of the trailer appeared to be made only of plywood or particle board In addition there was a hole in the ceiling where the insulation was coming out and there was a gap where the floor of the trailer met one of the walls through which they could see the grass outside The trailer had cigarette butts and dirty clothes on the floor spoiled food in the kitchen and garbage overflowing the garbage cans Furthermore although B insisted that his G four children would be welcome to come live with him there any time Ms Lemon noted that there was not adequate space for the children in the trailer G B testified that he was in the process of purchasing a two trailer bedroom which required some repairs He further testified that after these repairs were completed it was possible that the trailer could be made into a three trailer bedroom 8 However he did not have the trailer at the time of trial and he testified that he was not sure how long it would take until he could obtain the trailer move it to the trailer park he had selected and complete the repairs The juvenile court found that B current living situation did not constitute s G suitable housing for his children The court further noted that there was no reasonable expectation of significant improvement in B conduct in the near future because it s G had become to some degree a standard in this case everything will get done tomorrow The record indicates that B had tried at various times to obtain suitable G living arrangements for himself and the children but that he was unable to maintain those living arrangements for any length of time for one reason or another At the time of the hearing at issue in this matter the children had been in foster care for two years and B had still failed to obtain and maintain suitable housing for himself and his G children as required by the case plan for reunification The case plan also required B to enroll in an anger management program At G a case review hearing on November 18 2011 the juvenile court entered an order specifically reiterating the requirement that B was to enroll in an anger management G program Nevertheless at the time of trial B had not fulfilled this condition of the G case plan When questioned about his failure to complete the required anger management program B contended that he had attempted to schedule the classes G but he never had the money to pay for them He further argued that he had already completed parenting classes that addressed anger management issues and he believed those classes should have been sufficient to satisfy the anger management requirement as well He also claimed that he was unable to enroll in the anger management program because his employers had told him that he was in danger of losing his job because of the amount of time he had missed from work However it is not clear from the record how attending the anger management program would have affected his work Finally B denied that he had any problem with anger issues and stated that G 12 The order was signed on November 28 2011 9 he did not understand why he needed an anger management program at all In addition the case plan required B to make parental contributions of 125 G per month to support his children while they were in foster care In November 2011 the juvenile court entered an order restating the requirement that the parental contributions be made even though this condition from the case plan had been in place for almost a year Nevertheless Ms Silverii testified at trial that B never made the G payments to DCFS as ordered G B acknowledged his failure to make his parental contributions however B insisted that he had been told that if he purchased G snacks gifts and other items to give to his children at their monthly visits and kept his receipts he could apply those purchases toward his parental contribution requirement According to B he purchased many items for his children sometimes G spending more than the amount required by the case plan produce any receipts for these purchases at trial However he failed to In addition the testimony of Ms Silverii as well as one of the children was that the items provided at these visits were simple snacks and toys that had come from a place like the Dollar Store There was testimony that at some point B began providing a phone card to his daughter G LG D in the amount of 15 per week however he conceded that there were times that he had been unable to afford to purchase the card for his daughter G B testified that during the time his children were in DCFS custody he stayed working all the time According to his testimony he would work one job until it ended and then he would look for another He acknowledged being out of work for approximately one month at one point but stated that he had been employed steadily since he had been released from jail in October 2010 However despite this steady employment it is undisputed that B failed to make the parental contributions as G required 13 This order was entered as part of the same November 18 2011 case review hearing in which the juvenile court specifically reiterated the condition of the case plan requiring B to enroll in an anger G management program G B also testified that D phone was not always activated because the family member with s G L whom she was living would sometimes take it away from her 10 The record clearly demonstrates a history of repeated nonperformance by B of G certain conditions of the case plan despite specific orders of the court and despite ample time to comply By the time of the trial of this matter the children had been in foster care for approximately two years and B had been out of jail for approximately G twenty months However in that time B had failed to complete his anger G management program contrary to the case plan and in violation of the specific order of the juvenile court and he continued to deny that he needed such a program B had G further failed to financially support his children as provided in the case plan and as ordered by the court providing only nominal snacks and gifts to his children G B had not obtained suitable housing for his children Finally At the time of trial he continued to live in a three bedroom one bath trailer with four other people in which he insisted his children would be welcome to live Clearly the record demonstrates by clear and convincing evidence that B G had not substantially complied with the case plan 1 by failing to contribute to the costs of the children foster care after being ordered to do so by the court when s approving the case plan 2 by repeatedly failing to comply with the required program of treatment specifically an anger management program provided in the case plan and 3 by his lack of substantial improvement in redressing the problems preventing reunification See LSA art 1036 and 6 The record also exhibits by C Ch 5 4 C clear and convincing evidence a pattern of established behavior that indicates that B G is unable or unwilling to provide an adequate permanent home for his children See C Ch LSA art 1036 Accordingly we find no error in the trial court finding that 3 D s G B did not substantially comply with the case plan pursuant to LSA art 1015 C Ch 5 Furthermore we note that the record demonstrates that B failed to provide G significant contributions to his children care and support for a period in excess of six s months within the C Ch meaning of LSA art b 4 1015 As noted above it is undisputed that B never made the parental contributions of 125 per month as G ordered Although B contended that he provided his children with certain snacks and G il gifts at their monthly visitations he never provided any receipts to prove the cost of these items Furthermore the testimony at trial was that these items were of nominal value G B also testified that he provided his daughter with a phone card on a 15 weekly basis when he could afFord it however even that purchase was subject to interruption when his daughter phone was not activated for various reasons s Even assuming he purchased phone cards for his daughter on a regular basis we find no error in the juvenile courk findings that these purchases along with the nominal s snacks and gifts he sometimes provided his children at their visitations once a month did not constitute significant contributions to his children care and support as required s by LSA Cart 1015 and that B had failed to make these contributions for a Ch b 4 G period in excess of six months Louisiana Children Code article 1037 provides in pertinent part s B 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 In the judgment at issue the juvenile court specifically found that it was in the best interest of the children for them to be freed for adoption however the court made no specific finding that termination of B parental rights was in the children best s G s interest B contends that the juvenile court erred in terminating his parental rights G without making such a finding as to the children best interest s Although it is true that the determination of whether a person parental rights s should be terminated is separate from the determination of whether the child will ultimately be adopted a child cannot be freed for adoption unless the parental rights of his parents as to him are terminated Thus we find that the juvenile court conclusion s that it was in the best interest for the children to be freed for adoption necessarily incorporated the finding that it was in the best interest of the children that B s G parental rights as to them be terminated without merit 12 Accordingly this assignment of error is CONCWSION For the foregoing reasons we afFirm the judgment of the juvenile court costs of this appeal are assessed to B G AFFIRMED 13 All
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