State of Louisiana In The Interest of E. C., A. H., S. G. and A.G.
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STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT STATE OF LOUISIANA IN THE INTEREST OF C HG E AS O G A Judgment rendered December 22 2010 Appealed from the 17th Judicial District Court in and for the Parish of Lafourche Louisiana Trial Court No 94 5 Honorable Walter I Lanier III Judge E3EMEME3 HON CAMILLE A MORVANT II ATTORNEYS FOR DISTRICT ATTORNEY ANTHONY P LEWIS STATE OF LOUISIANA ASSISTANT DISTRICT ATTORNEY THIBODAUX LA LINDA A MITCHELL ATTORNEY FOR HOUMA LA PLAIINTIFF APPELLEE DEPARTMENT OF SOCIAL SERVICES ANDREA C STENTZ THIBODAUX LA ATTORNEY FOR PLAINTIFFAPPELLEE G S CHRISTOPHER J BOUDREAUX THIBODAUX LA ATTORNEY FOR DEFENDANT APPELLANT G J BEFORE KUHN PETTIGREW JJ and KLINE J pro tempore 1 Judge William F Kline Jr retired is serving as judge pro tempore by special appointment of the Louisiana Supreme Court PETTIGREW I Appellant J seeks review of the trial court judgment terminating his parental G s rights as to the minor child S based on abandonment The sole issue for our review G is whether the failure by the State of Louisiana Department of Social Services Office of Community Services State to comply with the express language of La Ch Code art 2 1036 prohibited the State from terminating J parental rights during his term of s G incarceration For the reasons that follow we affirm According to the record S was originally taken into custody by the State on G March 23 2006 and was adjudicated a child in need of care on June 28 2006 J who G was incarcerated at the time received written notice from the State via certified mail on August 30 2006 that S had been taken into custody and that his parental rights may G be terminated unless he took certain steps as outlined in the notice J acknowledged G receipt of same on September 18 2006 A petition for termination of parental rights was subsequently filed on February 2 2010 based on allegations that J had failed to G provide significant contributions to S care and support for six consecutive months and s G had failed to maintain significant contact with S for six consecutive months G The matter proceeded to a hearing on April 15 2010 at which time the trial court heard testimony from various witnesses including J After considering the testimony G and evidence in the record the trial court found that J had abandoned S pursuant to G G La Ch Code art 1015 for a period in excess of six consecutive months that J failed 4 G to provide significant financial contributions for S care and support and that J s G G failed to have significant contact with S The trial court ruled that the State had proven G by clear and convincing evidence that J failed to comply with the courtapproved case G plan and that his parental rights should be terminated pursuant to La Ch Code art 5 1015 The trial court further found that J had received actual notice of the child in G need of care proceedings and his rights as evidenced by the OCS FORM TPR2 signed by J Based on this notice the trial court concluded that J was not prejudiced by the G G lack of strict compliance with Article 1036 2 4 The trial court signed a judgment terminating J parental rights and freeing S for adoption on June 15 2010 s G G This appeal by J followed G On appeal J argues that the evidence presented at the hearing below clearly G established that the State did not comply with the provisions of Article 1036 Thus J 2 G maintains the State petition to terminate his parental rights should have been denied s In response the State argues that Article 1036 added to the Children Code by 2006 2 s La Acts No 272 1 and signed into law on June 8 2006 became effective on August 15 2006 and thus does not apply to the facts of this case because S was taken into G custody by the State on March 23 2006 Louisiana Civil Code article 6 provides that i the absence of contrary n legislative expression substantive laws apply prospectively and that p and rocedural interpretative laws apply both prospectively and retroactively unless there is a legislative expression to the contrary Substantive laws either establish new rules rights and duties or change existing ones Procedural laws on the other hand describe methods for enforcing processing administering or determining rights liabilities or status Davis v St Francisville Country Manor LLC 2005 0072 p 9 La App 1 Cir 2 928 So 549 555 writs denied 20060604 La 5 06 10 2d 06 26 930 So 25 and 20070481 La 4 955 So 699 2d 07 27 2d Article 1036 provides as follows 2 A An incarcerated parent of a child in the custody of the department shall provide a reasonable plan for the appropriate care of his child other than foster care Failure by the incarcerated parent to provide an appropriate plan may result in an action to terminate his parental rights B Within thirty days of notification that a parent of a child in foster care is incarcerated in this state a representative of the department shall visit the incarcerated parent and give written notification to the incarcerated parent of his duty to provide a reasonable plan for the appropriate care of the child The department at that time shall obtain information regarding the plan including the names addresses cellular numbers telephone numbers and other contact information of every potential suitable alternative caregiver C The incarcerated parent shall provide the department with the required information in writing within sixty days of receipt of the notification form During that period a parent may submit additional information or names of other caregivers using the form attached to the N notice The department shall provide the parent with a stamped self addressed envelope for this purpose No additional caregiver names will be accepted after the expiration of the sixtyday period as evidenced by a postmark D The department shall conduct an assessment of the persons named as caregivers by the incarcerated parent and shall notify the parent within ten days of completion of the assessment whether the persons named are willing and able to offer a wholesome and stable environment for the child E The notification form given to the incarcerated parent shall be substantially as follows NOTICE OF DUTY TO PROVIDE A REASONABLE PLAN FOR THE APPROPRIATE CARE OF YOUR CHILD AND TERMINATION OF PARENTAL RIGHTS LAW NOTICE TO PARENT YOUR CHILD REN HASHAVE BEEN PLACED IN THE CUSTODY OF THE LOUISIANA DEPARTMENT OF CHILDREN AND FAMILY SERVICES BY ORDER OF THE Parish juvenile court on PLEASE BE ADVISED OF THE FOLLOWING Louisiana law provides that you may name a person who is willing and able to serve as the custodian of your child and to offer a ren wholesome and stable environment for your child Failure to furnish ren a reasonable plan for the appropriate care of your child may result in ren the termination of your parental rights Please refer to Louisiana Children Code Title X Articles 1001 to s 1043 especially Articles 1015 and 1036 for the details of Louisiana 6 E law regarding the termination of parental rights A copy of the law is attached to this notice You are hereby notified that Louisiana law requires that you provide a reasonable plan for the appropriate care of your child ren other than continued foster care within sixty 60 days of your receipt of this notice which date is Your plan shall include the names addresses cellular numbers telephone numbers and other contact information of every suitable alternative caregiver You may provide additional information by filling out this form and mailing it in the stamped selfaddressed envelope given to you by the department before If you fail or refuse to do so you may lose all rights to your child Your plan will be examined to determine if it is ren reasonable and appropriate Please provide your plan in detail no later than to the following person NAME ADDRESS CITYSTATEZIP TELEPHONE NOTE IF YOU HAVE ANY QUESTIONS OR NEED ANY ASSISTANCE CONTACT THE ABOVE PERSON OR YOUR ATTORNEY IMMEDIATELY 4 Copy of the law La Ch Arts 1001 1043 Attached PLEASE READ C hereby certify that a copy of this notice with i La C Ch Arts 1001 1043 attached was delivered to by personal delivery on at the following location DATE Signature of caseworker have received a copy of this notice together with the attached laws La Ch Arts 1001 1043 and acknowledge that C I understand fully that my rights may be terminated and my child ren I adopted by others if I do not provide a reasonable plan of appropriate care while I am incarcerated other than continued foster care within sixty 60 days of my receipt of this notice on Signature of parent Witness Date We agree with the State that Article 1036 does not apply to the facts of this 2 case In March 2006 when S was taken into custody the notice requirements and G specific duties set forth in Article 1036 as they apply to the State were not yet in 2 effect Article 1036 is clearly a substantive law that established new rules and duties 2 with regard to the State obligations to an incarcerated parent of a child in the State s s custody Thus it can only be applied prospectively and not to the instant case J s G argument to the contrary is without merit We have thoroughly reviewed the record in this matter and the lengthy history leading up to the State petition for termination of J parental rights The record s s G clearly and convincingly demonstrates that it was in the best interest of S that J G s G 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 J We issue this G memorandum opinion in accordance with Uniform RulesCourts of Appeal Rule 2 113 16 1 FUffFITSI 5
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