State of Louisiana in the Interest of S. R.
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STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2012 C 0812 I STATE OF LOUISIANA n 1 Jrt IN THE INTEREST OF S R On Appeal from the City Court of Slidell 7uvenile Division Parish of St Tammany Louisiana Docket No 20117S 5828 Honorable James Jim Lamz Judge Presiding David Conrad Covington Hultquist LA oseph B Harvin Slidell LA Attorney for Appellee R S Attorney for Appellant No l T R Carole G Gillio Slidell LA Attorney for Appellant No 2 B M C Sandra B Terrell Covington LA Attorney for Appellee Louisiana Department of Children and Famity Services BEFORE PARRO HUGHES AND WELCH Judgment rendered DEC 3 1 2G12 PARRO J The parents of a minor child who was adjudicated a child in need of care appeal that portion of the judgment of the juvenile court which found that efforts to reunify the parents and the child were not required For the reasons that follow we affirm the judgment of the juvenile court FACTUAL BACKGROUND AND PROCEDURAL HISTORY On November 27 2011 R and C became the biological parents of their T B M second R child S On November 30 2011 the State of Louisiana through the Department of Children and Family Services DCFS obtained an oral instanter order removing S from the custody of her parents and placing her in the custody of DCFS R because the mother C had tested positive at the time of the child delivery for B M s benzodiazepines and opiates R S was maintained in DCFS custody pursuant to a continued custody order signed by the juvenile court on December 27 2011 In addition to S R and C had another child H who was already in DCFS RT B M R custody at the time of S birth and subsequent removal According to the record s R R H also had been removed from her parents custody pursuant to an initial valid finding that she was a drug newborn After the parents failed to comply with exposed the case plan established for them a petition to terminate their parental rights as to R H was filed pursuant to LSA arts 1004 and 1015 and a hearing was scheduled C Ch for December 6 2011 At this hearing R and C stipulated that all grounds for T B M termination set forth in the petition were true and consented to judgment terminating 1 The City Court of Slidell exercises original juvenile jurisdiction for its territorial jurisdiction pursuant to C Ch LSA art 302 This jurisdiction is concurrent with that of the district court 4 4 302 Ch LSA art As a court exercising juvenile jurisdidion it has exclusive original juvenile jurisdidion in conformity with any special rules prescribed by law over any child alleged to be in need of care and the parents of any such child LSA art 604 C Ch Z The children and their parents are referred to by their initials to preserve their anonymity in this confidential proceeding The father and mother are referred to as R and C respectively The T B M underlying proceedings in this matter and the judgment appealed to this court directly involve only the minor child S nevertheless earlier proceedings involving her sister H are relevant to this matter R R 2 their parental rights pursuant to LSA art 1025 The judgment signed on C Ch 2 December 20 2011 further certified that H was free for adoption R Thereafter DCFS filed a motion for a judicial determination that efforts to reunify the parents and S were not required based on the ground that the parental rights of R T R and C to S sibling H had been terminated involuntarily R and B s M R R T B M C opposed the motion on the ground that the stipulation and consent to the judgment had transformed the prior involuntary termination proceedings concerning R H into a voluntary termination of their parental rights The juvenile court requested memoranda of law on the issue and took the matter under advisement The juvenile court subsequently concluded that the parental rights of R and C as to H T B M R had been terminated involuntarily The juvenile court further determined that because the parental rights of R and C had been so terminated DCFS had T B M demonstrated by clear and convincing evidence that reunification efforts were not required as to S pursuant to LSA art 672 Accordingly the juvenile R C Ch 4 C 1 court ordered that the motion to dispense with reunification efForts filed by DCFS be granted The parents have appealed DISCUSSION The parents attorneys have filed a joint brief on appeal stating that they believe there are no non issues to raise on appeal and that no ruling of the juvenile frivolous court supports the appeal Nevertheless the brief does raise certain substantive arguments in favor of the appeal In addition the parents attorneys have filed a joint 3 The petition to terminate parental righks as to H is not in the record therefore the specific R allegations of that petition are not known However the judgment terminating parental rights as to H R and certifying her for adoption was introduced into the record before this court In so concluding the juvenile court adopted the memorandum of law of DCFS as it5 written reasons 5 At the same hearing the juvenile court also addressed the issue of the adjudication of S as a child in R need of care The pa chose to stipulate to the allegations without admission therefore the ents judgment also adjudicated S as a child in need of care The minute entry for the hearing also notes R that the court approved the case plan from DCFS and placement in a foster home pending approval of the maternal grandmother shome in Mississippi pursuant to the Interstate Compact on the Placement of Children These parts of the court ruling have not been appealed s 3 motion to withdraw as attorneys of record in this matter The sole issue before this court as before the juvenile court is whether the parents stipulation in accordance with LSA art 1025 that the facts as alleged C Ch 2 in the petition for involuntary termination were true converted that involuntary termination proceeding into a voluntary termination of their parental rights Such a conversion of the proceedings would prohibit DCFS from basing its motion to dispense with reunification efforts as to S on the judgment terminating their parental rights as R to H This issue presents a question of law Appellate review of questions of law is R simply a review of whether the trial court was legally correct or legally incorrect Lamz v Wells 05 La App 1st Cir 6 938 So 792 795 On legal issues the 1497 06 9 2d appellate court gives no special weight to the findings of the trial court but exercises its constitutional duty to review questions of law and renders judgment on the record Id With respect to the motion to dispense with reunification efforts before its amendment in 2012 Louisiana Children Code article 672 provided s 1 A At any time in a child in need of care proceeding when a child is in the custody of the department the department may file a motion for a judicial determination that efforts to reunify the parent and child are not required B The department shall have the burden of demonstrating by clear and convincing evidence that reunification efforts are not required considering the health and safery of the child and the child need for s permanency C Efforts to reunify the parent and child are not required if a court of competent jurisdiction has determined that 1 The parent has subjected the child to egregious conduct or conditions including but not limited to any of the grounds for certification for adoption pursuant to Article 1015 2 The parent has committed murder or manslaughter of another child of the parent or has aided or abetted attempted conspired or solicited to commit such a murder or manslaughter 3 The parent has committed a felony that results in serious bodily injury to the child or another child of the parent 4 The parental rights of the parent to a sibling have been terminated involuntarily 6 The attorneys for the parents have filed this appeal in accordance with Anders v California 386 U S 738 87 S 1396 18 L 493 1967 and State v 96 La 12 704 So 241 Ct 2d Ed les 2669 97 2d 4 D If the court determines that reunification efforts are not required it shall document that determination by written findings of fact A permanency hearing which considers state in and state of out permanent placement options for the child may be conducted immediately and shall be conducted within thirry days after the determination As support for its motion to dispense with reunification efforts DCFS relied solely on the allegation that the parental rights of R and C to H the sibling of S had T B M R R previously been terminated involuntarily See LSA art 672 C Ch 4 C 1 The Louisiana Children Code establishes a distinction between involuntary s termination of parental rights and the voluntary relinquishment of those rights Louisiana Children Code article 1004 authorizes the filing of a petition for termination s of parental rights by certain parties on any ground authorized by LSA art 1015 C Ch Articles 1004 and 1015 are found in Title X of the Louisiana Children Code s The purpose of Title X is to protect children whose parents are unwilling or unable to provide safety and care adequate to meet their physical emotional and mental health needs by providing a judicial process for the termination of all parental rights and responsibilities and for the certification of the child for adoption LSA art 1001 C Ch In all proceedings the primary concern is to secure the best interest of the child if a ground i justifying termination of parental rights is proven Id In contrast Title XI of the Louisiana Children Code addresses the voluntary s surrender of parental rights Except as otherwise provided in Articles 1195 and 1196 of the Code Title XI provides the exclusive means by which a parent can voluntarilv relinquish his or her parental rights to a child for the ultimate purpose of adoption C Ch LSA art 1101 In this matter it is undisputed that a petition was filed pursuant to Articles 1004 and 1015 seeking to involuntarilv terminate the parental rights of R and C as T B M Title X addresses the judicial certification of children for adoption e Article 1195 provides that any parent may give consent to the adoption of his child in open court Article 1196 authorizes an alleged or adjudicated father to execute an authentic act of consent to the adoption of his child which releases any real or potential claims to the child and such consent shall not be evidence of a confession admission or acknowledgment of paternity in any proceeding 5 to H in accordance with these articles R Once such a petition has been filed the parent is thereafter without authority to execute an act of surrender or otherwise to affect the custody of the child except 1 the parent may execute an act of surrender in favor of the department with the approval of the court or 2 the parent may consent to a judgment terminating his parental rights as provided in Article 1025 2 Cart 1030 see a LSA art 1025 Ch LSA so Ch C B 1 Articles 1030 and 1025 acknowledge the distinction between the two actions a 1 parent may take to affect the custody of his or her child once a petition for termination of parental rights has been filed In one scenario the court may authorize a parent to execute a voluntary act of surrender in favor of the department in accordance with LSA C Ch art 1122 See LSA Carts 1025 and 1030 Article 1122 is found in Title XI Ch 1 of the Louisiana Children Code which as noted previously provides the exclusive s means by which a parent can voluntarily relinquish his or her parental rights to a child for the ultimate purpose of adoption In this matter however the court did not authorize the parents to execute a voluntary act of surrender Rather the court authorized the parents to stipulate that all grounds alleged in the petition for involuntarv termination were true and to consent to the judgment terminating their parental rights in accordance with Article 1025 which 2 provides The parent whose rights are sought to be terminated may stipulate that the grounds alleged in the petition are true provided that all of the following occur 1 He personally appears before the court A parent who resides either in another parish or in another state may personally appear before the court exercising juvenile court jurisdiction in his place of residence 2 The court fully informs him of his rights and the consequences of such a stipulation 9 At the time of the filing of the petition for termination of parental rights in this matter LSA art C Ch 1030 provided that the parent may consent to a judgment terminating his parental rights as provided in Article 1033 The 1997 comments to Article 1025 indicate that it was a repositioning of former Article 2 1033 with certain modifications not relevant here Furthermore 2012 La Acts No 730 1 amended Article 1030 to remove and correct the reference to Article 1033 so that Article 1030 now refers to Article 2 1025 Accordingly it appears that the reference to Article 1033 in Article 1030 was merely a remnant of the prior law 6 3 The parent knowingly and voluntarily consents to the judgment As a preliminary matter we note that Article 1025 like Articles 1004 and 1015 2 is found in Title X of the Louisiana Children sCode which provides a judicial process for the termination of all parental rights and responsibilities and for the certification of the child for adoption See LSA Cart 5001 Clearly therefore Article 1025 does not Ch 2 provide a procedure by which a parent may voluntarilv relinquish his or her child for the purpose of adoption within the structure established by the Louisiana Children sCode Rather it is part of an involuntary procedure established to protect children whose parents are unwilling or unable to provide for their needs See LSA Cart 1001 see Ch also LSA art 1015 Because the juvenile court chose to authorize termination of C Ch the parents rights pursuant to Article 1025 rather than Article 1122 it is clear that it 2 chose to proceed through the involuntary termination procedure available to it rather than to allow the parents to voluntarily surrender or terminate their parental rights The parents further contend that because Article 1025 requires parents to 2 knowingly and voluntarily consent to the judgment terminating their rights their parental rights could not have been involuntarily terminated This argument is without merit Article 1025 is triggered by the desire of the parent to stipulate that the 2 grounds alleged in the petition seeking to involuntarily terminate his or her parental rights are true Prior to accepting the stipulation the juvenile court must fully inform the parent of his or her rights and the consequences of such a stipulation so that the parent can make a knowing and voluntary decision as to whether to consent to the judgment If viewed in this context the issue of whether the consent to the judgment is voluntary is simply whether such consent has been given freely and has not been coerced Clearly therefore the nature of the proceeding from an involuntary proceeding that seeks to terminate the parental rights of individuals who have acknowledged that they have caused some harm to their child is not changed by this consent Accordingly the parental rights of R and C as to H were T B M R 7 involuntarily terminated by judgment dated December 20 2011 and DCFS properly relied on that judgment in its motion to dispense with reunification efforts as to S R CONCLUSION For the foregoing reasons we affirm the judgment of the juvenile court which found that efforts to reunify the parents and the child were not required All costs of this appeal are assessed to the parents R and C T B M AFFIRMED MOTION TO WITHDRAW GRANTED lo The attorneys for the parents have filed a joint motion to withdraw as attorneys of record in this matter which we now grant 8
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