State of Louisiana in the Interest of R.S., D.S., and L.S.
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2013 C7 0567 STATE OF L IN THE INTEREST UISIANA I OF R D AND L SS S On Appeal from the City Court of Thibodaux Juvenile Division Parish of Lafourche Louisiana Docket No 4097 Honorable Mark D Chiasson Judge Presiding Mary M McMillan Southeast Louisiana Attorney for Appellee Legal Services S L New Orleans LA David G Arceneaux Thibodaux Attorney for Appellant P C father of L S LA da Li A Mitchell Attorney for Appellee State of Louisiana Department of Houma LA Children and Family Services BEFORE PARRO GUIDRY AND DRAKE J7 ludgmentrendered EC 6 Zdf3 L C F 1 The children and ttie parents are referred to by their initials to preserve their anonymity in this confidential proceeding The initials of the minors are used in accordance with LSA 46 SW R 1844 3 PARRO J The father of a minor child adjudicated in need of care appeals the judgment of the juvenile court which terminated his parental rights to the child and further determined that it was in the best interest of the minor child that she be freed for adoption For the reasons that follow we affirm the judgment of the juvenile court FACTUAL BACKGROUND AND PROCEDURAL HISTORY S A and C are the parents of the minor child L who was born on April 19 P S 2011 On July 15 2011 the State of Louisiana through the Department of Children and Family Services DCFS obtained an oral instanter order removing L and her S siblings R and D from the custody of their parents and placing them in the S S custody of DCFS based on allegations of neglect by their mother Specifically DCFS received a report alleging that A had sold her food stamps and that the minor S children were begging for food In addition the report alleged that the home in which the children lived with A did not have water or gas According to the report A S S would leave the children alone while she went to get drugs which she would often take in front of the children calling them candy for her nerves In one instance A had S apparently passed out in the home and her nine daughter had to call an aunt old year for assistance because she was unable to revive her mother The children including S L were maintained in the custody of DCFS pursuant to a judgment of continued custody signed by the juvenile court on July 21 2011 and they were adjudicated in need of care pursuant to a judgment rendered and signed by the juvenile court on September 27 2011 When L was taken into DCFS custody on July 15 2011 C the father was S P Z The Thibodaux City Court exercises original juvenile jurisdiction for its territorial jurisdiction pursuant to C Ch LSA art 302 As a court exercising juvenile jurisdiction it has exclusive original jurisdiction in 4 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 Cart 604 Ch LSA 3 A is also the mother of R and D the two other children involved in this matter C is not the S S S P biological father of these children therefore the parental rights to these children are not at issue on appeal In addition the record reveals that A was the mother of two other children who had been S raised by other family members since the time of their births and that A got pregnant with a sixth S child during the pendency of these proceedings These children are not involved in these proceedings therefore the parental rights to these children are not at issue on appeal 2 not living with her and A because he was living in Houston with his current S girlfriend who was then pregnant On July 22 2011 after having returned from Houston C turned himself in to authorities on an outstanding warrant for his arrest P He testified that he was eventually convicted of simple burglary of an inhabited dwelling and sentenced to five years of imprisonment C testified that he did not know for P certain that L was in DCFS custody until he was already in jail S 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 In the initial case plan the permanent plan for the children including L was stated as S reunification with their mother with a secondary goal of adoption Pursuant to the case plan C the father was required to identify all family members who may serve as P caregivers mentors or as a support system for L He was further required to support S S L while she was in foster care by paying 25 per month to DCFS and he was expected to attend scheduled visitations with L while she was in foster care S However after the parents allegedly had failed to comply with all aspects of the case plan the goal for the children was changed to adoption On October 16 2012 DCFS filed a petition for termination of the parental rights of A the mother and C the father as to L After a hearing the juvenile court S P S found that A had failed to substantially comply with her case plan and that there was S no reasonable expectation of significant improvement in her condition or conduct in the near future See LSA art 1015 With regard to C the father the juvenile C Ch 5 P court found that DCFS had proven by clear and convincing evidence that C had been P convicted of a crime and sentenced to a five prison sentence and that it was year therefore presumed that C was unable to care for L for an extended period of P S time See LSA arts 1015 and 1036 The jwenile court further found that C Ch 6 E a A was not living with any of the fathers of her children at the time they were taken into DCFS S custody The whereabouts of the father of R were never determined and although the father of D S S was contacted during these proceedings he never made any effort to appear and provide for his child 5 The petition also sought to terminate the parental rights of the proper parties as to R and D S S 3 P C had failed to rebut this presumption After finding that it was in the best interest of L that she be freed for adoption the juvenile court terminated the parental rights S of A and C It is from this judgment that C has appealed S P P DISCUSSION Title X of the Louisiana Children Code governs the judicial certification of s children for adoption The grounds for involuntary termination of parental rights as applicable to this matter are found in LSA art 1015 as foliows C 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 c As of the time the petition is filed the parent has failed to maintain significant contact with the child by visiting with him or communicating with him for any 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 parent custody pursuant to s 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 interoention 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 6 The child is in the custody of the department pursuant to a court order or placement by the parent the parent has been convicted and sentenced to a period of incarceration of such duration that the parent will not be able to care for the child for an e period of time ended considering the child age and his need for a safe stable and permanent s home and despite notice by the department the parent has refused or failed to provide a reasonable plan for the appropriate care of the chiid other than foster care In order to terminate parental rights the petitioner must prove each element of one of the enumerated grounds by clear and convincing evidence See LSA art C Ch A 1035 The method of proving parental misconduct under LSA art 1015 is C Ch 5 6 A has not appealed thejudgment with regard to the parental rights of any of her children Moreover S the biological fathers of R and D have not appealed the judgment S S 4 found in LSA art 1036 and D which provide C Ch C 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 court scheduled s approved visitations with the child 2 The parent sfailure to communicate with the chi d 3 The parent failure to keep the department apprised of the s swhereabouts and significant changes affecting the parent ability parent 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 parenYs repeated failure to comply with the required 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 parent conduct in the near future may be s 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 responsibifities 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 reasonabfy 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 addition LSA art 1036 provides C Ch E Under Article 1015 a sentence of at least five years of 6 imprisonment raises a presumption of the parenYs inability to care for the child for an e period of time a the incarceration of a ended though parent shall not in and of itself be sufficient to deprive a parent of his parental rights In the petition for termination of parental rights DCFS alleged that C s P 5 parental rights should be terminated because he had abandoned L by leaving her S under circumstances demonstrating an intention to permanently avoid responsibility by her placement in the physical custody of a nonparent or the department and leaving or her under circumstances demonstrating an intention to permanently avoid responsibility Specifically DCFS alleged that C had failed to have any significant P contact with L for a period in excess of six consecutive months from July 15 2011 S to the date of the filing of the petition October 16 2012 In its reasons for judgment the juvenile court found that DCFS had proven the elements of LSA art 1015 in that C had been convicted of a crime and C Ch 6 P sentenced to a period of incarceration of such duration that he would not be able to care for L for an e period of time considering her age and her need for a S ended safe stable and permanent home The court further determined that despite notice by DCFS C had failed to provide a reasonable plan for the appropriate care of the P child other than foster care On appeal C challenges the juvenile court finding P s that he had failed to provide a reasonable plan for the appropriate care of the child other than foster care contending that DCFS 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 flndings of fact in the absence of manifest error or unless those findings are clearly wrong In re 2d F 0948 A 00 La 6 764 So 47 00 30 61 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 finding no additional inquiry s is necessary to conclude there was manifest error However if a reasonable factual See also LSA art 1036 C Ch E 8 DCFS did not allege LSA art 1015 as a ground for termination of C parental rights C Ch 6 s P however the evidence necessary to prove this ground was introduced at trial without objection 6 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 Throuc t of Transp and Dev 617 So 880 882 La 1993 hDep 2d Moss v State 07 La App lst Cir 8 993 So 687 693 writ denied 08 1686 08 2d 2166 La il 996 So 1092 Even though an appellate court may feel its own 08 14 2d evaluations and inferences are as reasonable as the fact finder reasonable s 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 840 844 La 2d 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 Dep of Transp and Dev existence t 586 So 1373 1378 La 1991 This burden of proof is an intermediate one between 2d the burden of proof by a preponderance of the evidence and the burden of proof beyond a reasonable doubt La 1976 Proof Louisiana State Bar Ass v Edwins 3Z9 So 437 442 n 2d by clear and convincing evidence requires more than a preponderance of the evidence the traditional measure of persuasion but less than beyond a reasonable doubt the stringent criminal standard Succession of Bartie 472 2d So 578 582 La 1985 Succession of Lyons 452 So 1161 1165 La 1984 2d At trial C testified that he had only lived with L for approximately one or P S two months of her life months of his life since He further testified that he had been in jail for all but a few 2006 when he was a juvenile According to his was in Ray Burns Correctional Facility from 2006 until March 20 2010 testimony P C At the time of his release he was nineteen years old Shortly thereafter he met A S P C returned to jail from September to December 2010 because he shot out the tires of a truck belonging to A S When he was released he returned to the residence in which he had lived with A However his return to the residence caused A to be S S evicted According to C the landlady had warned A that she did not want C P S P 7 I over there because they argued too much Apparently A had been told that if C S P came back to the residence A would have to leave S warnings P C returned to the S residence and A Despite being aware of these was evicted Eventually A S obtained a new residence and he moved in with her and L for about a month S before he left for Houston with his new pregnant girlfriend He then returned from Houston and turned himself in to authorities on an outstanding warrant for his arrest He testified that he was eventually convicted of simple burglary of an inhabited dwelling and sentenced to five years imprisonment At the time of trial he was still in prison on this conviction While C was in prison he was visited by Fatima Griffin the DCFS child welfare P specialist assigned to this case According to Ms Griffin C had not provided financial P assistance for his child despite being required to do so as part of the case plan C P told Ms Griffin that his mother could take care of L while he was in prison and he S provided Ms Griffin with his mother scontact information Ms Griffin testified that she tried to contact C mother by telephone on three occasions leaving messages asking s P that she return her calls Nevertheless C mother never returned any of the phone s P calls Ms Griffin acknowledged that she never attempted to visit C mother or send s P her a letter at her home address however in July 2012 Ms Griffin who was aware that C was in constant contact with his mother told C that she had been unable to P P reach his mother by telephone C indicated that he did not know what was going on P Nevertheless Ms Griffin never heard from any member of C family regarding the s P care of L S P C testifed that he was in constant contact with his mother and that he talked to her approximately every other day Despite this constant contact he only asked his mother whether the agency had contacted her one time and he never followed up to 9 L was born on April 19 2011 Based on the testimony in the record this is the only time C S P actually lived in the same residence with L S Ms Griffin further testified that C had not visited with his child from July 15 2011 through July P 2012 as required by the case plan However it is clear that he was in prison for all but one week of that time and no one brought the child to visit him during that time period 8 see what was happening with regard to the living arrangements for his child He testified that he assumed his mother would have told him if DCFS had contacted her He further testified that he never told her to contact DCFS because he assumed that if DCFS needed her they would have contacted her P C contends on appeal that DCFS failed to prove by clear and convincing evidence that his mother was not an appropriate placement for the child C argues P that DCFS should have made more of an effort to contact his mother or visit her house to determine the appropriateness of the home for placement of the child However a review of the record demonstrates that DCFS attempted to contact C mother and s P that she never returned any of their calls Furthermore C was aware that his mother P had not been in contact with DCFS and despite his constant communication with her he never managed to get his mother to contact DCFS nor did he ever provide any contact information for any other person who might have been an appropriate placement for the child while he was in prison Therefore it is clear that the record demonstrates by clear and convincing evidence that C failed to provide a reasonable P plan for the appropriate care of the child other than foster care CONCLUSION For the foregoing reasons we affirm the judgment of the juvenile court All costs of this appeal are assessed to C P AFFIRMED 1 C later contradicted himself with this testimony and stated that his mother made no effort to contact P DCFS even though he had told her to do so 9
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