Opinion
No. 2009 CJ 0748.
October 27, 2009.
ON APPEAL FROM THE CITY COURT OF BOGALUSA PARISH OF WASHINGTON, STATE OF LOUISIANA DOCKET NUMBER: J2006-363 THE HONORABLE ROBERT J. BLACK, JUDGE PRESIDING.
Walter P. Reed, District Attorney, By: Kathryn Landry, Special Appeals Counsel, Baton Rouge, Louisiana, Counsel for Appellee, State of Louisiana.
Candace Jenkins, Michelle R. Demarest, Covington, Louisiana, Counsel for Appellant, T.D.
BEFORE: DOWNING, GAIDRY, AND McCLENDON, JJ.
T.D. appeals a "Case Review and Permanency Review Hearing Judgment" that changed the plan for permanent placement of her children, D.T. and B.T., from reunification to adoption. For the following reasons, we affirm the judgment of the trial court.
We use initials for the parents and children to protect the identity of the children.
A case review judgment is immediately appealable pursuant to La.Ch.C. art. 700(B). A permanency review is immediately appealable pursuant to La.Ch.C. art. 710(D).
PERTINENT FACTS AND PROCEDURAL HISTORY
The Louisiana Department of Social Services, Office of Community Services (OCS), took the children, D.T. and B.T., into State's custody in November 2006, primarily as a result of inadequate shelter. The children were continued in custody, and their mother, T.D., was given a case plan to address the issues necessitating the children's removal. D.T. and B.T. were adjudicated In Need of Care in January 2007.
There were also allegations of drug abuse in the home and that one of the children, D.T., behaved as if she had been molested.
T.D. generally complied with the case plan and was cooperative with OCS. However, in December 2007, D.T. alleged in therapy that she had been sexually abused by her father, A.T. She also disclosed that T.D. was present at the time of the abuse and participated in the abuse. T.D. never responded directly to the allegations concerning her participation in the sexual abuse of D.T., but was insistent that there was no way A.T. could have abused D.T., because she alleged that he was never left alone with her even once. T.D. did state that it was possible that someone else might have molested D.T., although she did not elaborate on who could have done it or how it could have happened. D.T.'s teacher and D.T.'s foster mother both reported that D.T. displayed inappropriate behavior, most of which was sexual in nature, following visits with her parents. Accordingly, in March 2008, OCS terminated T.D.'s visits with her children, and the case plan was amended to require T.D. to acknowledge D.T.'s disclosure of sexual abuse and recognize the effects, and to learn and be able to protect the children from further abuse. In May 2008, OCS changed its case plan goal to adoption on the basis that T.D. failed to comply with this requirement.
The record reflects that A.T. was arrested and has been to a pre-trial hearing. At the time of the hearing at issue, he had not been tried and was free on bond.
According to T.D., no criminal charges were pending against her for D.T.'s allegations of sexual abuse.
The matter came for a case review hearing and permanency planning review hearing over three dates. After hearing evidence and argument of counsel, the trial court entered judgment as requested by OCS. The trial court found that T.D. was making inadequate progress toward alleviating or mitigating the causes necessitating placement of D.T. and B.T. in foster care and that reunification was presently impossible. The court also found that adoption was the most appropriate plan for permanent placement for D.T. and B.T.
Louisiana Children's Code art. 711 allows both hearings to be held simultaneously so long as the trial court makes appropriate findings and orders.
T.D. now appeals, asserting in one assignment of error that the trial court committed manifest error in finding that OCS proved by clear and convincing evidence that T.D. has made inadequate progress, warranting the goal change from reunification to termination of T.D.'s parental rights and release of D.T. and B.T. for adoption.
DISCUSSION Burden of Proof
In her assignment of error, T.D. argues that OCS has failed to prove the justification for changing D.T.'s and B.T.'s goal from reunification to termination of parental rights/adoption by clear and convincing evidence. T.D. asserts that OCS has failed to prove the existence of a ground for termination of her parental rights under the Children's Code by clear and convincing evidence. This assertion is without merit. The Children's Code does not require proof by clear and convincing evidence at a review hearing. As this court ruled in State ex rel. EC, 99-0629 (La.App. 1 Cir. 6/25/99), 739 So.2d 318, 321, at a review hearing, "the State is not required to prove that the legal requirements for a termination proceeding have been met." At this stage, the case plan goal is "merely a goal, subject to review and revision," and unless and until a termination proceeding is filed, the State does not have to prove the existence of the grounds for termination.
Case Plan Review/Permanency Planning Review
Louisiana Children's Code article 702(C) governs the trial court's determination of the most appropriate permanent plan for children, as follows:
C. The court shall determine the permanent plan for the child that is most appropriate and in the best interest of the child in accordance with the following priorities of placement:
(1) Return the child to the legal custody of the parents within a specified time period consistent with the child's age and need for a safe and permanent home. In order for reunification to remain as the permanent plan for the child, the parent must be complying with the case plan and making significant measurable progress toward achieving its goals and correcting the conditions requiring the child to be in care.
(2) Adoption.
(3) Placement with a legal guardian.
(4) Placement in the legal custody of a relative who is willing and able to offer a safe, wholesome, and stable home for the child.
(5) Placement in the least restrictive, most family-like alternative permanent living arrangement. The department shall document in the child's case plan and its report to the court the compelling reason for recommending this plan over the preceding higher priority alternatives.
(Emphasis added.)
Although the issues initially requiring the children to be in care were related primarily to inadequate shelter and supervision, and T.D. has made some progress in those areas, there were also serious allegations of sexual abuse, and T.D. has not been compliant with her case plan and making significant measurable progress toward achieving its goals and correcting the conditions requiring the children to be in care. T.D.'s case plan required her to acknowledge D.T.'s disclosure of sexual abuse and recognize its effects and also to learn and be able to demonstrate how to protect her children from further sexual abuse.
D.T. was evaluated by Dr. Rafael Salcedo on May 21, 2007. Dr. Salcedo found T.D. to have no insight into the circumstances leading to the removal of the children. D.T. was also evaluated by Kim Covington-Core, LCSW in August of 2007. Ms. Covington-Core found T.D. to be very passive, with a tendency to avoid conflict if possible, and was concerned for T.D.'s ability to care for and protect the children if they were returned to her.
A psychosocial evaluation of T.D. was conducted by John Kerschbaum, LCSW on April 2, 2008. Mr. Kerschbaum's report noted that T.D. was unwilling to even consider the possibility that A.T. abused D.T., acted as though there were no problems other than the unfair removal of her children from her care, and could identify nothing that she needed to change in order for them to be better. He stated that T.D.'s "inability to have insight into these difficulties and her unwillingness to look at herself in a more realistic manner pose serious impediments to returning the children to her and predicting that she could be a competent parent." The issue, according to Kerschbaum, was T.D.'s ability to "have empathy for her children and . . . put their needs far ahead of her own." He found the probability that T.D. could ever safely parent her children to be poor, due to her inability to admit to subjecting her children to abuse and neglect or failure to protect her children from abuse and neglect.
According to the OCS caseworker assigned to the case, Felicia Hillhouse, OCS felt that a goal change was in the best interests of D.T. and B.T. because of T.D.'s inability to protect her children from further abuse given her consistent refusal to acknowledge that A.T. or anyone else abused D.T. OCS was also concerned about T.D.'s stability, since she had moved several times since the children had been in care, and her ability to support the children financially, since she was disabled and on a very limited fixed income.
T.D. testified at the hearing that she did not believe her child, D.T., when she said that she was sexually abused by A.T. "because I know her father didn't do it." She stated that it was not possible for A.T. to have sexually abused D.T. because she was with her twenty-four hours a day, seven days a week. When asked whether she was saying D.T. was lying when she said that she was abused by A.T. and that T.D. participated, T.D. responded, "She didn't do it on her father. I didn't say that shes [sic] never said that about somebody else. Somebody else could have did it, but I know her father didn't." When asked whether she would reunite with A.T. if he was released, T.D. said "Probably not." However, when asked later if she would allow him back into the home if he was acquitted, she said "It's a possibility." Finally, when asked if she would believe D.T. if A.T. were found guilty, T.D. responded, "I don't know."
It is evident that at the time of the hearing, T.D. remained unwilling to acknowledge D.T.'s disclosure of sexual abuse and recognize the effects, and to learn and be able to protect the children from further abuse, as required by her case plan. Given the evidence presented to the court, we find no error in the trial court's conclusion that T.D. was making inadequate progress toward alleviating or mitigating the causes necessitating placement of D.T. and B.T. in foster care and that reunification was impossible at that time.
DECREE
We affirm the trial court's judgment approving the case plan, and we find that the case plan is appropriate based on the evidence presented. Costs of this appeal are to be borne by the appellant, T.D.
AFFIRMED.
I respectfully dissent. T.D. has no obligation to protect her children from speculative, hypothetical, phantom dangers. Neither OCS nor the majority point to any danger from which the children need protecting other than from their father A.T., who is facing criminal charges. No evidence in the record suggests that T.D. demonstrates a pattern or propensity for subjecting her children to abusive men. Because resolution of the pending criminal charges against A.T. will have strong bearing on whether he is or remains a threat to the children, I conclude the trial court was clearly wrong in prematurely approving a change of goal from reunification to adoption.
I do not suggest that acquittal would necessarily disprove the charges of abuse. The burden of proof in a criminal trial is beyond reasonable doubt. Such proof is not necessary for OCS or a faclfinder to reasonably believe the children need protection. If found guilty, however, A.T. should pose a minimal and well-controlled threat.
OCS's stated concern in changing the children's goal to adoption was T.D.'s ability to protect her children from further abuse given her consistent refusal to consider the possibility that A.T. abused his child. The assigned OCS caseworker testified that T.D. had complied with the requirement that she obtain stable housing. She attended all visitations when she was allowed. She addressed her substance abuse issues, she complied with OCS's requirements for mental examination, and she paid child support as required. She receives income for disability.
The only identified threat of alleged sexual abuse to the children is from their father, A.T. The caseworker testified that his whereabouts were unknown at the time of the hearing. She testified that he had been arrested but was out on bond. He had attended a pre-trial conference.
Louisiana Children's Code art. 690 provides the requirements for a case review report, as follows:
A. The case review report shall review the status of the child.
B. The case review report shall address the following:
(1) The continuing necessity for and appropriateness of the placement.
(2) The extent of compliance with the case plan.
(3) The extent of progress which has been made toward alleviating or mitigating the causes necessitating placement in foster care.
(4) A likely date by which the child may be returned to the home or placed for adoption or guardianship of the person of the child.
(Emphasis added.)
Louisiana Children's Code art. 702C governs the trial court's determination of the most appropriate permanent plan for children, as follows:
C. The court shall determine the permanent plan for the child that is most appropriate and in the best interest of the child in accordance with the following priorities of placement:
(1) Return the child to the legal custody of the parents within a specified time period consistent with the child's age and need for a safe and permanent home. In order for reunification to remain as the permanent plan for the child, the parent must be complying with the case plan and making significant measurable progress toward achieving its goals and correcting the conditions requiring the child to be in care.
(2) Adoption.
(3) Placement with a legal guardian.
(4) Placement in the legal custody of a relative who is willing and able to offer a safe, wholesome, and stable home for the child.
(5) Placement in the least restrictive, most family-like alternative permanent living arrangement. The department shall document in the child's case plan and its report to the court the compelling reason for recommending this plan over the preceding higher priority alternatives.
(Emphasis added.)
The record demonstrates that other than issues regarding A.T., T.D. has cooperated with OCS and has complied with their requirements of her. Even in this regard, T.D. testified that she would not allow A.T. near her children. She stated it was possible that she might allow contact only if he is acquitted. At the time of the hearing, A.T.'s criminal charges were still pending. The record does not reveal whether they are yet resolved. But such resolution will be highly instructive as to whether A.T. will present a danger to the children, whether a need will continue for the children to remain in care, and whether the conditions requiring the children to remain in care will be corrected. Accordingly, I conclude the change in goal is clearly wrong in that it is unsupported by the evidence produced at the hearing. In my view, T.D.'s assignment of error has merit.
Even so, as the majority notes, the case plan goal is merely a goal, subject to review and revision. If circumstances have changed as of the date of rendering this opinion such that it is clear that A.T. no longer poses a serious threat, T.D. or any party may file a motion to modify and revise the goal back to reunification, at which time the trial court should base its ruling on the existence or non-existence of real danger to the children if T.D. is otherwise complying with the case plan.