Opinion
NUMBER 2012 CJ 1226
04-10-2013
IN THE INTEREST OF K.P. AND A.P.
Nanine McCool Mandeville, LA Attorney for Appellant A.B. Sandra Fuselier Mandeville, LA Attorney for Appellees K.P. and A.P. Randall A. Fish LaCombe, LA Attorney for Appellee D.P. Sandra B. Terrell Covington, LA Attorney for Appellee Dept. of Children and Family Services Eliska E. Juarez Mandeville, LA Attorney for Appellee T.R. Brian Dragon Assistant District Attorney Covington, LA Attorney for Appellee State of Louisiana
NOT DESIGNATED FOR PUBLICATION
Appealed from the
22nd Judicial District Court
In and for the Parish of St. Tammany, Louisiana
Trial Court Number 8434JJ
Honorable William J. Burris, Judge
Nanine McCool
Mandeville, LA
Attorney for Appellant
A.B.
Sandra Fuselier
Mandeville, LA
Attorney for Appellees
K.P. and A.P.
Randall A. Fish
LaCombe, LA
Attorney for Appellee
D.P.
Sandra B. Terrell
Covington, LA
Attorney for Appellee
Dept. of Children and Family
Services
Eliska E. Juarez
Mandeville, LA
Attorney for Appellee
T.R.
Brian Dragon
Assistant District Attorney
Covington, LA
Attorney for Appellee
State of Louisiana
BEFORE: PARRO, WELCH, AND KLINE, JJ.
Hon, William F. Kline, Jr., retired, is serving as judge ad hoc by special appointment of the Louisiana Supreme Court.
WELCH , J.
A.B., the mother of the two minor children, K.P. and A.P., who were previously adjudicated in need of care, appeals a judgment of the juvenile court that: denied the request for the termination of her parental rights, which was filed by the State of Louisiana, Department of Children and Family Services ("DCFS"); continued the custody of the children with DCFS and the placement of the children in a certified foster home; and found that DCFS had made reasonable efforts toward reunification of the children with their mother. Finding no manifest error in the judgment of the juvenile court, we affirm.
The minor children and their parents are referred to by their initials to preserve their anonymity in this confidential proceeding.
The Twenty-Second Judicial District Court exercises original juvenile jurisdiction for its territorial jurisdiction pursuant to La. Ch.C. art. 302(2). As a court exercising juvenile jurisdiction, it has exclusive original jurisdiction, 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. La. Ch.C. art. 604.
K.P. and A.P. are the children of A.B. and D.P. Prior to taking the children into custody, DCFS had been working with the family for approximately eight months (since March 2010) in an attempt to prevent the removal of the children. The children were taken into the custody of DCFS on August 11, 2010, based on valid allegations of inadequate shelter, and the children were adjudicated in need of care on October 6, 2010. Following the removal of the children from the home, the children were placed with a certified foster family, with a case plan goal of reunification.
During this time period, the children were observed to be filthy with runny noses, caked nasal drainage on their faces and in their hair, ink marks on their legs, arms, and stomachs, and dirty and matted hair. Additionally, A.P. was observed with a dead roach in her pacifier.
According to the record, the children's home was found to be filled with dirty, "molded" food and dishes, dog feces and urine on the floor, several dogs living inside the home, piles of dirty clothes throughout the house and on the children's beds, and a strong odor of urine and feces throughout the house. Additionally, the parents lacked insight as to why these living conditions were unsafe for the children.
Although the initial reason for removing the children from the care of the parents was inadequate shelter, it apparently became evident that the children had also been physically, emotionally, and intellectually neglected by the parents.
On September 15, 2011, at the twelve-month case review hearing, the juvenile court continued custody of the children with DCFS and the current placement of the children with foster parents. Additionally, the juvenile court found that there had been inadequate progress by the parents towards alleviating or mitigating the causes that necessitated the children's placement in foster care and that reunification of the children and the parents was impossible at that time. Accordingly, the juvenile court changed the case plan goal to adoption and suspended visitation between the children and A.B. A judgment in accordance with the juvenile court's ruling was signed on October 21, 2011.
This judgment of the juvenile court was not appealed.
On September 30, 2011, following the twelve-month case review hearing, DCFS filed a petition for termination of parental rights. Although a trial was initially scheduled for December 8, 2011, it was continued to allow A.B. additional time to work on her case plan. A hearing on the termination of parental rights was then held on March 26, 2012, and concluded on April 11, 2012. After the hearing, the juvenile court found that DCFS had proven by clear and convincing evidence that the father, D.P., had not complied with the case plan and that it was in the children's best interest that his parental rights be terminated. However, as to A.B., the juvenile court found that, although she did not initially cooperate with DCFS in obtaining housing and employment, she had since done so and had met most of the case plan requirements on those matters. However, the juvenile court noted that A.B. lacked the ability to make significant improvement in bonding with the children and with understanding and correcting the problems that had initially brought the children into DCFS custody. The juvenile court further found that A.B. had exhibited behavior that reflected her difficulty in understanding and dealing with her parental responsibilities. However, the trial court concluded that the evidence was insufficient, i .e., that it did not rise to the level of clear and convincing evidence, to terminate her parental rights. See La. Ch.C. art. 1035(A). Therefore, the juvenile court denied DCFS's request for termination of A.B.'s parental rights.
However, with regard to the custody and placement of the children, the juvenile court found that the children were doing well in their current placement and that the case plan goal should not be changed to reunification with A.B. The juvenile court noted that there were other options for permanency for the children besides adoption and the termination of A.B.'s parental rights, such as guardianship. Accordingly, the juvenile court found that it was in the best interest of the children to remain in the custody of DCFS with placement in foster care, and ordered DCFS to submit a new case plan for permanency. A judgment in accordance with the juvenile court's ruling was signed on April 27, 2012, and it is from this judgment that A.B. now appeals. On appeal, A.B. essentially contends that the juvenile court erred by failing to change the case plan goal to reunification and in finding that DCFS had made reasonable efforts at reunification.
Ultimately, by judgment signed on June 27, 2012, the juvenile court assigned guardianship of the children to the foster parents until the children's eighteenth birthday or until otherwise modified by the court. Additionally, all visitation between the children and the mother was "terminated as per therapist recommendations." The juvenile court's judgment in this regard is the subject of the appeal in In the Interest of K.P. and A.P., 2012-1646 (La. App. 1st Cir. 04/10/13) (unpublished),also rendered this date.
After final submission at a hearing on the termination of parental rights, La. Ch. C. art. 1039(B) provides:
If the court finds that the alleged grounds are not proven in accordance with the evidentiary standards set forth in Article 1035
or if the court finds that termination of parental rights is not in the best interests of the child, it shall enter written findings on both issues and may:
(1) Dismiss the petition.
(2) Reinstate the parent to full care and custody of the child.
(3) If the child has been previously adjudicated as a child in need of care, reinstate that proceeding pursuant to Title VI.
(4) Upon a showing of sufficient facts, adjudicate the child in need of care in accordance with Title VI.
(5) Upon a showing of sufficient facts, adjudicate the family in need of services in accordance with Title VII.
(6) Make any other disposition that is in the best interest of the child.
Louisiana Children's Code article 1035 provides that "[t]he petitioner bears the burden of establishing each element of a ground for termination of parental rights by clear and convincing evidence" and that a "parent asserting a mental or physical disability as an affirmative defense to abandonment under Article 1015(4) bears the burden of proof by a preponderance of the evidence."
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In this case, although the juvenile court found that DCFS had not proven the grounds for terminating A.B.'s parental rights by clear and convincing evidence, the juvenile court, nonetheless, concluded that it was not in the children's best interest to be reunified with their mother and that the children were doing well in their current placement. A court of appeal may not overturn a judgment of a juvenile court absent an error of law or a factual finding that is manifestly erroneous or clearly wrong. State, In Interest of GA, CA, JA, CA2 and RA, 94-2227 (La. App. 1st Cir. 7/27/95), 664 So.2d 106, 110.
Based on our review of the record, we find the juvenile court's factual findings are reasonably supported by the testimony of Paula Harlis Teachout, the children's speech pathologist; Donna Hulsey, a licensed social worker who provided parenting education, parenting coaching, and individual therapy to A.B. and D.P., and who also observed visitation between A.B. and the children; Catherine Lucas, a licensed professional counselor and licensed marriage and family therapist, who assessed A.B.'s ability to parent and supervised her visits with the children; Bobette Laurendine, a licensed social worker who evaluated and met with A.B. for purposes of assisting with A.B.'s reunification with her children; and Jamie Barker, the DCFS case manager. Furthermore, a thorough review of the record does not establish that these findings are clearly wrong.
Accordingly, we find no manifest error in and affirm the April 27, 2012 judgment of the juvenile court in compliance with Uniform Rules—Courts of Appeal, Rule 2-16.1(B). All costs of this appeal are assessed to the appellant, A.B.
AFFIRMED.