Opinion
2024-CA-0163
06-26-2024
STATE OF LOUISIANA IN THE INTEREST OF G.K. & B.K.
Jane Hogan ATTORNEY AT LAW COUNSEL FOR APPELLANTS Mary M. Mcmillan SOUTHEAST LOUISIANA LEGAL SERVICES Katherine M. Dowling DEPARTMENT OF CHILDREN & FAMILY SERVICES Chimene St. Amant LOUISIANA DEPARTMENT OF JUSTICE David Jeddie Smith, Jr. LOUISIANA DEPARTMENT OF JUSTICE Baton Rouge, LA 70804-9005 Elizabeth Baker Murrill ATTORNEY GENERAL Louisiana Department of Justice COUNSEL FOR APPELLEE
APPEAL FROM ST. BERNARD 34TH JUDICIAL DISTRICT COURT NO. 28-046-J C\W 23-321-J, DIVISION “A” Honorable William M McGoey, Judge
Jane Hogan ATTORNEY AT LAW COUNSEL FOR APPELLANTS
Mary M. Mcmillan SOUTHEAST LOUISIANA LEGAL SERVICES Katherine M. Dowling DEPARTMENT OF CHILDREN & FAMILY SERVICES Chimene St. Amant LOUISIANA DEPARTMENT OF JUSTICE David Jeddie Smith, Jr. LOUISIANA DEPARTMENT OF JUSTICE Baton Rouge, LA 70804-9005 Elizabeth Baker Murrill ATTORNEY GENERAL Louisiana Department of Justice COUNSEL FOR APPELLEE
(Court composed of Judge Rosemary Ledet, Judge Sandra Cabrina Jenkins, Judge Paula A. Brown)
Paula A. Brown Judge
This appeal stems from an involuntary termination of parental rights. Appellants, A.S. and J.K., Sr., (collectively, the "Parents") appeal the juvenile court's February 6, 2024 judgment, which terminated the Parents' parental rights to J.K., Jr. In that judgment, the juvenile court found that the State of Louisiana (the "State"), through the Department of Child and Family Services ("DCFS"), was not required to attempt reunification efforts between the Parents and their child because the Parents' parental rights to other children had previously been involuntarily terminated. For the reasons that follow, we affirm the juvenile court's judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On January 30, 2023, DCFS received a report alleging that the Parents brought their two-year-old son, J.K., Jr., to Children's Hospital for seizure-like activity. While hospitalized, J.K., Jr. stopped breathing and had to be intubated. J.K., Jr.'s urine tested positive for cocaine.
On February 3, 2023, the juvenile court issued an Instanter Order to have J.K., Jr. removed from the Parents' custody and placed in DCFS' provisional custody. Before DCFS arrived at the hospital to take physical custody of J.K., Jr., the Parents removed him from the hospital and travelled to Mississippi. On February 7, 2023, the juvenile court held a continued custody hearing, and DCFS was granted continued custody. The Parents were later arrested, on April 4, 2023, in Mississippi on charges of kidnapping and obstruction of justice. Thereafter, DCFS placed J.K., Jr. in the same certified foster home of his two older siblings' adoptive parents.
An adjudication and disposition hearing was held on April 12, 2023. At that hearing, the parties stipulated that J.K., Jr. was a child in need of care. On July 7, 2023, DCFS moved for a judicial determination that reasonable efforts of reunification were not required pursuant to La. Ch.C. art. 672.1 ("Article 672.1 Motion"), on the basis that the parental rights of the Parents to J.K., Jr.'s older siblings had been terminated involuntarily. Following the August 23, 2023 hearing, the juvenile court granted DCFS' Article 672.1 Motion and issued a written judgment on September 27, 2023.
See Glenda Morris Rothberg, Foster Care & Adoption Reform Legislation: Implementing the Adoption and Safe Families Act of 1997, 14 ST. JOHN'S J., Legal Comment. 427, 429-31 (2000) (observing "there are certain situations [including involuntary termination of rights to a sibling] in which foster care agencies can move courts for a judicial determination that reasonable efforts to work with certain parents are not required. As soon as this occurs, the case is on a sort of the fast track toward the termination of parental rights" and that "a prior termination of parental rights can be brought as grounds for currently excusing the agency from working with the parent for the return of another child").
Counsel for the Parents jointly moved for review or status hearing on September 13, 2023, to consider DCFS' statutory duty to seek out and consider relative placement. A hearing was held on September 27, 2023, and at the conclusion of the hearing, the juvenile court denied the motion to place J.K., Jr. in custody with relatives. The Parents appealed the ruling and this Court affirmed the judgment. See State in Interest of G., 23-0744 (La.App. 4 Cir. 2/23/24), 384 So.3d 1039.
On September 22, 2023, DCFS filed a Petition for Termination of Parental Rights (the "Petition"), seeking to terminate the rights of the Parents. The termination hearing was held on November 29, 2023. DCFS case worker, Ankaya Cola ("Ms. Cola"), and the Parents testified at that hearing.
Ms. Cola testified that the State gained custody of J.K., Jr. in January 2023 and received physical custody on April 4, 2023. She further testified that DCFS was previously involved with the family when the Parents' parental rights were involuntarily terminated for their two daughters based on-what she believed to be-their failure to rehabilitate. She relayed that during the Parents' first termination proceeding they were unable to work a case plan because they were incarcerated. Ms. Cola continued that DCFS created a case plan for each parent; however, the jails in which they were incarcerated did not have any programs for the Parents to participate in their case plans.
J.K., Sr., testified that his parental rights were terminated as to G.K. and B.K., and in that case he worked a case plan until he was arrested and then sentenced to six years in prison. He further testified that he was unable to contribute to G.K. and B.K.'s care due to his incarceration.
A.S. testified that G.K. and B.K. went into DCFS' care in 2015, and she was incarcerated in 2016. She said that she contributed to her daughters' care until she went to jail. A.S. relayed that she was incarcerated due to her relapse with heroin use, and that she served a five-year sentence.
After the conclusion of the hearing, the juvenile court ordered the parties to file post-trial briefs and took the matter under advisement. On February 6, 2024, the juvenile court issued its judgment terminating the parental rights of the Parents and certifying J.K., Jr., eligible for adoption. In its reasons for judgment, the juvenile court found: (1) that it had previously granted the DCFS' Article 672.1 Motion and determined that current attempts to reunify the child were not required; (2) that J.K., Jr.'s attorney and the DCFS proved that Parents' rights to J.K., Jr.'s siblings were involuntarily terminated and that prior rehabilitation efforts were unsuccessful; (3) that J.K., Jr.'s best interests were served by terminating Parents' rights; and (4) that La. Ch.C. art. 1015(3)(k) conforms with the requirements of due process, and therefore comports with the Louisiana and Federal constitutions.
This timely appeal followed.
DISCUSSION
The crux of the Parents' argument on appeal is twofold. First, the Parents argue that juvenile court erred when it invoked La. Ch.C. arts. 672.1 and 1015(3)(k)-which are in essence a fast-track procedure to terminate parental rights when Parents' parental rights to other children have been involuntarily terminated. Secondly, the Parents contend that the juvenile court erred in finding that this fast-track procedure is constitutional. Before we address the merits of the Parents' assigned errors, we will set forth the standard of review and burden of proof in a petition to terminate parental rights.
Standard of review
"This Court reviews a [district] court's finding on the termination of parental rights under a manifest error standard." State in Interest of J.V.I., 23-0557, p. 4 (La.App. 4 Cir. 11/13/23), 377 So.3d 408, 412 (citing State in the Interest of A.S., 17-0028, p. 4 (La.App. 4 Cir. 5/10/17), 220 So.3d 179, 183). "This Court reviews 'both prongs of the [district] court's determination-whether the statutory grounds for termination have been established and whether termination of parental rights is in the best interest of the child-under the manifest error standard.'" Id. (quoting State in the Interest of E.R., 22-0754, p. 4 (La.App. 4 Cir. 2/7/23), 357 So.3d 892, 895 , writ denied, 23-00346 (La. 4/12/23), 359 So.3d 24).
Burden of proof
The termination of the legal relationship existing between a parent and child "is one of the most drastic actions the state can take against its citizens." State in Interest of J.V.I., 23-0557, p. 8, 377 So.3d at 414 (citing State in Interest of A.L.D., 18-1271, p. 4 (La. 1/30/19), 263 So.3d 860, 863). The fundamental purpose in instituting the involuntary termination of parental rights is to protect a child whose parents are unwilling or unable to provide adequate care for the child's welfare and needs and to achieve stability and permanence for the child. See La. Ch.C. art. 1001.
DCFS may pursue termination of parental rights pursuant to La. Ch.C. art. 1004, which provides in relevant part:
The department may petition for the termination of parental rights of the parent of the child when any of the following apply:
(2) The parent's parental rights to one or more of the child's siblings have been terminated due to neglect or abuse and prior attempts to rehabilitate the parent have been unsuccessful, and termination is authorized by Article 1015(4)(k).
Louisiana Children's Code Article 1004 does not reflect the amendment of Article 1015; however, the Children's Code continues to be revised. See 2024 La. Sess. Law Serv. Act 92 (S.B. 39) (WEST).
"The petitioner bears the burden of establishing each element of a ground for termination of parental rights by clear and convincing evidence." La. Ch.C. art. 1035(A). The petition filed must allege at least one of the statutory grounds for involuntary termination of parental rights provided in La. Ch.C. art. 1015. A judicial determination of a termination of parental rights involves a two-pronged inquiry. The district court must find that (1) DCFS established each element of at least one statutory ground for termination by clear and convincing evidence; and (2) after the district court finds that a ground for termination exists, the district court must determine that termination is in the best interest of the child. See State in Interest of E.R., 22-0754, p. 6, 357 So.3d at 896. We now turn to the merits of this appeal.
Termination of the Parents' parental rights to J.K., Jr.
DCFS filed the Petition pursuant to La. Ch.C. art. 1015(3)(k). In the petition, DCFS alleged that the Parents were incarcerated at St. Bernard Parish jail and that the misconduct of the Parents toward J.K., Jr. constituted extreme abuse, cruel and inhumane treatment, and/or grossly negligent behavior. DCFS further alleged:
i. The [P]arents, [A.S.] and [J.K., Sr.], have had their rights to [G.K.] . . . and [B.K.] ...., siblings of the child herein, terminated due to abuse or neglect, in Case No. 23-231-J, in the Thirty-Fourth Judicial Court, Parish of St. Bernard, prior attempts to rehabilitate the [P]arents have been unsuccessful and the Court has determined pursuant to Article 672.1, that current attempts to reunite the family are not required.
Louisiana Children's Code Article 672.1, in pertinent part, provides:
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, welfare, and safety of the child and the child's need for permanency.
C. Efforts to reunify the parent and child are not required if a court of competent jurisdiction has determined that:
* * * (4) The parental rights of the parent to a sibling have been terminated involuntarily.
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 in-state and out-of-state permanent placement options for the child, may be conducted immediately and shall be conducted within thirty days after the determination.
As one court has observed, the annotations to this statute state that "such a motion may be warranted in circumstances where 'reunification is likely to be a futile exercise, further damaging the child,' such as . . . 'if the parental rights to a sibling have been terminated involuntarily.'" State in Interest of M.F., 17-0545, p. 13 (La.App. 1 Cir. 12/21/17), 241 So.3d 316, 324 (quoting La. Ch. C. art. 672.1, 1999 Comments).
Pursuant to La. Ch.C. art. 1015(3)(k), three conditions must be satisfied for the termination of parental rights: (1) the parent's parental rights to one or more of the child's siblings have been terminated due to neglect or abuse; (2) prior attempts to rehabilitate the parent have been unsuccessful; and (3) the court has determined, pursuant to La. Ch.C. art. 672.1, that current attempts to reunite the family are not required. Because resolution of this appeal turns on whether the juvenile court manifestly erred in applying the fast-track procedure to terminate the Parents' parental rights, we must examine the conditions that are required to be satisfied as set forth in La. Ch.C. art. 1015(3)(k).
The Official Comments to article 1015 provide background for subsection (3)(k):
These revisions bring Louisiana into compliance with federal requirements. Federal law requires that the state department need not attempt to preserve or reunify a family when the parent has subjected the child to "aggravated circumstances." Those circumstances include (but are expressly not limited to) proof that . . . the parental rights of the parent to a sibling have been terminated involuntarily." 42 U.S.C. 671 (a)(l5)(D).
Condition One: The parent's rights to one or more of the child's siblings have been terminated due to neglect or abuse.
It is undisputed that the Parents' parental rights were terminated as to J.K., Jr.'s siblings, G.K. and B.K. DCFS introduced a copy of the February 21, 2017 judgment terminating the Parents' parental rights to G.K. and B.K and the certification that the G.K. and B.K. were freed for adoption.
Condition 2: Prior attempts to rehabilitate the parents have been unsuccessful
The Parents argue that DCFS did not prove by clear and convincing evidence that prior efforts to rehabilitate were unsuccessful. The Parents contend that the only evidence presented at the termination hearing was that the Parents lost their parental rights to G.K. and B.K. six years earlier. We disagree.
As DCFS points out, at the termination of parental rights trial in November 2023, the juvenile court took judicial notice-at DCFS' request-of the record of the prior case involving J.K., Jr.'s siblings. Moreover, the instant case involving J.K., Jr., was consolidated with the prior case, involving his siblings. In the prior case, J.K., Jr.'s two biological sisters, G.K. and B.K., were taken into the State's custody, in January 2015, after G.K. had been born drug exposed. G.K. and B.K., spent over two years in foster care while their Parents attempted to complete their respective case plans. The juvenile court judge in that case concluded that due to the Parents' substance abuse issues and periodic incarcerations, they failed to make substantial compliance with their case plans in order to reunify with their children. As a result, G.K. and B.K. were freed for adoption in 2017. Thus, the evidence in the record supports the juvenile court's finding that prior attempts to rehabilitate the Parents have been unsuccessful.
Condition 3: The court has determined pursuant to Article 672.1 that current attempts to reunite the family are not required
The Parents argue that the State failed to prove by clear and convincing evidence that DCFS did not need to make reasonable efforts of reunification. The Parents further argue that the juvenile court's ruling that reunification was not required was based on the prior termination that occurred six years earlier and that there was no evidence of the Parents' current parental fitness for J.K., Jr.
In response, DCFS posits that the Parents were present and represented by counsel, who objected to the ruling, but did not apply for supervisory writ. DCFS contends that the issue is now res judicata because the Parents failed to timely appeal or file an application for supervisory writ. We disagree.
"The doctrine of res judicata precludes re-litigation of claims and issues arising out of the same factual circumstances when there is a valid final judgment." Precept Credit Opportunities Fund, LP, 23-0104, p. 18, 376 So.3d at 222.
In the case sub judice, the Parents took an appeal from the juvenile court's denial of their motion for relative placement. See State in Interest of G., 23-0744, 384 So.3d 1039. We find that the Article 672.1 Motion is only a step in the process to secure termination of parental rights-thus, it is interlocutory in nature. Although DCFS suggests that res judicata applies to bar reconsideration of whether the juvenile court erred in granting the Article 672.1 Motion, we find that res judicata does not apply in this instance involving the separate issue of the termination of parental rights. See Precept Credit Opportunities Fund, LP v. Dave, 23-0104, p. 9 (La.App. 4 Cir. 10/3/23), 376 So.3d 210, 218 ("However, an appellate court may consider interlocutory judgments . . . as part of an unrestricted appeal from a final judgment." (quoting Everett v. Air Products &Chemicals, Inc., 22-0539, pp. 6-7 (La.App. 4 Cir. 5/2/23), 382 So.3d 216, 223)).
Nevertheless, we conclude that the juvenile court did not err in finding that DCFS proved, by clear and convincing evidence, that current attempts at reunification were not required based on the facts of this case. "'Clear and convincing' evidence requires more than a 'preponderance,' but less than 'beyond a reasonable doubt.' Under the 'clear and convincing' standard, the existence of the disputed fact must be highly probable or much more probable than its nonexistence." State in Interest of A.L.D., 18-1271, pp. 4-5, 263 So.3d at 863 (quoting In re L.M.M., Jr., 17-1988, p. 22 (La. 6/27/18), 319 So.3d 231, n.13). In its reasons for judgment, the juvenile court espoused:
The attorneys for the child and DCFS proved all elements of 1015([3])(k) by clear and convincing evidence. As noted above, the Court previously held a hearing and determined that current attempts to reunify the child are not required. The State proved that the parents' rights to other siblings were previously terminated and prior rehabilitation efforts were unsuccessful.... The evidence was clear and convincing that termination of parental rights is in the best interest of the child.
We find no error in this ruling.
Best interest of the child
Next, having found that the juvenile court did not err in concluding that DCFS sufficiently proved the conditions enumerated in La. Ch.C. art. 1015(3)(k), we must now determine whether termination of the Parents' parental rights was in the best interest of J.K., Jr.
In finding that requirement met, the juvenile court, in its written reasons, observed:
Before the child's third birthday, his father, [JK, Sr.], had to take him to the hospital because the child was experiencing seizure like symptoms. The child had to be intubated so that he could breathe. The hospital ran tests and found that the child had cocaine in his system. After DCFS notified both parents verbally and in writing that DCFS had received a report of alleged Life Threatening Injury/near Fatality and Drug/Alcohol Abuse, they removed the child from Children's Hospital. The [P]arents left the hospital before they could be served with an Instanter Order and relocated themselves and the child across the state line to Mississippi. Several months later both Parents and the child were located. The [P]arents were arrested and remain in jail awaiting trial. The child was finally delivered into the custody of the State. The State placed the child with foster parents, who had previously adopted his two sisters. The foster parents are also willing to adopt [J.K., Jr.] The DCFS worker testified that [J.K., Jr.] is doing well with is foster parents and that he is "very attached"
to them. She testified that they, "have gone [] above and beyond" and have taken the time out to do many assessments to get him to the level that he needs to be on."
We agree with the juvenile court's determination. Having considered all of these conditions, together with the best interest of the child, we find no error in the district court's judgment.
Whether La. Ch.C. art. 1015(3)(k) is constitutional
The Parents contend that to terminate parental rights solely on a finding that a parent has previously had his or her parental rights terminated as to other children is unconstitutional. However, the Parents-as the juvenile court correctly found-failed to particularize the basis for their constitutional challenge. Thus, this constitutional issue is not properly before us.
Nonetheless, the juvenile court opted to address the constitutional issue, noting the significance of the issue as it involves "a child's and his parents' most fundamental rights." In so doing, the juvenile court, in its written reasons, observed:
[T]he Louisiana Children's Code does not allow parental rights to be terminated solely because the [P]arents' parental rights have been previously terminated. In order for a court to terminate parental rights because the [P]arents have previously had their parental rights terminated, the Children's Code requires that a Court must also find that prior attempts to rehabilitate the parent have been unsuccessful and that the best interest of the child is served by severing parental rights La. Ch.C. Article[s] 1001, 1015([3])(k) and 1037. (Emphasis in original).
Louisiana Children's Code Article 1001 provides that "[i]n all proceedings, the primary concern is to secure the best interest of the child if a ground justifying termination of parental rights is proved."
Louisiana Children's Code Article 1037(B) currently provides as follow: (1) When the court finds that the alleged grounds set out in any Paragraph of Article 1015 or 1015.1 are proven by the evidentiary standards required by Article 1035 and that it is in the best interest of the child, it shall order the termination of the parental rights of the parent against whom the allegations are proven. The court shall enter written findings on both issues. The consideration of the best interest of the child shall include consideration of the child's attachment to his current caretakers.
The juvenile court thus found the fast-track provisions, as outlined in La. Ch.C. arts. 672.1 and 1015(3)(k) are constitutional given that they must be applied in conjunction with other Children's Code provisions.
DECREE
Based on the juvenile court's well-grounded written reasons coupled with the Parents' failure to properly particularize their constitutional challenge to the fast-track procedure, we affirm the juvenile court's decision to terminate the Parents' parental rights.
AFFIRMED
PAB
RML
JENKINS, J., DISSENTS WITH REASONS
"[C]ourts must proceed with care and caution as the permanent termination of the legal relationship existing between natural parents and the child is one of the most drastic actions the State can take against its citizens." State in Interest of C.J., 2019-1383, p. 4 (La.App. 1 Cir. 2/21/20), 297 So.3d 3. "The potential loss to the parent is grievous, perhaps more so than the loss of personal freedom caused by incarceration." Id.
My review of the record and applicable laws reveal that the juvenile court failed to comply with the Children's Code, specifically, Articles 1004, 1015(3)(k) and 672.1. For the reasons assigned, I dissent from the majority opinion. I would set aside the September 27, 2023 judgment that reunification efforts were not required, reverse the February 6, 2024 judgment terminating the Parents' parental rights, and remand this matter to the trial court for further proceedings consistent with the mandates of the Louisiana Children's Code on Grounds of Involuntary Termination of Parental Rights.
Rehabilitation of the Parents
Both the juvenile court and this Court mistakenly averts its analysis of compliance with La. Ch.C. art 1015(3)(k), and substitute it with the doctrine of judicial notice in concluding that DCFS met its burden in establishing by clear and convincing evidence that prior attempts to rehabilitate the parents have been unsuccessful. The majority notes that the juvenile court took judicial notice of the prior case involving J.K., Jr.'s sibling, and that the instant case involving J.K., Jr., was consolidated with the prior case, involving his siblings. This present matter was not lodged consolidated. Parents previously moved to incorporate the appellate record in State in Interest of G., 2023-0744, 2023-0745 (La.App. 4 Cir. 2/23/24), 384 So.3d 1039, as an exhibit. This Court denied the motion. Thereafter, Parents moved to supplement the record with specific pleadings and documents.
"An appellate court cannot review evidence that is not in the record on appeal." Singleton v. Dillard Univ., 2023-0053, p. 8 (La.App. 4 Cir. 10/4/23), 382 So.3d 902, 908, writ not considered, 2023-01677 (La. 2/14/24), 379 So.3d 32 (quoting Miccol Enterprises, Inc. v. City of New Orleans, 2012-0864, p. 6 (La.App. 4 Cir. 12/19/12), 106 So.3d 746, 750). While a trial court may take judicial notice of a prior judgment, which was rendered in its own district, such notice is insufficient evidence for an appellate court. See Horrell v. Alltmont, 2019-0945, p. 11 (La.App. 1 Cir. 7/31/20), 309 So.3d 754, 761. "Documentation of other courts' proceedings must be offered into evidence in the usual manner". KJ Monte Invs., LLC v. Acadian Properties Austin, LLC, 2020-0204, p. 10 (La.App. 1 Cir. 12/30/20), 319 So.3d 354, 362 (quoting Burniac v. Costner, 2018-1709, p. 5 n.6 (La.App. 1st Cir. 5/31/19), 277 So.3d 1204, 1208 n.6.
Here, the juvenile court took judicial notice at the November 29, 2023 termination of parental rights trial of the prior case involving J.K., Jr.'s older siblings. However, there was no evidence besides the February 21, 2017 judgment terminating Parents' parental rights to J.K., Jr.'s two older siblings. An appellate court cannot assume what was considered by the trial court when there is a lack of evidence introduced at the trial and is void in this instant record.
Moreover, based on the nature of this matter, procedures for termination of parental rights must be carefully followed. The majority finds that the record supports the juvenile court's finding that prior attempts to rehabilitate Parents have been unsuccessful. I disagree. In light of the record being void of evidence of attempts of rehabilitation, DCFS failed to prove by clear and convincing evidence that prior attempts to rehabilitate the Parents have been unsuccessful.
November 29, 2023 Termination Hearing Testimony
At the November 29, 2023 termination hearing, DCFS case worker, Ms. Cola, testified that the State gained custody of the child in January and received physical custody on April 4, 2023. Ms. Cola testified that DCFS was previously involved with the family when their parental rights were involuntarily terminated for their two daughters. Ms. Cola provided that she believed that the Parents termination was based on their failure to rehabilitate.
Ms. Cola relayed that during the prior termination proceeding the Parents could not work a case plan due to their incarceration. Ms. Cola specified that DCFS created a case plan for each parent, however, the jails in which they were incarcerated in did not have any programs for the Parents to participate in the case plan. Ms. Cola provided that J.K., Jr. was not born at the time his siblings were adopted.
J.K., Sr., testified that his parental rights were terminated as to G.K. and B.K., and in that case he worked a case plan until he was arrested, and he was sentenced to six years. J.K., Sr. testified that he was unable to contribute to G.K. and B.K.'s care due to his incarceration. A.S. testified that G.K. and B.K. went into DCFS's care in 2015, and she was incarcerated in 2016. She testified that she contributed to their care until she went to jail. She provided that she was incarcerated due to her relapse with heroin use. A.S. testified that she served a five-year sentence.
In State in Interest of M.W., DCFS appealed the trial court's denial of its petition to terminate the parental rights of the biological father. 23-4 (La.App. 5 Cir. 5/23/23), 366 So.3d 769. The court noted that at trial, the DCFS's case worker was the only person to testify in the matter, and provided that the biological father had been in jail twice since the inception of the case and only seen the minor child twice. The case worker testified that the biological father was "expected to complete the parenting classes portion of his case plan only to the extent the jails provided the classes, however, she was not sure which classes, if any, were available to help" the biological father. Id. at. pp. 4-5, 366 So.3d at 773.
In affirming the trial court's denial of DCFS's petition to terminate parental rights, the court explained that:
In its judgment, the trial court recognized that there have been many challenges throughout the case in regards to [the biological father] working the case plan and communicating with his case worker. The court stated it was not convinced that DCFS proved by clear and convincing evidence that the parental rights of either parent should have been terminated. It found that DCFS had not made reasonable efforts-with [minor child's] health and safety as the paramount concern-to set in motion good faith efforts to reunify [minor child] with her parents through a permanency plan that fostered [minor child] best interest and had reunification as an earnest, reasonable goal.
The court further found that DCFS essentially focused its reasons to maintain [the minor child] in its custody on the undisputed fact of the parents' drug use; yet, DCFS failed to acknowledge any
responsibility it had to use its resources to provide the parents with substantial assistance to reunify them with [the minor child]. The trial court reasoned that the testimony of [DCFS's case worker] led it to believe that there are serious communication issues between DCFS and the parents. It stated that the evidence, testimony, and arguments by DCFS were all in accordance with the case goal of adoption with no efforts to reunify [minor child] with her parents, specifically [the biological father]. The court held that the evidence conflicted with DCFS's argument, and DCFS had not considered the circumstances surrounding [the biological father's] noncompliance with the case plan. The court then found that [the biological father] had shown an interest in being a part of [the minor child's] life, which was evidenced by his most recent visit with [the minor child].Id. at. pp. 7-8, 366 So.3d at 775.
Similar to State in Interest of M.W., the record before us shows that DCFS did not consider the circumstances surrounding the Parents' noncompliance with their case plan. The opportunity to rehabilitate the Parents during their prior case from 2015 was inhibited due to the lack of programs in the jails.
In light of the record being void of evidence of attempts of rehabilitation, DCFS failed to prove by clear and convincing evidence that prior attempts to rehabilitate the Parents have been unsuccessful. The instant record before us is void of any attempts to rehabilitate the Parents as to J.K., Jr., and void of the prior or current case plans detailing rehabilitation efforts. Furthermore, there is no evidence expressing the Parents' desire to surrender their rights or unwillingness to participate in the case plan. Therefore, I find that the DCFS failed to prove by clear and convincing evidence that prior attempts to rehabilitate the parents were unsuccessful.
Non-Compliance with La.C. art. 672.1
There are two issues with the juvenile court's determination that current attempts to reunite the family are not required. First, DCFS failed to satisfy its burden by clear and convincing evidence that reunification efforts were not required. Second, the juvenile court did not satisfy the mandate in Article 672.1(D), to document its determination by written findings of facts that reunification efforts are not required. The record is void of this documentation.
On July 7, 2023, DCFS moved for a judicial determination that reasonable efforts to reunify were not required pursuant to Article 672.1, on the basis that the parental rights of Parents to J.K., Jr.'s two older siblings had previously been involuntarily terminated on February 21, 2017. At the conclusion of the hearing, the juvenile court granted DCFS's motion, and signed a judgment on September 27, 2023.
The majority quotes the juvenile court's February 6, 2024 written reasons for judgment, noting that "[t]he attorneys for the child and DCFS proved all elements of 1015([3])(k) by clear and convincing evidence.... the [c]ourt previously held a hearing and determined that current attempts to reunify the child are not required." However, DCFS failed to carry its burden. During the August 23, 2023 hearing on judicial determination that reunification efforts were not required, Ms. Cola testified that she did not have the full details of the time DCFS was previously involved with the Parents. Ms. Cola provided that the parents were incarcerated in St. Bernard Parish jail and were awaiting trial.
DCFS introduced a copy of the termination judgment as to the Parents' rights to G.K. and B.K., and requested that the court find that based on prior termination of parental rights that DCFS is not under the obligation to make reasonable efforts towards reunification with the Parents pursuant to Article 672.1. In light of the lack of evidence introduced at the hearing, DCFS failed to carry its substantial burden of demonstrating by clear and convincing evidence that reunification efforts are not required.
Additionally, the record reveals that the juvenile court failed to document its reunification determination by written findings of facts. Louisiana Children's Code Article 672.1(D) provides:
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 in-state and out-of-state permanent placement options for the child, may be conducted immediately and shall be conducted within thirty days after the determination.
The juvenile court failed to articulate after the August 23, 2023 hearing why reunification efforts were not required. The majority relies on the juvenile court's February 6, 2024 written reasons for judgment terminating parental rights to satisfy the requirement of Article 672.1(D). This is improper and renders the September 27, 2023 judgment invalid. As such, I would vacate and set aside the judgment the September 27, 2023 judgment.
Therefore, in light of finding condition two and condition three of the requirements outlined in La. Ch. C. art. 1015(3)(k) not being met, I find that the juvenile court erred in terminating the Parents' parental rights to J.K., Jr.
A remand in this matter is required as a result of non-compliance with the Children's Code Articles 1004, 1015(3)(k) and 672.1. I would set aside the juvenile court's judgment granting DCFS's motion for judicial determination that reunification efforts were not required pursuant to Article 672.1. Additionally, I would reverse the February 6, 2024 termination of parental rights judgment. I note, setting aside the judgments will in no way upset the juvenile court's June 7, 2023 judgment determining that custody would be maintained with DCFS, or the October 11, 2023 judgment denying Parents' motion to determine custody with family relatives. The purpose of the remand is to correct the procedural and due process errors committed by DCSF and the juvenile court.
For the reasons assigned, I respectfully dissent from the majority opinion. I would set aside the September 27, 2023 judgment that reunification efforts were not required, reverse the February 6, 2024 judgment terminating the Parents' parental rights, and remand this matter to the trial court for further proceedings.
SCJ