Opinion
NUMBER 2015 CJ 0304
06-05-2015
STATE OF LOUISIANA IN THE INTEREST OF C.S.P., C.A.P., C.C.W., AND B.E.W., II
Ellen Doskey Joseph Waitz Houma, LA Counsel for Plaintiff/Appellee, State of Louisiana Linda A. Mitchell Houma, LA Counsel for the Appellee, Department of Children and Family Services Mark D. Plaisance Thibodaux, LA Counsel for Appellant, C.L.K.P. Lynne Mosca Houma, LA Counsel for the Minor Children C.S.P., C.A.P., C.C.W., and B.E.W., II B.E.W., Sr. Houma, LA In Proper Person
NOT DESIGNATED FOR PUBLICATION Appealed from the Thirty-Second Judicial District Court In and for the Parish of Terrebonne, Louisiana
Docket Number MSJ-6039
Honorable David W. Arceneaux, Judge Presiding Ellen Doskey
Joseph Waitz
Houma, LA
Counsel for Plaintiff/Appellee,
State of Louisiana
Linda A. Mitchell
Houma, LA
Counsel for the Appellee,
Department of Children and Family
Services
Mark D. Plaisance
Thibodaux, LA
Counsel for Appellant,
C.L.K.P.
Lynne Mosca
Houma, LA
Counsel for the Minor Children C.S.P.,
C.A.P., C.C.W., and B.E.W., II
B.E.W., Sr.
Houma, LA
In Proper Person
BEFORE: WHIPPLE, C.J., McCLENDON, AND HIGGINBOTHAM, JJ. WHIPPLE, C.J.
In this proceeding to involuntarily terminate parental rights, the mother of the minor children appeals a judgment of the trial court terminating her parental rights and certifying that the children are freed for adoption. For the following reasons, we affirm.
The initials of the children and parents are used herein to protect their identity in accordance with Uniform Rules, Courts of Appeal, Rule 5-1 and 5-2.
FACTUAL AND PROCEDURAL BACKGROUND
On March 24, 2014, the State of Louisiana, Department of Children and Family Services ("the State"), initiated proceedings in the Thirty-Second Judicial District Court to terminate the parental rights of C.L.K.P., the mother of C.S.P., C.A.P., C.C.W., and B.E.W, II, and the parental rights of B.E.W., the father of C.C.W. and B.E.W., II. The father of C.S.P. and C.A.P. is deceased. In its petition, the State set forth that the children were placed in the State's custody on November 20, 2012, and that the children had remained continuously in the State's custody since that time. According to the affidavit in support of the instanter order for removal of the children from parental custody, after conducting an investigation, the State made the decision to request custody of the minor children due to the mother's habitual drug use, continually placing her children at risk of harm, and failure to provide safe or adequate shelter. The children were subsequently adjudicated as children in need of care pursuant to LSA-Ch.C. art. 666.
The Thirty-Second Judicial District Court exercises original juvenile jurisdiction for the parish within its district pursuant to LSA-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. LSA-Ch.C. art. 604.
The judgment before us on appeal also terminated the parental rights of B.E.W. as to C.C.W. and B.E.W, II. B.E.W. has not appealed the judgment of the trial court; thus, the termination of his parental rights to C.C.W. and B.E.W., II is a final judgment.
At the time the children entered State's custody, B.E.W. was incarcerated.
The State averred in its petition that the court had approved a case plan for services for the safe return of the children, but the parents had made no substantial compliance with it. Specifically, with reference to C.L.K.P., the State alleged:
1. The mother failed to demonstrate an ability to provide for the ongoing health and safety needs of her children;
2. The mother has failed to demonstrate an ability to provide a drug-free, safe, stable and healthy living environment for her children;
3. Despite successfully completing a substance abuse treatment program, the mother has failed to consistently participate in the recommended after-care to help her maintain sobriety.
4. The mother has failed to demonstrate sustained sobriety and tested positive for cocaine on September 26, 2013;
5. The mother has failed to provide documentation to the agency of consistent participation in a mental health treatment program;
6. The mother has failed to provide documentation to the agency of [successful] participation in and completion of a domestic abuse treatment program[.]
The State further averred that despite the interventions attempted, there was no reasonable expectation of significant improvement in the parents' condition or conduct in the near future, considering the children's ages and their need for a stable and permanent home, in that: (1) the parents are unable or incapable of exercising parental responsibilities without exposing the children to a substantial risk of harm based on an established pattern of behavior; (2) the parents have a long history of illegal drug use, with only sporadic attempts at sobriety; and (3) the parents have not shown substantial improvement in redressing the problems preventing reunification, and potentially harmful conditions persist. The State further averred the parents specifically failed to demonstrate an ability to provide for the ongoing health and safety needs of their children in a safe, healthy, drug-free environment. Based on these allegations, the State prayed for judgment granting the petition and permanently terminating the rights of C.L.K.P. and B.E.W. and certifying the children free and eligible for adoption.
The matter was heard by the trial court on May 20, 2014. In oral reasons for judgment that followed, the trial court found that the State had proved by clear and convincing evidence that at least one year had elapsed since the children were removed from their parents' custody pursuant to a court order, there was a lack of parental compliance with the case plan under LSA-Ch.C. art. 1036, there was no reasonable expectation of significant improvement in their condition or conduct, and it was in the best interest of the children that parental rights be terminated. A judgment conforming to the trial court's ruling was signed on June 6, 2014.
C.S.P. was born on January 14, 1997, and was 17 years old at the time of trial; C.A.P. was born on July 16, 1999, and was almost 15 years old at the time of trial; C.C.W. was born on July 19, 2004, and was almost 10 years old at the time of trial; and B.E.W, II was born on June 1, 2005, and was almost 9 years old at the time of trial.
From this judgment, C.L.K.P. appeals, contending that the trial court committed manifest error in terminating parental rights, where she has complied with her case plan and has exhibited a willingness to do what is necessary to be reunited with her children.
DISCUSSION
Title X of the Louisiana's Children Code governs the involuntary termination of parental rights. The permanent termination of the legal relationship existing between natural parents and children is one of the most drastic actions the State can take against its citizens. State in the Interest of A.T., T.A., & J.A., 2006-0501 (La. 7/6/06), 936 So. 2d 79, 82. However, the primary concern of the court and the State remains to determine and ensure the best interest of the child, which includes termination of parental rights if justifiable statutory grounds exist and are proven by the State. State in the Interest of J.M., J.P.M., and M.M., 2002-2089 (La. 1/28/03), 837 So. 2d 1247, 1254. As a result, the legislature has imposed strict procedural and evidentiary requirements that must be met before parental rights can be terminated. State in the Interest of G.A., C.A., J.A., C.A.2, and R.A., 1994-2227 (La. App. 1st Cir. 7/27/95), 664 So. 2d 106, 110.
In its petition, the State alleged that the grounds for termination of parental rights in this matter are found in LSA-Ch.C. art. 1015(5), which provides for termination where:
Unless sooner permitted by the court, at least one year has elapsed since a child was removed from the parent's custody pursuant to 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 intervention, there is no reasonable expectation of significant improvement in the parent's condition or conduct in the near future, considering the child's age and his need for a safe, stable, and permanent home.
In order to terminate parental rights, the petitioner must prove each element of a ground for termination of parental rights by clear and convincing evidence. LSA-Ch.C. art. 1035. The State need establish only one ground, but even upon finding that the State met its evidentiary burden, the court must also find that the termination is in the best interest of the child. LSA-Ch.C. art. 1037(B); State in the Interest of T.R., W.R. and P.R., 2009-2203 (La. App. 1st Cir. 5/13/10), 38 So. 3d 1152, 1156, writs denied, 2010-1371 (La. 6/30/10), 39 So. 3d 583 and 2010-1388 (La. 6/30/10), 39 So. 3d 584.
It is well settled that an appellate court cannot set aside a juvenile court's findings of fact in the absence of manifest error or unless those findings are clearly wrong. In re A.J.F., 2000-0948 (La. 6/30/00), 764 So. 2d 47, 61. Under the manifest error standard of review applicable herein, an appellate court may not reverse a fact finder's determinations unless it finds from the record that a reasonable factual basis does not exist for the findings and that the record establishes the findings are manifestly erroneous or clearly wrong. See Stobart v. State, Through Department of Transportation and Development, 617 So. 2d 880, 882 (La. 1993). Where there is conflicting testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed on review, even when the appellate court may feel that its own evaluations and inferences are as reasonable as those of the trial court. Rosell v. ESCO, 549 So. 2d 840, 844 (La. 1989). Where the fact finder is presented with two permissible views of the evidence, the fact finder's choice between them is not clearly wrong. Rosell v. ESCO, 549 So. 2d at 844.
In the instant case, the State had to establish by clear and convincing evidence all three components of LSA-Ch.C. art. 1015(5), i.e., (1) the lapse of at least one year since the children were removed from their parents' custody by court order, (2) the failure of C.L.K.P. to substantially comply with the case plan, and (3) that there is no reasonable expectation of significant improvement in C.L.K.P.'s condition or conduct in the near future.
As to the first component of LSA-Ch.C. art. 1015(5), the record demonstrates that the children came into the State's custody on November 20, 2012, due to their mother's habitual drug usage, failure to provide adequate shelter or safe housing for her children, and continually placing her children at harm. The children had been in the State's custody for a period of eighteen months as of the May 20, 2014 trial date, which is considerably longer than the one-year period required by LSA-Ch.C. art. 1015(5). See State in the Interest of T.R., W.R. and P.R., 38 So. 3d at 1157. As such, we find no error in the trial court's determination that the first component of LSA-Ch.C. art. 1015(5) was established by clear and convincing evidence.
As to whether the State established that there had been no substantial parental compliance with the court-approved case plan for services, as necessary for the children's safe return, the State likewise made the requisite showing. Lack of parental compliance with a case plan may be evidenced by one or more of the following, as set forth in LSA-Ch.C. art. 1036(C):
(1) The parent's failure to attend court-approved scheduled visitations with the child.
(2) The parent's failure to communicate with the child.
(3) The parent's failure to keep the department apprised of the parent's whereabouts and significant changes affecting the parent's ability to comply with the case plan for services.
(4) The parent's failure to contribute to the costs of the child's foster care, if ordered to do so by the court when approving the case plan.
(5) The parent's repeated failure to comply with the required program of treatment and rehabilitation services provided in the case plan.
(6) The parent's lack of substantial improvement in redressing the problems preventing reunification.
(7) The persistence of conditions that led to removal or similar potentially harmful conditions.
The case plan for services that was developed for C.L.K.P. and approved by the court imposed the following obligation and objections: (1) to provide safe and stable housing; (2) consistent visitation; (3) domestic violence counseling; (4) substance abuse treatment; (5) parental contributions; (6) mental health treatment; and (7) parenting education.
Lauren Marks, the DCFS foster care case manager assigned to this case, testified that C.L.K.P. was not able to obtain suitable housing until about a month prior to trial. Ms. Marks also testified that although C.L.K.P. had attended and completed a parenting course, she had not completed a domestic violence program, nor did she provide court-ordered contributions for support of the children as provided for in the case plan. Further, Ms. Marks testified that C.L.K.P. had failed to complete the mental health objective of her case plan. Specifically, although C.L.K.P. had attended some counseling sessions, her medication management had lapsed, as she failed to comply with the medication management portion of her mental health counseling. Although her treatment plan required that she meet with a psychiatrist for medication management, C.L.K.P. had failed to do so. Ms. Marks testified that the "substance abuse counseling" and "mental health counseling" components were made available and were actually part of the same group for therapy services, as Terrebonne Treatment Center and Behavioral Health offered a co-occurring group for people dealing with substance abuse issues as well as mental health issues. Nonetheless, C.L.K.P. was non-compliant with the substance abuse program in that she had failed to show consistent participation in substance abuse therapy and had failed to complete the program. Ms. Marks testified that although C.L.K.P. initially entered and completed a twenty-eight day in-patient program at a rehabilitation facility after the children were taken into the State's care, she failed to successfully participate in the required out-patient program thereafter. The State also introduced a client status report containing the following comments from C.L.K.P.'s substance abuse counselor concerning C.L.K.P.'s failure to comply:
Client's attendance has remained erratic. Met with client on 8/13/13 to address lack of attendance and client's failure to stay in touch with me. Client reported that she is now living in town and that getting to group would not be an issue.
8/13/13 - Client agree[s] to start treatment over and attend 12 sessions.
8/14/13 - No show for group.
8/21/13 - Attended group but states no money for UA.
8/28/13 - No show for group.
9/[4]/13 - No show for group.
7/9/13 - Client missed her Psychiatric eval with our doctor.
At this time client is not in compliance with the requirements of this program. Client is now inactive for group and being referred back to your agency.
The State also introduced the results of a drug screen taken from a hair sample of C.L.K.P. on September 26, 2013, which tested positive for benzoylecgonine, cocaine, and cocaethylene.
Although the State attempted to introduce the results of another drug screen taken from a hair sample of C.L.K.P. on April 25, 2014, the trial court sustained an objection to its admissibility.
Ms. Marks explained that the lack of consistency by C.L.K.P. with her mental health and substance abuse counseling was an issue, noting that C.L.K.P. was only attending sporadically and would have completed the program had she attended consistently. Ms. Marks further explained that the substance abuse program is typically a twelve-week program, but that the mental health program of counseling is as recommended by the provider. Although as of April 29, 2014, C.L.K.P. had attended eleven of twelve sessions, her counselor was of the opinion that based on the positive drug screen, C.L.K.P. had not shown successful or acceptable progress. Thus, her counselor recommended that she continue in the program. Ms. Marks testified that C.L.K.P. had not received a certificate of completion because her counselor did not feel that C.L.K.P. was ready to complete the program.
C.L.K.P. testified that she completed the parenting education portion of her case plan, visited with the children, and obtained suitable housing. As far as her obligation to contribute to the children's support, she acknowledged that her case plan required her to pay $100.00 per month, but admitted that she had not paid it, purportedly because the children receive their own money and any payments by her would jeopardize her ability to pay her utilities, "cutting [herself] short trying to maintain life on [her] own." C.L.K.P. testified that two of the children, C.S.P. and C.A.P., received death benefits from their father, and that she felt the element of financial contributions had been satisfied. C.L.K.P. stated that she is thirty-nine years of age and has never worked (even though she has no physical impairment to preclude her working). She stated that she completed two years of high school, with ninth grade as her highest education level, and that her only source of income is a disability check from her deceased husband in the amount of $945.00 per month.
C.L.K.P also conceded that she had not completed a domestic violence program. She admitted that she was involved in a violent relationship for twelve to fourteen years, which her children had witnessed. She testified that the domestic violence was caused by drugs and alcohol, but stated that she was no longer living with anyone.
With reference to the substance abuse and mental health portions of her case plan, C.L.K.P. denied using cocaine within the last ninety days, stating that she could not remember the last time she used cocaine, but admitted that hair follicle tests were conducted in September 2013 and April 2014, which tested positive for cocaine. Although C.L.K.P. acknowledged that she has had positive hair screens, she testified that her urine screens were negative, and claimed that her counselor had informed her that she would continue to fail the hair follicle drug screens because "cocaine stays in your hair forever." C.L.K.P. admitted that her counselor told her that she would need to see their psychiatrist for medication management, but stated that she did not do so as "their medicine is terrible." She also acknowledged that her counselor told her that she needed to stop taking over-the-counter sleeping pills from the pharmacy and "self-medicating." C.L.K.P. testified that she did not want to take the medication that the mental health physician was recommending for her because she felt it was too strong and she could not function, but admitted that taking the medication only as directed was something she was "going to have to do." She testified that although her counselor at mental health had advised her to come back so they could adjust her medication, she had not been back.
Although the trial court found that C.L.K.P. had complied with some of the case plan objectives, the trial court specifically found that she failed to complete mental health and substance abuse treatment, as needed to address the problems giving rise to the State obtaining custody of the children. Given C.L.K.P.'s admitted history of using cocaine for many years, the trial court, in its oral reasons for judgment, specifically noted:
This one aspect of the plan, in my opinion, is probably the most important aspect of this plan. You can solve all of these other problems, if you don't get the drug problem under control, what good does it do for the children. She has not completed it and she has been given a very long time to complete it and it's still not done. So it is to me clear that by the evidence produced by the State that she has failed to comply with that part of the treatment and rehabilitation services provided by the plan.
With reference to her failure to manage her medications, the trial court further stated that it "causes [the court] a great deal of concern [in that] if she can't ... function without the drugs, but we can't get the drugs under control, how is she going to function in either situation."
On review of the entire record herein, we find a reasonable factual basis exists for the trial court's finding that the State met its burden of proving, by clear and convincing evidence, that C.L.K.P. failed to substantially comply with a case plan "previously filed by the department and approved by the court as necessary for the safe return of the child." The trial court's conclusions are amply supported by the evidence and, therefore, are not manifestly erroneous. Accordingly, we find no error in the trial court's determination that the second component of LSA-Ch.C. art. 1015(5) was established.
Having found no manifest error in the trial court's determination that C.L.K.P. failed to substantially comply with the court-approved case plan, we next consider whether the State established the third component of the grounds for termination of parental rights set forth in LSA-Ch.C. art. 1015(5), i.e., the lack of any "reasonable expectation of significant improvement in the parent's condition or conduct in the near future, considering the child's age and his need for a safe, stable, and permanent home."
A lack of any reasonable expectation of significant improvement in the parent's conduct in the near future may be evidenced by one or more of the following, as set forth in LSA-Ch.C. art. 1036(D):
(1) Any physical or mental illness, mental deficiency, substance abuse, or chemical dependency that renders the parent unable or incapable of exercising parental responsibilities 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 extended periods of time.
(3) Any other condition or conduct that reasonably 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 the instant case, Ms. Marks testified that she discussed the importance of completing the case plan objectives with C.L.K.P. She testified that she had engaged in more than one discussion with C.L.K.P. about completing her case plan objectives, and that despite the State's efforts she still had not completed the required objectives. C.L.K.P testified that she understood the components of her case plan, but offered no acceptable rationale or valid explanation for not completing the mental health and substance abuse components of the plan. As reflected in the record, the children entered the State's care on November 20, 2012, the petition to terminate parental rights was filed on March 24, 2014, and trial of the matter was held on May 20, 2014. Thus, at the time of trial, the children had been in the State's custody for eighteen months, which is considerably longer than the one-year period within which parents are allotted to complete the requirements of a court-approved case plan for services. See LSA-Ch.C. art. 1015(5).
In its oral reasons for judgment, the trial court focused on this fact, noting that at the time of trial it had been a year and a half since the children were removed from the home, "and that is a pretty long time for children to be separated from their parents." The trial court further noted that this length of time was "a generously long time to allow parents to address whatever problems they are having," stating:
[I]f they haven't complied yet, when will they comply? Every time we come to court I hear soon, soon, almost there. It has been long enough and they haven't complied as they should have. I don't think there is a reasonable expectation of significant improvement in their condition or conduct and I think the State has proved that by clear and convincing evidence.
The trial court found that there was "an established pattern of behavior here that despite all of this time that has passed, despite all of the testing, despite all of the crying the parents still have not complied with the plan," which supported its finding that "they are just incapable." See LSA-Ch.C. art. 1036(D)(1).
In her brief on appeal, C.L.K.P. contends that she has substantially complied with the case plan, "particularly removing herself from the abusive and drug situation." C.L.K.P. concedes that while she "may have not completed each requirement to the satisfaction of the [State], she completed most," and contends that "if given more time, [she] should complete in full each requirement," and that "[i]t is too early at this point" to terminate her parental rights. However, on the record before us, we find no merit to these arguments.
As recognized by our brethren in the Fifth Circuit, we note that while adults can take years to improve their level of functioning, developing children are not granted the same amount of time, and their lives are significantly disrupted while the parents are attempting to deal with their own problems. See State in the Interest of M.P. and B.P., 538 So. 2d 1112, 1116 (La. App. 5th Cir. 1989); State in the Interest of C.D. and M.D., 558 So. 2d 806, 810 (La. App. 5th Cir. 1990); and State in the Interest of J.R. and C.F., 2011-351 (La. App. 5th Cir. 12/13/11), 84 So. 3d 623, 631.
On review, we find no error in the trial court's determination that, based on the clear and convincing evidence presented by the State, there was no reasonable expectation of significant improvement in the parent's condition or conduct in the near future, considering the ages of the children and their need for a safe, stable, and permanent home, as required by LSA-Ch.C. art. 1015(5).
After finding that at least one of the grounds set forth in LSA-Ch.C. art. 1015 has been established by clear and convincing evidence, the trial court must still determine whether termination of parental rights is in the best interests of the children. See LSA-Ch.C. art. 1037(B). Children have a right to live in a safe, secure environment and to be reared by someone who is capable of caring for them. State in the Interest of J.M., J.P.M., and M.M., 837 So. 2d at 1256. We conclude that the State met its burden in this regard and made the requisite showing by clear and convincing proof.
Ms. Marks testified that all four children are placed together in a certified foster home. She stated that the children have told her that they are very happy in their placement and that they wish to remain together as a family or sibling group in the home with their foster parents. Mrs. Marks further testified that the foster parents have indicated their desire to adopt all four children.
C.L.K.P. testified that she understands that her children are in a good place with their foster parents. She further testified that she understands her children would like to stay in their current placement. She conceded that her children witnessed "a lot" of domestic violence, and saw people come in and out of the house to do drugs with her, although she stated that she tried to go in the bathroom to "hide" and "do" drugs. As justification for the removal of the children from their successful placement in a foster home where they are experiencing a stable and secure home life, she testified that she believed it would "make [her] a stronger person inside" if her children were in the home with her.
Although not set forth in full detail herein, the record is replete with evidence of C.L.K.P.'s failings as a parent.
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The trial court found that C.L.K.P. had battled her "very severe drug problem" in the absence of her children and B.E.W., but had concerns that if the children were reintroduced into her life, with the problems that she has managing her own medication, her history of drug use, and her failure to complete the programs, that the children would find themselves back in an "awful situation."
While parents have a natural, fundamental liberty interest in the continuing companionship, care, custody and management of their children, the child has a profound interest, often at odds with those of his parents, in terminating parental rights that prevent adoption and inhibit establishing secure, stable, long-term, and continuous relationships found in a home with proper parental care. State in the Interest of J.M., J.P.M., and M.M., 837 So. 2d at 1252. In balancing these interests, the courts of this state have consistently found the interest of the child to be paramount over that of the parent. State in the interest of J.M., J.P.M., and MM., 837 So. 2d at 1252 (citing State in the Interest of G.J.L. and M.M.L., 2000-3278 (La. 6/29/01), 791 So. 2d 80, 85; see also State in the Interest of C.J.K. and K.K., 2000-2375 (La. 11/28/00), 774 So. 2d 107, 113; State in the Interest of J.A., et al., 99-2905 (La. 1/12/00), 752 So. 2d 806, 811; State in the Interest of S.M., 98-0922 (La. 10/20/98), 719 So. 2d 445, 452). The focus of an involuntary termination proceeding is not whether the parent should be deprived of custody, but whether it would be in the best interest of the child for all legal relations with the parent to be terminated. State in the Interest of J.A., 752 So. 2d at 811.
After thorough review of the record herein and the lengthy history leading up to the State's petition for termination of C.L.K.P.'s parental rights, we find no error by the trial court in its underlying factual findings or in its ultimate conclusion that the termination of C.L.K.P.'s parental rights was warranted herein. Considering all of the testimony and evidence in the present case, we agree with the trial court that the record demonstrates, by clear and convincing evidence that it is in the children's best interest that C.L.K.P.'s parental rights relative to C.S.P., C.A.P., C.C.W., and B.E.W, II, be irrevocably terminated, and that these children be freed for adoption.
CONCLUSION
For the above and foregoing reasons, the June 6, 2014 judgment of the trial court, terminating C.L.K.P.'s parental rights and certifying that the minor children, C.S.P., C.A.P., C.C.W., and B.E.W., II, are free and eligible for adoption, is hereby affirmed. Given C.L.K.P.'s status as an indigent, we decline to assess costs of this appeal to her.
AFFIRMED.