Opinion
NUMBER 2015 CJ 0208
08-05-2015
STATE OF LOUISIANA IN THE INTEREST OF J.S.
Sandra B. Terrell Covington, LA Counsel for Appellee Louisiana Department of Children and Family Services M.C., mother of J.S. R.S., father of J.S. Bogalusa, LA In proper person Appellants K. Brandon Cline New Orleans, LA Counsel for Appellee J.S.
NOT DESIGNATED FOR PUBLICATION
Appealed from the Bogalusa City Court In and for the Parish of Washington State of Louisiana
Case Number J2012-178
Honorable Robert J. Black, Judge Sandra B. Terrell
Covington, LA
Counsel for
Appellee
Louisiana Department of
Children and Family
Services
M.C., mother of J.S.
R.S., father of J.S.
Bogalusa, LA
In proper person
Appellants
K. Brandon Cline
New Orleans, LA
Counsel for
Appellee
J.S.
BEFORE: GUIDRY, THERIOT, AND DRAKE, JJ. GUIDRY, J.
The biological parents present this pro se appeal of the juvenile court's judgment terminating their parental rights.
FACTS AND PROCEDURAL HISTORY
On October 24, 2012, at 38 weeks into her pregnancy, M.C. gave birth to J.S. at the Lakeview Regional Medical Center in Covington, Louisiana. At birth, J.S. weighed five pounds and nine ounces. Two days following her birth, J.S. was discharged from Lakeview in the care of M.C. At the time of discharge, J.S. weighed five pounds, four ounces. A week later, on October 31, 2012, J.S.'s father, R.S., brought her to the Pediatric Clinic of the LSU Health System, Bogalusa Medical Center (BMC). At that visit, it was observed that J.S.'s weight had dropped to five pounds. Thus, the attending physician changed her feeding regimen from one ounce of formula every two to three hours to 2/4 ounces of formula every three hours. The doctor further requested that J.S. return for a follow-up visit in one week to check her weight gain. At the follow-up visit on November 6, 2012, it was observed that J.S. had lost further weight, weighing only four pounds and 12 ounces. After another weight check the following day, J.S. was admitted to the hospital with a diagnosis of failure to thrive.
The child and her parents are referred to by their initials to preserve their anonymity in this confidential proceeding. Uniform Rules-Courts of Appeal, Rule 5-2.
Initially following her hospitalization, J.S. gained a few ounces, achieving a weight of five pounds, one ounce; however, by November 10, 2012, it was observed that J.S. was no longer gaining weight and was exhibiting symptoms of dehydration, so she was transferred to Children's Hospital in New Orleans. While at Children's Hospital, J.S.'s formula was changed from Enfamil Prosobee to Enfacare. Thereafter, J.S. began to gain weight. J.S. was discharged from Children's Hospital on November 13, 2012, with a diagnosis of failure to thrive and suspected neglect and instructions to seek follow up care at the BMC.
Prior to her discharge, the Louisiana Department of Children and Family Services (DCFS) took custody of J.S., so on discharge J.S. was released into the custody of a DCFS case worker. Thereafter, the DCFS filed an affidavit for issuance of an instanter order, which was granted by the Bogalusa City Court sitting in juvenile jurisdiction (juvenile court) on November 13, 2012.
See La. Ch. C. art. 302(4). --------
On November 16, 2012, J.S. was presented at the BMC for a follow-up appointment. At that appointment, J.S. weighed five pounds, 13.8 ounces, and her failure to thrive diagnosis was noted as "resolving." A subsequent weight check on November 21, 2012, revealed that J.S.'s weight had increased to six pounds, 5.9 ounces. At a final, follow-up weight check on November 27, 2012, J.S. weighed six pounds, 13 ounces and her failure to thrive diagnosis was again noted as "resolving"; concerns regarding her parents' parenting skills, however, remained.
A child in need of care petition was filed on December 11, 2012. On that same date, in an "Appearance to Answer" hearing, M.C. and R.S. denied the allegations of the petition, and the matter was set for an adjudication and dispositional hearing the following month. Following the adjudication and dispositional hearing, the juvenile court rendered judgment on January 8, 2013, finding J.S. to be a child in need of care and maintained her placement in the custody of the DCFS. The juvenile court also approved the case plan established for M.C. and R.S., but changed the permanent plan goal from adoption to reunification.
Thereafter, M.C. and R.S., in compliance with their case plan, were evaluated for substance abuse and gambling problems, attended parenting classes, and were evaluated by a licensed clinical social worker. Although both M.C. and R.S. were both found not to need gambling treatment, only M.C. was found not to need substance abuse treatment. While he passed an initial drug screen, a subsequent drug screen of R.S. produced a positive result for barbiturates, and he failed to complete his recommended treatment regimen. Both R.S. and M.C. also completed the recommended parenting classes, but as with their evaluation by the licensed clinical social worker, concern was expressed regarding M.C. and R.S.'s ability to implement the skills they were taught once they were parenting on their own, especially in regard to recognizing and properly responding to J.S.'s needs, as well as seeking medical care for their own health as it impacted their care of J.S.
Following a case review hearing on May 14, 2013, the juvenile court rendered judgment finding that inadequate progress had been made toward alleviating or mitigating the causes necessitating J.S.'s placement in foster care and that reunification was impossible at that time. The next hearing before the juvenile court for a case and permanency review was held on November 1, 2013. After again finding that inadequate progress had been made by M.C. and R.S., the court maintained the DCFS's custody of J.S., but changed the permanent plan from reunification to adoption in a judgment signed on December 9, 2013.
The DCFS then filed a petition to certify J.S. for adoption and to terminate the parental rights of M.C. and R.S. Following a subsequent case and permanency review hearing, the juvenile court continued to find that inadequate progress had been made by M.C. and R.S. And finally, following a hearing on August 27, 2014, the juvenile court terminated M.C. and R.S.'s parental rights and certified J.S. "free and eligible for adoption" in a judgment signed September 18, 2014. It is from this judgment that M.C. and R.S. perfected the present appeal.
DISCUSSION
As pro se litigants, the appellants' brief is grossly non-compliant with the briefing requirements provided in the uniform rules. See Uniform Rules of Louisiana, Courts of Appeal, Rule 2-12.4. However, in light of the appellants' pro se status, this court will consider the merits of their appeal, despite the improper form of their appellate brief. Putman v. Quality Distribution, Inc., 11-0306, p. 3 (La. App. 1st Cir. 9/30/11), 77 So. 3d 318, 320. From what we can glean from the two-page document submitted by the appellants, they challenge the DCFS's handling of their case, the juvenile court judge's failure to recuse from the matter, and the overall determination to terminate their parental rights.
First, addressing the recusal assertion, we observe that there is nothing in the record before us that indicates that the appellants sought to recuse the juvenile court judge in the proceedings below. The appellants, who were represented by counsel at all times in the proceedings below, failed to file a motion to recuse the juvenile court judge either prior to trial, or at the latest, prior to judgment. See La. C.C.P. art. 154. Accordingly, the appellants' assertion that the juvenile court judge erred in not recusing himself cannot be considered on appeal. See Boone v. Reese, 04-979, p. 11 (La. App. 3d Cir. 12/8/04), 889 So. 2d 435, 442.
As for the DCFS's handling the appellants' case, we find no merit in the appellants' assertion that the DCFS did not properly investigate their case. The appellants allege that the DCFS failed to call people that they asked the DCFS to call; however, no such persons were called by the appellants to testify in the proceedings below. Nor can we consider the appellants' assertion that they have witnesses who will testify regarding the DCFS's alleged improper investigation of their case, as the appellants provide no explanation as to why these witnesses were not called during the proceedings below.
Thus, we will now consider the merits of the judgment terminating the appellants' parental rights. The fundamental liberty interest of natural parents in the care, custody, and management of their child does not evaporate simply because they have not been model parents or have lost temporary custody of their child to the State. Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 1394-1395, 71 L.Ed.2d 599 (1982). However, in an involuntarily termination of parental rights proceeding, a court must delicately balance the natural parent's fundamental right and the child's right to a permanent home. State ex rel. SNW v. Mitchell, 01-2128, p. 8 (La. 11/28/01), 800 So. 2d 809, 814-815.
The appellants claim that they properly cared for J.S. and that they know how to care for her. They allege that the child's weight loss while in their custody was simply due to a change in the baby's formula. While J.S.'s weight loss as a newborn was the initial reason the DCFS opened a case regarding J.S., it was not the reason for the termination of the appellants' parental rights. In its reasons for judgment, the juvenile court found that the DCFS established by clear and convincing evidence that the appellants' parental rights should be terminated based on La. Ch. C. art. 1015(5) and that the evidence presented by the DCFS showed a "lack of parental compliance with a case plan" and a "lack of any reasonable expectation of significant improvement in the parent's conduct in the near future" in accordance with La. Ch. C. art. 1036(C)(6), (7) and (D)(3).
Louisiana Children's Code article 1015(5) provides:
The grounds for termination of parental rights are:Moreover, in determining whether there has been no substantial parental compliance with a case plan for services and no reasonable expectation of significant improvement in the parent's condition or conduct in the near future, La. Ch. C. art. 1036 provides, in pertinent part:
...
(5) 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.
C. Under Article 1015(5), lack of parental compliance with a case plan may be evidenced by one or more of the following:
...
(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.
...
D. Under Article 1015(5), 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:
...
(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.
Termination of parental rights must be established by clear and convincing evidence. La. Ch. C. art. 1035. To prove a matter by clear and convincing evidence means to demonstrate that the existence of a disputed fact is highly probable, that is, much more probable than its nonexistence. State ex rel. B.J., 00-1434, p. 5 (La. App. 1st Cir. 7/27/00), 767 So.2d 869, 872.
The evidence in the record before us overwhelmingly establishes that the appellants have exhibited a history of child care, child safety, and general hygiene concerns that warranted the DCFS's intervention and the termination of their parental rights in this matter. As established at trial, prior to this case involving J.S., R.S.'s parental rights to his children from a prior relationship were terminated in 1988. Prior to the birth of J.S., M.C. and R.S. had two other children to whom their parental rights were terminated. Those children were born in 2007 and 2009. Their parental rights to those children were terminated in 2011.
Like in the present matter involving J.S. before us, in all of the cases, the circumstances leading up to termination of the appellants' parental rights involved the condition of the home and general hygiene issues. An example of the description of the appellants' homes and the safety concerns presented thereby conveyed by all the witnesses for the DCFS is illustrated in the following testimony given by Leanne Taylor, the DCFS supervisor over J.S.'s case:
A foul odor, clothes everywhere, clutter everywhere. You'd go in the kitchen and there would be food for days or what appeared to be for days sitting out on the counter. The bedroom, there were no sheets on the bed. There was clothes all over the bedroom. The dresser had stuff piled up all over it with cups of unknown things sitting in it that appeared to have been there for several days. There were cigarette butts on the floor, ashtrays all over the room.
Ms. Taylor also testified regarding the requirements of the appellants' case plans. In the case plans, all of which were approved by the juvenile court, the DCFS required the appellants to maintain housing that was physically safe and met the basic needs of the child by being clean and free of safety hazards, which could be done by eliminating or repairing exposed wiring, broken windows, a hole in the floor, keeping all elevated surfaces such as dressers, a desk, and televisions free of clutter, keeping electrical wires out of the child's reach, and removing all trash, old food, and debris from inside and outside of the home. Despite the requirements of the appellants' case plan, Ms. Taylor testified:
The home has been observed on numerous occasions to have old food, trash, rotten meat, clutter covering the floors, dresser, and the desk that [J.S.] could pull over onto herself. The bathroom had a hole in the floor, and the bedroom floor did not feel structurally safe. The outside of the home was always covered in nails, screws, pieces of glass, old couches and mattresses with wire remained and scattered throughout the yard. ... After a year and a half of asking them to
repair the bathroom floor, it was finally repaired after [M.C.] actually fell through the floor. The bedroom floor still feels structurally unsafe, and we've not received any proof that the home has had a termite inspection. ... There were times throughout the past year and a half that the home was adequate; however, they weren't able to maintain this for more than a month at a time.
Finally, as observed by Lisa Tadlock, a licensed clinical social worker who evaluated the appellants, she opined that the appellants had a difficult time maintaining their home and the parenting skills they had been taught. She believed that the appellants could not maintain their skills or a proper home environment outside of a monitored setting. This testimony by Ms. Tadlock is corroborated by the testimony and reports of the court appointed special advocate who testified at trial, by the report of a counselor from Renew, the agency appointed by the DCFS to provide parenting skills training to the appellants, and by the reports of the clinical psychologist who evaluated the appellants, all of which are in the record before us.
While the appellants testified that they are willing to do anything to maintain custody of J.S. and presented some evidence showing their ability to provide a safe and clean environment for J.S., this evidence is consistent with the evidence that was presented by the DCFS that the appellants, on occasion, did clean the home and show proper care and concern for J.S. However, the evidence they presented at trial in no way refuted the overwhelming evidence that reveals the appellants have not consistently provided a clean and safe environment nor consistently demonstrated proper care and concern for J.S. thereby. We therefore find no error in the juvenile court's determination to terminate the appellants' parental rights and certify J.S. for adoption.
CONCLUSION
For the foregoing reasons, we affirm the judgment of the juvenile court to terminate the appellants' parental rights and certify J.S. for adoption. All costs of this appeal are assessed to the appellants, M.C. and R.S.
AFFIRMED.