Opinion
No. JAC 08 00189.
May 28, 2008.
APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF LAFAYETTE, NO. JC 20051312, HONORABLE THOMAS R. DUPLANTIER, DISTRICT JUDGE.
AFFIRMED.
William Thomas Babin, Assistant District Attorney, Lafayette, LA, Counsel for Appellee: State of Louisiana, Department of Social Services.
Lloyd Dangerfield, Attorney at Law, Lafayette, LA, Counsel for Appellee: A. M. L. Leah Antoinette Beard, Lafayette, LA, Counsel for Appellee: State of Louisiana, Department of Social Services.
Vivian Veron Neumann, Attorney at Law, Lafayette, LA, Counsel for Appellees: T. V. F. T. N. F.
Vivica D. Smith Pierre, Attorney at Law, Lafayette, LA, Counsel for Appellant: T. Q. F.
Allyson Claire Melancon Prejean, Attorney at Law, Lafayette, LA, Counsel for Appellee: J. J. L.
Michelle Breaux, Assistant DA — Fifteenth Judicial District Court, Lafayette, LA, Counsel for Appellee: State of Louisiana.
Katrina Schmidt, Shavonda Martin, Department of Social Services, Lafayette, LA, Counsel for Appellee: State of Louisiana, Department of Social Services.
Court composed of OSWALD A. DECUIR, MARC T. AMY, and BILLY HOWARD EZELL, Judges.
A mother has appealed the termination of her parental rights over her two minor children. The trial court found that termination was in the best interests of the children. For the following reasons, we agree.
FACTS
On November 25, 2004, the youngest male child of the mother was brought to Lafayette General Medical Center by the mother for suspected respiratory infection. Upon examination, the child was observed to have a fracture to the femur, a fracture to the fifth rib, a partially collapsed lung, and evidence of blunt force trauma that indicated injury to the liver. Bruising was also noted on his face and body.
The child was placed in the custody of the State of Louisiana, Department of Social Services (DSS) from December 1, 2004, until September 13, 2005, when he was returned to his mother against the recommendation of DSS. About six weeks after the child had been returned to the home, medical attention was once again sought at the hospital. The child's leg had been broken in the same place as the first break. DSS continued to monitor the case until the child's death on December 3, 2005.
On the morning of the child's death, the mother's boyfriend awakened her around 2:30 a.m. because the child's eyes were rolling back in his head. The child was having trouble breathing and threw up, so the mother administered Albuterol, medicine used to treat certain lung diseases. They took him to Lafayette General Medical Center where he later died. He was twenty-three months old. The autopsy report showed the cause of death as undetermined. Dr. Emil Laga was asked by the family to perform a second-opinion autopsy. He determined that the child died from an overdose of Albuterol.
On December 5, 2005, the mother's other two minor children were placed in the custody of DSS. One child, a female, was five years old; the other child, a male, was almost three years old. They were adjudicated children in need of care on April 25, 2006. A petition for termination of parental rights and certification for adoption was filed on April 12, 2007. The trial on the matter was held on May 21, 2007. Judgment was signed on June 4, 2007, terminating the mother's and fathers' parental rights. Only the mother appealed the judgment.
DISCUSSION
The decision regarding termination of parental rights is subject to the manifest error standard of review. State v. F.Y., 05-920 (La.App. 3 Cir. 3/1/06), 924 So.2d 1164, writ denied, 06-932 (La. 5/26/06), 930 So.2d 35.
There are two private interests involved in any case to involuntarily terminate parental rights: those of the parents and those of the child. State ex. rel. L.B. v. G.B.B., 02-1715 (La. 12/4/02), 831 So.2d 918. There is the parents' interests in the care, custody, and management of their children balanced against the child's interest in terminating parental rights which prevent adoption and hamper the establishment of secure, stable, long-term, and continuous relationships found in a home with proper parental care. Id. In balancing these two interests, the supreme court has stated:
The State's parens patriae power allows intervention in the parent-child relationship only under serious circumstances, such as where the State seeks the permanent severance of that relationship in an involuntary termination proceeding. The fundamental purpose of involuntary termination proceedings is to provide the greatest possible protection to a child whose parents are unwilling or unable to provide adequate care for his physical, emotional, and mental health needs and adequate rearing by providing an expeditious judicial process for the termination of all parental rights and responsibilities and to achieve permanency and stability for the child. 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 parents to be terminated. As such, the primary concern of the courts and the State remains to secure the best interest for the child, including termination of parental rights if justifiable grounds exist and are proven.
Id. at 921-22 ( quoting State ex rel. J.A., 99-2905, pp 8-9 (La. 1/12/00), 752 So.2d 806, 811-12) (citations omitted)). A two-part inquiry is necessary in parental termination proceedings: "(1) has the State established by clear and convincing evidence at least one ground for termination under La.Ch. Code art. 1015, and if so, (2) is the termination in the best interest of the child?" State v. F.Y., 924 So.2d at 1172.
In terminating the mother's parental rights the trial court stated:
This Court's main concern with [the mother] obtaining custody of her children is that [the mother] has yet to present any information which would lead to determining what happened to her son, which on at least two occasions resulted in serious injuries, and ultimately resulted in the child's death.
. . . .
This Court has grave concerns regarding the safety of [the other two minor children], should they ever be placed in [the mother's] custody. Her behavior and attitude throughout this case has been inconsistent with that of an innocent mother who wishes to determine the circumstances and causes surrounding the suffering that her baby sustained from the time he was eleven months old to untimely death at twenty-three months. Thus, this Court finds it to be in the best interest[s] of the children to terminate [the mother's] parental rights.
The State claims that it established two grounds for termination under La.Ch. Code art. 1015. It first claimed that the mother failed to comply with her case plan pursuant to Article 1015(5). The State also claimed that the misconduct toward the minor child that died constituted sufficient grounds to terminate her parental rights. Article 1015(3).
On the other hand, the mother claims that she made significant efforts to comply with the case plan. She argues that the State's sole purpose in seeking termination was because of unanswered questions surrounding the death of her child, of which she has no knowledge. She claims that she has never abused any of her children and can provide a safe and loving home for them.
The mother lives in a house with her father. She also has a boyfriend, who, although she claims does not live there, spends the night quite often. These three adults were consistently around the children.
Dr. Derek Baumbouree testified at trial. He was a pediatrician who treated the child in 2004 when he was hospitalized with the broken leg. It was his opinion that the child had been abused. He testified that this was not a child who had fallen down. The injuries were obvious. There was bruising on the face and body of the child. Also, there was swelling in the broken leg. Dr. Baumbouree found it inconceivable that the mother did not notice something wrong with the leg when she brought the child in for respiratory problems.
Dr. Ed Bergeron, a clinical psychologist, evaluated the mother in January 2005. She offered him no explanation as to how the child was injured. Tests revealed that she does function within normal personality limits but that she has problematic personality traits. He explained that she has problems controlling her anger during situations of high stress and that she is a person capable of committing violent acts on her child.
Jennifer Newman, the DSS supervisor on the case, admitted that the mother completed the programs that she was required to complete. However, she failed to satisfy the most important part of the case plan. The mother failed to take responsibility as a parent and acknowledge her role in allowing the child to be harmed. Throughout the case, the mother maintained that she did not know what happened to her child. The mother declined to have another psychological evaluation after the two minor children were removed from her home. Her boyfriend also refused to have a psychological evaluation.
Joe Damiens, the DSS case manager, testified that the mother completed the anger management and parenting classes but there were concerns that she was not interested in what happened to her youngest child. He was concerned that the safety of the two remaining children could not be guaranteed.
At trial the mother was adamant that she did not know what happened to her child and that she would never hide information. She testified that the night before she brought him to the hospital, he was running around with no problems and she had no idea he had a broken leg. She also had no explanation for how the leg broke again after he was returned to her custody. She testified that he just woke up with a swollen leg. The mother also could not remember that she had refused a second psychological evaluation.
The mother's brother and his wife had been caring for the children since they were removed from the mother's home. Her brother had no concerns about the children living with their mother. He testified that he would take custody if the mother's rights were terminated.
The trial court recognized that the mother had worked some aspects of the case plan. However, the court was concerned about her behavior and attitude throughout the case concerning the injuries and death of her child. We agree with the trial court that the evidence was clear that the mother failed to comply with the case plan. The only people present at the time of the child's injuries, in addition to the mother, were her father and boyfriend, who she insisted had nothing to do with the child's injuries. The mother exhibits a pattern of indifference as to what caused her child's injuries and ultimately, his death. Not knowing what happened to the child places the other two children in danger, and it is not in their best interests to be in such a household.
Acknowledging that termination of parental rights is a serious action, we agree with the trial court that termination of the mother's rights is in the best interests of the children. Therefore, the judgment of the trial court is affirmed. Costs of this appeal are assessed to the mother, T.F.
AFFIRMED.
THIS OPINION NOT DESIGNATED FOR PUBLICATION. Rule 2-16.3 Uniform Rules, Court of Appeals.