Opinion
No. 2009 CJ 0227.
September 11, 2009.
ON APPEAL FROM THE TWENTY-FIRST JUDICIAL DISTRICT COURT IN AND FOR THE PARISH OF LIVINGSTON STATE OF LOUISIANA DOCKET NO. J-10072 HONORABLE SALVADORE T. MULE, JUDGE AD HOC PRESIDING.
Scott Perrilloux, District Attorney, Livingston, Louisiana, Counsel for Appellee State of Louisiana.
Theresa A. Beckler, Livingston, Louisiana, Counsel for Appellee, State of Louisiana Dept. of Social Services, Office of Community Services.
Kerry Carpenter, Public Defender's Office, Livingston, Louisiana, Counsel for minor children D.B., K.B. L.B.
Cynthia A. Bethea, Denham Springs, Louisiana, Counsel for Appellant, K.B., Mother.
James D. Riddle, Denham Springs, Louisiana, Counsel for A.W., Father.
Twilia Andrews, Denham Springs, Louisiana, Counsel for Unknown Fathers.
BEFORE: PARRO, GAIDRY, AND McCLENDON, JJ.
This is an appeal from a judgment terminating parental rights for two children, K.B. and L.B. Only the children's mother appealed. For the reasons that follow, and after a thorough review of the record, we affirm the judgment.
Initially, we note that, although the judgment on appeal is from the termination of parental rights, many of the assignments of error and arguments in this appeal are directed to an earlier proceeding that culminated in an adjudication of a family in need of services (FINS), removal of the children from the maternal grandmother's care, and a judgment of disposition granting custody to the state. However, because the 2004 FINS adjudication and judgment of disposition, and a subsequent modification of that judgment in 2006, were not appealed, the judgments are now final and definitive. Thus, none of the assignment of error or arguments on the merits arising from the FINS proceedings are before this court on this appeal. See Batson v. South Louisiana Medical Center, 06-1998, p. 10 (La.App. 1 Cir. 6/13/07), 965 So.2d 890, 895-96, writ denied, 07-1479 (La. 10/5/07), 964 So.2d 945.
Additionally, the record does not support the mother's allegation of a due process violation in the FINS proceeding, nor the argument that late notice to the mother in the FINS proceeding invalidated, negatively impacted, or tainted the termination proceeding. See LSA-Const. art. I, § 2; Louisiana Seafood Management Council v. Louisiana Wildlife and Fisheries Commission, 97-1344, p. 19 (La.App. 1 Cir. 9/1/98), 719 So.2d 119, 131, writ denied, 98-2944 (La. 1/29/99), 736 So.2d 832, cert. denied, 528 U.S. 868, 120 S.Ct. 166, 145 L.Ed.2d 141 (1999) (procedural due process requires notice and the opportunity to be heard in meaningful manner). The FINS petition filed by the District Attorney of Livingston Parish in the interest of L.B. incorrectly named the grandmother as the mother. The grandmother, who asserted that she had legal custody, attended the first hearing on May 3, 2004, with counsel. The recordbefore us contains no transcript of the May hearing. However, the minutes recorded no appearance by the mother. At the next hearing in June, a month or less from the first judgment of disposition, the minutes establish that the mother, who was incarcerated at the time of the first FINS proceeding, attended with counsel. No objection based on due process appears in the minutes, and the record contains no transcript of the June hearing. The hearings in July and August of 2004 were attended by the mother and grandmother, with counsel. Again, the transcripts are not in the record, and the minutes make no reference to an objection by the mother or her counsel as to any previous due process violation. The mother and grandmother, with their counsel, attended the next hearing on October 14, 2004. There is a transcript from the October hearing, but no objection based on a violation of the mother's due process rights was lodged. Subsequent review hearings were held, and a judgment modifying the first judgment of disposition was signed on January 5, 2006. As before, no appeal or writ was taken. Based on these particular facts, it is clear that the mother fully participated in the FINS proceeding and had a full and fair hearing. Thus, we need not determine if a due process violation substantively tainted the subsequent termination case.
Separate proceedings concerning the other children of the mother were subsequently consolidated with the L.B. case.
As to the termination proceeding, it is undisputed that the mother had notice and a full and fair opportunity to be heard. After trial, a judgment terminating parental rights was signed on October 30, 2008. In oral reasons, the juvenile court found that the state had proved by clear and convincing evidence that the mother's rights should be terminated and that it was in the best interests of the children. The court cited to more than one Children's Code article as authority and grounds for the termination. Only the mother appealed.
TERMINATION
Termination of parental rights involves a two-step inquiry. First, the state, by clear and convincing evidence, must establish at least one ground for termination under LSA-Ch.C. art. 1015. Secondly, the juvenile court must determine if the termination is in the best interest of the child or children. State ex rel. L.B. v. G.B.B., 02-1715, p. 5 (La. 12/4/02), 831 So.2d 918, 922. One of the grounds for termination listed in LSA-Ch.C. art. 1015 is abandonment by leaving a child under certain circumstances, including, "[a]s of the time the petition is filed, the parent has failed to provide significant contributions to the child's care and support for any period of six consecutive months." LSA-Ch.C. art. 1015(4)(b). The Children's Code contains a similar article allowing adoption without the consent of a parent based on financial non-support. See LSA-Ch.C. art. 1245B(1). Incarceration arising from a parent's voluntary criminal act may not alone serve as an excuse to escape the consequences of a failure to support one's child. See State ex rel. J.T.C. and J.A.C., 04-1096, pp. 2-3 (La.App. 5 Cir. 2/15/05), 895 So.2d 607, 616 (on rehearing), writ denied, 05-0466 (La. 4/8/05), 899 So.2d 11, cert. denied, 546 U.S. 890, 126 S.Ct. 187, 163 L.Ed.2d 201 (2005); State ex rel. K.T. D.K.T., 02-2009, pp. 6-7 (La.App. 4 Cir. 2/21/03), 841 So.2d 67, 71 (and cases cited therein); In re J.A.B. , 04-1160, p. 5 n. 2 (La.App. 1 Cir. 9/17/04), 884 So.2d 678, 681 n. 2, writ denied, 04-2963 (La. 12/14/04), 888 So.2d 848; LSA-Ch.C. art. 1015, Comment-2003.
The record before us clearly supports a finding that the mother failed to support her children for a period of at least six months and a finding that, under the facts herein, the incarceration was not an excuse for the failure to support. The record is also replete with evidence that the termination was in the best interest of the children, including, but not limited to, the mother's: recurring drug addiction, inability to maintain steady employment, numerous criminal convictions in the past that resulted in lengthy incarceration, and a pending or possible criminal charge of a serious nature. For these reasons, we find no error in the juvenile court's findings or in the termination of the mother's rights.
The record also contains sufficient support for a finding that LSA-Ch.C. art. 1015(5) was a valid ground, as well as, Art. 1015(4)(b).
Therefore, we affirm the judgment of termination. The costs of the appeal are assessed against appellant, the mother, K.B.
The opinion is issued in accordance with the Uniform Rules Courts of Appeal, Rule 2-16.1.B.