Opinion
No. 2000-CA-1350.
March 7, 2001.
APPEAL FROM JUVENILE COURT, ORLEANS PARISH NO. 00-004-02-WD, SECTION "D" HONORABLE LAWRENCE LAGARDE, JR., JUDGE.
CYNTHIA D. SAMUEL, NEW ORLEANS, LOUISIANA, COUNSEL FOR APPELLEE-CHILD.
SHANNON SWAIM, STUDENT PRACTITIONER, CATHERINE L. LAFLEUR, LOYOLA LAW CLINIC, NEW ORLEANS, LOUISIANA, COUNSEL FOR APPELLEE-MOTHER.
CHERRILYNNE W. THOMAS, DEPARTMENT OF SOCIAL SERVICES, OFFICE OF COMMUNITY SERVICES, NEW ORLEANS, LOUISIANA, COUNSEL FOR APPELLANT-PETITIONER.
(Court composed of Judge William H. Byrnes, III, Judge Steven R. Plotkin, and Judge Patricia Rivet Murray)
The Louisiana Department of Social Services, Office of Community Services (the State), appeals a juvenile court judgment of May 1, 2000 denying its petition to terminate parental rights to the minor child, K.W. We reverse for the reasons that follow.
Pursuant to the recently promulgated Rule 5-2, Uniform Rules — Courts of Appeal, the parties will be referred to by their initials, first names or other generic identifiers.
Mother gave birth to the baby girl, K.W., on December 31, 1995. Mother was sixteen years old, developmentally disabled since birth, and was herself in OCS custody due to neglect as well as physical and sexual abuse. In March 1996, Mother and K.W. moved in with Mother's maternal aunt when Mother's grandmother, with whom they had been residing, died. In June 1996, it was reported that Mother was neglecting and mistreating K.W., and that because Mother was "sexually acting out," the maternal aunt no longer wanted them in her home. An instanter order of temporary custody was issued on July 2, 1996, and K.W. was placed into a foster home with Mother. After the State had petitioned for a formal adjudication of neglect, Mother was hospitalized for psychiatric treatment. On September 16, 1996, K.W. was placed separately in a foster home of her own, where she remained through April 2000, when this matter was tried.
Mother's child-in-need-of-care proceeding was consolidated with K.W.'s case in order to place them both into the same home.
The adjudication hearing was continued several times due to Mother's continued hospitalization. In March 1997, however, it was stipulated by all parties that K.W. was a child in need of care based upon the State's allegations of neglect. After Mother's eighteenth birthday in September 1997, a case plan for reunification was established, including provisions for parenting classes, vocational training, and substance abuse counseling. However, the court ordered the plan to be adapted in October 1997 due to Mother's inpatient treatment at East Louisiana State Hospital.
The record indicates that the State began to consider placing K.W. for adoption in January 1998, but it was determined that rehabilitation services to assist Mother in attaining independence would first be investigated. After further reviews, the parties agreed in late July 1998 to continue working toward reunification, with a family assessment by LSU's Permanency Infant Team as well as continued training and rehabilitation for Mother.
The State placed Mother in her own apartment in August 1998, and personal care assistants were provided to teach her independent living skills. These attendants were with Mother seven or eight hours a day, five days a week, and supervisory personnel were available at all times by telephone. Beginning in September 1998, K.W. was brought to Mother's apartment for regular visits each week. At some point, Mother's boyfriend also moved in. In late July 1999, after the boyfriend had stabbed and beaten Mother one weekend, she was asked to move out of her apartment. Between August 1999 and February 2000, when the State found a new apartment for her, Mother resided at various times in two battered women's shelters, with one of her personal care attendants, and with her maternal aunt.
During this latter period when Mother had no permanent residence, K.W. was brought to the OCS office for her weekly visits with Mother.
In review summaries of May and October 1999, the court noted that "Mother has not been in substantial compliance with the court's orders and the case plan for re-unification." While the State's permanency plan at the May review was to place K.W. with Mother's maternal aunt, the October 1999 review resulted in the court's authorization for the State to petition for the termination of parental rights and to pursue adoptive placement for K.W.
The instant termination petition was filed on January 4, 2000, asserting that Mother's parental rights should be terminated because K.W. had been in State custody for more than a year, Mother had not complied with the case plan requirements, and there was no reasonable expectation for improvement in the foreseeable future. It was further asserted that because the alleged biological father, K.L.E., had failed to evidence any interest in K.W. or to contribute towards her care or support, his parental rights were also subject to termination. However, after K.L.E. was located and tested, it was established that he could not be K.W.'s father. Accordingly, the State's petition was amended to terminate the parental rights of "the unknown biological father" rather than K.L.E.
After the trial held on April 17, 2000, written memoranda were submitted by the parties. On May 1, 2000, the court dismissed the petition for termination and reinstated the child-in-need-of-care proceedings, stating that, considering Mother's disability, the evidence failed to establish that no significant improvement in her situation could be expected. This appeal followed.
While the trial court judgment makes no mention of K.W.'s father's parental rights, the State contends that the evidence clearly warrants termination based upon abandonment, defined in part in Children's Code article 1015(4)(a) as "leaving [the child] under circumstances demonstrating an intention to permanently avoid parental responsibility" such as when "[f]or a period of at least four months as of the time of the hearing, despite a diligent search, the whereabouts of the child's parent continue to be unknown."
Children's Code article 1035 requires the State to prove each element of the statutory grounds for termination by clear and convincing evidence. In this case, it was established at trial that Mother had consistently stated that K.L.E. was K.W.'s father, although he was not named on the birth certificate. After his paternity was ruled out by DNA testing, Mother was unable to name another individual who might be the father. It was shown that no one had registered as K.W.'s putative father or had taken any steps, formal or informal, to acknowledge paternity, nor was the court-appointed curator able to locate anyone claiming to be the father. On this evidence, the court's failure to terminate any parental rights K.W.'s unknown biological father might claim was clearly erroneous. In re R.E., 94-2657 (La. 11/19/94), 645 So.2d 205; In re B.G.S., 556 So.2d 545 (La. 1990).
In this appeal, counsel for K.W. submitted a brief in support of the State's arguments in favor of termination. In addition, the child's attorney asserts that the judgment must be reversed because the trial court refused to admit significant relevant evidence of (1) Mother's performance on a particular behavioral measurement and (2) K.W.'s foster mother's desire to adopt the child. Because a consequential error in the exclusion of relevant evidence may necessitate a de novo review, Gonzales v. Xerox Corp., 320 So.2d 163, 165 (La. 1975), and cases cited therein; Cole v. Celotex Corp., 588 So.2d 376, 387-88 (La.App. 3d Cir. 1991), aff'd, 599 So.2d 1058, 1082-83 (La. 1992), these arguments must be considered prior to a review of the merits regarding Mother's parental rights.
K.W.'s first challenge relates to the testimony of Ms. Jean Valliere, a clinical social worker and Administrative Director of LSU's Permanency Infant Program. Although she was accepted as an expert in social work relative to infant-parent relationships, the court sustained Mother's objection to Ms. Valliere's testimony regarding Mother's score on the Vineland Adaptive Behavioral Scale because it was based upon third-party responses, rather than direct questioning or observation of Mother. K.W. contends the exclusion of this evidence was erroneous because the result of this measurement is widely used and accepted in the field, and there was no attempt to admit any underlying hearsay testimony.
Ms. Valliere's testimony about this assessment was recorded as a proffer while the trial judge left the bench, and is thus available for review in this appeal. See La. Code Civ.Proc. art. 1636.
Article 703 of the Code of Evidence states:
The facts or data . . . upon which an expert bases an opinion or inference may be those perceived by or made known to him at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.
Such testimony regarding the foundation for an expert opinion or conclusion is further governed by Article 705 A, which provides:
In a civil case, the expert may testify in terms of opinion or inference and give his reasons therefor without prior disclosure of the underlying facts or data, unless the court requires otherwise. The expert may in any event be required to disclose the underlying facts or data on cross-examination.
Under the express terms of these articles, the fact that Ms. Valliere's assessment was based upon inadmissible hearsay did not require the exclusion of her testimony regarding the resultant measurement. Furthermore, nothing was offered to suggest that the Vineland Adaptive Behavior Scale was not a generally accepted, reliable methodology in the field, as Ms. Valliere testified, or that the assessment had not been performed in accord with the applicable scientific standards. Therefore, this testimony was erroneously excluded from consideration. AEB v. JBE, 32,647, pp. 15-16 (La.App. 2d Cir. 8/11/99), 741 So.2d 189, 197, reversed on other grounds, 99-2668 (La. 11/30/99), 752 So.2d 756.
The second evidentiary error asserted relates to the restriction of testimony throughout the trial to events and circumstances prior to January 4, 2000, the date the petition was filed. While there is no specific ruling in the transcript imposing this limitation, it is apparent that there had been a pretrial discussion of the issue: counsel for the State specifically limited her questioning to the period prior to January 2000, and the court sustained several objections to attempts by any of the attorneys to elicit testimony regarding post-petition events. Pursuant to this limitation, the judge noted in his reasons for judgment that because K.W.'s foster mother did not state until after January 2000 that she was willing to adopt the child, K.W. might be removed from the only home she has ever known whether or not Mother's parental rights were terminated. The court thus found that consideration of K.W.'s need for stability and permanence did not weigh in favor of termination.
K.W. asserts that there is no codal justification for the court's refusal to consider the foster mother's desire to adopt merely because her commitment was not formalized until after the petition for termination was filed. Because this fact is highly relevant to the necessary determination of the best interests of the child under Children's Code article 1037, she maintains that its exclusion was an abuse of discretion that contributed to the trial court's erroneous dismissal of the petition for termination.
Like counsel for the child, we find nothing in the Children's Code or other applicable statutes that would prohibit the admission and consideration of relevant evidence merely because it did not occur until after the termination proceedings were instituted. To the contrary, the legislature has expressly stated that procedural provisions regarding the termination of parental rights are to be liberally construed, and the jurisprudence reflects that this extends to evidentiary matters as well. La. Ch. Code art. 1001; State ex rel. J.A., 99-2905 (La. 1/12/00), 752 So.2d 806; Folse v. Folse, 98-1976, (La. 6/29/99), 738 So.2d 1040. Therefore, the trial court erred in refusing to consider that, as of the date of trial, K.W.'s foster mother intended to adopt the child.
Because we thus find that the trial court erroneously excluded significant relevant evidence, both as to Mother's ability to exercise parental responsibilities and as to the availability of a permanent placement for K.W., a de novo review of the appellate record is required to determine whether the trial court's judgment was just, legal and proper under the law. Gonzales v. Xerox Corp., 320 So.2d at 165; Cole v. Celotex Corp., 588 So.2d at 387-88. Applying this standard, we find that the State has proven, by clear and convincing evidence, the asserted grounds for termination of Mother's parental rights and that such action is in K.W.'s best interest.
In reaching this conclusion, we are persuaded in great part by the testimony of Dr. Bryon Hammer, the primary clinician on the LSU Permanency Infant Team, who was accepted as an expert in child and adolescent psychiatry. His evaluation of Mother began in August 1998, revealing that her I.Q. scores were "in the low sixties, around 64," and that she also suffered a major depressive disorder with psychotic features, post-traumatic stress disorder, and an inherited kidney disorder. Weekly individual psychiatric therapy sessions with Mother began in October 1998, but her attendance was erratic; despite Dr. Hammer's attempts to maintain treatment through his home and telephone contacts, only thirty to forty percent of Mother's scheduled sessions were held. Thus, although the initial goal was to eventually include K.W. in parent-child therapy sessions, the treatment never got to that stage.
Dr. Hammer stated that, although she demonstrated a strong emotional bond with K.W., during the observed play sessions Mother quickly sought assistance from others if the child misbehaved or became distressed in some way. Thus, one of the primary concerns of the Infant Team was that,
[W]hen things were going very well with [Mother], she seemed to demonstrate some strengths, but if there was any degree of stress, [Mother's] ability seemed to deteriorate significantly, and she would begin to, what in her words [was] called "clicking" . . . where she would begin to panic, not think as clearly and act impulsively. . . .
According to Dr. Hammer, Mother's self-described episodes of "clicking" could be characterized as anxiety, but also seemed to fit descriptions of flashbacks resulting from post-traumatic stress disorder. She had explained that it was during one such episode in 1996 that she had shaken K.W., who was then only six or seven months old. While admitting that Mother's fear of another such incident could be regarded as one of her strengths, Dr. Hammer concluded that this was so only if she could be provided round-the-clock assistance, "someone . . . to function as sort of a co-parent or a surrogate parent." Under the existing circumstances, however, he found that Mother's cognitive disability, her own childhood of physical and sexual abuse, and her history of hospitalizations for mood disorders were significant indicators that a child in her care would be at risk for neglect or abuse. While Dr. Hammer acknowledged that this risk could be significantly reduced through treatment directly addressing Mother's psychiatric conditions, he testified that "treating post-traumatic stress disorder is very, very long-term and fairly intensive," requiring the patient to re-live the causative events. Because Mother evidenced "a great deal of distress . . . whenever we would talk about those, . . . and she would kind of shut down," Dr. Hammer saw little promise of improvement from such treatment in the foreseeable future, and thus did not pursue it.
Dr. Hammer further testified that, in his opinion, Mother clearly understood that her attendance at therapy sessions and parenting classes, as well as her acquisition of personal independent living skills, was required in order to regain custody of her daughter. Nevertheless, she frequently expressed frustration with the requirements and did not consistently demonstrate a willingness to follow through on the concrete behaviors necessary for reunification. Thus, in his last report in June 1999, Dr. Hammer recommended termination of Mother's individual psychiatric therapy due to her inconsistent attendance, refusal to take prescribed medications, and lack of progress in "developing improved responsibility and decreased impulsivity."
The testimony of Ms. Valliere, including that which was excluded by the trial court, is similarly persuasive. She confirmed Dr. Hammer's description of the LSU Team's assessment process, which included administration of the Vineland Adaptive Behavioral Scale in October 1998. Rather than measuring academic skills, this psychological instrument gauges an individual's abilities in communication, daily living, and socialization, and is normed against other similar individuals. Based upon a lengthy directed interview with the personal attendant who had been with her longest, Mother's score for communication was six years, ten months; daily living was nine years, eight months; and socialization was eight years, five months. Her composite score, weighted against other mentally retarded adults in non-residential settings, was eight years, three months. Ms. Valliere acknowledged that Mother might have improved scores on the Vineland Scale if she were re-tested, and admitted that she did not know whether the control group for that test included others with post-traumatic stress disorder and/or depression.
Ms. Valliere added that K.W. was also found to have "special developmental needs." With a diagnosis of Oppositional-Defiant Disorder, developmental delay, and sleep disturbances, Ms. Valliere characterized K.W. as "a sweet little girl. . . . [but] definitely a handful." Based upon the combination of the child's difficult behavior as well as Mother's low functional abilities and mental disorders, she concluded that "it would be too much of a challenge for [Mother] to know how to manage that in a way that would be appropriate and safe for [K.W.]."
Additional testimony by lay witnesses established that despite the injuries suffered from her boyfriend's attack in July 1999, Mother has maintained her relationship with him, and brought him with her for visits with K.W. "on numerous occasions." While Mother's attendance for these visits had become more consistent at the end of 1999, she had participated in only sixty-five percent of the scheduled visits overall. In addition, she failed to complete either of the two sessions of parenting classes she was enrolled in, telling her caseworker "that she knew all she had to know about parenting." Although the course was not designed specifically for someone with cognitive disabilities, Mother was one of only three enrollees in the second session, which allowed for "almost individualized" instruction. Similarly, although a caseworker tried to arrange for outpatient mental health treatment after another brief psychiatric hospitalization in August 1999, Mother declined these services.
In addition to the two experts, the State's witnesses included two of Mother's daily attendants, as well as her independent living supervisor since May 1998; her independent living case manager since February 1999; the OCS driver who transported K.W. to her visits with Mother; and the two OCS caseworkers for the period from August 1998 to the date of trial. No witnesses were called by the other parties.
Testimony also demonstrated that while Mother could now cook for herself and generally maintained a clean household, she still needed prompting from her attendants to bathe regularly, brush her teeth, and change clothes. Although one attendant stated Mother had made "tremendous" improvement in budgeting, another testified that she could not accurately distinguish coins or count her change when shopping, and that, unless given firm guidance, Mother would frequently eat fried chicken, her favorite food, rather than plan and prepare balanced meals. It was repeatedly emphasized that the purpose of the daily attendants and related assistance was to enable Mother to live independently, as opposed to in an institutional or residential setting; the program was not designed to include child care or instruction in parenting.
The State asserts that on this evidence, termination of Mother's parental rights is warranted under Article 1015(5) of the Children's Code, which states:
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.
Under this provision, a parent's lack of compliance with a case plan may be evidenced by the failure to maintain communications and/or scheduled visitation with the child; by a repeated failure to obtain treatment and rehabilitation services required under the plan; and by the failure to improve conditions that led to the child's removal, or that have a similar potential for harm, or conditions that have prevented the child's return. La. Ch. Code art. 1036 C.
Article 1036 D further provides in part:
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:
(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.
* * * * *
(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.
Considering these statutory requirements for termination, it is undisputed that K.W. has been in State custody for more than four years. Furthermore, the evidence in this case clearly establishes that Mother's psychiatric treatment, required under the case plan, was discontinued as unproductive due to her failure to attend therapy on a regular basis. While counsel claims that "out of a possible thirteen sessions only four were actually missed," this was only because Dr. Hammer would often phone Mother or go to her apartment when she failed to appear at his office; his records reflect that she had never attended more than two sessions in a row. In addition, when the OCS caseworker suggested outpatient treatment through a neighborhood mental health center, Mother rejected the offer of assistance. Similarly, despite repeated reminders that completing a parenting course was required in order to regain custody of her daughter, Mother refused to participate because she felt she knew everything she needed to know. Accordingly, the State has established two of the elements required for termination under Article 1015(5).
Moreover, Mother's rejection of psychiatric therapy and rehabilitation services is particularly significant in view of the evidence that it is not merely her mild retardation that affects her ability to care for a child, but also her history of depression and post-traumatic stress disorder. Not only have these conditions necessitated repeated hospitalizations, most recently in August 1999, but, according to Dr. Hammer, they will require intensive, long-term therapy to reduce the risk that Mother could neglect or abuse K.W. during a stress-induced episode of "clicking." Without this therapy, Mother's mental conditions render her "incapable of exercising parental responsibilities without exposing [K.W.] to a substantial risk of serious harm," as specified in Article 1036 D(1). Thus, expert opinion establishes that without Mother's consistent attendance and meaningful participation in psychiatric therapy, there is little expectation for improvement in her condition in the foreseeable future, the third statutory requirement for termination of parental rights.
Notably, Mother does not contend that she has fully complied with the case plan requirements, but instead emphasizes the experts' acknowledgements that her compliance would probably have been greater had she been given more individualized assistance and therapy. Similarly, Mother argues that because her independent living skills have improved while Dr. Hammer's testimony regarding risk factors was "vague and unquantified," it is reasonable to expect that she will eventually be able to care for K.W., especially if childcare assistance were provided. Based upon these factors and the absence of testimony specifying that termination would be in K.W.'s best interests, Mother asserts that the trial court judgment should be affirmed.
Where the evidence establishes that the statutory grounds for termination of parental rights have been met, then such action will ordinarily be in the child's best interest. State ex rel. C.P., 2000-0953, p. 21 (La.App. 4th Cir. 6/28/00), 768 So.2d 134, 144. "[H]owever, the best interest determination allows the court in an exceptional case to refuse to terminate, even after proof of statutory grounds." Id. Furthermore, it has often been noted "that adults can take years to improve their functioning but children are not granted the same amount of time." State ex rel. H.D., 98-0953, p. 6 (La.App. 4th Cir. 11/4/98), 721 So.2d 1045, 1048, citing State in the Interest of C.D., 558 So.2d 806 (La.App. 5th Cir. 1990).
In this case, there are no exceptional circumstances suggesting that it is in K.W.'s best interest to remain in foster care while continued efforts are made toward reunification. K.W. is now approximately five years old and faces her own developmental challenges. Despite her disabilities and difficult conduct, K.W.'s foster mother is willing to adopt her, which would allow the child to remain in the only home she has ever known. In contrast to Mother's emotional attachment to her daughter, the testimony at trial indicated that K.W. was reluctant to interact with Mother during their visits, and instead sought comfort and assistance from OCS workers. Thus, the present availability of a safe, stable and permanent home for K.W. must outweigh Mother's professed desire to someday regain custody, particularly in view of Mother's failure to demonstrate progress toward that goal. As the Supreme Court has stated,
[A] 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. 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 ex rel. J.A., 99-2905, p. 8 (La. 1/12/00), 752 So.2d 806, 810-11.
For these reasons, the judgment of the trial court is reversed and the State's petition for termination of parental rights is granted. The case is remanded for further proceedings not inconsistent with this opinion.