State in the Interest of D.P., M.P. & Z.P.

NOT FOR PUBLICATION

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

11-0770

STATE OF LOUISIANA

IN THE INTEREST OF

D.P., M.P., & Z.P.

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FIFTEENTH JUDICIAL DISTRICT COURT

PARISH OF LAFAYETTE, NO. JC-2009-1007

HONORABLE MARILYN CASTLE, DISTRICT JUDGE

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JIMMIE C. PETERS

JUDGE

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Court composed of John D. Saunders, Jimmie C. Peters, and Marc T. Amy, Judges.

AFFIRMED.

Saunders, J., dissents and assigns written reasons.

William T. Babin

405 West Convent Street

Lafayette, LA 70501

(337) 232-7747

COUNSEL FOR APPELLEE:

Louisiana Department of Social Services

Annette Roach

Fifteenth Judicial District Public Defenders Office

P. O. Box 3622

Lake Charles, LA 70502

(337) 436-2900

COUNSEL FOR DEFENDANT/APPELLANT:

Mother/M.P.

Allyson M. Prejean

Attorney at Law

P. O. Box 3862

Lafayette, LA 70502

(337) 291-9444

COUNSEL FOR DEFENDANT/APPELLANT:

Father/L.P.

Lloyd Dangerfield

Attorney at Law

703 East University Avenue

Lafayette, LA 70503

(337) 232-7041

COUNSEL FOR APPELLANTS:

Children/L.P., M.P., & Z.P.

PETERS, J.

The mother, the father, and the three minor children of the marriage appeal

the judgment terminating the mother’s and father’s parental rights to D.P. (a boy

born November 17, 2006), M.P. (a girl born October 10, 2007), and Z.P. (a girl

born January 2, 2009) and certifying the children as eligible for adoption.1 For the

following reasons, we affirm the trial court judgment in all respects.2

DISCUSSION OF THE RECORD

The three children at issue in this litigation were born to the marriage of

M.P.(M)3 and L.P. on the dates set forth above. The State of Louisiana through the

Department of Children and Family Services (hereinafter sometimes referred to as

the “state” or “DCFS”) became involved with this family in July of 2007, or less

than one year after the birth of D.P. At that time, D.P., who had been born

prematurely, 4 was determined to be suffering from a “failure to thrive” to the

extent that was expected of a child of his age. Initially, DCFS attempted to work

with the parents by providing in-home services to make sure the parents obtained

basic medical attention for D.P. By the time of Z.P.’s birth in January of 2009,

M.P., who was also born prematurely,5 was also determined to be suffering from a

failure to thrive. Again DCFS approached the problem by offering in-home

services. Matters did not improve and, on September 18, 2009, DCFS recognized

that D.P. continued not to progress as would have been expected of a child of his

age. Despite being almost three years of age, D.P. weighed only twenty pounds.

1

We use the initials of the children and their parents to protect the identity of the minor children. Uniform

Rules—Courts of Appeal, Rules 5-1, 5-2.

2

The children adopt the arguments that their mother and father set forth on appeal. Accordingly, we will

not address their assignments of error individually.

3

We will identify the mother as M.P.(M) to differentiate her from the child M.P.

4

D.P. was born twenty-six weeks into the pregnancy.

5

M.P. was born twenty-four weeks into the pregnancy.

DCFS removed the children from their parents’ home on September 22,

2009, and they were placed in the custody of the state. On December 8, 2009, the

trial court adjudicated the children as children in need of care. The pleading giving

rise to this litigation occurred on February 22, 2011, when DCFS filed a petition to

terminate the parents’ parental rights pursuant to the authority of La.Ch.Code art.

1015(5).

In its petition DCFS based its request for relief on the assertion that the

parents had not complied with the case plans presented to them, and that there was

no reasonable expectation of significant improvement in the near future. At the

April 21, 2011 trial, the state called two witnesses and the parents called three.

This testimony, combined with a number of exhibits,6 constituted the record upon

which the trial court based its decision.

The testimony of Megal Callais, the family’s DCFS caseworker, established

that while the mother and father did extremely well when DCFS provided in-home

services, as soon as those services ceased the parents failed to follow through with

assuring medical attention for their children. With regards to compliance with the

case plans promulgated after the children came in to the custody of the state, Ms.

Callais suggested that their performance was woefully inadequate.

One of the goals set forth in the case plan was for the parents to maintain a

stable and steady home situation. Despite this mandate, the parents were evicted

from their home in July of 2010 and resided with M.P.(M)’s mother for two

months thereafter. For the next six months, they resided with L.P.’s aunt. They

then obtained their own home for approximately one year before moving into

another home on March 31, 2011, or just weeks before trial. This constant moving

6

L.P. offered applications he had made for Medicaid and Social Security benefits, and M.P.(M) offered

check stubs as evidence of her current employment and an excuse from The Family Tree, a Lafayette, Louisiana

information, education, and counseling center.

2

complicated communication with DCFS, and of the twenty-six home visits

attempted by Ms. Callais, the parents were only found at home on eight occasions.

An important condition of the case plan was naturally the requirement that

the parents maintain adequate food for the children, given their developmental

conditions. Despite this very special condition directed at the children’s wellbeing,

Ms. Calais’ successful home visits revealed little or no food on the premises.

According to Ms. Callais, M.P.(M) failed to meet almost all of the individual

case plan goals assigned to her. Although she was to maintain steady employment,

she remained unemployed until approximately three weeks before trial, when she

began working at a Checkers Restaurant.

The case plan also called for M.P.(M) to participate in drug rehabilitation

programs. Not only did she not attend the educational and group therapy programs

set up for her, but on May 12, 2010, she tested positive for opiates. When she was

referred for intensive inpatient treatment after this discovery, she refused the

services. Furthermore, on June 14, 2010, she refused to take a drug screening test.

In January of 2011, M.P.(M) appeared to have a change of heart and attempted to

readmit herself to the education and group therapy program previously offered.

DCFS recommended that she receive outpatient services because she was

ineligible for inpatient treatment due to an unrelated medical condition. A

reference to the Tyler Mental Health facility proved unproductive and the facility

closed her case file because of noncompliance. A reference to Family Tree

resulted in little more than an attempt by M.P.(M) to make an appointment shortly

before trial.

The only goal of the case management plan that was completed by M.P.(M)

was parenting classes. However, according to Ms. Callais, even though she

completed the class requirements, the class provider questioned M.P.(M)’s ability

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to perform as an adequate parent, and noted that M.P.(M) was below average with

regard to the skills required to meet a child’s needs.

L.P. fared no better in Ms. Callais’s analysis. According to Ms. Callais, L.P.

complied only minimally with his individual case plan. Not only did he fail to

obtain mental health treatment, he only applied for Social Security and Medicare

benefits shortly before trial. Additionally, the parenting class provider had

concerns similar to those expressed about M.P.(M) with regard to his ability to

meet a child’s needs.

Dr. Edmond Bergeron, a Lafayette, Louisiana clinical psychologist,

examined both M.P.(M) and L.P. in October of 2009 and concluded that, at that

time, neither parent could safely care for the children. He found that M.P.(M)

suffered from such anxiety that sometimes she was too overwhelmed to even cook

a meal. Although she had completed the eleventh grade of high school and was a

certified nursing assistant, Dr. Bergeron found that her IQ score was 77. Although

he did not believe that her intellectual functioning alone would preclude her from

being a primary caregiver for the children, that finding, together with her passive

parenting style and anxiety condition, did. He suggested that M.P.(M) probably

suffered from a mild bipolar disorder and needed parenting skills training and

stability in her life before she would be able to be a satisfactory parent.

L.P.’s IQ was determined to be 67, which, according to Dr. Bergeron, placed

him in the upper limits of the mild mental retardation range. Although asserting

that his wife was a good mother, L.P. admitted to Dr. Bergeron that she did not

consistently cook for the family, and he acknowledged that he needed to learn to

cook and provide for his children in those situation when his wife could not. Dr.

Bergeron concluded that L.P. was in a state of denial, and that fact combined with

his mental limitations precluded him from being a satisfactory caregiver to his

4

children. In fact, Dr. Bergeron opined that there was nothing L.P. could do to

improve his situation

Dr. Bergeron’s opinion, based on his 2009 interviews, was that the parents

would need someone in the home twenty-four hours per day if the children were

returned to them. Still, he stated that there was no question but that the parents

loved their children and wanted to take care of them. The problem was that neither

was qualified to be a primary caregiver to the children. Despite the fact that his

initial opinions were over eighteen months old at the time of trial, he heard nothing

at trial that would change his opinion. Dr. Bergeron said that the continuous lack

of food in the home was a symptom of the parents’ inability to move forward.

The three witnesses who testified for L.P. did not contradict the evidence

provided by DCFS. P.A.F., L.P.’s mother, testified that she was willing to live

with the family and help care for the children. However, she works as a breakfast

cook from 4:30 a.m. until 11:30 a.m. and cleans houses between 3:00 p.m. and

5:00 p.m. six days a week. Additionally, she had only seen her grandchildren once

during the eighteen months that they were in the state’s custody. A.W., M.P.(M)’s

sister, also suggested that she would be willing to assist the parents on a regular

basis during the day. She is thirty-eight years old and has four daughters ranging

in age from sixteen to nineteen who would be willing to help with the children.

She also saw the children only once during the eighteen months of DCFS’s

custody. Finally, T.J., M.P.(M)’s Narcotics Anonymous sponsor, testified that she

had known the parents for one year, and that although she had never met the

children, she would be willing to help take care of the children in either her home

or the parents’ home. T.J., who works from 9:00 a.m. until 3:00 p.m., is in a

program to become a licensed practical nurse.

5

At the close of the hearing, the trial court rendered judgment terminating the

parents’ rights and certifying the children for adoption. The parents and the

children have appealed.

The father asserted two assignments of error:

1 The trial judge’s termination of L.P.’s parental rights and the

certification of his children for adoption was an abuse of discretion,

manifestly erroneous and/or clearly wrong. Particularly, the trial

court erred in finding that DCFS had proven by clear and convincing

evidence that L.P. failed to substantially comply with his case plan,

and that there was no reasonable expectation of significant

improvement in his condition or conduct in the near future.

2. The trial judge’s finding that termination of L.P.’s parental

rights was in the best interest of his children was an abuse of

discretion, manifestly erroneous and/or clearly wrong.

The mother asserted two assignments of error:

1. The trial court erred in terminating the parental rights of M.P.

The court further erred in concluding that M.P.’s lack of focus was

sufficient to prove by clear and convincing evidence that M.P. had not

substantially complied with her case plan and that there was no

reasonable expectation for further improvement in her condition or

conduct in the near future nor reasonable expectation that she would

complete any new requirements of the case plan as deemed necessary

for the safe return of the children.

2. The trial court erred in finding that termination was in the best

interest of the children, especially considering the relationship the

children have with M.P.

In their appeal, the children adopted the assignments and arguments of their

parents.

OPINION

The procedure for termination of parental rights is found in Title X of the

Louisiana Children’s Code. Louisiana Children’s Code Article 1001 provides that

the purpose of termination proceedings “is to protect children whose parents are

unwilling or unable to provide safety and care adequate to meet their physical,

emotional, and mental health needs, by providing a judicial process for the

6

termination of all parental rights and responsibilities and for the certification of the

child for adoption.”

In State in the Interest of J.A., 99-2905, pp. 7-9 (La. 1/12/00), 752 So.2d

806, 810-11, the supreme court summarized the general rules governing suits

seeking the termination of parental rights as follows:

In any case to involuntarily terminate parental rights, there are

two private interests involved: those of the parents and those of the

child. The parents have a natural, fundamental liberty interest to the

continuing companionship, care, custody and management of their

children warranting great deference and vigilant protection under the

law, Lassiter v. Department of Soc. Servs., 452 U.S. 18, 101 S.Ct.

2153, 68 L.Ed.2d 640 (1981), and due process requires that a

fundamentally fair procedure be followed when the state seeks to

terminate the parent-child legal relationship, State in Interest of

Delcuze, 407 So.2d 707 (La.1981). However, 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. Lehman v. Lycoming

County Children’s Serv.’s Agency, 458 U.S. 502, 102 S.Ct. 3231, 73

L.Ed.2d 928 (1982); see also State in the Interest of S.M., 98-0922

(La.10/20/98), 719 So.2d 445, 452. 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. See, e.g., State in the Interest of

S.M., 719 So.2d at 452; State in the Interest of A.E., 448 So.2d 183,

186 (La.App. 4 Cir.1984); State in the Interest of Driscoll, 410 So.2d

255, 258 (La.App. 4 Cir.1982).

* **

Title X of the Children’s Code governs the involuntary

termination of parental rights. LA. CHILD. CODE art. 1015 provides the

statutory grounds by which a court may involuntarily terminate the

rights and privilege of parents. The State need establish only one

ground, LA. CHILD. CODE art. 1015, but the judge must also find that

the termination is in the best interest of the child. LA. CHILD. CODE

art. 1039. See State in Interest of ML & PL, 95-0045 (La.9/5/95), 660

So.2d 830, 832. Additionally, the State must prove the elements of

one of the enumerated grounds by clear and convincing evidence to

sever the parental bond. LA. CHILD. CODE art. 1035(A); Santosky v.

Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982)

(holding that the minimum standard of proof in termination of

parental rights cases is clear and convincing evidence).

7

DCFS based its petition for termination of both parents’ parental rights on

La.Ch.Code art. 1015(5), which states the conditions for asserting such a drastic

remedy:

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.

Lack of substantial compliance with a case plan as set out in La.Child.Code art.

1015(5) may be proven by establishing one or more of these factors:

(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.

La.Ch.Code art. 1036(C).

The lack of any reasonable expectation of significant improvement in the parents’

conduct in the near future may be established by proving by clear and convincing

evidence one of the following:

8

(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.

La.Ch.Code art. 1036(D).

This court must apply the manifest error standard when reviewing the trial

court’s findings as to whether parental rights should be terminated. State ex rel.

K.G., 02-2886, 02-2892 (La. 3/18/03), 841 So.2d 759. Whether a parent has

complied with a case plan, the expected success of rehabilitation, and the

expectation of significant improvement in the parent’s condition or conduct are all

questions of fact that may not be set aside in the absence of manifest error or

unless they are clearly wrong. State in the Interest of T.L.B., 00-1451 (La.App. 3

Cir. 4/4/01), 783 So.2d 626.

In its petition to terminate the parental rights of M.P.(M) and L.P., DCFS

asserted that the parents had failed to comply with the case plan and that there was

no reasonable expectation of significant improvement in either parents’ condition

or conduct, with the following allegations:

a. The [parents have] failed to obtain a stable and safe home, and

steady employment or income, in order for the children to be returned

to [their] custody;

b. The [parents have] failed to meet with the case manager or

attend the family team conferences as required by the case plan;

c. The [parents have] repeatedly failed to comply with the

required program of substance abuse treatment and rehabilitation

services;

9

d. The [parents’] mental illness, mental deficiency, substance

abuse and/or chemical dependency renders [them] unable or incapable

of exercising parental responsibilities without exposing the children to

a substantial risk of serious harm, based upon expert opinion or based

upon an established pattern of behavior;

e. The [parents have] failed to pay court ordered child support for

the minor children;

f. The conditions that led to the removal or similar potentially

harmful conditions continue to persist;

g. As set forth above, and as also to be shown at the trial hereof,

the [parents have] failed to cooperate in completion of the case plan

designed for reunification of the family; and

h. The [parents have] shown a lack of substantial improvement in

redressing the problems which prevent reunification.

Here we cannot say that the trial court was clearly wrong in concluding that

the state established the required elements by clear and convincing evidence: that

both M.P.(M) and L.P. showed “no substantial improvement in redressing the

problems preventing reunification” in that they failed to maintain a stable home

and have appropriate food in the house. Additionally, we find no manifest error in

the trial court’s conclusion that the conditions which led to the children’s removal

were still present at the time of the trial some eighteen months after removal, e.g.

the mother’s passive parenting style, her anxiety, and the father’s denial about how

his children were being treated.

Having found no manifest error in the trial court’s determination that one or

more grounds for termination existed at the time of trial, we must also address the

issue concerning the best interests of the children. In making that determination,

we continue to be guided by the supreme court’s decision in State in the Interest of

J.A.:

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

10

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. LA. CHILD. CODE

art. 1001. 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.

Nonetheless, courts must proceed with care and caution as the

permanent termination of the legal relationship existing between

natural parents and the child is one of the most drastic actions the

State can take against its citizens. The potential loss to the parent is

grievous, perhaps more so than the loss of personal freedom caused by

incarceration. State in the Interest of A.E., 448 So.2d [183] at 185.

State in the Interest of J.A., 752 So.2d at 811.

Balancing the parents’ rights against those of their children’s safety and

health, we find that the trial court did not commit manifest error in concluding that

the best interests of the children requires the termination of their parents’ parental

rights.

DISPOSITION

For the foregoing reasons, we affirm the trial court judgment in all respects.

We assess all costs of these proceedings to the father, L.P., and the mother,

M.P.(M).

AFFIRMED.

This opinion is NOT DESIGNATED FOR PUBLICATION.

Uniform Rules—Courts of Appeal, Rule 2-16.3.

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STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

11-770

STATE IN THE INTEREST OF D.P., M.P., & Z.P.

SAUNDERS, Judge, dissenting

The parents in this case have mental limitations which make it impossible

for them, alone, to properly care for their children. Dr. Bergeron’s conclusion was

that both parents could be secondary caregivers, but not primary caregivers. The

solution to this problem, he suggests, would be to have another adult in the home

in order to meet the needs of the children and to respond to and handle any crisis

that arose. In response to this suggested solution, M.P. and L.P. presented the

testimony of multiple family members and a friend who are willing to help

manage a suitable arrangement for the children.

First, L.P.’s mother has been planning to have the family move in with her

for two years. She is currently on a list awaiting a home, which would enable her

to house the family. Second, M.P.’s sister testified that she is capable and willing

to make daily visits to the home to care for the children when the grandmother

would be at work. Eighteen months ago, when the Agency first approached her,

she had her hands full with four daughters and three grandchildren living in her

home. Today, she has only two daughters, ages sixteen and seventeen, who

themselves have agreed to help care for the children. Third, a friend of the family

and M.P.’s Narcotics Anonymous sponsor for one year, also agreed to help, even

offering to have the family move into her five-bedroom home with her and her

own child. She is in training for her LPN, but testified that it is not necessary that

1

she work, since she receives alimony support, and is willing to do what is

necessary for the family to be reunited.

I do not feel that termination is appropriate at this point. Termination,

under the law, is a last resort. “[C]ourts must proceed with care and caution as

the permanent termination of the legal relationship existing between natural

parents and the child is one of the most drastic actions the State can take against

its citizens. The potential loss to the parent is grievous, perhaps more so than the

loss of personal freedom caused by incarceration. State ex rel. J.A., 99-2905 (La.

1/12/00), 752 So. 2d 806, 81 (citing State in the Interest of A.E., 448 So.2d at 185).

It is also my opinion that the case plan established for M.P. was not

realistic, dooming her to fail from the start. Dr. Bergeron noted that M.P.

displayed potential bi-polar disorder. That, coupled with her anxiety and stress

problems, render M.P. unable to perform, on her own, everyday tasks which may

seem effortless to others.

Viable, untried options remain. In my view, a new, more realistic plan

should be implemented, the key component being the presence of a third,

responsible adult in the home to help care for the children.

I also take notice that M.P. has a history of narcotics addiction, which

makes the case against her stronger than the one against L.P., who does not have

a substance abuse problem. It should also be noted, however, that the last drug

screen which M.P. underwent was in May 2010. According to her NA sponsor,

M.P. has been drug-free for approximately a year.

2

Finally, “[w]e note that a finding of mental illness, standing alone, is

insufficient grounds to warrant termination of L.A.'s parental rights.” State ex rel.

J.A., 99-2905 (La.1/12/00), 752 So. 2d 806, 814; see La. Child. Code art. 1015, see

also State in the Interest of August v. Fontenot, 554 So.2d 244 (La.App. 3

Cir.1989).

Termination of parental rights, under law, is and should be, a last resort. In

this case, viable, reliable alternatives remain available and untried. I would

reverse and remand for a revised reunification plan. Accordingly, I respectfully

dissent.

3