The opinion
STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT
16-273
STATE OF LOUISIANA
IN THE INTEREST OF B.R.C.
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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. JC-2014-210
HONORABLE THOMAS R. DUPLANTIER, DISTRICT JUDGE
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ULYSSES GENE THIBODEAUX
CHIEF JUDGE
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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Sylvia R. Cooks, and
John E. Conery, Judges.
AFFIRMED.
Lloyd Dangerfield
703 E. University Avenue
Lafayette, LA 70503
Telephone: (337) 232-7041
COUNSEL FOR:
Defendant/Appellant - J.W. (Father)
Keith A. Stutes
Lafayette Parish District Attorney
Tracey Davenport-McGraw
Lafayette Parish Assistant District Attorney
P. O. Box 3306
Lafayette, LA 70502-3306
Telephone: (337) 232-5170
COUNSEL FOR:
Plaintiff/Appellee - State of Louisiana
Leah Antoinette Beard
825 Kaliste Saloom Road
Brandywine Building 3, Room 150
Lafayette, LA 70508
Telephone: (337) 262-1555
COUNSEL FOR:
Other Appellee - Department of Social Services
Diane Elaine Cote
825 Kaliste Saloom Road
Brandywine III, Room 150
Lafayette, LA 70508
Telephone: (337) 262-5913
COUNSEL FOR:
Other Appellee - State of Louisiana, through the Department of
Children & Family Services
Franchesca L. Hamilton-Acker
Kimberly Latigue Arvie
Acadiana Legal Services
P. O. Box 4823
Lafayette, LA 70502-4823
Telephone: (337) 237-4320
COUNSEL FOR:
Other Appellee - B.R.C.
Laura Melancon
516 SE Court Circle
Crowley, LA 70526
Telephone: (337) 889-5669
COUNSEL FOR:
Other Appellee - B.C.
THIBODEAUX, Chief Judge.
J.W., 1 the biological father of B.R.C., appeals the trial court’s
judgment terminating his parental rights. At the trial level, the State of Louisiana,
through the Department of Children and Family Services (“DCFS”), contended
that J.W. had not completed any component of his court-approved case plan, with
the exception of attending parenting classes and scheduling a substance abuse
evaluation as trial approached. J.W. claimed that his efforts were sufficient to
maintain his parental relationship. The trial court determined that there was no
reasonable expectation that J.W.’s conduct would significantly improve. Further,
that it was in B.R.C.’s best interest to terminate J.W.’s parental rights. For the
reasons that follow, we affirm.
I.
ISSUES
We shall consider:
1. whether the trial court manifestly erred in
terminating J.W.’s parental rights; and
2. whether the trial court erred by refusing to hear
testimony and consider evidence regarding
B.R.C.’s paternal grandmother’s interest in
adopting him, if J.W.’s parental rights were
terminated.
1
Pursuant to Uniform Rules—Court of Appeal, Rule 5-2, the initials of the parties will be
used to protect and maintain the privacy of the minor child involved in this proceeding.
II.
FACTS AND PROCEDURAL HISTORY
B.R.C. and his siblings came into the custody of DCFS because of
their mother’s substance abuse and lack of supervision. At the time, B.R.C.’s
biological father, J.W., could not be located. B.R.C. and his siblings were
adjudicated as children in need of care ten days later. He was placed in a foster
home and currently resides in that home with his sister. A case plan was created
for J.W. with an aim toward reunification with a concurrent goal of adoption. 2
After noncompliance with his case plan, DCFS sought to terminate J.W.’s parental
rights pursuant to La.Ch.Code. arts. 1015(4) and 1015(5) so that B.R.C. can be
freed for adoption.
A termination proceeding was held. Thereafter, the trial court cited
La.Ch.Code. art. 1015(5) and determined that DCFS proved, by clear and
convincing evidence, there was no reasonable expectation that J.W.’s conduct
would improve significantly. Further, that termination of J.W.’s parental rights
was in the best interest of B.R.C.3 J.W. now appeals that ruling.
III.
STANDARD OF REVIEW
A trial court’s findings on whether or not parental rights should be
terminated are subject to the manifest error standard of review. State ex rel. K.G.,
02-2886 (La. 3/18/03), 841 So.2d 759. Pursuant to this standard, we may not set
aside any factual findings of the trial court unless the findings are manifestly
2
The original case plan was created on April 14, 2014. It was updated on December 29,
2014, and June 24, 2015, to note J.W.’s progress, or lack thereof, with each element of the case
plan.
3
The biological mother stipulated to her parental rights being terminated on November 16,
2015.
2
erroneous or, in other words, are clearly wrong. Rosell v. ESCO, 549 So.2d 840
(La.1989).
IV.
LAW AND DISCUSSION
A. Whether the trial court manifestly erred in terminating
J.W.’s parental rights.
J.W. contends that DCFS failed to prove by clear and convincing
evidence that there was no reasonable expectation for significant improvement in
his condition or conduct. J.W. admits that he did not complete his case plan prior
to the termination hearing. However, he states that he put forth effort to complete
the plan. He notes that he and his mother (the child’s grandmother) established a
relationship with the child prior to entering DCFS’s custody. He states that
visiting the child was difficult because he lived more than 100 miles away. Before
the original November 16, 2015, trial date, he maintains that he: (1) visited B.R.C.
in Baton Rouge; (2) had his home inspected; (3) participated in a Family Team
Conference; and (4) appeared at numerous court hearings which required him to
travel from St. Charles Parish to Lafayette Parish for each appearance. Further,
after the trial was continued to December 14, 2015, he began parenting classes and
scheduled a substance abuse evaluation. Given the above efforts, J.W. argues that
the trial court erred in finding that the DCFS proved, by clear and convincing
evidence, that there is no reasonable expectation of significant improvement in his
condition or conduct.
DCFS argues that the trial court did not err in terminating J.W.’s
parental rights. It avers that except for J.W.’s last-ditch effort to attend parenting
classes, J.W. failed to comply substantially with his case plan. It contends that it is
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in B.R.C.’s best interest to terminate J.W.’s parental rights because: (1) there is no
reasonable expectation that J.W.’s conduct or condition will improve; (2) it has an
obligation to ensure that B.R.C. has safe and stable parental care; and (3) since July
2015, B.R.C. has been with foster parents, who have provided him a “stable, loving
and secure home and proper parental care” and are willing to adopt him.
The Louisiana Supreme Court has held that in an involuntary
termination proceeding, two private interests must be balanced—those of the
parent and those of the child. State in the Interest of J.A., 99-2905 (La. 1/12/00),
752 So.2d 806. “[P]arents have a natural, fundamental liberty interest to the
continuing companionship, care, custody and management of their children[.]” Id.
at 810 (citing Lassiter v. Dept. of Social Services, 452 U.S. 18 (1981)).
Further, “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.” Id. at 810-11 (citing Lehman v. Lycoming
County Children’s Serv.’s Agency, 458 U.S. 502 (1982)).
In balancing these interests, the interest of the child is paramount. It
must be considered over that of the parent. Id. at 806. The primary concern of a
termination of parental rights proceeding is to secure the best interest of the child.
La.Ch.Code art. 1001. “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.” State in the Interest of J.A., 752 So.2d at 811.
Louisiana Children’s Code Article 1015 provides the statutory
grounds by which a court may involuntarily terminate the rights of a parent. Only
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one ground needs to be established, but the court must also find that termination is
in the best interest of the child. State in the Interest of ML, 95-45 (La. 9/5/95), 660
So.2d 830. The trial court found that DCFS proved by clear and convincing
evidence that termination of J.W.’s parental rights was warranted under
La.Ch.Code art. 1015(5) amended by 2016 La. Acts No. 608, § 1. This article
states that:
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.
Id. (emphasis added). Louisiana Children’s Code Article 1036(C) sets
forth the evidence that may be used to prove a lack of parental compliance with a
case plan. It states:
Under Article 1015(5), lack of parental compliance with
a case plan may be evidenced by one or more of the
following:
(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
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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).
Further, La.Ch.Code art. 1036(D) sets forth the evidence that may be
used to prove a lack of reasonable expectation of significant improvement in the
parent’s conduct or condition. It states, in pertinent parts:
(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.
La.Ch.Code art 1036(D).
Here, it is undisputed that J.W. did not comply substantially with his
case plan. J.W. concedes this fact. Instead, J.W. focuses his argument on whether
the trial court determined properly that there was no reasonable expectation for
significant improvement in his condition or conduct. On this issue, J.W. submits
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that there is a lack of evidence because he: (1) made recent efforts to comply with
his case plan; (2) made an effort to attend court hearings and be attentive of the
status of the case; and (3) attempted to contact his first attorney but was
unsuccessful which delayed his ability to comply with his case plan.
J.W. cites one case, State ex rel. B.O.G., 08-1103 (La.App. 3 Cir.
3/4/09), 5 So.3d 1018, to support his argument. He uses this case for the
proposition that not completing all components of a case plan does not warrant a
termination of parental rights. In B.O.G., this court reversed the judgment of the
trial court which terminated the parental rights of K.J.G. Id. K.J.G.’s case plan
mandated that he provide child support payments of $50.00 per month, per child;
maintain stable and safe housing; visit the children in accordance with the
visitation plan; participate in a psychological evaluation; and complete domestic
violence, anger management, and parenting skills classes. Id.
On appeal, this court noted that K.J.G. made significant strides
towards completion of his case plan. Id. Despite living in Texas, he would travel
to Lafayette, Louisiana to visit his children. Id. He also maintained contact with
his children in accordance with the visitation plan, secured housing, participated in
a mental health evaluation, completed anger management classes, and qualified his
children to receive financial assistance in the form of Social Security benefits after
he became disabled. Id. However, K.J.G. did not complete domestic abuse
counseling and his psychological evaluation revealed that he suffered from
“dependent personality disorder.” Id. at 1025. Further, there was no evidence that
K.J.G. completed a parenting class. Id. at 1018.
We concluded that the State had not proven, by clear and convincing
evidence, that it was in the best interest of the child to terminate K.J.G.’s parental
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rights. Id. We reasoned that “[w]hile he was not totally successful, his efforts are
indicative of his intent to maintain a parental relationship with his children.” Id. at
1027. Moreover, his progress illustrated that “there had been an improvement in
his condition and that there was a reasonable expectation for further
improvement.” Id. at 1026.
Conversely, here, J.W. has not completed any element of his case
plan. The case plan mandated that he: (1) maintain safe and stable housing for six
months; (2) provide the State with proof of employment; (3) complete parenting
classes; (4) attend a substance abuse assessment; (5) pay $25.00 in monthly
parental contributions to DCFS; (6) participate in regular visitations with B.R.C.;
and (7) submit to random drug screens.
J.W. did not maintain a stable housing environment. At the time of
trial, he was living with his mother in a home that did not have an adequate
sleeping space for a child. When questioned by a case worker during a home
inspection, J.W. stated that the home has a spare room and that they are “in the
process of cleaning up and getting rid of things.” The case worker attempted to
inspect the room; however, J.W. and his mother refused to allow the worker to see
the room.
He has not provided DCFS with proof of employment, despite his
declarations that he was employed as a part time employee at Wal-Mart in Boutte,
Louisiana, and later at MySpace. Further, there is no evidence in the record that
J.W. paid monthly parental contributions for any month and he has only visited
B.R.C. once since he entered DCFS’s custody. J.W. also failed to submit to a
random drug test on December 4, 2015, citing a work conflict. He was later tested
on December 8, 2015. The results of the test were not available the day of trial.
8
At the time of trial, B.R.C. had been in DCFS’s custody for twenty
months. J.W. did not complete any element of his case plan for nineteen months.
Nineteen months after B.R.C. had been in DCFS’s custody and a month before
trial, J.W. began attending parenting class and scheduled a substance abuse
evaluation. He testified that he completed four of the nine required parenting
classes as of the December 16, 2015, trial date. These last-ditch efforts are the
only progress that J.W. made towards his case plan in the twenty months that
preceded the termination trial. This is not sufficient to show a reasonable
expectation that his conduct or condition will improve in the future.
Additionally, it is in B.R.C.’s best interest to terminate J.W.’s parental
rights. Based on the testimony of Keisha Benoit, who is the child welfare
specialist for this matter, B.R.C. is currently in a stable foster home with foster
parents who are willing to adopt him should J.W.’s parental rights be terminated.
He is also placed with his sister. Ms. Benoit noted that B.R.C. is thriving in his
foster placement. Given that B.R.C. is in a stable home and doing well in his
current placement, it is in his best interest to terminate J.W.’s parental rights so he
can be freed for adoption.
Therefore, we find no manifest error in the trial court’s judgment that
DCFS proved by clear and convincing evidence that there is no reasonable
expectation of significant improvement in J.W.’s condition or conduct. It is also in
B.R.C.’s best interest to terminate J.W.’s parental rights.
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B. Whether the trial court erred by refusing to hear testimony
and consider evidence regarding B.R.C.’s parental
grandmother’s interest in adopting him, if J.W.’s parental
rights were terminated.
J.W. next argues that the trial court erred when it did not allow J.W.’s
mother (B.R.C.’s paternal grandmother) to testify regarding her willingness to
adopt B.R.C. He cites State ex rel. Department of Social Services v. Howard, 03-
2865 (La.App. 1 Cir. 12/30/04), 898 So.2d 443 to argue that remand is necessary
when “a trial court does not permit the presentation of evidence at the hearing as to
whether a ground exists for the continued custody.”
DCFS maintains that the issue at trial was whether J.W.’s parental
rights should be terminated. The issue was not whether the grandmother would be
a suitable adoptive placement. It argues that the placement of the child is more
appropriate for a “review hearing or permanency hearing at the child in need of
care proceeding.”
Louisiana Children’s Code Article 1037(D) (emphasis added) states:
A judgment terminating the parental rights of the
parent shall grant custody of the child to the
department, a relative who is of the age of majority
and who is willing to adopt the child without an
adoption subsidy, or other suitable person, in
accordance with the best interest of the child.
Louisiana Children’s Code Article 1037(D) does not impose an
evidentiary requirement for a trial court to consider testimony at a termination
hearing from persons who seek to adopt the child. Based on the trial transcript,
when counsel for J.W. attempted to elicit testimony regarding the grandmother’s
willingness to adopt the child, counsel for DCFS objected. The trial court
sustained the objection. The court noted that it was a termination proceeding and
not a placement hearing. It determined that testimony regarding the grandmother’s
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willingness to adopt B.R.C. was irrelevant. In its judgment, the trial court
terminated J.W.’s parental rights, ordered that B.R.C. shall remain in DCFS’s
custody, and authorized DCFS to place B.R.C. for adoption.
The trial court’s ruling on the objection is bolstered by the fact that
B.R.C. is currently in a stable and safe home with foster parents who are willing to
adopt him. It is also noteworthy that at the time of trial, J.W. was living with his
mother. If B.R.C. were placed with his paternal grandmother, it would be contrary
to the court’s ruling to terminate J.W.’s parental rights. It would place B.R.C. in a
home setting that the court is wary of for the reasons stated above.
Further, the case cited by J.W. in his brief has no bearing on this issue.
In State ex rel. Department of Social Services, 898 So.2d at 443, the issue was
whether the State can require an alleged biological father to take a paternity test
when the mother of the child was married to another man at the time of the child’s
birth. Id. The trial court denied the request for paternity testing. Id. The appellate
court vacated the trial court’s judgment and reasoned, in part, that the concept of
dual paternity allowed the State to establish paternity despite the presumption that
the husband of the mother of the child, who was born during the marriage, was the
father of the child. Id.
J.W.’s citation to this case is puzzling, as that matter did not involve
La.Ch.Code art. 1037(D), a termination of parental rights hearing, or a person’s
willingness to adopt. For the reasons stated, we find no error in the trial court’s
ruling to prohibit testimony from the paternal grandmother regarding her
willingness to adopt B.R.C.
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V.
CONCLUSION
Based on the foregoing, the decision of the trial court to terminate the
parental rights of J.W. is affirmed. Costs of this appeal are assessed to J.W.
AFFIRMED.
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