The opinion
STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT
18-240
STATE IN THE INTEREST OF C.D.W.
VERSUS
T.R.W.
**********
APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 30015
HONORABLE LILYNN A. CUTRER, DISTRICT JUDGE
**********
MARC T. AMY
JUDGE
**********
Court composed of Marc T. Amy, John E. Conery, and Van H. Kyzar, Judges.
AFFIRMED.
Walter M. Sanchez
The Sanchez Law Firm, L.L.C.
1200 Ryan Street
Lake Charles, LA 70601
(337) 433-4405
COUNSEL FOR APPELLEE:
State of Louisiana, Department of Children & Family Services
C.D.W.
Shane Hinch
The Larry Roach Law Firm
2917 Ryan Street
Lake Charles, LA 70629
(337) 433-8504
COUNSEL FOR APPELLEES:
State of Louisiana, Department of Children & Family Services
Jack Bernsmeier
Melanie Bernsmeier
LaKetha Holmes
Holmes Family Law Group, L.L.C.
112 North Stewart Street
DeRidder, LA 70634
(337) 221-3028
COUNSEL FOR APPELLANT:
T.R.W.
AMY, Judge.
Through appointed counsel for the subject minor child, the State sought
termination of the parental rights of the child’s biological mother on the ground of
abandonment as provided by La.Ch.Code art. 1015(5). Following a hearing, the
trial court entered the termination of parental rights and certified the child eligible
for adoption. The biological mother appeals. For the following reasons, we
affirm.
Factual and Procedural Background
C.D.W.1 was born to T.R.W., his mother, in June 2009. However, due to
T.R.W.’s cocaine use and C.D.W.’s exposure thereto, the minor child was taken
from T.R.W.’s custody and was placed in the custody of the State of Louisiana,
Department of Children and Family Services. The child was initially placed in the
care of foster parents, J.B. and M.B., for the first months of his life. An August
2009 case plan advanced the goal of the child’s reunification with T.R.W. In 2010,
C.D.W. was placed in the custody of his maternal grandmother, M.W., although
J.B. and M.B. maintained visitation with him during that period. The State issued
a new case plan for reunification in September 2010, but, according to the trial
court, the State was released from supervision of the case at the end of that month.
Then, by judgment dated June 2, 2015, J.B. and M.B. were granted joint
custody, along with M.W. At that time, J.B. and M.B. were designated domiciliary
parents of C.D.W. As reported by the trial court, however, J.B. and M.B. were
awarded sole custody of the child following a December 2015 hearing.
1
The initials of the parties are used to ensure the confidentiality of the minor as required
by Uniform Rules—Courts of Appeal, Rules 5-1 and 5-2.
This matter was instituted on February 1, 2017 with the filing of a “Petition
for Termination of Parental Rights Pursuant to Louisiana Children’s Code Article
1015(4).” By that petition, the State sought the appointment of Walter Sanchez to
“bring this action to terminate on behalf of the minor child” per La.Ch.Code art.
607 and to authorize him to bring the action to terminate the parental rights of
T.R.W. pursuant to La.Ch.Code art. 1004(B) and (F).2
The petition advanced La.Ch.Code art. 1015(5)3(a), (b), and (c) as grounds
for termination insofar as T.R.W.’s whereabouts were unknown for more than four
months and:
[S]he has failed to provide significant contributions to the care and
support of the minor child for more than six (6) consecutive months;
and, as of the time of filing of this petition, has failed to maintain
significant contact with the minor child in that she has failed to visit
or communicate with the minor child since December of 2015.
The petition noted that Mr. Sanchez was privately retained.
In its corresponding order, the trial court appointed Mr. Sanchez as counsel
for the child and granted him the authority to bring the termination action pursuant
2
Titled “Petition for termination of parental rights; authorization to file[,]” La.Ch.Code
art. 1004 provides, in pertinent part:
B. Counsel appointed for the child pursuant to Article 607 may petition for
the termination of parental rights of the parent of the child if the petition alleges a
ground authorized by Article 1015(5), (6), or (7) and, although eighteen months
have elapsed since the date of the child’s adjudication as a child in need of care,
no petition has been filed by the district attorney or the department.
....
F. By special appointment for a particular case, the court or the district
attorney may designate private counsel authorized to petition for the termination
of parental rights of the parent of the child on the ground of abandonment
authorized by Article 1015(5).
3
While the petition designates Article 1015(4) as the pertinent paragraph for the ground
asserted, 2016 La. Acts. No. 608, § 1 inserted a new paragraph 3, and thereafter, re-designated
former paragraph (3) through (8) as paragraphs (4) to (9). The petition was orally amended in
this regard at the termination hearing.
2
to La.Ch.Code art. 1004(B) and (F). As reported below, the trial court further
appointed counsel to represent T.R.W.
The parties thereafter appeared at a pre-trial hearing in April 2017, by which
time T.R.W. was represented by retained counsel. The trial court’s order from that
date further recognized that T.R.W. was served in open court with the petition for
termination of parental rights and that she “accepted service, waiving any
informality with regard to the manner of delivery.” The order further noted that
T.R.W. entered a denial to the petition.
The merits of the termination matter proceeded to a June 2017 hearing. In
written reasons for ruling, the trial court found that the ground of abandonment
was proven4 by clear and convincing evidence and explained that, with regard to
parental abandonment:
The undisputed evidence presented at trial indicated that
[T.R.W.] has not provided any support for [C.D.W.] and has failed to
communicate or visit with [C.D.W.] for a period far in excess of six
months. [C.D.W.] was removed from [T.R.W.]’s care and placed in
the State’s custody due to crack cocaine in her and [C.D.W.]’s system
at birth. [C.D.W.] went straight from the hospital into the State’s
custody and the … home [of J.B. and M.B.]. [T.R.W.] has never had
custody of [C.D.W.] and he is now 7 (almost 8) years old. She was a
given a case plan but never worked it.
[T.R.W] acknowledged at trial that she has made no effort to
contact [J.B. and M.B.] to see [C.D.W.] prior to the petition to
terminate her rights was filed. She also admits that she has never
provided any financial support for [C.D.W.] either.
Given those observations, the trial court concluded that T.R.W. abandoned the
child “by placing him in the care of another” and that she “failed to provide
support for him and failed to visit or communicate with him for a period in excess
of six months.” The trial court’s subsequent best interests of the child analysis
4
While the trial court expressed the burden of proof as having been met by J.B. and M.B.,
the petition is clear that it was filed by the State, on behalf of the minor child.
3
addressed both T.R.W.’s longstanding drug problem, and C.D.W.’s care by J.B.
and M.B. The trial court explained that T.R.W. had been successful in her most
recent rehabilitation program, but further recognized her years of drug use and
inability to parent. By contrast, the trial court identified that C.D.W. was closely
bonded with J.B. and M.B., that they had provided him with a safe and stable
home, and that they had provided for medical and mental health needs. In light of
these factors, the trial court explained that termination of parental rights was in the
best interests of C.D.W.
By final judgment of December 21, 2017, the trial court commemorated its
findings, terminating the parental rights of T.R.W. to C.D.W. pursuant to
La.Ch.Code art. 1015(5). The trial court further ordered that C.D.W. remain in the
custody of J.B. and M.B. and that the minor child was eligible for adoption. See
La.Ch.Code art. 1037.
T.R.W. appeals, asserting that the trial court erred in: 1) permitting the
appointment of counsel for the minor child when counsel previously served as
counsel for J.B. and M.B.; 2) ordering the termination due to failure to comply
with La.Ch.Code art. 1020; and in 3) finding that the burden of proof for
termination was satisfied.
Discussion
Appointment of Counsel
T.R.W. first questions the trial court’s appointment of Mr. Sanchez as
counsel for C.D.W. and argues that the appointment posed an inherent conflict
insofar as Mr. Sanchez had been counsel for J.B. and M.B. “since the case
4
inception.” In support of the argument, T.R.W. references La.Ch.Code art. 1016,
which, at the time of Mr. Sanchez’s appointment in February 2017,5 provided that:
A. The child and the parent shall each have the right to be
represented by separate counsel in a termination proceeding brought
under this Title. Neither the child nor anyone purporting to act on his
behalf may be permitted to waive the child’s right to counsel.
(Emphasis added.). Referencing jurisprudence regarding the distinct interests
involved in a termination of parental rights matter, T.R.W. suggests that the
attendant “careful balancing act was overlooked by appointment of special counsel
as [Mr.] Sanchez, given his close connectivity to [J.B. and M.B.] and their goal to
hinder reunification efforts for the minor child, C.D.W. with the biological parent,
[T.R.W.] or for that matter with any of the minor child’s maternal relatives[.]”
Following review, however, we find no merit in T.R.W.’s claim. First, as
noted by C.D.W., no party lodged an objection to the petition for appointment of
Mr. Sanchez in the court below and, thus, the trial court did not address the conflict
issue now presented. See Uniform Rules—Courts of Appeal, Rule 1-3 (providing,
in part, that: “The Courts of Appeal will review only issues which were submitted
to the trial court and which are contained in specifications or assignments of error,
unless the interest of justice clearly requires otherwise.”). See also Council of City
of New Orleans v. Washington, 09-1067, p. 3 (La. 5/29/09), 9 So.3d 854, 856
(wherein the supreme court explained that: “The well-settled jurisprudence of this
court establishes that as a general matter, appellate courts will not consider issues
raised for the first time, which are not pleaded in the court below and which the
district court has not addressed.”).
5
With an effective date of August 1, 2017, 2017 La. Acts No. 239, § 1 amended the first
sentence of La.Ch.Code art. 1016(A), which, as amended, provides that: “A. The child and the
identified parent shall each have the right to be represented by separate counsel in a termination
proceeding brought under this Title.”
5
It is noteworthy that T.R.W’s argument stems from language indicating that
“[t]he child and the parent shall each have the right to be represented by separate
counsel in a termination proceeding brought under this Title.” La.Ch.Code art.
1016(A) (emphasis added). In this case, T.R.W. complains not of original
representation of herself, as the parent, and subsequent representation of the child.
She instead complains that Mr. Sanchez formerly represented J.B. and M.B. and
was subsequently appointed to represent T.R.W. 6 By its wording, Article 1016(A)
does not address that situation. Neither is T.R.W.’s reference to La.Ch.Code art.
6077 persuasive as that provision is contained within Louisiana Children’s Code,
Title VI (Child in Need of Care). By contrast, this matter arises under Title X
(Judicial Certification of Children for Adoption).
For these reasons, we leave the trial court’s appointment of counsel for
C.D.W. undisturbed.
Notice
We similarly find that T.R.W.’s second argument is not preserved for
review. By this argument, T.R.W. asserts that when presented with the initial
petition in this matter, the document did not contain the notice required by
La.Ch.Code art. 1020. 8 While the record does not indicate such notice was
6
The record indicates that, at the time of the termination proceedings at issue, J.B. and
M.B. were represented by Shane Hinch.
7
Louisiana Children’s Code Article 607(A) provides that: “The court shall appoint the
program designated for the jurisdiction by the Louisiana Supreme Court to provide qualified,
independent counsel for the child at the time the order setting the first court hearing is signed.
Neither the child nor anyone purporting to act on his behalf may be permitted to waive this
right.”
8
Louisiana Children’s Code Article 1020 provides:
Notice shall be issued by the clerk and served, together with a copy of the
petition, on every parent against whom a proceeding is instituted under this Title
and shall state:
6
provided pursuant to the Article, the petition indicated that T.R.W. was an absentee
parent “who no longer resides at her last known address[.]” Thus, it further sought
an order “[a]ppointing an attorney at law to represent the absentee defendant,
[T.R.W.], upon whom service can be made and against whom these proceedings
conducted contradictorily.” The trial court thereafter appointed an attorney “to
represent the interests of the absentee defendant, [T.R.W.], in these proceedings,
upon whom service shall be made and against whom these proceedings conducted
contradictorily.” The resulting sheriff’s return indicates that appointed counsel for
T.R.W. was served with the petition.9
“NOTICE
Louisiana law provides that you can permanently lose your rights as a
parent. A petition has been filed requesting the court to terminate your parental
rights to your child. A copy of the petition is attached to this notice. A court
hearing of your case has been scheduled for the _____ day of __________, _____
at the __________ division of __________ court in the parish of __________. At
this hearing, you will be asked to answer the petition by either admitting or
denying the truth of the facts stated in the petition. If you admit those facts, you
may also consent to the termination of your parental rights at this hearing. If you
deny any or all of those facts, you will be given a date to return for a trial. If you
fail to appear, the court can terminate your rights despite your absence. If the
court at the trial finds that the facts set out in the petition are true and that
termination of your rights will serve the best interests of your child, the court can
enter a judgment ending your rights to your child. If the judgment terminates
your parental rights, you will no longer have any rights to visit or to have custody
of your child, or make any decisions affecting your child. Your child will be
legally freed to be adopted by someone else. This is a very serious matter. You
should contact a lawyer immediately so that you can be prepared for the court
hearing. You have the right to hire a lawyer and to have him or her represent you.
If you cannot afford to hire a lawyer, you may call the telephone number on the
attached form for information concerning free legal aid. If free legal aid is not
available, the court will appoint a lawyer at the scheduled hearing if the court
finds that you are unable to pay some or all of the costs. Whether or not you
decide to hire an attorney, you have the right to attend the hearing of your case, to
call witnesses on your behalf, and to question those witnesses brought against you.
If you have any questions concerning this notice, you may call the telephone
number of the clerk’s office which is __________.”
9
Louisiana Children’s Code Article 1023(A), entitled, in part, “Service; absentee
parent[,]” provides:
If the parent against whom a proceeding is instituted cannot be served in
accordance with either Article 1021 or 1022, the court shall appoint an attorney at
7
T.R.W., her appointed counsel, and her newly enrolled counsel appeared at
the answer hearing in April 2017.10 The trial court permitted appointed counsel to
withdraw at that time. The order resulting from that hearing indicates that T.R.W.
was “served in Open Court with a certified copy of the Petition for Termination of
Parental Rights … , accepted service, waiving any informality with regard to the
manner of delivery.” The order further reflects that T.R.W.’s counsel “entered a
denial to the petition, which is set for trial on June 28, 2017 at 9:00 A.M.”
Thus, in addition to the fact that T.R.W. did not lodge an objection below
regarding a lack of notice pursuant to La.Ch.Code art. 1020, T.R.W. specifically
waived any informality regarding delivery. Additionally, it is worth noting that
T.R.W. was at all times represented by either appointed or retained counsel and
that she made personal appearances at both the answer hearing and at the trial of
the merits. She was thus provided with actual notice.
Therefore, we find that this argument lacks merit.
Merits
In her final argument, T.R.W. questions whether the trial court’s termination
of parental rights was based on adequate evidence. As noted above, the petition
initiating this matter advanced grounds for termination under La.Ch.Code art.
1015(5)(a), (b), and (c). That Article indicates:
The grounds for termination of parental rights are:
....
law as curator ad hoc for the parent and service of citation shall be made upon the
curator ad hoc.
10
Louisiana Children’s Code Article 1025.1(A) provides that “[t]he court shall require
the parent to appear in person to answer the petition within fifteen days after the filing of the
petition.”
8
(5) Abandonment of the child by placing him in the physical
custody of a nonparent, or the department, or by otherwise leaving
him under circumstances demonstrating an intention to permanently
avoid parental responsibility by any of the following:
(a) For 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.
(b) As 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.
(c) As of the time the petition is filed, the parent has failed to
maintain significant contact with the child by visiting him or
communicating him for any period of six consecutive months.
Importantly, La.Ch.Code art. 1035 provides that “[t]he petitioner bears the burden
of establishing each element of a ground for termination of parental rights by clear
and convincing evidence.”
In ruling, the trial court reasons reflect a finding that the ground of
abandonment, pursuant to La.Ch.Code art. 1015(5)(b) and (c)11 was proven, with
the trial court explaining:
The undisputed evidence presented at trial indicated that
[T.R.W.] has not provided any support for [C.D.W.] and has failed to
communicate or visit with [C.D.W.] for a period far in excess of six
months. [C.D.W.] was removed from [T.R.W.]’s care and placed in
the State’s custody due to crack cocaine in her and [C.D.W.]’s system
at birth. [C.D.W.] went straight from the hospital into the State’s
custody and the [home of J.B. and M.B.]. [T.R.W.] has never had
custody of [C.D.W.] and he is now 7 (almost 8) years old. She was
given a case plan but never worked it.
[T.R.W.] acknowledged at trial that she has made no effort to
contact [J.B. and M.B.] to see [C.D.W.] prior to the petition to
terminate her rights was filed. She also admits that she has never
provided any financial support for [C.D.W.] either.
11
While the petition was brought pursuant to La.Ch.Code art. 1015(5)(a), (b), and (c), the
trial court’s reasons for ruling do not reflect a particularized ruling as to subparagraph (a) and, as
discussed below, T.R.W. attended the termination hearing.
9
Based on the foregoing, the Court finds that [J.B. and M.B.]
have proven by clear and convincing evidence that [T.R.W.] has
abandoned [C.D.W.] by placing him in the care of another and has
failed to provide support for him and failed to visit or communicate
with him for a period in excess of six months.
On appeal, we review the trial court’s determination regarding whether parental
rights should be terminated pursuant to the manifest error standard. See State ex
rel. H.A.S., 10-1529 (La. 11/30/10), 52 So.3d 852. Having done so, we find no
such error and maintain the trial court’s finding.
As set forth above, La.Ch.Code art. 1015(5)(c) provides that: “As of the
time the petition is filed, the parent has failed to maintain significant contact with
the child by visiting him or communicating with him for any period of six
consecutive months.” The petition instituting this matter was filed on February 1,
2017. M.B. testified that she and her husband obtained sole custody of C.D.W.
following a December 2015 custody hearing. When asked by counsel whether
T.R.W. made “any effort to see [C.D.W.]” from that time until the filing of the
petition, M.B. explained: “I’ve never had a phone call from her, and the only time
she’s even been mentioned is the time that she showed up at his school and she
showed up at gymnastics leading to the protective order that’s in place.”
Entered as an exhibit at the termination hearing, the protective order
resulting from the attempted contact 12 as described by M.B. was issued in July
12
The following exchange between counsel and M.B. provides some context to the
events leading to the protective order:
Q. So, that was the protective order when she showed up and attempted to
have him leave with her instead of staying in [J.B.’s] and your custody.
A. Right.
Q. Before she showed up that day had she made any effort to contact you and
[J.B] to say I’d like to see him, I want to do whatever it takes to be able to
visit with him, let me talk to you about what I’ve done that should make
you feel comfortable, she never contacted you with anything like that?
10
2016. Thus, and in addition to the record otherwise demonstrating sustained
periods of no contact, it follows that the February 2017 filing of the subject petition
occurred more than six consecutive months after the underlying attempted contact.
In her brief to this court, T.R.W. does not dispute a lack of contact following that
period, but asserts that such a lack of significant contact as described by
La.Ch.Code art. 1015(5)(c) “would have been unavoidable since the parties had
sought a Protective Order, preventing her contact with C.D.W. in any way or
shape.” Yet, T.R.W. admitted at trial that she had been neither aware of nor served
with the protective order prior to the termination hearing. On this point, M.B.
testified that they “tried to serve her. We went through all the court procedures.
We hired a special process server, and no one could find her, including her
mother.” Given this testimony from both T.R.W. and M.B., the trial court was not
manifestly erroneous in rejecting the defense of the protective order in the
assessment of whether T.R.W. “failed to maintain significant contact with the child
by visiting him or communicating with him for any period of six consecutive
months.”
We similarly find unpersuasive T.R.W.’s argument in brief that “any contact
between [T.R.W.] and [J.B. and M.B.] may have been attempted by telephone or
mail; [T.R.W.] confirmed that she felt as though she was not able to communicate
A. No, sir. I’ve never had any other contact with her at all.
Q. Was it that same day or near about when she showed up at [C.D.W’s]
school without notifying you and [J.B.] as his custodians and attempted to
see him without your knowledge and consent at the school?
A. Correct. The school called me and let me know that [T.R.W.] had been
there with old paperwork and attempted to see [C.D.W.]. The school said
they did not allow that. And then there was a separate incident about a
month later where she showed up at gymnastics as [J.B.] was taking the
children to gymnastics.
11
with [J.B. and M.B.] per their express desires.” In this regard, the transcript
reveals the following through the questioning of T.R.W. by her counsel:
Q. Thank you. There’s been a lot of talk and information about
whether you have made success in the therapeutic intervention
at The Women’s Home.[13]
A. Yes, ma’am.
Q. Tell me about if the Women’s Home has given you any
directions about how to approach having a relationship with
your son.
A. The Women’s Home actually focuses on the women and your
trauma and your issues, substance abuse related. They told me
to seek a relationship with my son but make sure I stay safe
within the realms of what I was allowed to do.
Q. What did that mean for you as far as staying safe as to what you
could do?
A. Well, I really couldn’t do too much of anything but try to call,
you know, and try to foster that relationship, but I was not, you
know, aware that I wasn’t supposed to be calling, I guess.
Q. Did you attempt to write any letters to him?
A. I have some letters at home that I wrote when I was in treatment
in 2015, but I’ve never mailed them. I didn’t have any address
to mail them to.
Q. So, you weren’t aware of an address for [J.B. and M.B.] in
order to contact them?
A. No, ma’am.
Q. Okay. Did your mom have any information about their address
so that you could send information to him?
A. I never asked her.
Notwithstanding the 2015 timeline spoken of by T.R.W., it is clear that she did not
complete her attempt to communicate by correspondence.
13
T.R.W. explained that, at the time of trial, she was living and seeking treatment at The
Women’s Home, a residential facility. The record indicates that she entered the facility in
December 2016.
12
Also, and although T.R.W. references purported attempts at communication
by telephone, the following colloquy between counsel for C.D.W. and T.R.W.
indicates that any such attempts occurred after the filing of the petition for
termination:
Q. You made no effort to contact [J.B or M.B.] as of February 1,
2017, from the trial date of December 10 to February 1, 2017,
you never tried to contact [J.B. or M.B.] to see [C.D.W.]?
A. I called. I don’t think it was before February of this year,
though, but I called.
When questioned as to the timing of these calls, T.R.W. again explained that: “I
don’t remember exactly what month it was, but I did call. I called like twice, and I
know my daughter called a couple of times.” Finally, the transcript reveals the
following colloquy after T.R.W. was recalled to the stand:
Q. So, whatever effort you made to reach out to [J.B. or M.B.]
about your son, you didn’t take until after this petition was filed
on February 1, 2017.
A. Correct.
Additional questioning as to the nature of the alleged calls revealed the
passive nature of any such attempt at communication. When asked whether she
“ever hear[d] anyone on the other side of the phone when [she] called[,]” T.R.W.
responded:
A. Yes, ma’m. [J.B.] answered.
Q. Did you have a conversation with him during those times?
A. Yes. I asked him could I speak - - I said hello, how are you,
and he asked who this was, and I told him it was [T.R.W.], and
I asked to speak to [C.D.W.].
Q. Did he say you could speak with him?
A. No, ma’am he did not.
13
In contrast, and while J.B. did not testify at the hearing, M.B. denied that she had
received such a call and explained that: “Since we started the initial court
proceedings, about two years ago, I’ve never heard from [T.R.W.]”
Given this evidence, and the credibility determinations attendant thereto, we
find no manifest error in the trial court’s factual determinations that the ground for
termination as set forth in La.Ch.Code art. 1015(5)(c) was proven by clear and
convincing evidence.
We observe here that T.R.W. additionally argues that the trial court erred in
its finding that she failed to provide support for C.D.W., thus constituting
abandonment pursuant to La.Ch.Code art. 1015(5)(b). On this point, T.R.W. does
not contend that she provided such support or that she was unable to do so. In fact,
she conceded at trial that she provided no support to either the State or to J.B. and
M.B. Rather, T.R.W. asserts that “[a]n obligation of support is not in existence
against [her] and per testimony of [J.B. and M.B.] was not warranted as they were
able to meet all the financial needs of the minor child and averred to this through
submission of their financial documents.” Notwithstanding this argument, we note
that “[t]he State need establish only one ground” under La.Ch.Code art. 1015. See
State ex rel. H.A.S., 52 So.3d at 860. As observed, the record supports the trial
court’s determination that the ground of abandonment due to failure to
communicate pursuant to La.Ch.Code art. 1015(5)(c) was proven by clear and
convincing evidence. As such, we do not further comment as to this alternative
ground.
Of course, a finding as to a ground for termination of parental rights does not
end the inquiry before the court. Rather, the trial court “must also determine
whether the termination is in the best interest of the child.” State in the Interest of
14
C.F., 17-1054, p. 11 (La. 12/6/17), 235 So.3d 1066, 1072. See La.Ch.Code art.
1037.14 See also La.Ch.Code art. 1039.15
The trial court extensively addressed the best interests of the child analysis,
explaining that:
In summary, the testimony indicates, and [T.R.W.]
acknowledges, that she has had a severe drug problem since before
[C.D.W.’s] birth. However, [her] most recent stint in rehab from June
– September, 2016, has proven successful so far. After she was
discharged from rehab, she went into a half-way program where she
continues to reside. She has been clean for all of this time. She is
working at the program and is looking at returning to school.
[T.R.W.’s] determination and commitment to rehab this time are to be
commended. The Court hopes that she will continue in her treatment
and recovery.
However, the Court’s focus must be on what is in the best
interests of [C.D.W.]. [He] has been in the care of [J.B. and M.B.]
since his birth, other than a period of time that he resided with his
maternal grandmother. [J.B. and M.B.] have provided [C.D.W.] with
a safe and stable home. More particularly, [J.B. and M.B.] have
ensured that his medical and mental health needs are met.
[C.D.W.] has been diagnosed with oppositional defiant
disorder, adhd and general anxiety. [He] constantly fears that his
mother is going to come and get him. Dr. Patricia Post, who has
worked closely with [C.D.W.], testified that he has issues that he will
have to deal with for a long time. However, she explained that
14
Entitled “Findings and contents of termination judgment; form[,]” La.Ch.Code art.
1037(B) provides that:
When the court finds that the alleged grounds set out in any Paragraph of
Article 1015 are proven by the evidentiary standards required by Article 1035 and
that it is in the best interests of the child, it shall order the termination of the
parental rights of the parent against whom the allegations are proven. The court
shall enter written findings on both issues. The consideration of best interests of
the child shall include consideration of the child’s attachment to his current
caretakers.
15
Louisiana Children’s Code Article 1039(B) further references the best interests of the
child analysis and provides, in pertinent part, that: “If the court finds that the alleged grounds are
not proven in accordance with the evidentiary standards set forth in Article 1035 or if the court
finds that termination of parental rights is not in the best interests of the child, it shall enter
written findings on both issues and may . . . .”
15
[C.D.W.] has made progress while in the care of [J.B. and M.B.] He
is happier and more expressive. He is more adjusted with [J.B. and
M.B.] and not quite as anxious. [C.D.W.] has indicated to Dr. Post
that he wants to continue residing with his mother and father, [J.B.
and M.B.] He also wants his sister to come live with them. La. Ch.
C. art. 1037(A) states that the Court “shall include consideration of
the child’s attachment to his current caretakers.”
Given all that [C.D.W.] has been through, his age and mental
health needs, it is important for him to have a stable and permanent
home and caregivers who will ensure that [C.D.W.] obtains the
services necessary for his success. There is no doubt in the Court’s
mind that [J.B. and M.B.] will ensure that [C.D.W.] obtains what he
needs as evidenced by everything they have provided for him to date.
With [J.B. and M.B.], [C.D.W.] will be provided with a safe and
secure environment that will ensure his well-being.
Considering all of the reasons discussed above, the Court finds
that it is in [C.D.W.]’s best interest that the parental rights of his
mother, [T.R.W.], be terminated in order to achieve permanency and
stability for [C.D.W.].
Recognizing [T.R.W.’s] recent successes in her recovery, when
the Court considers her years of drug use and inability to parent
[C.D.W.] and the length of time that he has been stable with [J.B. and
M.B.], the Court finds that it is [C.D.W.]’s best interest to terminate
[T.R.W.]’s parental rights to [him]. The testimony indicates that [he]
clearly has a close bond with [J.B. and M.B.]. When the Court
considers the age of [C.D.W.], his attachment to his current
caretakers, as well as his special needs, the Court is convinced that
[C.D.W.’s] best interests mandate that the parental rights of his
mother, [T.R.W.], be terminated.
Following review, and noting that T.R.W. does not provide specific
argument challenging the trial court’s findings as to the child’s best interests, we
again leave this finding undisturbed. The trial court’s ruling is supported by the
record. In addition to T.R.W.’s long struggles with drug addiction, it is important
to note that C.D.W. has not been in her custody since his birth in 2009. Instead,
J.B. and M.B. have been continuously in his life since that time, doing so for the
most recent period of C.D.W.’s life as his sole custodians. As remarked upon by
the trial court, testimony indicates that C.D.W. identifies them as his parents.
16
Accordingly, we find that T.R.W.’s assignment challenging the merits of the
termination matter are without merit.
DECREE
For the foregoing reasons, the judgment of the trial court is affirmed. Costs
of this proceeding are assigned to the defendant—appellant.
AFFIRMED.
17