Opinion
2017 CJ 0507
09-15-2017
STATE OF LOUISIANA IN THE INTEREST OF B.R.T.A., J.D.T.A., AND B.M.A.
Laura G. Slocum Sherry Ann Powell Baton Rouge, Louisiana Counsel for Appellant State of Louisiana, Department of Children and Family Services Leslie Lacy Baton Rouge, Louisiana Counsel for Appellees B.R.T.A, J.D.T.A. and B.M.A. Audrey Melissa Lamb Baton Rouge, Louisiana Counsel for Appellees A.A. and W.T.A. Shawn Q. Bray Baton Rouge, Louisiana Counsel for Appellees G.W. and J.J.
NOT DESIGNATED FOR PUBLICATION ON APPEAL FROM THE JUVENILE COURT
NUMBER TPR-11941, DIVISION B, PARISH OF EAST BATON ROUGE
STATE OF LOUISIANA HONORABLE PAMELA TAYLOR JOHNSON, JUDGE Laura G. Slocum
Sherry Ann Powell
Baton Rouge, Louisiana Counsel for Appellant
State of Louisiana, Department of
Children and Family Services Leslie Lacy
Baton Rouge, Louisiana Counsel for Appellees
B.R.T.A, J.D.T.A. and B.M.A. Audrey Melissa Lamb
Baton Rouge, Louisiana Counsel for Appellees
A.A. and W.T.A. Shawn Q. Bray
Baton Rouge, Louisiana Counsel for Appellees
G.W. and J.J. BEFORE: WHIPPLE, McDONALD, AND CHUTZ, JJ.
Disposition: AFFIRMED.
CHUTZ, J.
This appeal is taken from a juvenile court judgment dismissing a petition filed by plaintiff-appellant, the Louisiana Department of Children and Family Services, (DCFS), on behalf of the minor child, B.M.A., seeking termination of parental rights. For the following reasons, we affirm.
In order to protect the privacy of the minor child, the initials of the child and immediate family members will be used herein. See Uniform Rules of Courts of Appeal, Rules 5-1(a) and 5-2.
FACTS AND PROCEDURAL HISTORY
A.R.A. is the mother of B.R.T.A. (age 6), J.D.T.A. (age 3), and B.M.A. (age 2), who are half-siblings. In October 2014, DCFS removed all three children from A.R.A.'s care and placed them together in the same foster home based on allegations of neglect, dependency, and a drug-affected newborn (B.M.A.). On January 22, 2015, the three children were adjudicated to be children in need of care. On November 24, 2015, DCFS filed a petition seeking to terminate parental rights and certify each of the children for adoption. After a DNA test ruled out the alleged biological father of B.M.A. named in the original petition. A.R.A. then named W.A. as B.M.A.'s father. On February 29, 2016, DCFS filed an amended petition naming W.A. as B.M.A.'s father and seeking to terminate his parental rights.
W.A. has been incarcerated since September 2014, approximately two weeks before B.M.A.'s birth, and remained incarcerated throughout these proceedings. W.A. was aware of A.R.A.'s pregnancy, but testified he did not believe he was the father of her child because she was "with a lot of men at the time." W.A. has no relationship with B.M.A. He has met her on only one occasion when a DCFS caseworker introduced B.M.A. to him after his paternity was confirmed.
At a hearing on May 3, 2016, W.A. entered a general denial of the allegations of the amended petition, reserving the right to withdraw the denial pending the D.N.A. results. W.A. was informed by a DCFS caseworker of the DNA results confirming his paternity of B.M.A. sometime in June 2016. DCFS did not develop a case plan for W.A. However, the caseworker informed him he needed to take any available parenting or nurturing classes and to bring documentation thereof to court. W.A. complied by beginning a parenting class at his detention facility on June 24, 2016, which he completed on August 12, 2016. He also enrolled in two additional courses, anger management and risk management. W.A. provided DCFS with the name of his mother, C.S., as a potential caregiver for B.M.A. during his remaining incarceration.
At a termination hearing on August 30, 2016, the juvenile court considered whether to terminate parental rights with respect to all three children. Subsequently, the juvenile court signed a written judgment terminating the parental rights of A.R.A. with respect to all three children, as well as the parental rights of the biological fathers of B.R.T.A. and J.D.T.A. The juvenile court dismissed DCFS's amended petition seeking to terminate W.A.'s parental rights relative to B.M.A. DCFS now appeals, contending the juvenile court erred in refusing to terminate W.A.'s parental rights and certify B.M.A. for adoption.
LAW
The permanent termination of the parent-child legal relationship is one of the most drastic actions the State can take against its citizens. State ex rel. A.T., 06-0501 (La. 7/6/06), 936 So.2d 79, 82. 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. Due process requires that a fundamentally fair procedure be followed when the State seeks to terminate the parent-child legal relationship. State ex rel. L.B. v. G.B.B., 02-1715 (La. 12/4/02), 831 So.2d 918, 921. However, a child has a profound interest, often at odds with those of 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 interests of the child are paramount over that of the parent. State ex rel. L.B., 831 So.2d at 921.
Louisiana Children's Code article 1015 provides the statutory grounds for which a court may involuntarily terminate the rights and privileges of a parent. A two-pronged inquiry must be made in parental termination proceedings. First, the State must establish by clear and convincing evidence every element of at least one ground for termination under La. Ch.C. art. 1015. La. Ch.C. art. 1035(A); State ex rel. L.B., 831 So.2d at 922. To prove a matter by clear and convincing evidence means to demonstrate that the existence of a disputed fact is highly probable, that is, much more probable than its nonexistence. In re Succession of Fisher , 06-2493 (La. App. 1st Cir. 9/19/07), 970 So.2d 1048, 1054. Second, but only after a ground for termination is established, the juvenile court must determine whether the termination is in the child's best interest. State ex rel. L.B., 831 So.2d at 922; see also La. Ch.C. art. 1037(B).
Moreover, the manifest error standard is applicable in reviewing the factual findings of the juvenile trial court in determining whether the requirements of Article 1015 have been satisfied. State ex rel. K.G., 02-2886 (La. 3/18/03), 841 So.2d 759, 762; State ex rel. B.J., 00-1434 (La. App. 1st Cir. 7/27/00), 767 So.2d 869, 872. Therefore, before the juvenile court's findings may be reversed, an appellate court must find from the record that a reasonable factual basis does not exist for the court's findings and the record establishes they are clearly wrong (manifestly erroneous). State ex rel. A.T., 936 So.2d 79 at 82-83; State ex rel. B.J., 767 So.2d at 872.
DISCUSSION
In its sole assignment of error, DCFS contends the juvenile court manifestly erred in finding it did not prove by clear and convincing evidence grounds for termination of W.A.'s parental rights under La. Ch.C. art. 1015(7) due to his incarceration for an extended period of time.
Louisiana Children's Code article 1015(7) provides one of the grounds for termination of parental rights, as follows:
2017 La. Acts, No. 608, §1 changed the designation of this particular paragraph from Article 1015(6) to Article 1015(7) without making any substantive change. --------
The child is in the custody of the department pursuant to a court order or placement by the parent; the parent has been convicted and sentenced to a period of incarceration of such duration that the parent will not be able to care for the child for an extended period of time, considering the child's age and his need for a safe, stable, and permanent home; and despite notice by the department, the parent has refused or failed to provide a reasonable plan for the appropriate care of the child other than foster care. [Emphasis added.]Although this article does not specify what constitutes "an extended period," La. Ch.C. art. 1036(E) provides "a sentence of at least five years of imprisonment raises a presumption of the parent's inability to care for the child for an extended period of time." DCFS argues it established the requirements for termination of W.A.'s parental right under Article 1015(7) because it proved by clear and convincing evidence that: (1) W.A. would be unable to care for B.M.A. for an extended period of time in excess of five years; and (2) W.A. failed to provide a reasonable plan of appropriate care for B.M.A. other than foster care.
At the hearing, DCFS presented evidence that W.A. was sentenced on January 5, 2016, to serve consecutive sentences of five years for simple burglary and three years for attempted unauthorized entry of an inhabited dwelling, with credit for time served on each charge from the date of arrest on September 25, 2014. The combined total of these consecutive sentences exceeded five years. However, W.A. testified he would be released on good time parole in November 2016 due to the time he had served and credits he was receiving for taking classes.
DCFS also contends that while W.A. provided it with two plans of care other than foster care, i.e., to care for B.M.A. himself upon his early release on good time parole or for his mother, C.S., to care for her, neither of these plans was reasonable or appropriate. According to B.M.A.'s caseworker, C.S. admitted she had a prior conviction, although she not disclose the crime of which she was convicted. Testimony was also presented at the termination hearing that C.S.'s medical condition required her to be on oxygen at that time. On appeal, DCFS argues that because C.S. did not complete the home study and required fingerprinting process, as well as her medical condition, she was not a reasonable placement option for B.M.A. Moreover, DCFS contends C.S. did not want to care for B.M.A. because she "didn't want to mess her head up" by removing her from her foster mother, the only parent she has ever known.
In ruling DCFS failed to carry its burden of establishing grounds under Article 1015 to terminate W.A.'s parental rights, the juvenile court stated:
[DCFS] has some obligations that it has not met. Upon learning that he was the father - - upon hearing that he was the father of the child, efforts - - [W.A.] began to attend hearings, talk with the social worker, no case plan is developed .... It is the testimony of the social worker of this case that she informed [W.A.] of his parentage in June. In June, according to the testimony, he started taking his classes for parenting, and he's graduated from the classes. He provided the name of his mother. According to the testimony again of the social worker, his mother never refused to provide services for this child or take - - the child. According to the testimony of the social worker, when [W.A's mother] was given the information about what would be necessary she informed [the social worker] that she had indeed had an arrest or she [had] a criminal record. But even in that she - there was no testimony from the social worker that she was unwilling to care for this child. ... Now, whether [DCFS] would have been willing to place a child with her is a different story, but they didn't even proceed with doing that. [DCFS] had some responsibility to develop a service plan, or case plan ... And understanding clear and convincing evidence, [DCFS] falls real short. Now the argument is the children have been in foster care for over 18 months and I suppose - - and permanency is necessary and that is true. But you have to have an opportunity for
each parent to parent their child. [DCFS] has not given an opportunity to [W.A.]. And, in fact, [DCFS] didn't know about [W.A.]. And [W.A.] didn't know about [DCFS] until [A.R.A.] gave the name of [W.A.]. A contact was made. He agreed to take the tests and even prior to taking - - taking his test to determine whether or not he was the parent of this child, he began to do other things, continue to come to court, all the things that were necessary. Now, there's an allegation under 1015(6) that he's going to be incarcerated for a substantial period of time. ... The testimony here, and there's nothing to refute that, that his out date will be no later than November [2016] when he completes his classes. Last I looked we're in - - August 30th. So that's not a substantial period of time that [B.M.A.] would be absent from a parent particularly when no case plan has been developed for this - - person. There's nothing to indicate that there is an inability to parent or unwillingness to parent, so I find that [DCFS] has not met its burden of proof, certainly not by clear and convincing evidence and not by any standard....
Based on our thorough review of the record, we cannot say the juvenile court committed manifest error or was clearly wrong in finding DCFS failed to prove by clear and convincing evidence either that W.A. would be unable to care for B.M.A. for an extended period of time due to his incarceration or that he failed to provide a reasonable plan of appropriate care for B.M.A. other than foster care. At the termination hearing, DCFS established the length of W.A.'s two sentences, but provided no evidence or calculations of his possible release date. On the other hand, after personally observing W.A.'s testimony, the juvenile court accepted his testimony that it was probable he would be released no later than three months after the termination hearing. We cannot say the juvenile court manifestly erred in reaching this conclusion.
Nor can we find manifest error in the juvenile court's conclusion that DCFS failed to sufficiently establish either that C.S. refused to care for B.M.A. or that W.A.'s plan for C.S to care for B.M.A. until his release was unreasonable or inappropriate. The testimony given by B.M.A.'s caseworker was internally inconsistent on the question of C.S.'s willingness to care for the child. Initially, the caseworker's testimony suggested C.S. did not want to care for B.M.A. Under further questioning by the juvenile court, however, she admitted C.S. asked how she could get B.M.A. and indicated a desire to care for the child. Additionally, W.A. indicated in his testimony that although C.S. was concerned about the effect of removing B.M.A. from her foster parent, she would provide care for B.M.A.
Further, while C.S.'s criminal conviction and health concerns raise questions regarding her suitability as a caregiver for B.M.A., the evidence DCFS presented at the termination hearing does not resolve this issue, certainly not by clear and convincing evidence. La. Ch.C. 1036.2(D) requires that after an incarcerated parent has provided the name of a potential caregiver, DCFS "shall" conduct an assessment of the person identified as a potential caregiver to determine whether they are willing and able to provide an appropriate environment for the child. There was no evidence DCFS ever conducted a home study or the mandatory assessment of C.S. required by Article 1036.3(D). In brief, DCFS appears to attribute the lack of an assessment on "C.S. not completing the home study and fingerprinting process." However, the record is devoid of any evidence or testimony supporting this assertion.
DCFS strenuously argues termination of W.A.'s parental rights and certification of B.M.A. for adoption is in her best interest. Yet, the juvenile court may inquire into the child's best interest in a termination case only after DCFS has established one of the grounds for termination enumerated in Article 1015 by clear and convincing evidence. See State ex rel. L.B., 831 So.2d at 922. DCFS has failed to meet this burden in this case
Additionally, the record supports the juvenile court's conclusion that DCFS also failed to fulfill its obligations under the circumstances of this case. The petition to terminate all parental rights relative to B.M.A. and to certify her for adoption was filed before DCFS learned of W.A.'s identity as her biological father. After other putative fathers had been eliminated as B.M.A.'s father, W.A. submitted to a DNA test. He was informed of the results establishing his paternity in June 2016, only a few months before the termination hearing. He immediately advised the caseworker he wanted to care for B.M.A. and began taking a parenting class offered at his detention facility as she suggested.
For its part, DCFS neither developed a case plan for W.A. nor conducted the assessment required by Article 1036.2(D) of the person W.A. identified as a possible caregiver for B.M.A. There also was no evidence DCFS complied with the statutory requirement that is give written notification to an incarcerated parent of the law concerning the termination of parental rights and his duty to provide a reasonable plan of appropriate care for his child within sixty days. La. Ch.C. art. 1036.2(B) & (E). Article 1036.2(E) indicates the notification form shall contain a certification signed by the caseworker that the form was delivered to the incarcerated parent by personal delivery, as well as the signature of the incarcerated parent indicating receipt. DCFS provided no such notification form establishing personal delivery of the required notice to W.A.
Due to the drastic nature of terminating the parent-child legal relationship, a parent's fundamental liberty interest to the continuing companionship, care, and custody of his child is entitled to great deference and vigilant protection under the law. State ex rel. L.B., 831 So.2d at 921. Considering this fact, as well as the onerous burden of proof by clear and convincing evidence imposed on DCFS in establishing grounds for termination, we find no error in the juvenile court's judgment dismissing DCFS's amended petition.
DECREE
For the reasons assigned, the judgment of the juvenile court is affirmed. DCFS is to pay all costs of this appeal in the amount of $648.50.
AFFIRMED.