Opinion
2021 CJ 1354
04-28-2022
STATE OF LOUISIANA v. IN THE INTEREST OF P.J. AND S.J. v.
Hillar C. Moore, III District Attorney Courtney E. Meyers Assistant District Attorney Counsel for Plaintiff -Appellee State of Louisiana Leslie L. Lacy Baton Rouge, Louisiana Counsel for Plaintiff -Appellee P. J. and S. J. - Minor Children Jeremy Woolard Baton Rouge, Louisiana Counsel for Appellee Department of Children & Family Services Joseph K. Scott, III Baton Rouge, Louisiana Counsel for Defendant -Appellant T.Y. - Mother
NOT DESIGNATED FOR PUBLICATION
ON APPEAL FROM THE JUVENILE COURT IN AND FOR THE PARISH OF EAST BATON ROUGE, STATE OF LOUISIANA NUMBER 12439 HONORABLE ADAM J. HANEY, JUDGE
Hillar C. Moore, III District Attorney Courtney E. Meyers Assistant District Attorney Counsel for Plaintiff -Appellee State of Louisiana
Leslie L. Lacy Baton Rouge, Louisiana Counsel for Plaintiff -Appellee P. J. and S. J. - Minor Children
Jeremy Woolard Baton Rouge, Louisiana Counsel for Appellee Department of Children & Family Services
Joseph K. Scott, III Baton Rouge, Louisiana Counsel for Defendant -Appellant T.Y. - Mother
BEFORE: GUIDRY, HOLDRIDGE, AND CHUTZ JJ. 1
CHUTZ, J.
T. Y., the mother of two minor children previously adjudicated in need of care, PJ. and S.J., appeals a juvenile court judgment terminating her parental rights to the children and freeing them for adoption. We affirm.
The children and their parents are referred to in this opinion by their initials to preserve their privacy in this confidential proceeding. See Uniform Rules - Courts of Appeal, Rule 5-2.
In August 2016, T.Y. and the two children were living at a shelter due to their home flooding. On August 17, 2016, the State of Louisiana, through the Department of Children and Family Services (DCFS), obtained a custody order removing P.J. (DOB 7/3/09) and S.J. (DOB 12/31/14) from T.Y.'s custody and placing them in the temporary custody of DCFS. The children were taken into custody based on allegations by shelter staff that T.Y. had struck the children and was leaving them alone. At the time, P.J. was seven years old and S.J. was approximately nineteen months old. The children were adjudicated to be in need of care. The court entered a disposition on October 19, 2016, returning the children to T.Y.'s custody, but shortly thereafter the children were returned to state custody on November 10, 2016, in whose custody they have remained.
In September 2017, the case plan was changed from reunification concurrent with adoption, to adoption. In June 2020, DCFS filed a joint petition to terminate the parental rights of T.Y. and N.J., the children's father. The juvenile court sustained T.Y.'s dilatory exception alleging the petition failed to conform to the statutory requirements for a petition, but allowed DCFS an opportunity to amend the petition. After DCFS filed an amended petition, T.Y. filed an answer, together with an exception of no cause of action and a motion to strike certain allegations in the 2 amended petition, both of which the juvenile court denied. On motion of T.Y., her termination case was severed from that of the children's father.
According to the juvenile court's written reasons for judgment in the instant matter, a previous petition to terminate T.Y.'s parental rights and certify P.J. and S.J. as eligible for adoption was filed by DCFS in June 2018. The petition was ultimately dismissed without prejudice on exceptions filed by T.Y.
N.J.'s parental rights as to P.J. and S.J. were terminated in a judgment signed by the juvenile court on January 29, 2021.
The juvenile court heard this matter on January 14 and 28, 2021. At the conclusion of DCFS's case on January 28, T.Y. reurged her exception of no cause of action or, alternatively, moved for involuntary dismissal of the action, both of which were denied. At the end of trial, the juvenile court took the matter under advisement. On February 11, 2021, the juvenile court orally announced its ruling terminating T.Y.'s parental rights as to P.J. and S.J. In its written reasons for judgment, the juvenile court concluded DCFS had proven grounds for termination under both La. Ch.C. art. 1015(4)(i) and (4)(1) by clear and convincing evidence, and it was in the best interest of the children to be freed for adoption. Accordingly, the juvenile court signed a judgment on February 25, 2021, terminating T.Y.'s parental rights as to P.J. and S.J. and certifying them as eligible for adoption. T.Y. now appeals, arguing in five assignments of error that the juvenile court erred in overruling her exception of no cause of action, in denying her motion to strike, in overruling her objection to expert testimony, in finding DCFS met its burden of proving grounds for termination, and in denying her motion for involuntary dismissal.
NO CAUSE OF ACTION (Assignment of Error Number 1)
T.Y. argues the juvenile court erred in overruling her exception of no cause of action because the allegations in the amended petition of chronic abuse or neglect and/or sexual abuse and exploitation did not to rise to the level of severity required by Article 1015(4), i.e., "extreme abuse, cruel and inhuman treatment, or grossly negligent behavior below a reasonable standard of human decency." 3
An exception of no cause of action tests the legal sufficiency of the petition. The exception is triable on the face of the petition, and all well-pleaded allegations of fact must be accepted as true. A court should sustain the exception only if the law affords no remedy under any evidence that is admissible under the pleadings. A trial court's ruling on an exception of no cause of action is subject to de novo review. The question presented is whether, viewing the petition in the light most favorable to the party alleging entitlement to relief, and with every doubt resolved in his favor, the petition on its face states any valid cause of action for relief. HSBC Bank USA, National Association as Trustee for Deutsche Alt-A Securities, Inc. Mortgage Loan Tr., Series 2005-2 v. Lowe, 18-1618 (La.App. 1st Cir. 5/31/19), 277 So.3d 1199, 1202.
In this case, DCFS sought termination of T.Y.'s parental rights under Subsections (i) and (1) of Article 1015(4), which provides, in pertinent part:
The grounds for termination of parental rights are:
(4) Misconduct of the parent toward this child or any other child of the parent or any other child which constitutes extreme abuse, cruel and inhuman treatment, or grossly negligent behavior below a reasonable standard of human decency, including but not limited to the conviction, commission, aiding or abetting, attempting, conspiring, or soliciting to commit any of the following:
(i) Abuse or neglect which is chronic, life-threatening, or results in gravely disabling physical or psychological injury or disfigurement.
(1) Sexual exploitation or abuse, which shall include, but is not limited to acts which are prohibited by R.S. 14:43 1 43 2 46 3 80 81 81.1, 81.2, 82.1(A)(2), 89, and 89.1.(Emphasis added.)
T.Y. argues that DCFS merely alleging facts showing a child suffered chronic abuse or neglect and/or sexual abuse or exploitation is insufficient to state a cause 4 of action for termination under Article 1015(4). According to T.Y.'s interpretation of Article 1015(4), DCFS must also allege facts showing the abuse, neglect, or sexual exploitation suffered by the child rose to a level of such severity as to constitute "extreme abuse, cruel and inhuman treatment, or grossly negligent behavior below a reasonable standard of human decency." T.Y. asserts the allegations of abuse, neglect, and sexual exploitation in the amended petition failed to rise to this level of severity.
We find no merit in T.Y.'s argument because it is based upon an erroneous interpretation of Article 1015(4). By its very terms, this provision provides that any of the conduct delineated in Subsections (a) to (m) of Paragraph (4) is included in misconduct constituting "extreme abuse, cruel and inhuman treatment, or grossly negligent behavior below a reasonable standard of human decency," as contemplated in Article 1015(4). Thus, alleging sufficient facts to establish any ground for termination set forth in Subsections (a) to (m) by definition meets the level of misconduct required by Article 1015(4).
In its amended petition, DCFS alleged it was in the best interest of P.J. and S.J. to terminate T.Y.'s parental rights pursuant to Article 1015(4)(i) due to chronic abuse or neglect of P.J. and S.J., as well as T.Y.'s other children, as reflected by: the fact that six of her children have been removed from her custody and adjudicated children in need of care over a period of more than fifteen years; T.Y. was involved in two child in need of care cases involving three children at the time of the filing of the amended petition; P.J. and S.J. have been removed from T.Y.'s custody twice during the course of their current child in need of care case; and T.Y. was previously charged with two counts of cruelty to a juvenile concerning her own children and subsequently pled guilty to an amended charge of simple battery. DCFS alleged grounds for termination also existed under Article 1015(4)(1) because T.Y. sexually 5 abused or exploited a child, who was not biologically related to her, as a result of which she pled guilty in 2008 to misdemeanor carnal knowledge of a juvenile.
After carefully examining the amended petition, and accepting the facts alleged as true for purposes of the exception of no cause of action, we find the amended petition states a cause of action for termination of T.Y.'s parental rights under Article 1015(4)(i) and (1). The juvenile court did not err in overruling the exception of no cause of action.
MOTION TO STRIKE (Assignment of Error Number 2)
T.Y. argues the juvenile court erred in denying her motion to strike Paragraph 14 of DCFS's amended petition, which includes allegations of on-going substance abuse, on-going mental health issues, and a lack of protective capacity and safe decision making by T.Y. She contends these allegations are not relevant to any element of the two grounds for termination alleged by DCFS and, therefore, should be struck.
A trial court's ruling on a motion to strike pursuant to La. C.C.P. art. 964 rests within the court's sound discretion. The grant or denial of such a motion is reviewed under the abuse of discretion standard. Pitre v. Opelousas General Hospital, 530 So.2d 1151, 1162 (La. 1988); Detillier v. Borne, 15-129 (La.App. 5th Cir. 9/23/15), 176So.3d669, 671.
DCFS begins Paragraph 14 with an allegation that it is in the best interest of P.J. and S.J. that T.Y.'s parental rights be terminated for the reasons set forth therein. In denying the motion to strike, the juvenile court agreed with DCFS's contention that the allegations contained in Paragraph 14 were relevant to a determination of the children's best interest. Since determining the best interest of the children is a necessary inquiry if a statutory ground for termination is established, the juvenile 6 court was correct in finding the allegations at issue were relevant. Accordingly, we find no abuse of discretion in the juvenile court's denial of T.Y.'s motion to strike.
EXPERT TESTIMONY (Assignment of Error Number 3)
In this assignment of error, T.Y. contends the juvenile court erred in overruling her objection to the testimony of Dr. Rhonda Norwood, Ph.D., who was accepted as an expert in the field of infant mental health, including the field of attachment. Specifically, T.Y. objected to Dr. Norwood's testimony regarding whether she believed reunification was in the children's best interest, complaining it went to an ultimate issue to be decided by the trier of fact, thereby exceeding the scope of La. C.E. art. 704. T.Y. further argues the juvenile court accorded too much weight to this testimony and substituted Dr. Norwood's opinion for its own evaluation of the evidence. In support of this contention, T.Y. points to the fact that the juvenile court expressly adopted portions of Dr. Norwood's report and testimony in its written reasons for judgment.
T.Y. did not object to Dr. Norwood's qualifications, but only to the scope of her testimony and the weight the juvenile court accorded to it.
A juvenile court's ruling on the admission of opinion testimony lies within the court's vast discretion. In re C.L., 14-0348 (La.App. 1st Cir. 9/19/14), 2014 WL 4668609, at *2 n.7 (unpublished), writ denied, 14-2164 (La. 11/7/14), 152 So.3d 184. Further, La. C.E. art. 704 provides that opinion testimony, if otherwise admissible, "is not to be excluded solely because it embraces an ultimate issue to be decided by the trier of fact." (Emphasis added.) Based on our review, we find no abuse of discretion in the juvenile court admitting the opinion testimony objected to by T.Y. The testimony was relevant to an issue before the court and was permissible under La. C.E. arts. 402, 702, and 704.
Moreover, the record does not support T.Y.'s contention that the juvenile court substituted Dr. Norwood's opinion for its own evaluation of the evidence. As 7 the trier of fact, the juvenile court was free to accept or reject, in whole or in part, the opinion testimony expressed by an expert as to ultimate facts. Bar field v. Bolotte, 15-0847 (La.App. 1st Cir. 12/23/15), 185 So.3d 781, 789 n.6, writ denied, !6-0307 (La. 5/13/16), 191 So.3d 1058. The effect and weight to be given expert testimony is a matter within the juvenile court's broad discretion. Morgan v. State Farm Fire & Casualty Company, Inc., 07-0334 (La.App. 1st Cir. 11/2/07), 978 So.2d 941, 946. The juvenile court's acceptance of Dr. Norwood's testimony is not an indication that the court substituted Dr. Norwood's opinion for its own. Contrary to T.Y.'s contention, the juvenile court's reasons for judgment demonstrate it carefully considered and weighed all the evidence presented.
SUFFICIENCY OF THE EVIDENCE (Assignment of Error Number 4)
T.Y. contends the evidence was insufficient to establish any ground for termination of her rights because the evidence failed to establish "extreme abuse, cruel and inhuman treatment, or grossly negligent behavior" by her. She claims the evidence of abuse constituted of only three instances over an eight-year period: her 2008 misdemeanor for carnal knowledge of a juvenile; her 2015 conviction for simple battery of one of her children, who is not involved in this proceeding; and her purportedly striking P.J. or SJ. while they were living in a shelter in 2016. T.Y. argues this evidence was insufficient to meet DCFS's burden to establish a ground for termination by clear and convincing evidence.
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. However, a child has a profound interest, often at odds with those of his parents, in terminating parental rights that prevent adoption and inhibit establishing secure, stable, long-term and continuous relationships found in a home with proper parental care. In balancing these interests, 8 the courts of this state have consistently found the interest of the child to be paramount over that of the parent. State In Interest of J.J.S., 14-1574 (La.App. 1st Cir. 7/7/15), 180 So.3d 319, 322.
In order to terminate parental rights, DCFS must establish by clear and convincing evidence that: (1) at least one ground for termination enumerated in Article 1015 exists; and (2) termination is in the best interest of the child. La. Ch.C. arts. 1035(A) and 1037(B); State In Interest of U.S., 180 So.3d at 322-23. An appellate court cannot set aside a juvenile court's findings of fact regarding whether the requirements of Article 1015 have been satisfied in the absence of manifest error or unless those findings are clearly wrong. See In Re A.J.F., 20-0948 (La. 6/30/00), 764 So.2d 47, 61; State in Interest of C.B., 18-1403 (La.App. 1st Cir. 2/25/19), 2019 WL 927189, at *2 (unpublished), writ denied, 19-0495 (La. 5/20/19), 271 So.3d 1275.
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 State In Interest of J.J.S., 180 So.3d at 323.
As previously noted, the grounds asserted for termination in this case were chronic abuse and neglect under Article 1015(4)(i) and sexual abuse or exploitation under Article 1015(4)(1). In finding DCFS established each of these grounds by clear and convincing evidence, the juvenile court stated in its written reasons:
Children's Code article 1015 (4)(i) addresses conduct which is "chronic, life-threatening, or results in gravely disabling physical or psychological injury or disfigurement." It is important to note the use of the word "or." The state need not prove all of the descriptive types of abuse or neglect listed. It must simply prove one.
[E]vidence of [T.Y.'s] history of abusive conduct towards her children was introduced at the trial on this matter. The underlying facts of this case were presented as well as evidence of abuse that occurred during the time DCFS and third parties were working with [T.Y.], and evidence that [T.Y.] was convicted of the battery of her older son. This is abuse that occurred multiple times, against multiple children, over multiple years. It is the definition of chronic, and the Court finds that the state has proven this allegation by clear and convincing evidence.9
The record does not support T.Y.'s claim that DCFS only presented evidence of three isolated incidents of abuse over a prolonged period of several years. The record indicates that in addition to evidence of T.Y.'s simple battery conviction, which resulted from her battering her own child, DCFS presented the testimony of Katie Dotie, who is a Volunteer of America program manager. Ms. Dotie testified T.Y. showed her a belt that T.Y. said she used for whipping P.J. T.Y. also told Ms. Dotie "she liked to use harsh words or language with [P.J.] to make her feel bad or to make her behave better." Further, Dr. Norwood testified that T.Y. described how N.J., the children's father, subjected T.Y., P.J., and SJ. to "quite a bit" of physical abuse and violence in their household. T.Y. reported that N.J. "threw them around like they were rag dolls, hitting them in the face until ... their mouths bled, [and] locking [them] in rooms when they would cry." Despite the children being subjected to such horrendous abuse, T.Y. admitted she often left P.J. and S.J. alone in N.J.'s care for extended periods of time, claiming she had no choice. Such behavior demonstrated a chronic disregard and neglect for P.J. and S.J.'s physical safety and well-being.
In finding the ground for termination provided by Article 1015(4)(1) was established, the juvenile court stated in its written reasons:
At trial, the State presented evidence of criminal convictions whereby [T.Y.] was the offending party. In August of 2008, [T.Y] was convicted of carnal knowledge of a juvenile under La. R. S. 14:80.1. While Children's Code article 1015(4)(1) does not list La. R. S. 14:80.1 in the illustrative list of sexual abusive or exploitative crimes for which termination is warranted, the article states that the list is not exclusive. The article further states that conviction of a sexually abusive or exploitative crime is not necessary, proof of commission of one of those crimes is also grounds for termination.
In this case the state proved that [T.Y.] was convicted of La. R.S. 14:80.1. During her testimony, [T.Y.] admitted that when she was approximately 27 years old, she had sexual relations with a 15-year-old boy. This is a clear violation of La. R. S. 14:80 [which is listed in Article 1015(4)(1) as a sexually abusive or exploitative crime]. Evidence of [T.Y.'s] conviction of La. R.S. 14:80.1 and her testimony admitting that the act underlying the conviction was actually a violation10
of La. R.S. 14:80 constitutes clear and convincing grounds for termination under [La. Ch. C] art. 1015(4)(1).
We find no error in the juvenile court's application of Article 1015(4)(1). The provision applies to the sexual abuse or exploitation of the parent's child or "any other child." (Emphasis added.) There is no requirement that the abused or exploited child be T.Y.'s own child. La. Ch.C. art. 1015(4). Moreover, while T.Y. made light of the incident leading to her conviction for misdemeanor carnal knowledge of a juvenile, referring to it as a "friendly encounter" that "didn't last long," the juvenile court correctly found her admitted conduct clearly and convincingly established the required elements for the commission of felony carnal knowledge of a juvenile, as provided in La. R.S. 14:80. The commission of acts prohibited by La. R.S. 14:80 clearly constitutes sexual abuse or exploitation within the meaning of Article 1015(4)(1).
Under La. R.S. 14:80(A)(1), felony carnal knowledge of a juvenile is committed when:
A person who is seventeen years of age or older has sexual intercourse, with consent, with a person who is thirteen years of age or older but less than seventeen years of age, when the victim is not the spouse of the offender and when the difference between the age of the victim and the age of the offender is four years or greater[.]T.Y.'s admission that she had sexual relations with a fifteen- or sixteen-year-old boy, who was her boyfriend's son, when she was approximately twenty-seven years old established al'l the required elements for the commission of this felony offense, irrespective of whether the encounter was consensual. Further, while T.Y. claimed the juvenile lied about his age, La. R.S. 14-80(C) specifically provides that ignorance of the juvenile's age is not a defense.
We have thoroughly reviewed the record in this matter and the history leading up to DCFS's petition for termination of T.Y.'s parental rights. The juvenile court concluded the evidence established grounds for the termination of her parental rights under Article 1015(4)(i) and (4)(1) by clear and convincing evidence. The juvenile court further concluded the evidence demonstrated clearly and convincingly that it was in the best interest of P. J. and S.J. for T.Y.'s parental rights to be terminated and 11 they be freed for adoption. These conclusions are amply supported by the record and, therefore, are not manifestly erroneous.
On appeal, T.Y. has not assigned error to the juvenile court's best interest determination. Nevertheless, we observe that in its written reasons, the juvenile court thoroughly explained its conclusion that it was in the best interest of P.J. and S.J. for T.Y.'s parental rights to be terminated. Among other factors, the juvenile court considered that the children, who at the time of judgment were eleven and six years old respectively, had been in foster care for over four years; T.Y.'s parental fitness; her history of ongoing mental health issues; and her lengthy history of drug abuse, treatments, and relapses. T.Y.'s attitude was of grave concern to the juvenile court, as shown by her assertion that she would stop using illegal drugs if she regained custody of her children. The court believed T.Y.'s unwillingness to commit to stop using illegal drugs prior to and in order to regain custody demonstrated a lack of commitment to the children. The record overwhelmingly supports the juvenile court's conclusion that the termination of T.Y.'s parental rights was in the children's best interest.
MOTION FOR INVOLUNTARY DISMISSAL (Assignment of Error Number 5)
At the conclusion of DCFS's case, T.Y. made a motion for involuntary dismissal pursuant to La. C.C.P. art. 1672(B), which was denied. T.Y. argues the motion should have been granted because the evidence DCFS presented did not meet the element of "extreme behavior" required by Article 1015(4).
The applicable standard in considering a motion for involuntary dismissal is whether the plaintiff has presented sufficient evidence to establish his case by a preponderance of the evidence. A trial court has much discretion in determining whether to grant a motion for involuntary dismissal, but it is required to weigh and evaluate all evidence in making its determination. An appellate court may not reverse a ruling on a motion for involuntary dismissal unless it is manifestly erroneous or clearly wrong. Farmco, Inc. v. Morris, 08-1996 (La.App. 1st Cir. 9/4/09), 21 So.3d 428, 432, writ denied, 09-2165 (La. 12/11/09), 23 So.3d 919.
T.Y.'s arguments are largely based on her erroneous interpretation of Article 1015(4) as requiring DCFS to prove "extreme behavior" as a separate element in addition to establishing the specific grounds for termination provided in 1015(4)(i) and (1). We have previously considered and rejected this argument. Moreover, our review of the record reveals no manifest error in the juvenile court's denial of T.Y.'s 12 motion for involuntary dismissal. At the time the motion was made, the evidence presented by DCFS was sufficient to establish by a preponderance of the evidence both chronic abuse or neglect of P.J. and S J. by T.Y. and the sexual exploitation or abuse by T.Y. of a child not biologically related to her, as previously discussed herein.
CONCLUSION
For these assigned, the judgment of the juvenile court is affirmed. Given T.Y.'s pauper status, we decline to assess her with the costs of this appeal.
AFFIRMED. 13