KEATY, Judge.
T.A.,
G.M.A., who was born on January 7, 2007, and K.K.A., who was born on August 5, 2012, were adjudicated in need of care on May 19, 2014.
By way of background, the Termination Petition recited that the DCFS had previously sought the termination of T.A.'s parental rights to G.M.A. and two of her siblings, not including K.K.A., who had come into the State's custody in November of 2010 after a validated complaint was filed against their parents, T.A. and G.Y., for physical abuse and neglect. K.K.A. was born in August of 2012, while T.A.'s three older children were in the State's custody. In April of 2013, the DCFS filed a neglect/inadequate food complaint against T.A. concerning K.K.A. Nevertheless, after a September 27, 2013 hearing, T.A. was granted custody of her three older children with the DCFS's supervision. During that period of supervision, additional complaints were validated against T.A. concerning all four of her children. With regard to G.M.A. and K.K.A., those complaints were for neglect, while two complaints concerning one of T.A.'s other children were for physical abuse. All four of T.A.'s children were placed into the custody of the DCFS in April of 2014. When G.M.A. and K.K.A. were adjudicated in need of care on May 19, 2014, the case plan goal for K.K.A. was unification, while the goal for G.M.A. and her two other siblings was adoption. After a termination trial was held in June of 2014 regarding K.K.A.'s older siblings, judgment was rendered on July 17, 2014, wherein the trial court decreed that it was not in G.M.A.'s best interest that T.A.'s parental rights to her be terminated at that time.
T.A. and her counsel of record appeared before the trial court regarding this matter on September 4, 2015, at which time T.A. was served with a copy of the Termination Petition in open court, and trial was reset for October 22, 2015. Court minutes dated October 22, 2015, indicate that the matter was refixed for trial on December 1, 2015, and the clerk was ordered to notify T.A.'s counsel of record, who was not present, of the new trial date. Before the start of the December 1, 2015 trial on the merits, T.A.'s counsel informed the trial court that he had been unable to contact her, despite repeated efforts, but that he had notified her of the trial date several times by letter and once in a conversation. Thereafter, counsel for T.A. made an oral motion to continue the trial based upon her absence. The DCFS objected to the matter being continued. The trial court denied the motion to continue on the basis that T.A. had knowledge of the trial and that the minors needed the proceeding to move forward.
Upon the start of the trial on the merits, the DCFS offered, and the trial court accepted into evidence, the records in which G.M.A. and K.K.A. were adjudicated children in need of care. The only witness to testify at the trial was Ms. Lazetter West, the foster care worker for G.M.A. and K.K.A. and their parents. At the close of the evidence, the trial court rendered oral reasons finding that the State had met its burden of proof and terminated T.A.'s parental rights to G.M.A. and K.K.A. By written judgment dated December 4, 2015, the trial court granted the Termination Petition and decreed that T.A.'s parental rights to G.M.A. and K.K.A. were "immediately permanently and irrevocably dissolved" and specifically finding that such action was in the best interest of G.M.A. and K.K.A. The trial court ordered G.M.A. and K.K.A. to remain in the custody of the DCFS and certified them free and eligible for adoption. T.A. timely filed a Motion for New Trial, which was denied in open court after a January 22, 2016 hearing and reduced to written judgment on January 29, 2016. T.A. appealed and is now before this court asserting the following assignments of error:
In her appellate brief, T.A. states that she "was prevented from appearing and testifying at the termination trial because of the failure of the State (DCFS) to provide her transportation to the trial." T.A. contends that because the DCFS failed to give her counsel notice of that failure either prior to or on the day of trial, he was denied the opportunity to facilitate T.A.'s transportation to the trial.
"The decision whether to grant or to deny a motion to continue rests within the trial court's sound discretion, and a reviewing court will not disturb such a decision absent a clear abuse of discretion." State in Interest of J.T., 11-1646, p. 8 (La.App. 4 Cir. 5/16/12), 94 So.3d 847, 853.
A perusal of the record reveals that it was not until T.A. filed her motion for new trial that it was disclosed that her counsel had written to Ms. West informing her that T.A. had no means of transportation and requesting that Ms. West furnish T.A. transportation to the December 1, 2015 trial. Thus, when counsel for T.A. made the oral motion to continue the trial, the only information provided to the trial court was that T.A. had received notice of the December 1, 2015 trial date and that she was not present in court on that day. Given those circumstances, we find no abuse of discretion in the trial court's denial of the motion to continue. T.A.'s first assignment of error has no merit.
T.A. contends that the trial court erred in terminating her parental rights in her absence because the State breached its promise to provide her with transportation to trial.
Louisiana Children's Code Article 1033, titled "Effect of nonappearance," provides as follows:
Louisiana Children's Code Article 1020 requires that when parental rights are sought to be terminated, the parent "shall" be served with specific written notice advising them of the right to counsel and the effect of a termination judgment. Louisiana Children's Code Article 1021 provides that when the parental rights of a Louisiana resident are sought to be terminated, "service of citation shall be made either personally or by domiciliary service not less than five days prior to commencement of the hearing on the matter."
As previously mentioned, the court minutes show that T.A. was served with a copy of the Termination Petition in open court on September 4, 2015, and that the trial which had been set for that date was reset for October 22, 2015. The record indicates that T.A. received notice of the October 22, 2015 and the December 1, 2015 trial dates, both of which were set more than five days after she was served with citation. In addition, the Termination Petition in the record contains the notice specified in La.Ch. Code art. 1020. Accordingly, we conclude
As we discussed in regard to T.A.'s first assigned error, when the trial in this matter commenced, the trial court was unaware that T.A.'s counsel had sought the DCFS's assistance in providing T.A. with transportation to the termination trial. Thus, we will not take that information into consideration in reviewing the propriety of the trial court's decision to proceed with the termination trial. Because, as we find in our discussion of T.A.'s third assigned error, the State provided prima facie proof of the allegations made in the Termination Petition, the trial court did not err in terminating T.A.'s parental rights in her absence. Thus, T.A.'s second assignment of error lacks merit.
T.A. argues that the trial court erred in terminating her parental rights to G.M.A. and K.K.A. because the DCFS did not prove that her rights should be terminated by clear and convincing evidence. The DCFS admits that La.Ch.Code art. 1035(A) 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." It contends, however, that because T.A. was not present at the termination hearing, La.Ch.Code art. 1033 dictates that it only had to present prima facie proof that T.A.'s parental rights should be terminated. We agree that the Children's Code clearly directs that the DCFS's burden of proof at a termination hearing is lessened when a parent is absent and the State proves that it complied with La.Ch.Code art. 1033. Because we have found that the DCFS proved such compliance, we must now determine whether the trial court erred in finding that the DCFS presented prima facie evidence
State in Interest of C.E., 15-555, 15-556, p. 4 (La.App. 3 Cir. 10/7/15), 176 So.3d 755, 758.
State in Interest of M.C., 16-69, pp. 7-8 (La.App. 3 Cir. 6/1/16), 194 So.3d 1235, 1240-41. "Louisiana Children's Code Article 1015 sets forth eight grounds for termination of parental rights. Although the State need only establish one ground for termination, the trial court must also find that the termination is in the best interest of the child[ren]...." State in Interest of J.K.G., 11-908, pp. 5-6 (La.App. 3 Cir. 1/11/12), 118 So.3d 10, 14.
In this matter, the DCFS sought termination of T.A.'s parental rights to G.M.A. and K.K.A. on the basis of La.Ch.Code art. 1015(4) and (5) and La.Ch.Code art. 1036. According to La.Ch.Code art. 1015,
Louisiana Children's Code Article 1036, titled "Proof of parental misconduct," provides, in relevant part:
As mentioned previously, the only witness to testify at the trial was Ms. West, the foster care worker for G.M.A. and K.K.A. and their parents. Ms. West stated that she was assigned to this case in June of 2014. At that time, T.A.'s case plan required that she maintain housing and legal income, make parental contributions of $25 per child per month, complete a sixteen-week nurturing parenting program, attend all Family Team Conferences, resolve her legal issues, undergo a mental health assessment and follow all recommendations, and submit to drug screens. Ms. West explained that T.A. had not maintained housing since the first of two incarcerations that began in December of 2014. Ms. West stated that T.A. worked at the Isle of Capri until her first incarceration and later at a Days Inn from approximately October until November of 2015, but T.A. never turned in any check stubs nor did she provide any parental contributions.
According to Ms. West, T.A. enrolled in a parenting class on October 7, 2014, but she was discharged on November 4, 2014, due to lack of attendance and participation. Although T.A. was re-referred to the program in February of 2015, she was discharged after missing the first two group sessions, and after her second incarceration in March of 2015, she never resumed the program.
Ms. West explained that when T.A. was given a random drug screen on September 4, 2014, she tested positive for cocaine, benzodiazapines, marijuana, and extended opiates. Because T.A. did not go to an October 22, 2015 court-ordered drug screen, the results were presumed positive, and according to Ms. West, DCFS policy required that she be assessed to determine whether she needed treatment for drug addiction.
When asked about whether T.A. had seen her children since she got out of jail in June of 2015, Ms. West stated that T.A. had visited twice with G.M.A. alone, and once with G.M.A. and K.K.A. since they had entered the State's custody. Ms. West explained that G.M.A., who is currently eight years old, had been placed in an adoptive home since late October of 2014, that she had adjusted well to that placement,
Upon cross-examination by T.A.'s attorney, Ms. West stated that she believed that T.A. had no current means of transportation, but T.A. was aware that if she contacted the DCFS, transportation would be arranged for her. Ms. West also stated that G.M.A. had told her that T.A. spoke to her by telephone approximately once a month. And while she believed that G.M.A. wanted to be reunited with T.A., Ms. West had spoken to G.M.A. about the possibility of her not being able to "go home with mommie," and G.M.A. expressed that she would want to stay with her adoptive mother. Finally, Ms. West explained that while she believed that T.A. could have worked her case plan, she apparently had no desire to do so.
At the close of evidence in the termination trial, the trial court stated the following with regard to T.A.:
After a review of the evidence and testimony presented at the termination hearing, we conclude that the State presented more than prima facie proof that T.A. failed to make significant contributions to the care and support of either G.M.A. or K.K.A. and that T.A. failed to maintain significant contact with either of them in excess of the six-month periods found in La.Ch.Code arts. 1015(4)(b) and 1015(4)(c). We, likewise, conclude that the State presented more than prima facie proof that in the more than one year since G.M.A. and K.K.A. had been removed from T.A.'s custody, T.A. had not substantially complied with any of her case plan and that there was no "reasonable expectation of significant improvement in [T.A.'s] conduct in the near future," despite Ms. West's opinion that T.A. was capable of working her case plan had she so desired. La.Ch.Code arts. 1015(5) and 1036(D). On the other hand, Ms. West testified that eight-year-old G.M.A. and three-year-old K.K.A. were happy and thriving with their foster families and that those families would likely adopt them if T.A.'s parental rights were terminated.
When the Termination Petition was filed in July of 2015, G.M.A. and K.K.A. had been in the State's custody for over one year, with G.M.A. having been in custody for forty-eight of the previous fifty-five months. Both G.M.A. and K.K.A. were still in the State's custody at the time of the December 1, 2015 trial. The supreme court has directed us to balance T.A.'s interest in continuing her parental relationship with G.M.A. and K.K.A. against each of their interests in having continuous, stable, and secure relationships in homes where they will consistently receive the proper care that they deserve. State in Interest of M.C., 194 So.3d 1235. The supreme court has further directed us that each child's best interest takes precedence over that of his or her parent. Id. After having performed the required balancing test, we conclude that the State proved that termination of T.A.'s parental rights to G.M.A. and K.K.A. would be in the best interest of both of the children. Accordingly, we find no manifest error in the trial court's decision to terminate T.A.'s parental rights as to both G.M.A. and K.K.A. and to certify them both for adoption. T.A.'s third assigned error lacks merit.
In her appellant brief, T.A. asserts that the trial court erred by denying her motion for new trial. She contends that the State undertook an "affirmative obligation" to provide her with transportation to the termination trial, that it had an "obligation to timely notify her counsel that the State could not contact her to provide such transportation," and that the trial court erred in denying her motion for new trial when the State failed to provide her with transportation and to notify her counsel of the same. Significantly, however, she fails to cite any statutory or case law with regard to the grounds for granting a new trial and/or with regard to the appropriate standard of review of a trial court's ruling on a motion for new trial. We also note that in the motion for new trial that T.A. filed in the trial court, she failed to refer to any of the statutory grounds for a new trial.
Holloway Drilling Equip., Inc. v. Bodin, 12-355 pp. 12-13 (La.App. 3 Cir. 11/7/12), 107 So.3d 699, 709-10.
Both T.A. and Ms. West testified at the January 22, 2016 hearing on T.A.'s motion for new trial. Upon questioning by her counsel, T.A. attested to the truth of an affidavit which she filed in support of her motion for new trial. That affidavit provided, in pertinent part, that:
Upon cross-examination by counsel for the DCFS about how she got to her counsel's office to sign her affidavit on December 4, 2015, and how she got to the hearing that day concerning her motion for new trial, T.A. explained that she had received rides from her close friends and from one of the men whom she was dating. T.A. also stated that after not being able to get with Ms. West, she had left a message at her counsel's office prior to the December 1, 2015 trial date, but he had not returned her call.
Ms. West testified that her work telephone number had changed on October 19, 2015, after she received a promotion. She stated, however, that she had left a message on the voicemail of her former telephone number stating that her number had changed and giving the number where she could be reached. Ms. West further stated that, after her promotion, she had checked her old telephone number for messages daily and that she did not receive a message from T.A. until about December 19, several weeks after the December 1, 2015 trial. Ms. West acknowledged that she had received a letter faxed by
At the close of the hearing, the trial court issued oral reasons denying T.A.'s motion for new trial, stating:
As correctly noted by the trial court at the new trial hearing, it had discretion regarding whether to grant the motion because T.A. had not asserted a peremptory ground requiring that a new trial be granted. As is evident from the above-quoted oral reasons for judgment, the trial court gave thoughtful consideration to all the evidence presented at the hearing. Given all the circumstances, most notably the disparity in the testimony between Ms. West and T.A., we find no abuse of discretion in the trial court's denial of the motion for new trial. Thus, there is no merit to T.A.'s final assignment of error.
For the foregoing reasons, the judgment permanently terminating T.A.'s parental rights to G.M.A. and K.K.A. and certifying them available for adoption is affirmed. The judgment denying T.A.'s motion for new trial is also affirmed. Costs of this appeal are assessed against T.A.
