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IN RE INTEREST OF C.L., 2014 CJ 0348. (2014)

Court: Court of Appeals of Louisiana Number: inlaco20140922183 Visitors: 4
Filed: Sep. 19, 2014
Latest Update: Sep. 19, 2014
Summary: NOT DESIGNATED FOR PUBLICATION WELCH, J. The mother (J.L.) and father (R.H.) of three minor children adjudicated in need of care (C.L., D.H. and M.H.) appeal the judgment of the juvenile court, 1 which terminated their parental rights as to those children and freed those children for adoption. 2 We affirm the judgment of the juvenile court and issue this memorandum opinion in compliance with Uniform Rules—Courts of Appeal, Rule 2-16.1(B). On March 24, 2011, the State of Louisiana, through
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NOT DESIGNATED FOR PUBLICATION

WELCH, J.

The mother (J.L.) and father (R.H.) of three minor children adjudicated in need of care (C.L., D.H. and M.H.) appeal the judgment of the juvenile court,1 which terminated their parental rights as to those children and freed those children for adoption.2 We affirm the judgment of the juvenile court and issue this memorandum opinion in compliance with Uniform Rules—Courts of Appeal, Rule 2-16.1(B).

On March 24, 2011, the State of Louisiana, through the Department of Children and Family Services (DCFS) obtained an oral instanter order removing C.L., D.H., and M.H.3 from the custody of their mother, J.L., and placing them in the custody of DCFS, based on allegations of neglect by J.L.4 According to the affidavit filed in support of the instanter order, DCFS alleged that on January 25, 2011, it had received a report that J.L. was walking around the trailer park trying to buy pills with her food stamps, that she was always high on prescription medications, that her children were dirty and their skin color could not be seen, and that the children were being left alone in the home. DCFS further alleged that a DCFS caseworker made several unsuccessful attempts to visit with J.L. at her home during the investigation, but that at each attempt to visit the home, J.L. was never at home and her friend, who was at the home, refused to allow the caseworker into the home. DCFS also stated in the affidavit that on March 23, 2011, DCFS received another report of neglect regarding J.L.'s care of her child A.W., who is not at issue in this appeal.

Following the initial removal of the children from J.L.'s custody, the children were maintained in the custody of DCFS pursuant to a continued custody order issued by the juvenile court, and on May 12, 2011, they were subsequently adjudicated in need of care.5 DCFS developed, and the juvenile court approved, an initial case plan wherein the permanent plan for the children was stated as reunification with the parents; however, approximately two years later, this goal was subsequently changed, with the approval of the juvenile court, to adoption.

After the children were adjudicated in need of care, C.L., D.H., and M.H. were initially placed in the home of R.H.'s sister, D.D. and her husband, M.D.; however, the children were removed from their home after D.D. and M.D. reported to DCFS that there had been sexual contact between C.L. and her two siblings ("the incident"). The three children were placed in separate foster homes during the investigation of the incident. C.L. was placed in a foster home, with a non-relative, J.B., and has remained in J.B.'s care since that time. D.H. and M.H. were eventually returned to the home of D.D. and M.D., but were subsequently removed and again placed in separate, non-relative foster homes. The investigation of the incident eventually resulted in R.H. being indicted and charged with molestation of a juvenile;6 however, he has not yet been tried on the charges.

On August 22, 2013, DCFS filed a petition for the termination of the parental rights of J.L. and R.H. as to the children C.L., D.H., and M.H. A hearing took place from November 12, 2013, through November 15, 2013. On December 16, 2013, the juvenile court issued extensive written reasons for judgment finding that that DCFS had proven by clear and convincing evidence that J.L. had abandoned her children within the meaning of La. Ch.C. art. 1015(4) and that both J.L. and R.H. failed to substantially comply with their case plans. See La. Ch.C. art 1015(5). After also finding that it was in the best interest of the children that they be freed for adoption, the juvenile court rendered judgment terminating the parental rights of J.L. and R.H. as to C.L., D.H., and M.H. A written judgment in accordance with the juvenile court's ruling was signed on December 16, 2013, and it is from this judgment that J.L. and R.H. separately appeal, essentially claiming that the juvenile court erred in finding that the grounds for the termination of their parental rights had been met and that the termination of their parental rights was in the best interest of the children.7

Title X of the Louisiana Children's Code governs the involuntary termination of parental rights. The grounds for termination of parental rights, as applicable to this matter, are found in paragraphs (4) and (5) of La. Ch. C. art. 1015 as follows:

(4) 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 with him for any period of six consecutive months. (5) Unless sooner permitted by the court, at least one year has elapsed since a child was removed from the parent's custody pursuant to a court order; there has been no substantial parental compliance with a case plan for services which has been previously filed by the department and approved by the court as necessary for the safe return of the child; and despite earlier intervention, there is no reasonable expectation of significant improvement in the parent's condition or conduct in the near future, considering the child's age and his need for a safe, stable, and permanent home.8

In order to terminate parental rights, the petitioner must prove each element of a ground for termination of parental rights by clear and convincing evidence. See La. Ch.C. art. 1035(A). In addition, La. Ch.C. art. 1037(B) provides, in pertinent part:

When the court finds that the alleged grounds set out in any Paragraph of [La. Ch.C. art.] 1015 are proven by the evidentiary standards required by [La. Ch.C. art.] 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.

In the juvenile court's reasons for judgment, it specifically found that DCFS had proven, by clear and convincing evidence, the elements of two grounds for the termination of the parental rights of both J.L. and R.H and that it was in the best interest of the children that they be freed for adoption. Specifically, the juvenile court determined that J.L. had abandoned C.L., D.H., and M.H. pursuant to La. Ch.C. art. 1015(4) because she failed to contact the children for a period of more that six months and she did not visit the children between June 2012 and October 2013, which was a period of more than six months as of the time the petition was filed (August 22, 2013). The juvenile court also found that there was an extensive period of time when J.L.'s whereabouts were unknown to the agency and that J.L. failed to provide any significant contributions to her children's care during the 33 months that her children were in DCFS custody. Lastly, the juvenile court also found that J.L. had made no effort to substantially comply with her case plan pursuant to La. Ch.C. art. 1015(5) because she failed to obtain stable housing, complete substance abuse treatment, and stable employment, and failed to make parental contributions of $25.00 per month per child for their support, to visit regularly with her children, to maintain bonding with her children, and to keep the agency informed of her whereabouts.

With regard to R.H., the juvenile court determined that R.H. had made no substantial effort to comply with his case plan pursuant to La. Ch.C. art. 1015(5) because he failed to provide adequate housing for his children, failed to make parental contributions for C.L. for six consecutive months after she was placed in a foster home, and failed to make parental contributions for D.H. and M.H once they were placed in foster homes.9

Based on these factual findings, the juvenile court rendered judgment terminating the parental rights of J.L. and R.H. as to C.L., D.H., and M.H. After a thorough review of the record, we find the juvenile court's factual findings, as set forth above and in its written reasons for judgment, are reasonably supported by the record and are not clearly wrong.10 Therefore, the December 16, 2013 judgment of the juvenile court is affirmed.

All costs of this appeal are assessed to the appellants, R.H. and J.L.

AFFIRMED.

FootNotes


1. The Twenty-Third Judicial District Court exercises original juvenile jurisdiction for the parish within its district pursuant to La. Ch.C. art. 302(2). As a court exercising juvenile jurisdiction, it has exclusive original jurisdiction, in conformity with any special rules prescribed by law, over any child alleged to be in need of care and the parents of any such child. La. Ch.C. art. 604.
2. The children and their parents are referred to by there initials to preserve their anonymity in this confidential proceeding. Uniform Rules—Courts of Appeal, Rule 5-2.
3. J.L.'s three other children (with two different fathers), S.W., A.W., and H.H. were also removed from her custody at the same time. However, there are no issues in this appeal concerning those three children.
4. R.H. was incarcerated in the Ascension Parish jail at the time the children were taken into custody of DCFS.
5. At the adjudication hearing, the parents stipulated that all of J.L.'s children were in need of care.
6. See, La. R.S. 14:81.2.
7. In addition to claiming that the juvenile court erred in terminating her parental rights, J.L. also claims that the juvenile court erred in: denying DCFS's unopposed motion to continue the trial of the termination of parental rights; denying DCFS's unopposed motion to bifurcate the hearing as to the cases against her and R.H.; admitting hearsay evidence as to the allegations of neglect; admitting opinion testimony from a nurse about C.L.'s mental condition; and allowing DCFS to call a "rebuttal" witness during the presentation of its case (before defense counsel was allowed to present a case), when the witness was not listed in the pre-trial order of the court. R.H. also claims that the juvenile court erred in admitting hearsay evidence and in denying the State's unopposed motion to continue the trial of the termination of parental rights. We find no merit to these assignments of error.

First, we note that the juvenile court's rulings with regard to the denial of the motion for continuance, the denial of the motion to bifurcate, the admission of opinion testimony, and the order of witnesses, concern matters that are within the vast discretion of the juvenile court, and after a thorough review of the record, we cannot say that the juvenile court abused its discretion insofar as those rulings are concerned. See La. Ch.C. arts. 104, 105, 408, 1031 and 1032; La. C.E. arts. 701, and 702; and La. C.C.P. arts. 1631 and 1632. Next, with regard to the hearsay evidentiary rulings, we note that the hearsay evidence complained of pertained to the allegations of molestation or sexual abuse by R.H. and the initial allegations of neglect (the ones that commenced these proceedings) against J.L. Herein, we have determined that the juvenile court's judgment terminating the parental rights of J.L. and R.H. was reasonably supported on other evidence in the record establishing that J.L. had abandoned her children, i.e., they failed to support their children for a period of more than six months while the children were in the custody of the department, and that J.L. and R.H. had failed to substantially comply with their case plan. Thus, we conclude that the admission of the purported hearsay into evidence did not affect the ultimate judgment of the juvenile court, the "substantial rights" of J.L. and R.H. were not affected, and thus, the error in admitting the evidence, if any, was harmless. See La. C.E. art. 103, 801(D), 803, and 804.

8. The method of proving parental misconduct under La.Ch.C. art. 1015(5) is found in La. Ch.C. art. 1036(C) and (D), which provide: C. Under [La. Ch.C. art.] 1015(5), lack of parental compliance with a case plan may be evidenced by one or more of the following: (1) The parent's failure to attend court-approved scheduled visitations with the child. (2) The parent's failure to communicate with the child. (3) The parent's failure to keep the department apprised of the parent's whereabouts and significant changes affecting the parent's ability to comply with the case plan for services. (4) The parent's failure to contribute to the costs of the child's foster care, if ordered to do so by the court when approving the case plan. (5) The parent's repeated failure to comply with the required program of treatment and rehabilitation services provided in the case plan. (6) The parent's lack of substantial improvement in redressing the problems preventing reunification. (7) The persistence of conditions that led to removal or similar potentially harmful conditions. D. Under Article 1015(5), lack of any reasonable expectation of significant improvement in the parent's conduct in the near future may be evidenced by one or more of the following: (1) Any physical or mental illness, mental deficiency, substance abuse, or chemical dependency that renders the parent unable or incapable of exercising parental responsibilities without exposing the child to a substantial risk of serious harm, based upon expert opinion or based upon an established pattern of behavior. (2) A pattern of repeated incarceration of the parent that has rendered the parent unable to care for the immediate and continuing physical or emotional needs of the child for extended periods of time. (3) Any other condition or conduct that reasonably indicates that the parent is unable or unwilling to provide an adequate permanent home for the child, based upon expert opinion or based upon an established pattern of behavior.
9. The juvenile court also noted and discussed the allegations of sexual abuse of the children by R.H. On appeal, R.H. contends that the evidence offered in support of the allegations was hearsay and should not have been admitted. However, because we find that the record reasonably supports the juvenile court's judgment terminating R.H.'s parental rights on the other grounds herein, we need not address those allegations and the evidence offered to support those allegations. See footnote 7.
10. It is well-settled that an appellate court cannot set aside a juvenile court's findings of fact in the absence of manifest error or unless those findings are clearly wrong. In re A.J.F., 2000-0948 (La. 6/30/00), 764 So.2d 47, 61.
Source:  Leagle

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