STATE OF LOUISIANA IN THE INTEREST OF A.L.D. AND L.S.D.
No. 2018-CJ-1271
SUPREME COURT OF LOUISIANA
January 30, 2019
251 So. 3d 554
JOHNSON, Chief Justice
ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, SECOND CIRCUIT, PARISH OF CADDO
FOR IMMEDIATE NEWS RELEASE
NEWS RELEASE #005
FROM: CLERK OF SUPREME COURT OF LOUISIANA
The Opinions handed down on the 30th day of January, 2019, are as follows:
BY JOHNSON, C.J.:
2018-CJ-1271 STATE OF LOUISIANA IN THE INTEREST OF A.L.D. AND L.S.D. (Parish of Caddo)
We granted a writ in this termination of parental rights case to determine if the court of appeal erred in reversing a district court judgment terminating the parental rights of the father, C.K.D. In this case, the state proved by clear and convincing evidence the grounds for termination under
REVERSED. JUDGMENT OF THE DISTRICT COURT REINSTATED. REMANDED TO THE DISTRICT COURT FOR FURTHER PROCEEDINGS.
HUGHES, J., dissents and would affirm the court of appeal.
01/30/19
SUPREME COURT OF LOUISIANA
No. 2018-CJ-1271
STATE OF LOUISIANA IN THE INTEREST OF A.L.D. AND L.S.D.
ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, SECOND CIRCUIT, PARISH OF CADDO
We granted a writ in this termination of parental rights case to determine if the court of appeal erred in reversing a district court judgment terminating the parental rights of the father, C.K.D. After reviewing the record and the applicable law, we find no manifest error in the district court‘s ruling that termination was supported by clear and convincing evidence and that termination was in the best interests of the children. Thus, we reverse the ruling of the court of appeal and reinstate the district court‘s judgment, terminating C.K.D.‘s parental rights as to A.L.D. and L.S.D. pursuant to
FACTS AND PROCEDURAL HISTORY
On or about May 4, 2016, the minor child A.L.D. was removed from the care of his mother, N.M.L., and his father, C.K.D. On May 31, 2016, the Department of Children and Family Services for the State of Louisiana (“DCFS“) filed a petition alleging that A.L.D. was a child in need of care (“CINC“). During the course of the investigation, one-year-old A.L.D. tested positive for methamphetamines. On June 10, 2016, N.M.L. gave birth to L.S.D., also C.K.D.‘s child. At the CINC trial on July 13, 2016, the parents stipulated that A.L.D. was in need of care. The parents were drug-tested, and both tested positive for methamphetamines. L.S.D., a one-month-old infant at the time, also tested positive for methamphetamines. On August 23, 2016, DCFS filed a petition regarding L.S.D., and that child was also adjudicated CINC.1
DCFS initially placed the children with C.K.D.‘s mother, D.D. In May 2017, DCFS received reports that C.K.D. was improperly living with D.D., and that D.D. was possibly using drugs while caring for the children. C.K.D., D.D., and both children tested positive for drugs. As a result, DCFS removed the children from D.D.‘s home and placed them in non-relative foster care with G.B.
DCFS filed a petition to terminate both parents’ parental rights on October 9, 2017. As to C.K.D., the petition alleged he struggled to comply with the requirements of his court-approved case plan. Specifically, DCFS alleged that although he participated in Active Recovery and received a certificate of completion for Phase I of substance abuse treatment in November 2016, he tested positive for cocaine and methamphetamines in December 2016. DCFS asserted he continued to test positive for those substances and marijuana in May 2017, and that he struggled to maintain compliance with treatment for substance abuse or mental health counseling despite some initial success. DCFS further alleged that C.K.D. had not maintained a safe and stable home that could support the return of his children, and he has not maintained contact with the agency. The petition also alleged C.K.D. failed to pay $25 per child per month in contributions to the care of his children as required by his case plan and that he had no contact with the children since May 2017.
N.M.L. filed a motion to grant guardianship to her uncle, D.L., and the matters were consolidated for a December 11, 2017, trial. During a two-day trial, the district court heard testimony and considered evidence on both issues, took judicial notice of the non-hearsay portions of the CINC proceedings, and ultimately entered judgment terminating both N.M.L.‘s and C.K.D.‘s parental rights as to A.L.D. and L.S.D.2
N.M.L.‘s motion to grant guardianship to D.L. was denied, presumably as moot.3 The district court stated that C.K.D.‘s parental rights were terminated pursuant to
The court of appeal reversed the termination of C.K.D.‘s parental rights and remanded the case to the district court for further proceedings, ordering that DCFS maintain custody of the children, the CINC proceeding be reinstated, and the children remain placed with their great-uncle, D.L.5 State in Interest of A.L.D., 52,239 (La. App. 2 Cir. 6/27/18), 251 So. 3d 554 (2018). The court of appeal concluded that DCFS did not meet its burden of
DCFS filed a writ application in this court, which we granted. State in Interest of A.L.D., 18-1271 (La. 9/21/18), 252 So. 3d 490.
DISCUSSION
Permanent termination of the legal relationship existing between natural parents and children is one of the most drastic actions the state can take against its citizens. However, the primary concern of the courts and the state remains to determine and insure the best interest of the child, which includes termination of parental rights if justifiable statutory grounds exist and are proven by the state. State ex rel. J.M., 02-2089 (La. 1/28/03), 837 So. 2d 1247, 1254.
The district court terminated C.K.D.‘s parental rights on the basis of
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.
Thus, under this Article, DCFS had to prove three elements: (1) it had been one year since the children had been removed; (2) C.K.D. had not substantially complied with the case plan for services; and, (3) there is no reasonable expectation of significant improvement in C.K.D.‘s condition or conduct in the near future. The dispute in this case centers on elements two and three.
- The parent‘s failure to attend court-approved scheduled visitations with the child.
- The parent‘s failure to communicate with the child.
- 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.
- 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.
- The parent‘s repeated failure to comply with the required program of treatment and rehabilitation services provided in the case plan.
- The parent‘s lack of substantial improvement in redressing the problems preventing reunification.
- The persistence of conditions that led to removal or similar potentially harmful conditions.
- (a) The parent‘s failure to provide a negative test result for all synthetic or other controlled dangerous substances, except for any drug for which the parent has lawfully received a prescription, at the completion of a reasonable case plan. (b) For purposes of this Article, “controlled dangerous substance” shall have the meaning ascribed in
R.S. 40:961 .
At trial, Tiffany Allen from DCFS testified she is the case manager assigned to this case. Although she had personally only been involved in the case since April 2017, she had reviewed and was familiar with all agency records and information concerning the parents. Regarding C.K.D.‘s case plan compliance, she testified he had submitted to random drug tests, but no extended period of sobriety had been exhibited. She had no contact with C.K.D. from the end of May 2017 until October 2017. During that time, C.K.D. did not see his children. She attempted to visit C.K.D.‘s home more than once, but was unable to find him there. She testified the house appeared abandoned with a lot of debris and trash in the yard, and her photographs of the exterior of the home were introduced into evidence. She has never been able to access the interior of C.K.D.‘s home. Ms. Allen further testified that consistency with mental health treatment has been an issue, and that pattern had not changed as of the time of trial. Additionally, C.K.D. had not made the required contributions to his children‘s care. Ms. Allen verified that the most significant problem in this case has been substance abuse and whether sobriety was being maintained. In sum, she testified C.K.D. had complied with the parts of the case plan requiring him to obtain a legal source of income, receive counseling, and comply with random drug testing. However, she testified C.K.D. had not been compliant with parental contributions, maintaining a secure and safe home, and he was still struggling with substance abuse issues.
C.K.D. also testified at trial. He explained that he had been working for Valvoline for two weeks, although he was previously working for Roshdoe Foundation Repair for 7 months prior.6 He admitted that he has used drugs on and off for
C.K.D. also introduced into evidence a letter from Active Recovery dated 12/5/17 confirming he was currently enrolled in intensive outpatient substance abuse, parenting, and anger management programs, and that he was attending consistently and participating in a productive manner. The letter stated that C.K.D. was assessed for the program on 10/30/17, and as of 12/5/17 he had completed 14 of 24 substance abuse counseling sessions, 4 of 10 parenting sessions and 5 of 10 anger management sessions.
The state introduced C.K.D.‘s drug screening results from Company Clinic of Louisiana, reflecting the following:
- 7/13/16: hair specimen positive for amphetamine, methamphetamine and marijuana
- 7/13/16: urine sample positive for amphetamine, methamphetamine, benzodiazepines and marijuana
- 12/29/16: urine sample positive for amphetamine, methamphetamine and cocaine
- 12/29/16: hair specimen positive for amphetamine, methamphetamine, benzoylecgonine and cocaine
- 5/18/17: hair test positive for amphetamine, methamphetamine, benzoylecgonine, cocaine, and marijuana
- 5/18/17: urine sample positive for amphetamine, methamphetamine, cocaine, and marijuana
- 10/19/17: urine test negative
- 11/17/17: hair test positive for cocaine
- 11/17/17: urine test negative
The Court: The Court in this case does find that the evidence warrants a termination of parental rights as to each of the ... children as to each of the parents. The state has established by clear and convincing evidence that the state is entitled to termination of [N.M.L‘s] rights and [C.K.D.‘s] rights and the children‘s reciprocal rights to their parents.
And the Court also finds particularly that termination of the parental rights in respect to [A.L.D. and L.S.D.] is in each of those children‘s best interest.
***
[C.K.D.‘s attorney]: Your Honor, can you specify which grounds?
The Court: I can. *** With respect to the father, it is under 1015(6).
***
[DCFS attorney]: Your Honor, do the children remain in the custody of DCFS?
The Court: They are continued in the custody of the department with no recommendations as to placement. I‘m leaving that in the department‘s discretion. ***
The district court did not provide written reasons for its ruling.
In reversing the district court‘s ruling, the court of appeal noted the “lack of precise reasoning” by the district court. As to whether C.K.D. had “substantially complied” with the case plan, the court of appeal stated:
Regarding C.K.D.‘s “substantial” compliance with his case plan, probably the most serious aspect would be his substance abuse. ...C.K.D. testified that he completed “phase one” on Active Recovery regarding his substance abuse. At the time of the hearing, he was back at Active Recovery as an outpatient receiving services for parenting, anger management, and substance abuse. A DCFS case worker also testified that C.K.D. was compliant with her requests for random drug tests, a specific component of his case plan. While C.K.D.‘s condition is of great concern, we do not believe the trial court gave enough emphasis to the progress C.K.D. has made toward being drug-free, particularly his “substantial” compliance. Clearly, C.K.D. has not disregarded the issue. In taking random drug screens and pursuing consistent substance abuse treatment, C.K.D. is exhibiting substantial effort to overcome his habit and substantially comply with his case plan. As to providing a home for the children, it is evident that the house appeared in disarray and disrepair when a DCFS case worker visited. However, the house has belonged to his family for some time, which weighs in his favor, and he has stated he knows it must be improved. Again—he made an effort forward in this regard and has not totally disregarded the case plan‘s requirements. Some consideration should be made for an attempt to comply, especially where such a drastic action is in consideration. Finally, he had worked seven months for a house foundation repair company, but had recently secured permanent employment, which he expressed was the desire of the court. All of these actions, although admittedly not perfect adherence, were in furtherance of his case plan and show an attempt to comply. Notably, the statute does not require “perfect parental compliance,” but “substantial parental compliance.”
In this court, DCFS argues the record supports the district court‘s ruling and it is
By contrast, C.K.D. argues the record and law supports the court of appeal‘s decision. He argues that he has complied with several aspects of his case plan, which in the totality of circumstances, amounts to “substantial parental compliance” on his part. C.K.D. notes the district court did not order nominal contributions for the costs of the children‘s foster care until late October 2017. Thus, by the time of trial he had missed only one court-ordered payment (i.e., his $50 payment for November 2017). Further, C.K.D. cites to his trial testimony that he had nearly completed the renovations on his family home needed to meet DCFS‘s standards, and also indicated his willingness to move into an apartment if needed. Further, the evidence showed he substantially complied with several other aspects of his case plan: he maintained gainful employment throughout the case; he was complying with random drug screens; he completed a substance abuse program and re-enrolled after relapse; and he was complying with newly added provisions of his plan requiring parenting classes, anger management, and mental health counseling. While the court of appeal noted some evidence of “lack of parental compliance,” C.K.D. argues it correctly pointed out that the plain language of
An appellate court reviews a district court‘s findings as to whether parental rights should be terminated according to the manifest error standard. State ex rel. K.G. and T.G., 02-2886 (La. 3/18/03), 841 So. 2d 759, 762. Based on our review of the record, we conclude that the state satisfied its burden of proving that C.K.D. has not substantially complied with the case plan. Although C.K.D. made some efforts toward his case plan goals, we do not find those efforts sufficient to regain custody of his children. The conditions that led to removal of the children have not been remedied. See State In Interest of C.F., 17-1054 (La. 12/6/17), 235 So. 3d 1066, 1073.
Unquestionably the primary condition that led to the children‘s removal in this case was parental substance abuse. Both parents tested positive for drugs at the
The record also supports a finding that C.K.D. has failed to substantially comply with his case plan requirement to provide adequate housing for the children. DCFS presented evidence that the house appeared abandoned and was in a state of disrepair, and that Ms. Allen was never able to gain access to the interior of the home. Other than his own self-serving testimony that renovations to the house were 90% complete to meeting DCFS‘s standards, C.K.D. presented no other testimony or photographs to demonstrate the condition of the house.
Finally, we find the state met its burden of proving C.K.D. failed to substantially comply with the case plan requirement to provide support to his children. Although C.K.D. claimed at trial he contributed to the care of his children during the time they were placed with his mother, he admitted that he had not paid the required support to the state after the children were placed in foster care. In brief before this court, C.K.D. attempts to minimize this failure by explaining the payment requirement was not added to the case plan until October 2017, and thus he had only missed one such payment at the time of trial. We decline to place much value on that argument. It is worth noting that during oral argument before this court in December 2018, counsel for C.K.D. admitted that C.K.D. had still not made a single required payment under the plan.
In sum, the children were removed from their parents’ care in May and July 2016. Although C.K.D. initially participated in substance abuse treatment and completed the first phase in November 2016, he admitted to relapse in February 2017. C.K.D. took no action on his case plan from May 2017 until October 2017—he did not participate in services; he did not visit his children; he made no efforts to provide financial contributions to their care; and he cut off all contact with DCFS. Although C.K.D. demonstrated he was participating in substance abuse treatment, parenting classes, and anger management classes at the time of trial in December 2017, he did not enroll in these programs until the end of October 2017. And, C.K.D. still had a positive drug screen in November 2017. Further, the clear and convincing evidence at trial proved C.K.D. has been unable to provide adequate housing for the children. The fact remains that C.K.D. has not substantially complied with his case plan and the conditions that led to the children‘s removal persist.
No Reasonable Expectation of Significant Improvement in the Near Future
- 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.
***
- 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.
The court of appeal found there was not clear and convincing evidence at trial to indicate that there was no reasonable expectation of significant improvement in C.K.D.‘s condition or conduct in the near future. A.L.D., 251 So. 3d at 561. In so ruling, the court of appeal specifically noted “there was no expert testimony offered by the state tending to show C.K.D. has no possibility of improvement,” and further stated that “with no articulated specific reasons by the district court on this issue, we must determine its conclusion was manifestly erroneous.” Id. The court focused on the “short period of time” the proceedings had been ongoing, and pointed out C.K.D.‘s efforts to obtain more reliable employment, to attain secure housing for the children, and that he appeared to be working on his substance abuse problem. The court of appeal found C.K.D.‘s efforts were “more positive in nature and tend to show a more positive trend than negative,” and found it more reasonable than not that he would make significant improvement in the future. Id.
DCFS asserts the court of appeal erred in concluding the state had failed to establish a lack of reasonable expectation of significant improvement in C.K.D.‘s condition or conduct in the near future. Contrary to the court of appeal‘s apparent suggestion that the state needed to produce expert testimony to show C.K.D. had no possibility of improvement, DCFS argues that the plain language of
C.K.D. argues the court of appeal correctly applied the manifest error standard to conclude that DCFS failed to prove by clear and convincing evidence that there was no reasonable expectation of improvement in his condition or conduct in the near future. C.K.D. argues the evidence shows he was addressing his substance abuse issues; he had recently secured stable employment with a reportable income; he has nearly completed the renovations of his house needed to provide a safe and stable home for the children; and he had started working his newly added case plan provisions by attending parenting classes, anger management, and mental health
After review of the record, we find the court of appeal erred in reversing the district court‘s determination. First, any suggestion by the court of appeal that expert testimony was necessary to prove there is no “reasonable expectation of improvement in the near future,” is negated by
The record does not support a finding that C.K.D. will be able to remain drug free and provide suitable, safe, and stable housing in the near future. If we consider his established pattern of behavior, C.K.D. has been using drugs for twenty years with only intermittent periods of sobriety. Although he completed the first phase of drug treatment during the pendency of this case, his sobriety was short-lived. C.K.D. has continued to test positive for drugs. We recognize C.K.D. testified to his desire to change, however his testimony demonstrated an unrealistic and inflated view of his abilities. For instance, in testifying that he deserves a second chance, C.K.D. stated: “I have never not followed through with something....When I put my mind to something, I do it.... I will never fail another drug test, ever. Ever. Mark it down, write it, I don‘t care. I promise you. Come back ten years from now, I bet you I don‘t fail a drug test.” C.K.D. further testified that he only needed an additional 3-6 months to comply with his case plan: “I‘ll have it all done. Everything. Bigger and better than you want.” C.K.D. claimed at trial that he had only failed two drug tests and that he had “done every single thing to the T that you would want or need and more.” While directly questioning C.K.D., the district court specifically asked him if he was familiar with the term “grandiosity” and whether that was an issue for him. It is clear the district court did not give much credence to C.K.D.‘s testimony and overblown promises. We agree with DCFS that despite some actions taken by C.K.D. towards his case plan goals, there is no basis in this record on which to conclude his conduct will significantly improve in the near future. The state proved by clear and convincing evidence C.K.D. had an established pattern of behavior of drug use and failure to follow things through to completion that has persisted even after removal of the children.
Best Interests of the Children
We further find the court of appeal failed to adequately focus on the best interests of the children, which the district court found would best be served by terminating C.K.D.‘s parental rights. The purpose
In all proceedings, the primary concern is to secure the best interest of the child if a ground justifying termination of parental rights is proved. Termination of parental rights is to be considered the first step toward permanent placement of the child in a safe and suitable home, and if possible, to achieve the child‘s adoption. The interests of the parent must be balanced against the child‘s interest, but the child‘s interest is paramount. More than simply protecting parental rights, our judicial system must protect the child‘s right to thrive and survive. A child has an interest in the termination of rights that prevent adoption and inhibit the child‘s establishment of secure, stable, long term, continuous family relationships. While the interest of a parent is protected in a termination proceeding by enforcing procedural rules enacted to insure that the parental rights are not thoughtlessly severed, those interests must ultimately yield to the paramount interest of the child. Children have a right to live in a safe, secure environment and to be reared by someone who is capable of caring for them.
C.F., 235 So. 3d at 1075 (internal citations removed).
We recognize that a bond exists between C.K.D. and his children, and we acknowledge C.K.D. presented uncontradicted evidence to this effect at trial. We further note the children‘s attorney is supportive of the father‘s position. However, we cannot ignore the fact that C.K.D. has demonstrated an inability to care for his children, primarily due to his long-standing substance abuse problems. We find it extremely troubling that both children have twice tested positive for drugs, either while in the care of C.K.D. or while he was living in the same household. It is paramount that we place the children‘s best interests above that of their father. “There comes a point when the best interests of the children must be served by terminating parental rights in order to achieve permanency and stability for the children. The focus of an involuntary termination proceeding is not whether the parent should be deprived of custody, but whether it would be in the best interest of the child for all legal relations with the parent to be terminated.” State ex rel. S.M.W., 00-3277 (La. 2/21/01), 781 So. 2d 1223, 1238. In this case, we do not question C.K.D.‘s love for his children, however the record does not establish that C.K.D.‘s circumstances have improved such that it would be in the best interests of the children for C.K.D. to retain his parental rights.
CONCLUSION
This court has always recognized that the primary concern of the courts and the state in these cases is to secure the best interest for the child, including termination of parental rights if justifiable statutory grounds exist and are proven. In this case, the state proved by clear and convincing evidence the grounds for termination under
DECREE
REVERSED. JUDGMENT OF THE DISTRICT COURT REINSTATED. REMANDED TO THE DISTRICT COURT FOR FURTHER PROCEEDINGS.
JOHNSON, C.J.
CHIEF JUSTICE