STATE IN THE INTEREST OF AND v. << (2025)

S.W.¹ appeals the October 24, 2024, judgment of the trial court terminating his parental rights to his child, S.E.W., and certifying the child as being free and available for adoption by others. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

The child at issue in this matter, S.E.W., was born on March 20, 2021. In October of 2022, S.E.W. was living in a home with her mother (N.M.), her grandmother (J.P.), and her three older sisters (M.P., I.H., and L.H.). The Department of Children and Family Services (DCFS) received a report on October 17, 2022, of alleged drug/alcohol abuse and lack of supervision regarding the children. An investigation ensued, and three of the four children tested positive for amphetamine, methamphetamine, marijuana, and Delta 9-THC. The mother, N.M., also tested positive for amphetamine and methamphetamine. At the time of the initial investigation, DCFS was awaiting the results of drug tests on the fourth child and the grandmother. It was alleged that a cousin who had been staying in the home was blowing methamphetamine into the children's faces when they were hungry to suppress their hunger and marijuana smoke in their faces to help put them to sleep. The children were removed from the home pursuant to an Instanter Order issued on November 2, 2022, and placed in the State's custody.

At the time the children were taken into custody by DCFS, S.E.W.’s father, S.W., was incarcerated, where he remained throughout these proceedings. He was released on November 19, 2024, after the judgment terminating his parental rights was rendered.

A petition was filed on December 6, 2022, alleging that the children should be adjudicated “Children In Need of Care” based on the allegations of drug/alcohol abuse and a lack of adequate supervision. After a series of hearings, the children were adjudicated as children in need of care on March 1, 2023, with their custody to remain with the State. The goal at that time remained reunification of the children with the parents. A Judgment of Guardianship was executed on September 12, 2023, granting the guardianship of M.P., the oldest child, to an aunt. Thus, the case was closed as it related to M.P. At a November 8, 2023, Child In Need of Care (CINC) review hearing, the State requested that the goal for I.H., L.H., and S.E.W. be changed from reunification to adoption. The trial court ordered that the children remain in the State's custody but maintained a concurrent goal of reunification and adoption.

On April 11, 2024, S.E.W. was placed in the home of K.H. and B.H., who are willing to adopt her and have been certified as adoptive parents. K.H. was previously in a relationship with S.W. and they have two sons together. Thus, S.E.W. is living in a home with her two half-brothers. I.H. and L.H., who are twins, were placed in the home of K.W. and M.W., who have also been certified to adopt the girls. The record indicates that the two families plan to maintain contact with one another so that the three sisters may visit each other on a regular basis.

On May 9, 2024, the State filed a Petition for Termination of Parental Rights and Certification of Minor Children for Adoption, naming both N.M. and S.W. as Respondents, as well as M.H., the father of I.H. and L.H. The State asserted that it was in the best interest of the I.H., L.H., and S.E.W. that the trial court terminate the parental rights of their parents based on the following allegations:

8.

As least one year has elapsed since [L.H., I.H., and S.E.W.] were removed from Respondents’ custody pursuant to a Court Order, there has no substantial parental compliance with the case plans for services which have been previously filed by the Petitioner and approved by the Court as necessary for the safe return of the children; and despite earlier intervention, there is no reasonable expectation of significant improvement in the parents’ condition or conduct in the near future, considering the children's ages and their need for a safe, stable, and permanent home as set out in LA Ch.C. Art. 1015. This is a basis for termination of the Respondents’ parental rights to their minor child(ren).

9.

In addition, as of the time of the filing of the Petition, Respondents have failed to provide significant contributions to the care and support of their minor child(ren) for a period of six consecutive months. This demonstrates the intention to permanently avoid parental responsibility within the meaning of Ch.C. Art. 1015 and is a basis for the termination of the Respondents’ parental rights to their minor child(ren).

10.

In addition, Respondents have not had significant contact with their minor child(ren) by visiting or communicating with the child(ren) for a period of six consecutive months. This demonstrates the intention to permanently avoid parental responsibility within the meaning of Ch.C. Art. 1015 and is a basis for termination of the parents’ parental rights to their minor child(ren).

On May 23, 2024, in open court, M.H., the father of I.H. and L.H, entered an admission to the petition to terminate parental rights. A Judgment of Termination of Parental Rights was signed on June 14, 2024, terminating all parental rights and obligations of M.H. to I.H and L.H. On July 8, 2024, S.W. and N.M. appeared in court and entered denials to the petition to terminate their parental rights.

A hearing was held on October 7, 2024, on the issue of the termination of N.M.’s and S.W.’s parental rights. After hearing testimony from several witnesses and taking judicial notice of all the CINC proceedings, the trial court found that the State met its burden of proof by clear and convincing evidence that neither N.M. nor S.W. substantially complied with their case plan, and that it was unlikely either would comply with the case plan in the future. The trial court further found that the termination of the parental rights of N.M. to I.H., L.H., and S.E.W. and the termination of the parental rights of S.W. to S.E.W. was in the best interest of the children. Thus, all parental rights of N.M. and S.W. were totally and irrevocably terminated and dissolved. The trial court further ordered that the custody of the children remain with the State until further orders from the court, and the children were certified as being free and available for adoption by others. A Judgment of Termination of Parental Rights and Certification of Minor Children for Adoption was signed on October 24, 2024. Only S.W. has appealed the trial court's judgment.

ASSIGNMENTS OF ERROR

On appeal, S.W. asserts two assignments of error:

1. The [trial] court erroneously terminated S.W.’s parental rights pursuant to non-compliance with his case plan, because: (i) he is the non-offending parent; (ii) at the time of the termination hearing he was going to be released from prison in 43 days; and (iii) DCFS did not make any reasonable efforts to assist S.W. in reunifying with his daughter.

2. The [trial] court erroneously found that termination was in the best interest of S.E.W.

DISCUSSION

The termination of parental rights was discussed by the supreme court in State ex rel. A.T., 06-501, p. 4-5 (La. 7/6/06), 936 So.2d 79, 82-83:

Title X of the Louisiana Children's Code governs the involuntary termination of parental rights. 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. S.M.W., 00-3277 (La. 2/21/01), 781 So.2d 1223.

Article 1015 provides the specific statutory grounds by which a court may involuntarily terminate the rights and privileges of parents․.

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(citation omitted) In order to terminate parental rights, the court must find that the State has established at least one of the statutory grounds by clear and convincing evidence. State ex rel. J.A., 99-2905 (La. 1/12/00), 752 So.2d 806, 811 (citing La. Ch. C. art. 1035(A); Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982)). Further, even upon finding that the State has met its evidentiary burden, a court still must not terminate parental rights unless it determines that to do so is in the child's best interests. La. Ch. C. art. 1039; State ex rel. G.J.L., 00-3278 (La. 6/29/01), 791 So.2d 80, 85.

“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.” State ex rel. S.M.W., supra at 1233 (citing In re A.J.F., 00-0948 (La.6/30/00), 764 So.2d 47, 61.

Assignment of Error One

In his first assignment of error, S.W. argues that the trial court committed legal error when it terminated his parental rights based on his failure to substantially comply with his case plan. He contends that this decision was in error because he was the non-offending parent, meaning that he was not the parent who introduced drugs to the children and failed to adequately supervise them. S.W. further submits that he was never given the opportunity to work his case plan, which set goals for him “once released from jail.” Although he was incarcerated during the proceedings leading to the termination of his parental rights, S.W. maintains that at the time of the termination hearing, he was scheduled to be released from prison in less than two months. Thus, he argues that he should have been given the opportunity to work his case plan after his release. Finally, S.W. contends that DCFS failed to make reasonable efforts to aid his reunification with S.E.W. Tracy Baines, the DCFS caseworker assigned to the case, only facilitated one Facetime call between S.E.W. and S.W.

Additionally, S.W. asserts in his brief that the trial court further erred when it found that there was no reasonable expectation of improvement in the near future. S.W. asserts that there were never any allegations that he was an unfit parent. Additionally, as his release from prison was imminent at the time of the termination hearing, he submits that there was a reasonable expectation of improvement in the near future.

In its petition to terminate S.W.’s parental rights, the State listed three statutory grounds as a basis for termination under La.Ch.Code art. 1015: (1) failure to substantially comply with the case plan (La.Ch.Code art. 1015(5)); (2) abandonment of S.E.W. for failure to pay financial support for her (La.Ch.Code art. 1015(4)(b)); and (3) abandonment of S.E.W. by failing to have significant contact with her (La.Ch.Code art. 1015(4)(c)). When petitioning to terminate parental rights, the State must establish at least one of the grounds listed in La.Ch.Code art. 1015 by clear and convincing evidence. State ex rel. A.T., 936 So.2d 79. We address each of the grounds alleged by the State separately.

1. Failure to Substantially Comply with the Case Plan—La.Ch.Code art. 1015(5)

Louisiana Children's Code Article 1015(5) provides the following grounds for the termination of parental rights:

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 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.

The instanter order removing the children from their mother's custody was granted on November 2, 2022. The children were initially placed with relatives and later moved to foster families. Case plans for all the parties involved were filed in the record and approved by the trial court. Tracy Baines, DCFS, testified at the termination hearing that she visited S.W. in prison on October 11, 2023, and personally gave him a copy of the case plan, as well as a form for him to fill out with suggestions of family members who could potentially take care of S.E.W. S.W. later sent Ms. Baines a letter with his mother's name and address. However, when Ms. Baines contacted S.W.’s mother, she was unwilling to take care of S.E.W. Ms. Baines further testified that she had monthly Zoom meetings with S.W. during which they discussed his case plan and the goals for S.E.W. The petition to terminate S.W.’s parental rights was filed on May 9, 2024, more than one year after S.E.W. was removed from her mother's custody by the instanter order.

It is undisputed that S.W. did not comply with any of the goals set forth in his case plan. However, S.W. has claimed that he was never given an opportunity to comply with his case plan because he was incarcerated during the entirety of the DCFS proceedings. This court has previously held that “incarceration is not a defense to termination of parental rights for failure to pay child support, La.Ch.Code art. 1015(4)(b), or for failure to comply with the court ordered case plan, La.Ch.Code art. 1015(5).” In re H.R., 15-136, p. 14 (La.App. 3 Cir. 6/3/15), 165 So.3d 1221, 1230. S.W. was convicted of criminal activity in 2018 and placed on probation. (S.W. has refused to provide any additional information on his charges.) He was then incarcerated on January 1, 2022, because he violated his probation. Thus, his own actions directly led to him being incarcerated throughout these proceedings, and he may not now use that incarceration as a defense to the termination of his parental rights for failing to substantially comply with his case plan.

S.W. further argues that since he was scheduled to be released from prison forty-three days after the termination hearing, he should have been given an opportunity to work his case plan upon his release. When questioned at the termination hearing about his plans upon release from prison, S.W. testified that he intended to resume his relationship with N.M. and live in her apartment with her. In fact, the record contains a DCFS report dated December 23, 2024, which states that after S.W. was released from prison, he called DCFS on December 2, 2024, using N.M.’s mother's, J.P.’s, phone. DCFS further notes in the report that S.W. was located in a residence with both N.M. and J.P.

The trial court stated at the October 7, 2024, termination hearing that it was terminating N.M.’s parental rights because she had not addressed her substance abuse problems. “Her children came into care because they tested positive for drugs, and we're no closer to fixing that problem today than we were on day one.” Substance abuse was at the root of the investigation which led to the children being removed from N.M.’s custody—the children and mother tested positive for methamphetamine, amphetamine, and marijuana. Furthermore, N.M. and the children were living with J.P. at the time they all tested positive for controlled dangerous substances.

S.W.’s plans to resume his relationship with N.M. and bring S.E.W. into their home to live would expose S.E.W. to the same dysfunctional and potentially dangerous environment she was in prior to being removed by DCFS. Thus, not only was there no substantial compliance with the case plan during S.W.’s incarceration, but the record also supports the finding that “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 [her] need for a safe, stable, and permanent home.” La.Ch.Code art. 1015(5).

2. Failure to provide significant contributions to the child's care and support— La.Ch.Code art. 1015(4)(b)

Louisiana Children's Code Article 1015(4)(b) provides the following ground for the termination of parental rights:

(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:

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(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.

It is undisputed that S.W. did not contribute to S.E.W.’s care and support during the entire time he was incarcerated, well over six months. S.W. testified at the termination hearing that he was in the Transitional Work Program, building mobile homes for Champion Home Builders. According to S.W., he was paid approximately $800.00 per week, 40% of which he was allowed to keep. When questioned why he did not provide any financial support for S.E.W., S.W. argued at the hearing that while the State had “went after” both N.M. and M.H. for child support, “how come y'all didn't come after me for child support? I was working, you had the chance, you had the option․. [Y]ou didn't come after me like you did with them two (2). Wish you would, I would have paid it. I had the money in my account.”

Despite S.W.’s argument that he was never told by the State to pay child support for S.E.W., the case plan filed in the record includes the following under “Basic Obligations of Parents”:

[S.W.] will support his children in foster care and agree to pay $10.00 per month per child when not working and $25.00 per month per child if working. Make the parental contributions to: Department of Social Services, Department of Children and Family Services, State Office Parental Contribution, P.O. Box 3318, Baton Rouge, LA 70801-3318. [S.W.] will provide a copy to the caseworker. This will be in effect until Support Enforcement picks up child support payments. Then the family will follow Support Enforcement rulings.

Ms. Baines testified that she visited him in prison and gave him a copy of his case plan, which included detailed directions on what he needed to do to pay his monthly obligation to S.E.W. Thus, even though incarcerated, S.W. was notified via his case plan and the DCFS caseworker assigned to the case how much child support he should be paying per month and who to send the payments to.

S.W. was obligated as a parent to financially support his child. He admitted at the termination hearing that even though he was incarcerated, he was being paid for work he was doing through the Transitional Work Program and had available funds in his account to contribute to S.E.W.’s care and support. His argument that he did not pay child support while incarcerated because the State never “came after him” is disingenuous and does not excuse his failure to contribute to the care and support of S.E.W.

Additionally, as noted above, this court has previously held that “incarceration is not a defense to termination of parental rights for failure to pay child support, La.Ch.Code art. 1015(4)(b)[.]” In re H.R., 165 So.3d at 1230.

3. Failure to maintain significant contact with the child—La.Ch.Code art. 1015(4)(c)

Louisiana Children's Code Article 1015(4)(c) provides the following ground for the termination of parental rights:

(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:

․

(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.

S.W. argues that DCFS did not make any effort to aid him in reunifying with S.E.W. while he was incarcerated. Ms. Baines testified that she was informed by Catahoula Correctional Facility that “they don't do visits.” When she finally received permission from Catahoula Correctional Facility to bring S.E.W. to visit S.W. in person, she was informed upon arrival that S.W. had been transferred to another facility. Once Ms. Baines was able to locate S.W. at his new facility, she was again informed that the facility did not allow in-person visitation. Thus, she arranged a Facetime call between S.W. and S.E.W. in April of 2024.

S.E.W. was only nine months old at the time S.W. was incarcerated. She was three and a half years old at time of the termination of parental rights proceedings. S.W. remained incarcerated during that entire time. And although he testified that he spoke with N.M. on the phone every day, there was no indication that he ever asked to speak with S.E.W., even while S.E.W. was still living with N.M. We find that the State, through DCFS, made reasonable efforts to initiate contact between S.W. and S.E.W. considering the fact that S.W. was incarcerated in facilities which did not allow for in-person visits, as well as S.E.W.’s very young age.

The fact remains that S.W. failed to have any contact with S.E.W. for at least six consecutive months. Although he was incarcerated at the time, “incarceration is not a just cause defense to failure to support children or maintain contact with them in a termination of parental rights case if the parent is incarcerated as a result of his own actions.” State ex rel. M.H., 40,332, p. 6 (La.App. 2 Cir. 9/23/05), 912 So.2d 88, 92.

For the foregoing reasons we find that the trial court was not manifestly erroneous in finding that the State established statutory grounds for the termination of S.W.’s parental rights by clear and convincing evidence. This assignment of error is without merit.

Assignment of Error Two

Once the State has proven at least one of the statutory grounds by clear and convincing evidence, “the trial court must determine whether the termination is in the best interest of the child.” State In Interest of C.F., 17-1054, p. 11 (La. 12/6/17), 235 So.3d 1066, 1072.

S.W. has asserted in his second assignment of error that the trial court erroneously found that termination of his parental rights was in the best interest of S.E.W. He submits that the termination of his parental rights was premature and contrary to the best interests of S.E.W., arguing, “Given that S.W. was about to be released from prison, was a non-offending parent, and had actively participated in his child's life prior to incarceration, it is reasonable to believe that upon his imminent release, he would comply with his plan and work towards reunification.”

As discussed above, S.W. testified at the termination hearing that he intended to move back in with N.M. upon his release from prison and resume their relationship. DCFS noted in their December 2024 report that S.W. had in fact called them from N.M.’s mother's phone and was apparently living in a home with both N.M. and J.P. We find that moving S.E.W. back into the same situation from which DCFS removed her is untenable and not in her best interest, especially considering that N.M.’s parental rights to S.E.W. have been terminated.

S.E.W. is currently living in the home of K.H. and B.H. with her two half-brothers. K.H. and B.H. have been certified as adoptive parents and would like to adopt S.E.W. Louisiana Children's Code Article 1037(B)(1) provides, in pertinent part, “The consideration of the best interest of the child shall include consideration of the child's attachment to his current caretakers.” Ms. Baines was questioned at the termination hearing about the placement of S.E.W. in the home of K.H. and B.H. She testified that she had observed S.E.W. with K.H. and B.H., and that S.E.W. “is healthy, happy and thriving. Um, she's a happy little girl․. Um, she went into the family like she's always been there, you know, and she is very loved.” Ms. Baines further stated that the two families who intend to adopt S.E.W. and I.H. and L.H. “would like to maintain contact with each other, so the girls will still grow up together.”

In support of its ruling terminating S.W.’s parental rights, the trial court stated:

The Court finds that the State has met its burden of proof by clear and convincing evidence that neither [N.M.] nor [S.W.] has substantially complied with their case plan, and it is unlikely that they will comply in the future.

The State has also presented testimony and evidence that the children have been in separate but stable environments where they are being well cared for, their needs are being meet [sic], they are thriving in those locations, and that both families have uh, int - - have represented an intention to continue to allow the siblings to have interaction with other [sic]. Both homes have indicated that they are certified to adopt and desire to adopt these children who have been in their care for in excess of six months.

Based upon those findings, the Court finds that it would be in their best interest to be adopted, therefore, the Court hereby terminates the parental rights of [S.W.] with respect to S.E.W., and [L.H.] and [I.H.] with respect to [N.M.] also [N.M.] with respect to [S.E.W.] as the mother, and certifies them for adoption.

We agree with the trial court's ruling that the State met its burden of proof by clear and convincing evidence that S.W. failed to substantially comply with his case plan and that it is unlikely he will comply in the near future. See La.Ch.Code art. 1015(5). S.W. appears to have resumed his relationship with N.M. and is living with her. Such behavior is not in S.E.W.’s best interest and not in compliance with S.W.’s case plan which requires him to maintain a safe home environment for S.E.W. The State has also met its burden of proof by clear and convincing evidence that S.W. failed to provide any financial contributions to S.E.W.’s care and support, and that S.W. failed to maintain any significant contact with S.E.W. La.Ch.Code art. 1015(4)(b) and (c). We further agree with the trial court's finding that terminating S.W.’s parental rights and allowing S.E.W. to be adopted by K.H. and B.H. is in S.E.W.’s best interests. Ms. Baines testified that S.E.W. is currently in a loving home and is thriving. S.W. has not provided S.E.W. with a viable alternative.

The trial court was not manifestly erroneous in finding that the termination of S.W.’s parental rights was in the best interest of S.E.W. Thus, this assignment of error is without merit.

DECREE

The judgment of the trial court terminating S.W.’s parental rights to his child, S.E.W., and certifying S.E.W. as free and available for adoption is affirmed. Costs of this proceeding are assessed to S.W.

AFFIRMED.

FOOTNOTES

1.   Pursuant to the Uniform Rules–Courts of Appeal, Rule 5.2, the parties and the minor child are referred to by their initials to ensure the confidentiality of the minor.

WILBUR L. STILES JUDGE