State ex rel. K.A.S.
| Decision Date | 23 September 2020 |
| Docket Number | No. 53,613-JAC,53,613-JAC |
| Citation | 303 So.3d 688 |
| Parties | STATE of Louisiana IN the INTEREST OF K.A.S. and D.R.S. |
| Court | Court of Appeal of Louisiana — District of US |
JAMES E. CALHOUN, Baton Rouge, Counsel for Appellant, B.N.S., Mother
RICHARD C. NEVILS, Baton Rouge, District Attorney, MATTHEW S. KELLEY, Assistant District Attorney, Counsel for Appellee, State of Louisiana
RUBY N. FREEMAN, Alexandria, Counsel for Appellee, State of Louisiana, DCFS
LEGAL SERVICES OF NORTH LOUISIANA By: Jacqueline C. Williams, Counsel for Appellees, K.A.S. and D.R.S., Children
HERMAN A. CASTETE, Counsel for Appellee, T.L., Father
Before WILLIAMS, COX, and STEPHENS, JJ.
The appellant, Brianna S., appeals a judgment terminating her parental rights to the minor children, K.A.S. and D.R.S.1 The trial court found that Brianna S. had not complied with the case plan by failing to pay the required parental contributions and that there was no reasonable expectation of significant improvement in her conduct in the near future. For the following reasons, we reverse and remand for further proceedings.
Brianna S. is the mother of the minor children, K.A.S. and D.R.S., who are twins. On May 31, 2018, Brianna S. was arrested for failure to appear and driving under suspension. She placed the children in the care of Casey Williford at the time. On June 8, 2018, Williford was arrested while driving with the children, who were 2 years old. Because Brianna S. was still incarcerated, the children were placed in the custody of the Louisiana Department of Children and Family Services ("DCFS"). In support of the instanter order, DCFS submitted an affidavit stating that Brianna S. has an extensive history with the agency and that she did not have stable housing prior to her incarceration. The affidavit stated that Brianna S. had admitted she had been living from hotel to hotel and using methamphetamines. Brianna S. was not employed at the time. When the children were taken into the custody of DCFS in June 2018, both had open sores on their arms and legs.
On October 8, 2018, K.A.S. and D.R.S. were adjudicated children in need of care. In December 2018, a case plan for services for Brianna S. filed by DCFS was approved by the court. On February 26, 2019, DCFS filed a petition for termination of parental rights alleging the grounds that Brianna had failed to comply with the case plan and had abandoned the children by failing to pay the required parental contributions. Brianna S. filed a motion to recuse the Winn Parish office of DCFS on the ground that she had been charged with a crime after a conflict with an employee of that office. The district court denied the motion as untimely based on the prior disposition of the matter. In May 2019, DCFS filed an amended petition. Brianna S.'s motion to strike the amended petition was later granted.
At the termination hearing in November 2019, the father of the children stipulated to the termination of his parental rights. The trial court heard witness testimony regarding the efforts of Brianna S. under the case plan. After the hearing, the trial court issued written reasons finding that Brianna S. did not take steps to comply with the case plan or to pay the required parental contributions for the children until after the petition for termination was filed. The trial court also found that based on Brianna S.'s past failure to attend appointments for substance abuse evaluations and her positive drug tests, there was no reasonable expectation of significant improvement in her conduct in the near future. In January 2020, the trial court rendered judgment terminating the parental rights of Brianna S. and certifying the children for adoption. Brianna S. appeals the judgment.
In the first assignment of error, Brianna S. contends the trial court erred in denying her motion to recuse the DCFS office in Winn Parish after she was charged with battery of an employee of that office. However, we note that Brianna S. did not present an argument in her appellate briefs to support her contention.
Assignments of error that are not briefed or argued on appeal are considered abandoned. URCA Rule 2-12.4; State v. Hahn , 526 So.2d 260 (La. App. 2 Cir. 1988), writ denied , 532 So.2d 150 (La. 1988) ; Magee v. West Jefferson Levee District , 2017-294 (La. App. 5 Cir. 12/13/17), 235 So.3d 1230. In this case, although Brianna S. states in her reply brief that the trial court's ruling is reviewable on appeal, she does not provide argument addressing the issue assigned as error. Thus, this assignment of error is deemed abandoned.
Brianna S. contends the trial court erred in finding that she abandoned the children for failure to pay the parental contributions required under the case plan. Brianna S. argues that the state failed to prove abandonment because the record does not show that she failed to pay child support under the case plan for six consecutive months before the petition to terminate was filed.
A parent has a constitutionally protected liberty interest in establishing and maintaining a meaningful relationship with her children. Congruent with the parental interest, the state has a legitimate interest in limiting or terminating parental rights under certain conditions. State ex rel. B.H. v. A.H. , 42,864 (La. App. 2 Cir. 10/24/07), 968 So.2d 881. The state has the burden of proving one of the statutory grounds for termination by clear and convincing evidence. La. Ch. C. art. 1035 ; State in the Interest of A.L.D. , 2018-1271 (La. 1/30/19), 263 So.3d 860. Once a ground for termination has been established, the court may terminate parental rights if the termination is in the best interest of the children. La. Ch. C. art. 1039. In termination of parental rights cases, the trial court's factual findings will not be set aside in the absence of manifest error. State ex rel. B.H. v. A.H., supra .
The grounds for involuntary termination of parental rights are enumerated in La. Ch. C. art. 1015 and include abandonment of the child. Under the Children's Code, abandonment is shown by evidence that, at the time the petition to terminate is filed, the parent has failed to provide significant contributions to the child's care for any period of six consecutive months. La. Ch. C. art. 1015(5)(b).
In this matter, the first case plan contained in the record is dated November 30, 2018, and required Brianna S. to pay a monthly parental contribution of $10 per child if unemployed and $25 per child if employed. The trial court approved this plan in the judgment of December 10, 2018, less than six months before the petition to terminate parental rights was filed in February 2019.
At the termination hearing, the state's witness, Sholanda Jackson, testified that Brianna S. had paid in full the financial contributions required in the case plan. In the subsequent written reasons for judgment, the trial court noted that Brianna S. did not pay these parental contributions until after the termination petition was filed and found that as a result, Brianna S. had abandoned the children under Article 1015(5)(b).
In State in the Interest of C.A.C. , 2011-1315 (La. App. 4 Cir. 2/1/12), 85 So.3d 142, writ denied , 2012-0388 (La. 3/7/12), 83 So.3d 1048, the court found that fairness requires that the six-month period stated in Article 1015(5)(b) should begin on the date the parent was provided with a copy of the case plan. Here, Brianna S. was provided with a copy of the case plan in November 2018 and the trial court approved the case plan in December 2018. Thus, the record does not support a finding that Brianna S. failed to pay the parental contributions required by the case plan for a period of six consecutive months before the termination petition was filed in February 2019. Consequently, the trial court erred in concluding the state proved abandonment by clear and convincing evidence pursuant to Article 1015(5)(b).
In two assignments of error, Brianna S. contends the trial court erred in excluding evidence of her post-petition actions to comply with the case plan and in finding no substantial parental compliance with the case plan and no reasonable expectation of significant improvement in the parent's conduct in the future. Brianna S. argues that she presented evidence showing her progress in addressing the conditions that resulted in the removal of the children.
Under the Children's Code, a ground for...
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