MARY ANN VIAL LEMMON, Judge Pro Tem.
KP appeals from a judgment terminating her parental rights to three of her children.
The father of the children, T.P., has voluntarily relinquished his parental rights. The issue on appeal is whether the court committed manifest error in its determination that termination of K.P.'s parental rights is appropriate under R.S. 13:1601 because it was shown by clear and convincing evidence that she has "shown no significant substantial indication of reformation and is unlikely to reform."
The children who are the subject of this suit came into State's custody in October, 1986 by emergency order issued at the request of the mother. She was pregnant with her fourth child and felt unable to care for the children. She planned to move into a maternity home to await the birth of her child. The State worked diligently with her toward the goal of reuniting her with her children until November, 1989 when it filed a Petition to Terminate Parental Rights. All three children have been in foster care continuously since the State obtained custody, except for T., who was placed with his mother on a trial basis from October 31, 1988 to March 29, 1989. Each of the three sets of foster parents has indicated its intention to adopt its ward if termination is granted.
The testimony reveals that after the children were taken into custody the mother was unable to provide for her own well-being. She was involved in an unhealthy relationship with T.P., was unable to perform basic hygienic and nutritional tasks, moved numerous times, was unable to maintain steady employment, and did not successfully conform to the goals set by the State in order to achieve reunification. The brief trial reunification with T. was unsuccessful, and the State removed him simultaneously with its removal of another child not subject of the hearing.
As of the time of trial there were indications of some improvement in K.P.'s ability to provide for her own well-being. She had been steadily employed as a waitress for nine months. She had a prospect of receiving training for a managerial job with the same employer. She was attending data processing classes and had proved by testing to be drug free. She was not yet in an independent living arrangement, although she had severed the relationship with T.P.
This case presents the delicate issue of balancing of the interests of parents in a continuation of a family unit and the interests of the children to be freed for adoption into a stable loving home life.
Federal guidelines, set forth in the Adoption Assistance and Child Welfare Act of 1980 (P.L. 96-272), require that States make reasonable efforts at reunification of the parent and child.
Though the guidelines for foster care and development of a permanency plan were meticulously complied with in this case,
In his report of July 10, 1989 Dr. Scuddy F. Fontenelle, Ph.D., made the following recommendation based on his June 16, 1989 evaluation.
As of the hearing date of January 3, 1990 K.P. had made significant strides toward fulfilling the goals set by Dr. Fontenelle. Although all experts agreed that the best interests of the children mandate that they remain in the homes of their foster parents with whom they are psychologically bonded, that removal of the children under these circumstances would be psychologically harmful to each of the children, and that it is unlikely that K.P. will ever possess the maturity for maintaining an appropriate parent-child relationship, since she has made steps in the right direction toward achieving that goal, she
In the event she regresses in her attempts or fails to continue strides toward reunification, another action for termination may be brought so the best interests of the children in being freed for adoption may be protected under the new set of circumstances then in existence. Based on this record the trial court was manifestly erroneous in finding the State had established by clear and convincing evidence that K.P. has "shown no significant substantial indication of reformation and is unlikely to reform" as of the date of this hearing.
Accordingly, we reverse the trial court judgment of termination. The custody of the three minor children, T., K., and J. will remain in the State.
LANIER, J., concurs and assigns reasons.
SHORTESS and WATKINS, JJ., concur for reasons assigned by LANIER, J.
COVINGTON, C.J., dissents.
LANIER, Judge, concurring.
We concur with the result of the lead opinion that the trial court was manifestly erroneous (clearly wrong) in finding the State established by clear and convincing evidence that K.P. had "shown no significant substantial indication of reformation and is unlikely to reform" and in terminating K.P.'s parental rights. However, we believe more detailed statements of the facts of record and the law on termination of parental rights are necessary to fully explain our views herein.
The three minor children of K.P. and T.P. first came into the custody of the State with an emergency custody order issued October 9, 1986, by the 34th Judicial District Court for the Parish of St. Bernard. The children were later adjudged "in need of care and supervision" by the same court on December 18, 1986. The matter was transferred to the City Court of Slidell by an order signed November 6, 1987.
On November 18, 1987, a 12-month removal review hearing was conducted, and on December 1st, 1987, the City Court of Slidell signed a judgment continuing custody of the children in the State with a plan for reuniting them with their parents. A Federal Permanency Placement Hearing was held on May 18, 1988, and by judgment signed June 15, 1988, custody was maintained in the State with reunification as the goal. A dispositional review hearing was held on November 16, 1988, and judgments were signed on December 20, 1988 and January 10, 1989, continuing custody in the State with reunification as the goal. Another dispositional review hearing was held on May 17, 1989, and a judgment was signed on June 29, 1989, continuing custody in the State for the purpose of considering termination of parental rights and obtaining permanent placement. A Court Appointed Special Advocate (CASA) was appointed by an order dated May 25, 1989.
On November 3, 1989, the State filed a petition for termination of parental rights pursuant to La.R.S. 13:1600-13:1605, and more particularly, La.R.S. 13:1601(B), (D), and/or (F). Another CASA was appointed by an order dated November 25, 1989.
LAW APPLICABLE TO TERMINATION OF PARENTAL RIGHTS
La.R.S. 13:1601 provides, in pertinent part, as follows:
La.R.S. 13:1600 provides, in pertinent part, as follows:
In this case, the State sought termination of K.P.'s parental rights pursuant to La. R.S. 13:1601(B), (D), and/or (F). However, since the children (J, K and T) were adjudged "in need of care and supervision", and not adjudged abused or neglected, the only applicable provision for termination of K.P.'s parental rights is La.R.S. 13:1601(B).
La.R.S. 13:1603(A) provides, in pertinent part, as follows:
Thus, for the trial court to order termination of K.P.'s parental rights in this case, it must find that the State has established by clear and convincing evidence that (1) one year has passed since the rendition of the child in need of care and supervision judgment, (2) K.P. is unfit to rear the children, and (3) K.P. has shown no significant substantial indication of reformation and is unlikely to reform.
Proof by clear and convincing evidence requires more than "a preponderance of the evidence", the traditional measure of persuasion, but less than "beyond a reasonable doubt", the stringent criminal standard. Succession of Bartie, 472 So.2d 578 (La.1985); Hines v. Williams, 567 So.2d 1139 (La.App. 2d Cir.), writ denied, 571 So.2d 653 (La.1990). Proof by a preponderance requires that the evidence, taken as a whole, shows that the fact sought to be proved is more probable than not. To prove a matter by clear and convincing evidence means to demonstrate that the existence of a disputed fact is highly probable, that is, much more probable than its nonexistence. Hines v. Williams, 567 So.2d at 1141. This distinct standard, persuasion by clear and convincing evidence, is usually applied where there is thought to be a special danger of deception, or where the court considers that the particular type of claim should be disfavored on policy grounds. Hines v. Williams, 567 So.2d at 1141; McCormick on Evidence, Section 340(b) (2d Ed.1972). The rights of parents to the companionship, care, custody and management of their children is a fundamental liberty interest warranting great deference and [vigilant] protection under the law. State in Interest of Three Minor Children, 558 So.2d 1238 (La.App. 1st Cir. 1990). Hence, in enacting La.R.S. 13:1603(A), the Legislature furthered the public policy to protect parents from unwarranted termination of their parental rights.
Whether there has been adequate proof that K.P. has shown no significant substantial indication of reformation and is unlikely to reform is a question of fact. The Louisiana Supreme Court in Rosell v. ESCO, 549 So.2d 840, 844 (La.1989) stated the following regarding appellate review of factual findings of a trial court:
The rule that questions of credibility are for the trier of fact applies to the evaluation of expert testimony, unless the stated reasons of the expert are patently unsound. Lirette v. State Farm Insurance Company, 563 So.2d 850 (La.1990); Sistler v. Liberty Mutual Insurance Company, 558 So.2d 1106 (La.1990).
Marsha Hipler, employed by the St. Bernard Office of Community Service, was the initial foster care worker for J, K and T. She served in this capacity from October 9, 1986, to July 7, 1987. She testified that K.P. requested that the State take custody of the children because K.P. had no shelter or source of income to support the children. She stated she placed the children in foster homes and provided services to the children. She supervised the initial visit in October of 1986, of K.P. and the children at Sellers Baptist Maternity Home where K.P. was residing during her fourth pregnancy. There were some minor problems during the initial visits between K.P. and the children, but K.P. corrected these problems.
Bernice Lee, employed by the Department of Social Services in St. Bernard Parish, was the family service worker on the case from November 11, 1986, until July 7, 1987. She also served as a foster care worker for the children from October of 1987, until the time of trial. She stated she initially met K.P. in December of 1986, when she was residing at Sellers Baptist Maternity Home. At this time, K.P. was working toward attaining her Graduate Equivalency Diploma (G.E.D.) by March of 1987. She stated the State's goals for K.P. at this time were for her to obtain her G.E.D., attend parenting class, seek steady employment and provide a stable home for the children. K.P. failed to obtain her G.E.D. while Lee was her case worker because of a conflict with employment. K.P. also failed to attend parenting classes because of a conflict with her G.E.D. classes. K.P. was employed for a one month period while Lee was her case worker, and K.P. sought employment with one other employer. K.P. was consistent with her visitation of the children during this period. K.P. resided at approximately four different locations while Lee was her case worker, and T.P. resided with K.P. at these locations. K.P. generally kept a clean house, was a cooperative and willing participant in the State's program, attempted to work and better herself and appeared to get along good with the children.
Shirley Burrow, an employee of the Office of Community Services for St. Tammany Parish, was K.P.'s family service worker during July, August and September of 1987. She testified she conducted a home study of K.P. and T.P.'s trailer in Slidell, Louisiana, to see if it was properly maintained for visitation by the children. Initially, the trailer was very nice, but it became less and less attractive towards the end of Burrow's involvement on the case. There were problems in the relationship between K.P. and T.P. K.P. and T.P. were eventually evicted from the trailer in September of 1987, and moved into the City Motel in Slidell. K.P. broke off her relationship with T.P. during this period, but when Burrow was removed from the case, the relationship was back on again. She stated that no visits with the children took place during this period because K.P. was having problems with her fifth pregnancy. She also stated that on August 12, 1987, K.P. began working as a waitress at St. Christopher's Curve Inn.
Roseanne Brody, an employee of the Office of Community Services for St. Tammany Parish, served as the case manager for K.P. from October of 1987, until the time of trial. She testified about K.P.'s housing, employment and visitations. Brody first met K.P. on September 30, 1987, at a trailer K.P. and T.P. were living in near Slidell. She stated the condition of the trailer was fair and K.P. lived there until late November of 1987, when K.P. lost her job. K.P. and T.P. then moved to a friend's camp at Pirate's Harbor. T.P.'s brother and a friend resided at the camp. The condition of the camp was dirty, there were
Brody testified that K.P. was consistent in meeting the visitation schedule set by the State. Brody's agency held several family team conferences which were attended by K.P. K.P. obtained her driver's license and insurance in an effort to provide transportation for her children. Brody stated the agency's goals for K.P. were (1) maintaining housing, employment and a minimally acceptable home, (2) improving her housekeeping skills, (3) maintaining some kind of transportation and (4) attending therapy.
Brody testified that K.P. was first employed at a restaurant called St. Christopher's Curve Inn. She lost this job when the restaurant burned down. K.P. was unemployed for the two months before and after her fifth child's birth. K.P. began to work again on March 10, 1988, at the Union 76 Truck Stop. K.P. worked there for five months and then left. Next, K.P. worked as a cashier at an Exxon station for about five months. K.P. left the Exxon station because her supervisor had only allowed her to work only two nights a week for the last month and she needed a full time job. K.P. went to work on April 1, 1989, at Ryan's Steakhouse as a waitress. Brody was aware of the possibility that K.P. would be sent to a management training program for Ryan's. K.P. was still employed by Ryan's at the time of trial.
Brody testified that K.P. attended therapy at Slidell Mental Health Center (Center) from March of 1988, to June of 1988. She stated the Center discontinued the sessions because K.P. failed to make three appointments. One appointment was missed because of a court hearing in this matter, and another appointment was missed because Brody was unable to bring K.P. In late March of 1989, when T was returned to
Finally, Brody testified that K.P. began school at the Coastal Training Institute in August or September of 1989. Brody was aware that K.P. was on a twelve month data processing curriculum and also working on her G.E.D. Brody stated that she would agree that K.P. is improving her situation if K.P. has been attending class, working steadily and keeping her apartment clean.
K.P. testified that she terminated her relationship with T.P. in July of 1989, as requested by the State, and stopped living with him at this time. She began working at Ryan's Steakhouse in April of 1989, at a rate of $2.01 an hour, plus tips. She worked six days a week at Ryan's. She has enrolled in Ryan's management training program which is a six-week course. She enrolled in the Coastal Training Institute in the data processing program. She stated that her G.E.D. is part of the program. She has been attending the class and making good grades and will graduate on August 15, 1990. She stated that she has always been consistent with visitations with the children. She attended therapy when possible and saw Fitzmorris twice before the Christmas and New Year holidays. She was scheduled to continue therapy after the holidays. She was presently living in a loft apartment, but has been staying with friends because the pipes in the loft were damaged by a freeze. K.P.'s landlord was going to fix the pipes, but if she didn't, K.P. had saved $900 to get another place. She stated she loved her children and eventually wanted to raise them. She stated she even took a drug test as suggested by Brody, and the results were negative. The condition of the Whisperwood Subdivision house was in large part due to T.P. and his desire to have the children taken from K.P. so he would not be responsible for child support.
Dr. Scuddy Fontenelle, an expert in the field of psychology, testified that he interviewed J, K and T and their parents (K.P. and T.P.) on June 16, 1989. In his report dated July 10, 1989, he made the following observations and recommendations:
In discussing his recommendations, Dr. Fontenelle stated that K.P. showed strong feelings toward her children and was adamant about maintaining contact with her children and eventually rearing them. K.P.'s maturity level, however, was not sufficient for her to provide a stable home. He felt his most important recommendation was for K.P. to terminate her relationship with T.P. He stated that the recommendations in his July 10, 1989 report were based on satisfying the best interest of the children and not that of K.P. Dr. Fontenelle further testified that if K.P. had maintained steady employment, had terminated her relationship with T.P., and was attending Coastal Training Institute, this would be an indication of her increased ability to handle responsibility and to maintain consistency in her day-to-day life. These items would be in compliance with his recommendations, and increased visitation by K.P. should be allowed. If K.P. had complied with his recommendations, a gradual increase in visitations with K.P. would be in the best interest of the children and termination of this relationship would not be. When questioned by the trial judge, Dr. Fontenelle stated that the children had psychologically bonded with their foster parents and if they were removed from their foster parents, it would be detrimental to the children. He felt the children were better off in foster homes. However, Dr. Fontenelle did state that if his recommendation on a gradual increase in visits was followed, the children would also bond with K.P., and any change in custody would be less detrimental to the children.
Dr. Camilla Cowardin, an expert in child psychiatry, testified that she interviewed J, K, T and K.P., together and separately, and reviewed all other evaluations done in the case. She issued a report dated September 14, 1989, which made the following recommendations:
In discussing her recommendation, Dr. Cowardin testified that the children do not view K.P. as a mother figure, but more as a friend. She stated that there was really no effective way for K.P. to become the children's psychological parent (mother figure) without causing detriment to the children. Dr. Cowardin disagreed with Dr. Fontenelle's recommendation stating it would be a disaster for everyone as a result of the children's psychological bonding to their respective foster parents. She did, however, admit that it was not necessary for the mental health of the children to terminate their relationship or visits with K.P. Dr. Cowardin stated that these concerns also arise in divorce custody cases.
Dr. Patricia Aptaker, an expert in the field of psychology, testified that she evaluated T, K.P. and T.P. in February and early March of 1989. Her evaluation was done at the State's request to determine the best interests of T and to see if anything could be done to remedy his educational disabilities. On April 17, 1989, Dr. Aptaker issued a report containing the following recommendations:
In discussing her recommendation, Dr. Aptaker stated that K.P. was more preoccupied with problems with T.P. than with the best interest of the children. K.P. and T.P. needed to seek therapy to correct the problems in their relationship. She felt that K.P. needed therapy to develop her parenting skills. She stated she could not
Dr. Thomas Roach, an expert in psychiatry, interviewed K.P. on November 9, 1989. In a report dated December 19, 1989, he issued the following recommendation:
In discussing his recommendation, Dr. Roach stated that his recommendation was based on a one hour interview with K.P. and a review of the other doctors' reports. He was aware K.P. was successfully working as a waitress at Ryan's Steakhouse and under consideration for management training. He was also aware of K.P.'s consistent visitation with the children and her enrollment in the Coastal Training Institute in computer programming. He felt K.P. sincerely loved her children and wanted to be reunited with them and provide them with a stable home. He felt that it was in the best interest of the children that they be adopted by their foster parents who could provide them with a stable environment at this time. However, he felt that if possible, it would also be in the children's best interest to continue their contact with K.P. after adoption.
The trial court in its reasons for judgment stated the following:
The record contains extensive testimony about K.P.'s past conduct and lifestyle and the changes in these areas which have taken place prior to trial. The testimony indicates that K.P. has shown a significant substantial indication of reformation and that she is likely to reform. The trial judge in his reasons for judgment recognizes the reformation efforts of K.P. The State has failed to prove by clear and convincing evidence that K.P. has shown no significant substantial indication of reformation and is unlikely to reform. The trial court was manifestly erroneous (clearly wrong) in finding otherwise. See State in Interest of Three Minor Children, 558 So.2d at 1244.
SHORTESS and WATKINS, JJ., concur.
COVINGTON, Chief Judge, dissenting.
I disagree with the majority's holding that the trial court was manifestly erroneous in terminating K.P.'s parental rights. His decision is supported by the testimony of each of the four experts who evaluated her, in addition to that of K.P.'s caseworkers.
Scuddy F. Fontenelle, the psychologist whose report the majority relies upon in its reversal, also testified against his own recommendation at the hearing. He did not believe that K.P. would become a maternal figure in the relatively near future. Regarding his suggested time frame of six to eight months for K.P. to show reformation, he stated:
In response to a question by counsel as to whether a defensive, suspicious attitude in a person in K.P.'s situation towards the State was abnormal, Dr. Fontenelle replied:
His conclusion was that the children's needs would be met best in their foster homes. His opinion, admittedly formed without knowledge of what had transpired between his examination in June, 1989, and
Patricia Aptaker, the other psychologist who evaluated K.P. and her children prior to Dr. Fontenelle's evaluation, stated her impressions as follows:
Dr. Aptaker was then questioned on the prognosis she had given in a written report dated April 17, 1989, which the State placed into evidence. The prognosis was, "With regard to the prognosis for [K.P.] to develop and maintain adequate parenting skills for [T.P.] and his siblings, the picture is not encouraging." Counsel for the State asked the following question and received the following response:
Dr. Aptaker also felt that the termination of K.P.'s relationship with the father of the children would not, as one factor, change her prognosis of K.P.'s ability to develop and maintain adequate parenting skills "because there's a lot of literature on women who have been in abusive relationships tend to repeat the pattern." While she indicated that she felt she needed more evaluation time with K.P. before she could "contraindicate" Dr. Fontenelle's report and its format for gradually increasing K.P.'s contact with the children, Dr. Aptaker obviously had reservations about it. She stated that "there were many things from her [K.P.'s] past that were not good indicators and just having a job and maintaining a social network would not necessarily ... push me to say return the children."
Camilla Cowardin was one of the two psychiatrists who evaluated K.P.; she saw her on August 7, 1989, after both Dr. Fontenelle and Dr. Aptaker. Dr. Cowardin opined that all three of K.P.'s children had bonded with their respective foster parents, who had become their psychological parents. She was emphatic in her belief that K.P. would be unable to act as the children's parent:
Finally, Dr. Thomas Roach, another psychiatrist, saw K.P. on November 9, 1988, less than two months before the hearing, and reviewed the reports of the other three experts. He testified that his recommendation was very difficult for him to make because K.P. sincerely loves her children and presented herself in person extremely well. However, he felt that the children should be freed for adoption and based his opinion on the following factors:
His opinions relating to the welfare of the children were not based on any evaluation of the children themselves, but on "the history of instability and having the chaos that's been going on in her life and in the children's lives." Dr. Roach was sufficiently impressed by K.P.'s situation to state, "this has really been a, really traumatic history as far as the children are concerned and what all's happened. It was sort of a, not much acceptance or not acceptance of responsibility, sort of a minimizing of that."
Dr. Roach saw nothing wrong in some continued contact by the children with their mother. But with regard to increasing the children's contact with K.P., and eventually returning them to her, his outlook was negative. "But I really feel like these kids need to be in a stable situation and I don't see how that, I don't see how that can work."
In addition to the expert testimony, K.P.'s caseworker, Roseanne Brody, testified regarding various incidents during the six-month period following Dr. Fontenelle's evaluation and recommendation and prior to the hearing. She stated that in July and August of 1989, K.P. briefly resided in a three-bedroom, one-bath house which had been vacant for several months prior to her move. In order to authorize the children's visits in that house, it was necessary for the caseworkers to inspect the home. Ms. Brody stated that no visits ever took place at that location because of the condition of the interior, which had no refrigerator or range, and which had not been cleaned by K.P. before or during her residence there. Boxes were left packed, and although K.P. apparently kept one or more cats, there was no litter box in the house. A previous residence had been deemed unhealthy for the children in part because of the presence of cat feces on the carpets, among other reasons. When Ms. Brody suggested that K.P. clean up the home so that visits could take place there, instead of at McDonald's or at a park in New Orleans east, K.P. did not follow up on these suggestions. "She told me that she just did not have time to do what needed to be done."
In September of 1989, K.P. moved again to an apartment across the street from this house. Ms. Brody was not allowed access to this apartment until November, although she picked up and dropped off K.P. several
In this case we have testimony from all involved that K.P. did not have and has little or no chance for acquiring parenting skills. She had numerous opportunities to begin "parenting" these children, and each time she failed to take advantage of the opportunity. Every expert agreed they saw little or no hope for the future.
Based upon all of the testimony which was before the trial court when it made the decision to terminate K.P.'s parental rights, I do not believe it was manifestly erroneous. I would affirm the trial judge's determination that the testimony, expert and otherwise, comprised the clear and convincing evidence required for the termination of K.P.'s parental rights.
I respectfully dissent.
T: DOB 12/7/83 Subject of this suit. K: DOB 12/28/84 Subject of this suit. J: DOB 10/31/85 Subject of this suit. D: DOB 6/5/87 Given up for adoption to the foster parents of J. C: DOB 1/7/88 In foster care since March, 1989 but not subject of this suit. She has undergone a tubal ligation.
A case review system was instituted, which included the preparation and filing of a case plan every six months. The case plans are dated 10/15/87, 4/28/88, 10/26/88, 4/19/89, and 10/4/89. While all of the previous case plans stated reunification as the goal, the final plan (dated October 4, 1989) recommended adoption of the three children by their respective foster parents, with whom they had resided since they were taken into custody in October of 1986. Each case plan sets forth the objectives and permanency plan, as well as "a plan for assuring that the child receives proper care and that services are provided to the parents, child, and foster parents in order to improve the conditions in the parents' home, facilitate return of the child to his own home or the permanent placement of the child, and address[es] the needs of the child while in foster care, including a discussion of the appropriateness of the services that have been provided to the child under the plan," as set forth in 42 U.S.C.A. § 675(1).
Each case plan outlines provisions for parental visitation and includes a "Team Conference Confirmation." All of the team conferences, with the exception of one, were attended by K.P., the case manager, case supervisor, Family Service worker, Administrative Reviewer, Foster Care worker and a foster parent for each child.
In addition to the case plan review system, this case was subjected to judicial review a minimum of once every six months prior to the filing of the Petition for Termination of Parental Rights.
Including the initial court order removing the children from the parents' home and prior to the Petition for Termination, the case was reviewed by the court on 10/9/86, 10/14/86, 12/4/86, 5/21/87, 12/8/87, 6/14/88, 11/16/88 and 5/17/89. On May 17, 1989, the court ordered a "bonding assessment," apparently to determine whether the children view the biological parents or the foster parents as their psychological parents. This court order was issued after the filing of both a case plan and a letter from the State child welfare agency (DSS) recommending adoption rather than reunification and outlining the reasons for the recommendation.