In re K.P.

STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUITApr 10, 2013
NUMBER 2012CJ 1646 (La. Ct. App. Apr. 10, 2013)

NUMBER 2012CJ 1646

04-10-2013

IN THE INTEREST OF K.P. AND A.P.

Nanine McCool Mandeville, LA Attorney for Appellant A.B. Sandra Fuselier Mandeville, LA Attorney for Appellees K.P. and A.P. Randall A. Fish LaCombe, LA Attorney for Appellee D.P. Sandra B. Terrell Covington, LA Attorney for Appellee Dept. of Children and Family Services Eliska E. Juarez Mandeville, LA Attorney for Appellee T.R. Brian Dragon Assistant District Attorney Covington, LA Attorney for Appellee State of Louisiana


NOT DESIGNATED FOR PUBLICATION


Appealed from the

22nd Judicial District Court

In and for the Parish of St. Tammany, Louisiana

Trial Court Number 8434JJ


Honorable William J. Burris, Judge

Nanine McCool
Mandeville, LA
Attorney for Appellant
A.B.
Sandra Fuselier
Mandeville, LA
Attorney for Appellees
K.P. and A.P.
Randall A. Fish
LaCombe, LA
Attorney for Appellee
D.P.
Sandra B. Terrell
Covington, LA
Attorney for Appellee
Dept. of Children and Family
Services
Eliska E. Juarez
Mandeville, LA
Attorney for Appellee
T.R.
Brian Dragon
Assistant District Attorney
Covington, LA
Attorney for Appellee
State of Louisiana


BEFORE: PARRO, WELCH, AND KLINE, JJ.

Hon. William F. Kline, Jr., retired, is serving as judge ad hoc by special appointment of the Louisiana Supreme Court.

WELCH , J.

A.B., the mother of two minor children, K.P. and A.P., who were previously adjudicated in need of care, appeals a judgment of the juvenile courtthat assigned guardianship of the minor children to the children's foster parents and terminated A.B.'s visitation with the children. Finding no error in the judgment of the juvenile court, we affirm.

The minor children and their parents are referred to by their initials to preserve their anonymity in this confidential proceeding.

The Twenty-Second Judicial District Court exercises original juvenile jurisdiction for its territorial jurisdiction pursuant to La. Ch.C. art. 302(2). As a court exercising juvenile jurisdiction, it has exclusive original jurisdiction, in conformity with any special rules prescribed by law, over any child alleged to be in need of care and the parents of any such child. La. Ch.C. art. 604.

The mother's visitation was suspended approximately nine months prior to this judgment terminating the visitation.

The background facts of this case are more fully set forth in the companion case also rendered this date, In the Interest of K.P. and A.P., 2012-1226 (La. App. 1st Cir. 04/10/13)(unpublished). Essentially, K.P. and A.P. are the children of A.B. and D.P. The children were taken into the custody of the State of Louisiana, Department of Children and Family Services ("DCFS") based on valid allegations of inadequate shelter, and the children were adjudicated in need of care on October 6, 2010.

D.P.'s parental rights were terminated by judgment signed on April 27, 2012, and he did not appeal that judgment. Therefore, as to D.P., that judgment is now final.

Prior to taking the children into custody, DCFS had worked with the family for approximately eight months in an attempt to prevent the removal of the children from the home. Additionally, although the initial reason for removing the children from the care of the parents was inadequate shelter, it subsequently became evident that the children had also been physically, emotionally, and intellectually neglected by the parents.

Following the rendition of the April 27, 2012 judgment that is the subject of the appeal by A.B. in In the Interest of K.P. and A.P., 2012-1226 (La. App. 1st Cir. 04/10/13)(unpublished), and in accordance with the juvenile court's order in its April 27, 2012 judgment that DCFS find a permanent dispositional alternative for the children (other than the termination of A.B.'s parental rights and adoption), the attorney for the minor children filed a motion seeking an order of guardianship in favor of the foster parents. A.B. opposed the motion and sought a new plan of reunification and expanded visitation with the children.

After a hearing, the juvenile court granted the motion for guardianship, assigning guardianship of the children to the foster parents, which was to remain in effect until the children's eighteenth birthdays or until otherwise modified by the court. Additionally, the juvenile court ordered that visitation between the children and A.B. "be terminated as per therapist recommendations." A judgment in accordance with the juvenile court's ruling was signed on June 27, 2012, and it is from this judgment that A.B. appeals. On appeal, A.B. essentially asserts that the juvenile court erred in assigning guardianship of the children to the foster parents and in terminating her visitation.

Louisiana Children's Code article 718(A) sets forth, in pertinent part:

The purpose of guardianship is to provide a permanent placement for children when neither reunification with a parent nor adoption has been found to be in their best interest; to encourage stability and permanence in the lives of children who have been adjudicated to be in need of care and have been removed from the custody of their parent....


After a child has been adjudicated to be in need of care, a motion for guardianship may be filed by the department, parent, or counsel for the child. La. Ch.C. art. 720(A). On the motion, the mover shall have the burden of proving, by clear and convincing evidence, that: (1) the child has been adjudicated to be in need of care; (2) neither adoption nor reunification with a parent is in the best interest of the child; (3) the child has resided for at least six months with the proposed guardian, unless the court waives the residence requirement for good cause; and (4) the proposed guardian is able to provide a safe, stable, and wholesome home for the child for the duration of minority. La. Ch.C. art. 722(A). If the court finds that guardianship is warranted, the court must address the nature and frequency of visitation; the order of guardianship continues until the child reaches the age of eighteen, unless earlier modified or terminated by the court. La. Ch.C. art. 723(B) and (D).

In oral reasons for judgment, the juvenile court noted that it had previously denied the request for the termination of A.B.'s parental rights, but opined that reunification did not appear to be in the best interest of the children and suggested some other form of permanency, such as guardianship. The court noted that since the termination of parental rights hearing (which concluded on April 11, 2012), the situation of the mother, A.B., had not improved and had deteriorated due to her loss of steady employment and that this matter had been ongoing for over eighteen months. The court then noted that the children needed and deserved permanency, found that guardianship to the foster parents was in the best interest of K.P. and A.P., and stated that the foster parents were appropriate and loving caretakers and could provide a stable family-like environment for the children.

The juvenile court's ruling in this regard was affirmed by this court in the companion case, In the Interest of K.P. and A.P., 2012-1226 (La. App. 1st Cir. 04/10/13)(unpublished)
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A court of appeal may not overturn a judgment of the juvenile court absent an error of law or a factual finding that is manifestly erroneous or clearly wrong. State, In Interest of GA, CA, JA, CA2 and RA, 94-2227 (La. App. 1st Cir. 7/27/95), 664 So.2d 106, 110. Based on our review of the record, we find the trial court's factual findings with regard to the deterioration of the mother's situation due to the loss of her job, the length of time that DCFS had worked with the family, the children's need for permanency, and the appropriate and loving nature of the foster parents are reasonably supported by the record and are not clearly wrong.

Furthermore, it was uncontradicted that K.P. and A.P. were adjudicated children in need of care on October 6, 2010, and that a hearing to terminate parental rights was held on March 26, 2012, and April 11, 2012. At the conclusion of that hearing, the juvenile court terminated D.P.'s parental rights, did not terminate A.B.'s parental rights, and made a factual finding that reunification of the children with A.B. was not in their best interest. Thus, neither adoption nor reunification was in the children's best interest. Additionally, it was uncontradicted that the children have been residing with their foster parents for more than six months, and the testimony of the foster parents clearly established that they were committed to providing permanency to K.P. and A.P. by long term foster care, adoption, or guardianship. Lastly, the evidence established that the children were bonded to their foster parents (the proposed guardians) and that the children considered themselves to be part of their (the proposed guardians') family. Thus, the requirements of La. Ch.C. art. 722 were established by clear and convincing evidence.

With regard to visitation, the juvenile court ordered that the children not have visitation with A.B., finding in reasons for judgment that it would "be deleterious to the best interests of [the] children." The trial court's factual finding in this regard is supported by the expert opinion testimony of Catherine Lucas, a licensed professional counselor and licensed marriage and family therapist, who previously supervised visits between A.B. and the children. Ms. Lucas opined that visitation between the children and A.B. should be terminated on the basis that A.B. could not be an appropriate mother, she did not have the ability to be a parent, a caregiver, or a nurturer, and she could not give them the guidance or direction that they needed for healthy emotional development.

Accordingly, we find no manifest error in, and affirm, the June 27, 2012 judgment of the juvenile court in compliance with Uniform Rules—Courts of Appeal, Rule 2-16.1 (B). All costs of this appeal are assessed to the appellant, A.B.

AFFIRMED.