Involuntary Termination of Parental Rights Louisiana
In a termination of parental rights case, the State must prove all the elements of its case by clear and convincing evidence. La. Ch.C. art. 1035; L.L.Z. v. M.Y.S., 620 So. 2d 1309 (La. 1993); State in the Interest of D.T. v. K.T., 29,796 (La. App. 2d Cir. 6/18/97), 697 So. 2d 665.
The evidence must allow the conclusion that termination is in the best interest of the child. State in the Interest of D.T., supra.
A trial court's factual determinations, including whether a parent is unfit and whether there is a reasonable expectation of reformation, will not be set aside in the absence of manifest error. State in the Interest of D.T., supra; State in the Interest of T.D. v. Webb, 28,471 (La. App. 2d Cir. 5/8/96), 674 So. 2d 1077.
Great weight is attached to the exercise of the trial judge's discretion, which will not be disturbed on review if reasonable men could differ as to the propriety of the trial court's action.
The discretion afforded the trial court, however, must be exercised in whole-hearted good faith and be guided by the statutes, not by what the court's private opinion of what the statute ought to be. Where the exercise of discretion is arbitrary and not judicial, and the judgment is unjust, it will be set aside. State v. Talbot, 408 So. 2d 861 (La. 1980) on rehearing; State in the Interest of D.T., supra.
La. Ch.C. art. 1015 provides the grounds for the involuntary termination of parental rights. As previously stated, the trial court found that termination was proper under subsection (5) of article 1015 which reads as follows:
(5) Unless sooner permitted by the court, at least one calendar 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 stable and permanent home.
The substantive elements proving lack of substantial compliance with a court-approved case plan are set out in La. Ch.C. art. 1036(C):
C. Under article 1015(5), lack of parental compliance with a case-plan may be evidenced by one or more of the following:
(1) the parent's failure to attend court-approved scheduled visitations with the child.
(2) the parent's failure to communicate with the child.
(3) 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.
(4) 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.
(5) the parent's repeated failure to comply with the required program of treatment and rehabilitation services provided in the case plan.
(6) the parent's lack of substantial improvement in redressing the problems preventing reunification.
(7) the persistence of conditions that led to removal or similar potentially harmful conditions.
The substantive elements proving lack of a reasonable expectation of significant improvement are set out in La. Ch.C. art.1036:
Under Article 1015(5), lack of any reasonable expectation of significant improvement in the parent's conduct in the near future may be evidenced by one or more of the following:
(1) 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.
(2) a pattern of repeated incarceration of the parent that has rendered the parent unable to care for the immediate and continuing physical or emotional needs of the child for extended periods of time.
(3) 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.