                         Supreme Court of Louisiana
FOR IMMEDIATE NEWS RELEASE                                         NEWS RELEASE #059


FROM: CLERK OF SUPREME COURT OF LOUISIANA



The Opinions handed down on the 6th day of December, 2017, are as follows:



BY GUIDRY, J.:


2017-CJ-1054      STATE OF LOUISIANA IN THE INTEREST OF C.F. (Parish of St. John)

                  For the reasons set forth above, we find DCFS met its burden of
                  proving abandonment pursuant to La. Ch. C. art. 1015(4) by clear
                  and convincing evidence. We also find DCFS proved by clear and
                  convincing evidence that the father failed to comply with the
                  case plan pursuant to La Ch. C. art. 1015(5), and that there was
                  no reasonable expectation of significant improvement in the
                  father’s condition or conduct in the near future, considering
                  C.F.’s age and her need for a safe, stable and permanent home.
                  The district court manifestly erred in finding otherwise. We
                  further find the record clearly showed that it was in C.F.’s best
                  interest to terminate the father’s parental rights, and to allow
                  the child to be free for adoption. The district court was clearly
                  wrong in concluding it was not in C.F.’s best interest.
                  Accordingly, we reverse the district court’s judgment and grant
                  DCFS’s petition to terminate the father’s parental rights.
                  REVERSED.

                  JOHNSON, C.J., additionally concurs and assigns reasons.
                  HUGHES, J., dissents with reasons.
12/06/17



                      SUPREME COURT OF LOUISIANA

                                 No. 2017-CJ-1054

            STATE OF LOUISIANA IN THE INTEREST OF C.F.


        ON WRIT OF CERTIORARI TO THE COURT OF APPEAL,
               FIFTH CIRCUIT, PARISH OF ST. JOHN


GUIDRY, Justice

      This is a proceeding to terminate parental rights involuntarily. The district

court found clear and convincing evidence that supported at least one ground for

termination of parental rights, but it nevertheless concluded termination was not in

the best interest of the child. For the reasons set forth below, we find the district

court was clearly wrong in finding that termination of the father’s parental rights

was not in the best interest of the child. Accordingly, we reverse the judgment of the

district court and render judgment terminating the rights of the father and allowing

the child to be adopted.

FACTS AND PROCEDURAL HISTORY

      The minor child, C.F., was born on December 22, 2006, to E.F., her mother,

and C.F., Jr., her father. The mother died of natural causes on December 30, 2013.

On June 9, 2014, the Department of Children and Family Services (hereinafter

“DCFS”), received a report expressing concern for the child’s welfare, who was

living with the father in the child’s paternal grandfather’s home in Kenner. Upon

investigation, DCFS learned that C.F.’s mother was deceased and that C.F.’s father

had a lengthy history of substance abuse and was reported to be passed out after

smoking crack cocaine in the home while the minor child was in his care. On June

20, 2014, DCFS interviewed the father and reported that his behavior was
                                          1
disoriented and his speech slurred. DCFS reported that, during the interview, the

father admitted to smoking crack cocaine ten days earlier while the minor child was

asleep in the home. The father thereafter made arrangements for C.F. to stay with

his sister. For the following six days, DCFS made several attempts to contact the

father to transport him for random urine drug screenings and to refer him for

substance abuse treatment. In light of the father’s alleged lengthy history of

substance abuse and failure to cooperate with DCFS, the trial court granted an oral

instanter order directing DCFS to take C.F. into its immediate custody.

          On August 12, 2014, the trial court adjudicated C.F. as a child in need of care.

The initial case plan goal for permanent placement for C.F. was reunification with a

concurrent goal of adoption. The father’s case plan required him to find and maintain

stable housing for a period of six months; contribute $25.00 per month for C.F.’s

care and support; participate in and complete agency-approved substance abuse

classes; participate in mental health evaluations and therapy appointments; complete

random drug screenings; participate in all court hearings and scheduled Family

Team Conferences (“FTCs”); visit with C.F. as scheduled and provide nutritious

snacks and age-appropriate toys; and complete agency-approved parenting classes.

          On September 10, 2015, DCFS filed a petition to terminate the father’s

parental rights to C.F. specifying two grounds for termination: (1) abandonment

pursuant to La. Ch. Code art. 1015(4), 1 and (2) failure to comply with the case plan



1
    La. Ch. Code art. 1015(4), as written in 2015, provided as follows:

          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;
                                                  *****
          (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; ….

                                                    2
pursuant to La. Ch. Code art. 1015(5). 2 With regard to abandonment, DCFS alleged

the father abandoned his daughter by failing to provide any significant contributions

to C.F.’s care and support for a period of six months. With regard to the ground of

failing to comply with the case plan, DCFS alleged the following particulars to

support termination of the father’s parental rights:

                 1) The father has failed to consistently attend court-approved
          scheduled visitations and communicate with the child;
                 2)    He has not maintained a safe, stable home;
                 3)    He has failed to keep the department apprised of his
          whereabouts and significant changes affecting his ability to comply
          with the case plan for services;
                 4)    He has repeatedly failed to comply with the required
          program of treatment and rehabilitation services;
                 5)    He lacks substantial improvement in redressing the
          problems preventing reunification;
                 6)    Although the father attended a substance abuse treatment
          program he continues to have positive test results when screened for
          drugs; and
                 7)    The conditions that led to the removal or similar
          potentially harmful conditions persist.


          On September 29, 2016, the matter proceeded to trial on DCFS’s petition to

terminate parental rights. At trial, Kyra Johnson, a child welfare specialist with

DCFS, testified that she is the case worker assigned to C.F.’s case. She testified C.F.

came into state custody on June 26, 2014, and had been placed in a certified foster

home. She testified C.F. was previously placed into state custody in 2007, when her

father admitted to using crack cocaine in C.F.’s presence and her mother, E.F., was

discovered passed out in the home. Within the initial six-month period in the 2007


2
    La. Ch. Code art. 1015(5), as written in 2015, provided:

          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 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 safe, stable and permanent
          home.

                                                    3
case, C.F. was returned to her parents’ custody, though the circumstances

surrounding the child’s return are not contained in the instant record.

      As to the father’s contributions to the care and support of C.F., Ms. Johnson

testified that, at the time of trial, the father had made no payments in accordance

with his case plan for C.F.’s support. Instead, the father had provided some snacks

during his visits with the child and had provided her with a cell phone.

      With regard to compliance with the case plan, Ms. Johnson testified the father

received a certificate of completion for the ordered parenting classes and weekly

mental health sessions, which included comprehensive evaluations and one-on-one

therapy sessions. Ms. Johnson testified the father had completed the required

substance abuse program. However, as to satisfying his drug screens, there were

some missed screenings, which resulted in automatic positive results pursuant to

DCFS procedures, and some positive test results for opiates. Even though the father

was warned that a missed drug screen would be deemed a positive outcome, he

missed several drug screens prior to December 2015. Ms. Johnson testified the father

also tested positive for opiates, but he had indicated to her he had been prescribed

pain medication, and on one occasion he did provide proof of such. Ms. Johnson

testified the father never tested positive for crack cocaine.

      As to the missed screenings and positive test results, Ms. Johnson testified

that, after the filing of the September 2015 petition to terminate, the father did not

appear for his December 15, 2015 review hearing. At that hearing, the case plan goal

was amended to adoption. The father missed his January and February 2016 drug

screens. Ms. Johnson testified she observed a noticeable difference in the father’s

behavior in December 2015, and the beginning of 2016, believing he may have been

still grieving the loss of his wife. After the filing of the petition to terminate, the

father indicated to Ms. Johnson that he would surrender his rights to C.F. He told

                                           4
her he felt everyone was “turning back on him” and no one was actually trying to

help him get his daughter back. The father did appear for the remainder of the

monthly drug screens in 2016, up to the date of trial in September 2016.

      As to the father’s visitation with C.F., Ms. Johnson testified that, prior to

December of 2015, the father was scheduled to visit with C.F. twice a month, but

that he occasionally missed those visits, often not warning DCFS that he would not

be attending the visitation. Ms. Johnson testified that during the visits, the interaction

between father and daughter was largely initiated by the daughter. Ms. Johnson

testified the father was in an accident in March of 2016, which required him to have

multiple surgeries. She testified the father missed his monthly visitations with C.F.

from March 2016 through July 2016, but while he may not have been mobile

initially, he was likely mobile by June 2016. The father visited with C.F. as

scheduled in August and September 2016.

      Regarding his income and housing, Ms. Johnson testified the father receives

$1,067.00 per month in social security benefits. She testified the father frequently

moved around after C.F. entered state custody, living at times with his own father or

his son. Most recently, in June 2016, the father leased a 4–bedroom home in

Westwego, which provided space for C.F. and appeared operable with working

utilities upon inspection. However, Ms. Johnson testified the father’s housing was

deemed unsuitable by DCFS because he shared his home with his two adult sons and

his daughter-in-law, who each have had open foster care cases. She also testified that

one son, and possibly the daughter-in-law, were also signatories to the lease.

      Ms. Johnson testified C.F. is very happy with her foster care family, who is

willing to adopt her. She testified C.F. has stated she does not want to be removed

from her foster family and would like to be adopted by them. Ms. Johnson stated

that C.F. had never indicated she wanted to return to living with her father, and when

                                            5
pressed, she would respond that she wanted to stay with her foster family. Ms.

Johnson testified C.F. has been diagnosed with depression since June of 2016 at

which time she began medication. C.F. is attending trauma therapy as she has

suffered extreme distress from the loss of her mother. Ms. Johnson testified that,

since June of 2016, C.F. has begun exhibiting improper behavior, has been caught

stealing a package from a neighbor’s porch, and has been untruthful. C.F. is enrolled

in therapy and is receiving support and professional care to address her recent

behavioral issues.

      The father testified at trial he loves his daughter and he wants her to live with

him. He denied continuing to use any illicit drugs and stated he has been sober for

approximately a year and a half. He admitted having smoked crack cocaine and that,

following the death of his wife, he was in a bad place and went down the wrong path.

He stated he is a recovering alcoholic and does not drink alcohol. He testified he is

willing to continue substance abuse programs to show he is committed to remaining

sober to regain custody of C.F.

      The father explained he has been taking prescribed medications for “a long

time,” since he broke his back when he was approximately twenty years old while

working on the river. He testified he never informed his doctors he has had a

substance abuse problem with crack cocaine, saying his prior drug use was not

related to his prescription for pain medication.

      The father testified about his visitations with C.F., explaining that his daughter

is suffering from the loss of her mother and has put up an “ice barrier” and that “one

visit an hour a day is not even nearly enough to even start breaking through the ice

barrier” to communicate with C.F. He admitted he did not visit with C.F. from April

to July 2016, explaining he had broken his hip and leg, was immobile for a period

of time, and did not want C.F. to see him in that condition. He acknowledged that

                                           6
C.F.’s foster parents are very good people and that he has the “utmost respect” for

them and what they have done for C.F. However, he testified he wants to be in C.F.’s

life, because he is her father and loves her very much.

      With regard to housing, the father testified he resides with his two adult sons,

who are C.F.’s siblings, and his daughter-in-law. He believed C.F. would benefit

being with him and her siblings who understand her. He explained that he was

previously unable to obtain stable housing because he is on a limited income and

only began receiving his full social security benefit of $1067.00 per month in July

of 2016. He acknowledged that, if he regained custody of C.F., he would receive

additional benefits, totaling approximately $402.00 per month, to assist with housing

and C.F.’s needs. Although he suggested he would be able to afford to live on his

own with C.F., he otherwise indicated that he would continue to reside with his sons,

who had lived with him most of their lives and whose assistance he needed. To his

knowledge, his sons do not use drugs and he has never seen his sons use drugs in his

home. He testified that if his sons began using drugs in the home, he would have to

contact the police and remove them from the home. Although he was aware that his

sons and daughter-in-law had their own DCFS cases, he was not aware of the details.

      The father stated that, if he regained custody of C.F., he would like eventually

to move back to Reserve, where C.F. is now living, so that C.F. could maintain

contact with her friends and continue with her life there. He testified that his wife

had wanted C.F. involved in the church and the community in Reserve and that he

would do his best to make that happen. However, he conceded he could not afford

to move to Reserve in the immediate future.

      As for his failure to appear for drug screenings and to appear at his December

2015 review hearing, the father denied that he refused tests or failed to appear

because he was on drugs. He explained he felt there was no need to take the drug

                                          7
tests and continue with his case plan because he had discussed surrendering his rights

with DCFS. The father expressed frustration with the September 2015 filing of the

petition to terminate his parental rights so soon after he had completed substance

abuse, mental health, and parenting courses. He testified that, at the time, he felt like

he could not fight anymore.

      After considering the evidence and argument of counsel, the district court

denied DCFS’s petition to terminate the father’s parental rights. The district court

first found DCFS had proved by clear and convincing evidence the father had

abandoned the child. The court was persuaded by the case worker’s testimony that

the father never paid any support for the child. The father did not offer any evidence

to the contrary, explaining only that his social security benefits had been

substantially reduced until recently. The district court found the allegation of

abandonment for failure to pay support under La Ch. Code art. 1015(4)(b) was

supported by the record.

      As to whether the father complied with the case plan, the district court found

that, by the time the petition for termination was filed by DCFS in September 2015,

the father had complied with the majority of the case plan requirements. The court

reasoned that, according to the testimony of the case worker, by June of 2016, the

only areas lacking in the father’s compliance were housing and financial support.

The court noted the father had completed substance abuse treatment, mental health

classes, and parenting classes. The district court also cited the case workers’

testimony the father had appeared for most of his random drug tests and that the

results were mostly negative, with the exception of his testing positive for opiates

from prescribed medication and missed screens. The district court also found the

father had complied with his visitation schedule, except for the period of March to

July of 2016, while the father was recovering from surgery for a hip injury. The

                                           8
district court found that, as of the date of the hearing, the father had secured stable

housing for at least three months. The district court found the only issue was the

father’s failure to pay support. Thus, the court found DCFS had failed to prove the

father violated La. Ch. Code art. 1015(5).

      Notwithstanding its determination that DCFS had proven by clear and

convincing evidence the ground of abandonment for lack of financial support under

La. Ch. Code art. 1015(4)(b), the court found termination was not in the best interest

of the child. The district court acknowledged the State had presented evidence that

C.F. is happy in her current placement, that she does not want to be removed, that

she wants to be adopted, and that she has never stated she wants to be returned to

her father. The court noted C.F.’s age as nine years old, and acknowledged her

wishes, but noted her wishes at this age could not form the basis for termination. The

court, nonetheless, acknowledged the child is in a home where all her needs are being

met and whose caretaker is interested in adopting her. But, the court noted, there has

been no allegation of abuse, despite the concern of DCFS, and nothing inappropriate

happened while the child was in her father’s care. The court also noted the child’s

emotional and behavioral issues were likely related to the loss of her mother,

suggesting she would require further counseling. Ultimately, the court found “in

light of these exceptional circumstances,” that DCFS had failed to prove termination

was in the child’s best interest because “[a]ny other result would be unfair to [the

father], who has never been alleged to have abused [C.F.], and to the child herself.”

      DCFS appealed, and a majority of the court of appeal affirmed. State in the

Interest of C.F., 17-24 (La. App. 5 Cir. 5/31/17), ___ So.3d ___. The court of appeal

agreed with the district court that DCFS had established by clear and convincing

evidence a ground for termination of parental rights, namely abandonment.

Nevertheless, the majority found the district court had not manifestly erred in

                                          9
determining that DCFS had failed to establish that termination of parental rights was

in the child’s best interest. The court of appeal found that the father had complied

with his case plan goals to complete substance abuse, mental health, and parenting

courses. The court also found the father had consistent visitation with his daughter

until his March 2016 accident, bringing the child snacks at each visit and attempting

to engage in conversation with her. The court also noted the father’s love for his

child and his desire to reunite with her.

      The court of appeal on the other hand also pointed to evidence supporting

termination. The court of appeal noted the father continues to reside in a home with

his two adult sons, both of whom have also had open DCFS cases, contrary to the

DCFS’s case plan requirement to maintain secure and stable housing for C.F.

Additionally, the court noted that, although the father has not tested positive for

cocaine since C.F. has been in state custody, he has missed numerous drug

screenings and on several occasions tested positive for opiates. The court

acknowledged the father has a prescription for narcotic pain medication, but it

nevertheless noted the father’s lengthy use of narcotic medication in addition to the

fact that he has not disclosed to his physicians who have prescribed the medication

his history of crack cocaine substance abuse. The court reasoned this lack of

disclosure could indicate the father continues to suffer from substance abuse issues

that may require continued attention and may inhibit his ability to care for C.F.

Notwithstanding that concern, the court of appeal majority could not say the district

court had manifestly erred in denying DCFS’s petition to terminate the father’s

parental rights, noting the district court did not transfer custody of the child to the

father, but instead allowed her to remain in the care of her stable foster family.

      We granted DCFS’s writ application to review whether the district court

manifestly erred in finding that termination of the father’s parental rights and

                                            10
allowing the child to be adopted was not in the best interest of the child. State in the

Interest of C.F., 17-1054 (La. 8/30/17), ___ So.3d ___.

LAW AND ANALYSIS

      The law on the termination of parental rights is well settled. The termination

of parental rights is a two-pronged inquiry. First, the State must prove by clear and

convincing evidence the existence of at least one ground for termination under La.

Ch. Code art. 1015. La Ch. Code art. 1035(A)(“The petitioner bears the burden of

establishing each element of a ground for termination of parental rights by clear and

convincing evidence.”); Santosky v. Kramer, 455 U.S. 745 (1982). Only after a

ground for termination is found, the trial court must determine whether the

termination is in the best interest of the child. La. Ch. Code art. 1039; State ex rel.

L.B. v. G.B.B., 02-1715 (La. 12/04/02), 831 So.2d 918, 922. La. Ch. Code art. 1037

provides as follows:

      When the court finds that the alleged grounds set out in any Paragraph
      of Article 1015 are proven by the evidentiary standards required by
      Article 1035 and that it is in the best interest of the child, it shall order
      the termination of the parental rights of the parent against whom the
      allegations are proven. The court shall enter written findings on both
      issues. The consideration of best interests of the child shall include
      consideration of the child’s attachment to his current caretakers.


      Both lower courts found that DCFS had established grounds for termination

of the father’s parental rights under La. Ch. Code art. 1015(4)(b) based on his

abandonment of his daughter, and the father does not directly contest that

determination. DCFS asserts it also established the father failed to substantially

comply with the case plan, as required by La. Ch. Code art. 1015(5), and that the

district court manifestly erred in finding otherwise. We agree that the record does

not support the district court’s finding that DCFS failed to establish this ground for

termination of parental rights.


                                           11
        La. Ch. Code art. 1015(5), relative to failure to complete a case plan goal of

reformation within the time limit provides as follows: “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 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 safe, stable and permanent home.” The record does not support the district

court’s finding that the father has substantially complied with his case plan, and it

made no specific finding, nor could it on this record, that there was a reasonable

expectation of significant improvement in the father’s condition or conduct in the

near future, considering the child’s age and her need for a safe, stable and permanent

home.

        While the father’s participation in treatment and rehabilitation services was

established, the court should have focused on whether he exhibited significant

improvement in the conditions and conduct that caused the state to remove the child

from the father’s care and custody. State in Interest of S.M., 98-0922 (La. 10/20/98),

719 So. 2d 445. Lack of parental compliance with a case plan may be evidenced by

one or more of the following under La. Ch. Code art. 1036, pertaining to proof of

parental misconduct:

        (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.


                                           12
      (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 potential
      potentially harmful conditions.

      The district court manifestly erred in finding substantial compliance with the

case plan, because there is no evidence demonstrating improvement in remedying

the problems preventing reunification and the persistence of conditions that led to

removal or similar potentially harmful conditions. We agree with DCFS that, despite

the father’s laudable efforts toward his case plan goals, such as attending the

substance abuse, parenting, and mental health sessions, the conditions that led to the

removal or similar potentially harmful conditions unfortunately persist, and there is

no basis in this record on which to conclude they will significantly improve in the

near future.

      The case plan required the father to provide a safe and stable home for the

child, but there is no evidence that such a home could be provided by the father in

the near future. The father was advised that the child could not reside with the

father’s adult children who had open DCFS cases of their own. At no time, however,

did the father obtain safe and stable housing prior to the termination hearing,

including at the point that the case plan goal was changed to adoption. The father

was required to maintain housing that was safe and appropriate for himself and his

child. Since the child’s removal in June 2014, the father had been unable to secure

such housing. Although the father leased a suitable home some three months prior

to the termination hearing, the father’s two sons and his daughter-in-law also live in

the home, all whom have open foster care cases with DCFS or have had their parental

rights terminated. The father was made aware by the case worker that he would not

be able to regain custody of his child if he lived with family members who have a


                                         13
history of problems related to child protection. When the father moved into the

home, he did not call the case worker to let her know he obtained housing; instead,

she found out that he had new housing when she called him to schedule a visit.

      The record shows that during the time C.F. has been in foster care, the father

lived with his two sons and daughter-in-law in Westwego or Waggaman. Prior to

that, he lived with his father in Kenner for four to five months, but he did not explain

why he moved from that home. He briefly lived with a female friend for about a

week in Metairie. Before that, he lived with his son Christopher and his daughter-in-

law Christina in Laplace. However, he and his family members were eventually

evicted. Despite being advised that C.F. could not be returned to him if he continued

to live with his adult children, he continued to do so. Indeed, he testified that his sons

have lived with him most of their lives and that he would continue to allow them to

do so, because they were not going anywhere. He also believed the child would

benefit being around her brothers. He testified he needs to have his sons live with

him in order to be able to afford the housing he had at the time of the hearing; in

fact, the case worker testified that one son, and possibly the daughter-in-law, were

signatories to the lease. Troublingly, the father, though he claimed to be close to his

sons, was unaware of the details or circumstances that led to their being the subject

of open DCFS cases. His testimony was contradictory in that, while he claimed he

would not live with the sons if the child were returned to him, he also testified that

they were not going anywhere and he needed their income to enable him to live in

that home. As to the sporadic nature of his housing, the father testified he had lent

someone some money that he did not get back, affecting his ability to obtain housing.

He also testified that it took him a long time to obtain full social security benefits for

himself, another reason for the inability to obtain housing, and that he hoped to get

$402 per month more if C.F. were to come back to live with him. Finally, he testified

                                           14
that he hoped to return to live with C.F. in the Reserve area, where she had

connections with family, friends, school, and church, but he conceded there was no

real prospect for doing so in the immediate future, acknowledging it could be several

years before he could do so.

      La. Ch. Code art. 1036(D)(3) sets forth what may serve as evidence of a lack

of reasonable expectation of significant improvement in the parent’s conduct in the

near future, namely “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.”

Here, there is no reasonable expectation that the father will be able in the near future

to provide adequate support for his child or to provide suitable, safe, and stable

housing, given the child’s age and her need for a safe, stable, and permanent home.

Accordingly, we find the district court manifestly erred in finding either that there

was substantial compliance by the father with his case plan or, to the extent it

considered the matter, that there was any reasonable chance for improvement in the

near future.

      We further find the district court erred in finding that termination was not in

the best interest of C.F. Under La. Ch. Code art. 1001, the purpose of a termination

of parental rights proceeding is to protect children whose parents are unwilling or

unable to provide safety and care adequate to meet their physical, emotional, and

mental health needs. In all proceedings, the primary concern is to secure the best

interest of the child if a ground justifying termination of parental rights is proved.

Termination of parental rights is to be considered the first step toward permanent

placement of the child in a safe and suitable home, and if possible, to achieve the

child’s adoption.



                                          15
      The interests of the parent must be balanced against the child’s interest, but

the child’s interest is paramount. State ex rel. J.A., 752 So.2d at 811. More than

simply protecting parental rights, our judicial system must protect the child’s right

to thrive and survive. State in Interest of S.M., 719 So.2d. at 452. A child has an

interest in the termination of rights that prevent adoption and inhibit the child’s

establishment of secure, stable, long term, continuous family relationships. Id. While

the interest of a parent is protected in a termination proceeding by enforcing

procedural rules enacted to insure that the parental rights are not thoughtlessly

severed, those interests must ultimately yield to the paramount interest of the child.

Id. Children have a right to live in a safe, secure environment and to be reared by

someone who is capable of caring for them. State ex rel. J.M., 837 So.2d at 1247.

      In our view, the district court focused on the lack of any allegations of abuse

by the father and fairness to the father, rather than the best interest of the child. The

record evidences the district court was clearly wrong in finding that termination of

the father’s parental rights was not in the best interest of C.F. C.F.’s caregiver is

committed to adopting her, and the caseworker testified it would be in the best

interest of the child to be freed for adoption. The child has indicated consistently to

the caseworker that she wants to live with the current caretaker and be adopted by

her, but has never expressed any desire to live with her father. The father conceded

that his daughter is in a safe place and is being well cared for. Although she has

experienced some recent behavioral issues, the child is undergoing treatment for

trauma over the loss of her mother and for depression. Although the father suggests

this depression may be due to loss of his presence in her life, there was no testimony

that C.F.’s behavioral issues were due to her father’s absence.

      The district court noted that it may decline to terminate parental rights in an

exceptional case, even after proof of a ground for termination. However, we do not

                                           16
find the record supports a finding that this case is exceptional. The child is happy in

her foster placement, does not want to be placed in another home, and wants to be

adopted. As the district court acknowledged, by leaving the child with the current

caretaker, the child is in a home where all of her needs are met and whose caretaker

is desirous of adopting her. That the child might need additional counseling for the

loss of her mother does not support a finding that it is in the child’s best interest to

not free her for adoption, especially where she is in an adoptive home and does not

want to leave. The child’s attachment to her current caretaker is a specific

consideration in determining the best interests of the child. La. Ch. Code art.

1037(B).

      Finally, as we explained earlier, there is no support in this record that the

father will be able to provide a safe and stable home for the child in the immediate

future. After twenty-seven months of reasonable efforts and services from the state,

the record does not support a finding that the father has made substantial

improvement in rectifying the problems preventing reunification. Where there is no

reasonable expectation of reuniting the child with her parent, allowing the child to

remain in foster care indefinitely, as the district court essentially does here, runs

afoul of the state and federal mandates to further the best interests of the child. State

ex rel. J.M., 02-2089, p. 9 (La. 1/28/03), 837 So.2d 1247, 1257. While adults can

take years to improve their functioning, children are not granted the same amount of

time, and their lives are significantly disrupted while the parents are attempting to

deal with their own problems. State in the Interest of M.P., 538 So.2d 1112 (La. App.

4th Cir. 1989). Accordingly, for these reasons, we find the district court was clearly

wrong in determining that termination of the father’s parental rights and freeing the

child for adoption was not in the best interest of C.F.



                                           17
CONCLUSION

      For the reasons set forth above, we find DCFS met its burden of proving

abandonment pursuant to La. Ch. Code art. 1015(4) by clear and convincing

evidence. We also find DCFS proved by clear and convincing evidence that the

father failed to comply with the case plan pursuant to La Ch. Code art. 1015(5), and

that there was no reasonable expectation of significant improvement in the father’s

condition or conduct in the near future, considering C.F.’s age and her need for a

safe, stable, and permanent home. The district court manifestly erred in finding

otherwise. We further find the record clearly established that it was in C.F.’s best

interest to terminate the father’s parental rights, and to allow the child to be free for

adoption. The district court was clearly wrong in concluding otherwise.

Accordingly, we reverse the district court’s judgment and grant DCFS’s petition to

terminate the father’s parental rights.

REVERSED




                                           18
12/06/17



                      SUPREME COURT OF LOUISIANA

                                 No. 2017-CJ-1054

            STATE OF LOUISIANA IN THE INTEREST OF C.F.


        ON WRIT OF CERTIORARI TO THE COURT OF APPEAL,
               FIFTH CIRCUIT, PARISH OF ST. JOHN


JOHNSON, Chief Justice, additionally concurs and assigns reasons.

      While I agree in full with the majority opinion, I write separately to emphasize

that both the federal government and the State of Louisiana do not intend for children

to remain in foster care permanently, and the safety of children is paramount in

making decisions about custody. See Adoption and Safe Families Act of 1997, 42

U.S.C.A. 601, et seq; La. Ch. C. art. 601. Pursuant to the Adoption and Safe Families

Act of 1997, states are mandated to establish “permanency plans” for children within

the foster care system. The Act provides that such plans must demonstrate, inter alia,

that the State make reasonable efforts to “preserve and reunify” the family. If such

measures fail, the State is mandated to make reasonable efforts to place a child for

adoption or with a legal guardian. See State ex rel. J.M., 02-2089 (La. 1/28/03), 837

So. 2d 1247, 1256. This court has recognized that “[a]lthough our primary goal is to

reunite the family, termination is appropriate to free the child for adoption if

reunification is not possible. ‘Forcing children to remain in foster care indefinitely,

when there is no hope of reuniting them with their families, runs afoul of the state

and federal mandates to further the best interests of the child.’” Id. at 1256–57. In

this case, C.F. has remained in foster care for more than three years. She is placed in

a home where all of her needs are being met. She is placed with caregivers who want

to adopt her and she wants to be adopted by them.

                                          1
      I agree with the majority that considering the best interests of the child

requires this court to terminate C.F. Jr.’s parental rights. While I recognize this father

made some efforts toward his case plan goals, those efforts were not sufficient to

regain custody of his daughter. The fact remains that there has been no improvement

in the father’s situation, and the conditions that led to C.F.’s removal persist. Most

notable in my view is his failure to provide safe and suitable housing at any point

during this case. While the physical condition of the housing he obtained in June of

2016 may be adequate for him, the father’s two sons and his daughter-in-law also

live in the home, all of whom have open foster care cases or have had their parental

rights terminated. This court certainly cannot return custody to the father while he

lives in a home with his sons, whose own children cannot safely live with them.

      The purpose of a termination of parental rights proceeding is to “protect

children whose parents are unwilling or unable to provide safety and care adequate

to meet their physical, emotional, and mental health needs, by providing a judicial

process for the termination of all parental rights and responsibilities and for the

certification of the child for adoption.” La. Ch. Code art. 1001. In this case, we do

not question the father’s love for C.F. We recognize a bond exists between them and

that C.F. Jr. desires a continued relationship with his daughter. However, the

overriding concern must be the best interests of C.F. The record does not establish

that the father’s circumstances have materially changed to demonstrate that it would

now be in the best interests of C.F. for the father to retain his parental rights. This

court cannot ignore the fact that the father has demonstrated an inability to care for

his daughter. “Children have the right to live in a safe, secure environment and to be

reared by someone who is capable of caring for them.” State ex rel. J.M., 837 So. 2d

at 1256. In this case, despite his efforts, I find the father is incapable of meeting the

needs of his daughter and his parental rights must be terminated.

                                            2
12/06/17

                      SUPREME COURT OF LOUISIANA


                                  No. 2017-CJ-1054

             STATE OF LOUISIANA IN THE INTEREST OF C.F.

    ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, FIFTH
                 CIRCUIT, PARISH OF ST. JOHN



HUGHES, J., dissents with reasons.

      Respectfully, I would defer to the judgment of the trial judge, who is in the

best position to evaluate these difficult cases.
