                         Supreme Court of Louisiana
FOR IMMEDIATE NEWS RELEASE                                         NEWS RELEASE #005


FROM: CLERK OF SUPREME COURT OF LOUISIANA



The Opinions handed down on the 30th day of January, 2019, are as follows:



PER CURIAM:

2018-KK-0711      STATE OF LOUISIANA v. MELVIN MIGUEL (Parish of Orleans)

                  Finding that the totality of the circumstances present here gave
                  the detective probable cause to believe the prescription bottle
                  contained contraband, we find the plain view exception to the
                  warrant requirement applies. Accordingly, we reverse the court of
                  appeal, reinstate the district court’s ruling that denied
                  defendant’s motion to suppress the evidence, and remand to the
                  district court for further proceedings.

                  REVERSED AND REMANDED

                  JOHNSON, C.J., dissents and assigns reasons.
                  GENOVESE, J., dissents for the reasons assigned by the court of
                  appeal and for the reasons assigned by Chief Justice Johnson.
01/30/19


                       SUPREME COURT OF LOUISIANA

                                  No. 2018-KK-0711

                              STATE OF LOUISIANA

                                      VERSUS

                                  MELVIN MIGUEL

        ON WRIT OF CERTIORARI TO THE COURT OF APPEAL,
             FOURTH CIRCUIT, PARISH OF ORLEANS


PER CURIAM

       Defendant was the driver of a vehicle that was stopped because it had a

cracked windshield. Defendant was driving with a suspended driver’s license and a

fraudulent license plate. In addition, defendant admitted he had been smoking

marijuana. Before asking defendant to exit his vehicle, a detective scanned the

interior and noticed an orange prescription bottle, with the name on the label

peeled off, sitting in the broken driver’s side door handle. Defendant and his

passengers disclaimed ownership of the bottle.

       Defendant exited the vehicle, was handcuffed and Mirandized, and placed

inside a police vehicle. The detective then retrieved the pill bottle, opened it, and

discovered five Hydrocodone pills. Defendant was arrested and charged with

possession of a controlled dangerous substance, La.R.S. 40:967. He was also cited

for several traffic violations.

      Defendant moved to suppress the evidence on several grounds, including

that the pill bottle was not immediately apparent as contraband to justify a

warrantless search and seizure. The district court denied the motion to suppress

after conducting a hearing and reviewing the detective’s body camera video. The

court of appeal found the district court erred in denying defendant’s motion to
suppress. State v. Miguel, 18-0233 (La. App. 4 Cir. 4/26/18) (on reh’g) (unpub’d).

Relying on State v. Meichel, 290 So.2d 878 (La. 1974), the majority found the

plain view exception did not apply because the incriminating character of the bottle

was not immediately apparent. The court of appeal erred.

      The plain view doctrine renders a warrantless search reasonable: (1) if the

police officer is lawfully in the place from which he views the object; (2) where the

object’s incriminating character is immediately apparent; and (3) the officer has a

lawful right of access to the object. State v. Gray, 13-1326, p. 2 (La. 6/28/13), 122

So.3d 531, 533 (citing Horton v. California, 496 U.S. 128, 110 S.Ct. 2301, 110

L.Ed.2d 112 (1990)). The only controversy in the present case is whether the

prescription bottle’s incriminating character was immediately apparent.

      The “immediately apparent” aspect of the plain view exception is better

stated as probable cause to believe the item in question is or contains contraband,

as clarified in Texas v. Brown, 460 U.S. 730, 103 S.Ct. 1535, 75 L.Ed.2d 502

(1983). In Brown, the United States Supreme Court stated, “Decisions by this

Court since [Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d

564 (1971)] indicate that the use of the phrase ‘immediately apparent’ was very

likely an unhappy choice of words, since it can be taken to imply that an unduly

high degree of certainty as to the incriminatory character of evidence is necessary

for an application of the ‘plain view’ doctrine.” Id., 460 U.S. 741, 103 S.Ct. at

1543. In the present case, the court of appeal similarly required an unduly high

degree of certainty—beyond probable cause—as to the incriminatory character of

the evidence.

      Regarding probable cause in the context of the plain view exception, the

United States Supreme Court stated in Brown:

                                         2
      [P]robable cause is a flexible, common-sense standard. It merely
      requires that the facts available to the officer would “warrant a man of
      reasonable caution in the belief,” Carroll v. United States, 267 U.S.
      132, 162, 45 S.Ct. 280, 288, 69 L.Ed. 543 (1925), that certain items
      may be contraband or stolen property or useful as evidence of a crime;
      it does not demand any showing that such a belief be correct or more
      likely true than false. A “practical, nontechnical” probability that
      incriminating evidence is involved is all that is required. Brinegar v.
      United States, 338 U.S. 160, 176, 69 S.Ct. 1302, 1311, 93 L.Ed. 1879
      (1949). Moreover, our observation in United States v. Cortez, 449
      U.S. 411, 418, 101 S.Ct. 690, 695, 66 L.Ed.2d 621 (1981), regarding
      “particularized suspicion,” is equally applicable to the probable cause
      requirement:

            “The process does not deal with hard certainties, but with
            probabilities. Long before the law of probabilities was
            articulated as such, practical people formulated certain
            common-sense conclusions about human behavior; jurors
            as factfinders are permitted to do the same—and so are
            law enforcement officers. Finally, the evidence thus
            collected must be seen and weighed not in terms of
            library analysis by scholars, but as understood by those
            versed in the field of law enforcement.”

Brown, 460 U.S. at 742, 103 S.Ct. at 1543.

      During oral argument, defendant contended that the fact that the name was

torn from the label alone was insufficient to give the detective probable cause to

believe the bottle contained contraband. That circumstance did not appear in

isolation, however. The officer was also aware that defendant was driving with a

suspended driver’s license, the vehicle had a fraudulent license plate, defendant

and his passengers disclaimed ownership of the bottle, and defendant admitted he

recently smoked marijuana (while claiming he consumed it all and thus implying

none would be found in the vehicle). These circumstances, in conjunction with the

suspiciously torn label, when weighed by an experienced law enforcement officer,

provided probable cause to believe the prescription bottle contained contraband.

      Defendant cites State v. Meichel, 290 So.2d 878 (La. 1974) as being directly

applicable and requiring suppression of the evidence. In Meichel, a town marshal

                                         3
approached the defendant’s vehicle as he was having car trouble. According to the

marshal, he observed a pill bottle on the passenger’s seat. The bottle of pills in

question was labeled as being habit forming and that dispensing without a

prescription was prohibited. Two sheriff’s deputies subsequently arrived and

searched the trunk, where they found marijuana. The state argued that the plain

view seizure of the pills established probable cause for a search of the automobile,

but this court disagreed:

          In the instant case the testimony of the officer making the seizure is
          clearly to the effect that he did not know the nature of the pills until
          after he had picked up the bottle and examined it. He did not know at
          the time he saw the pills that there was a probability that they were
          contraband and probably evidence. This seizure does not fall within
          the plain view exception to the warrant requirement. As such the
          seizure violated defendant’s constitutional rights and was illegal.

Meichel, 290 So.2d at 880. In Meichel, however, there were not the additional

circumstances, present here, to justify the seizure and subsequent search of the pill

bottle.

          Finding that the totality of the circumstances present here gave the detective

probable cause to believe the prescription bottle contained contraband, we find the

plain view exception to the warrant requirement applies. Accordingly, we reverse

the court of appeal, reinstate the district court’s ruling that denied defendant’s

motion to suppress the evidence, and remand to the district court for further

proceedings.

REVERSED AND REMANDED




                                             4
01/30/19



                      SUPREME COURT OF LOUISIANA

                                 No. 2018-CJ-1271

    STATE OF LOUISIANA IN THE INTEREST OF A.L.D. AND L.S.D.

        ON WRIT OF CERTIORARI TO THE COURT OF APPEAL,
               SECOND CIRCUIT, PARISH OF CADDO


JOHNSON, Chief Justice

      We granted a writ in this termination of parental rights case to determine if the

court of appeal erred in reversing a district court judgment terminating the parental

rights of the father, C.K.D. After reviewing the record and the applicable law, we find

no manifest error in the district court’s ruling that termination was supported by clear

and convincing evidence and that termination was in the best interests of the children.

Thus, we reverse the ruling of the court of appeal and reinstate the district court’s

judgment, terminating C.K.D.’s parental rights as to A.L.D. and L.S.D. pursuant to

Louisiana Children’s Code article 1015(6).

                    FACTS AND PROCEDURAL HISTORY

      On or about May 4, 2016, the minor child A.L.D. was removed from the care

of his mother, N.M.L., and his father, C.K.D. On May 31, 2016, the Department of

Children and Family Services for the State of Louisiana (“DCFS”) filed a petition

alleging that A.L.D. was a child in need of care (“CINC”). During the course of the

investigation, one-year-old A.L.D. tested positive for methamphetamines. On June

10, 2016, N.M.L. gave birth to L.S.D., also C.K.D.’s child. At the CINC trial on July

13, 2016, the parents stipulated that A.L.D. was in need of care. The parents were

drug-tested, and both tested positive for methamphetamines. L.S.D., a one-month-old



                                           1
infant at the time, also tested positive for methamphetamines. On August 23, 2016,

DCFS filed a petition regarding L.S.D., and that child was also adjudicated CINC.1

       DCFS developed a case plan for the parents, which was approved by the

district court. As it relates to C.K.D., the plan required him, among other things, to

remain drug free, maintain a safe and stable home that met the basic needs of his

children, complete random drug screens, and obtain a legal source of income to

support his children. The plan was amended to require that C.K.D. complete

parenting classes, anger management, and mental health counseling and to pay

$25/month per child to DCFS for the support of his children.

       DCFS initially placed the children with C.K.D.’s mother, D.D. In May 2017,

DCFS received reports that C.K.D. was improperly living with D.D., and that D.D.

was possibly using drugs while caring for the children. C.K.D., D.D., and both

children tested positive for drugs. As a result, DCFS removed the children from

D.D.’s home and placed them in non-relative foster care with G.B.

       DCFS filed a petition to terminate both parents’ parental rights on October 9,

2017. As to C.K.D., the petition alleged he struggled to comply with the requirements

of his court-approved case plan. Specifically, DCFS alleged that although he

participated in Active Recovery and received a certificate of completion for Phase I

of substance abuse treatment in November 2016, he tested positive for cocaine and

methamphetamines in December 2016. DCFS asserted he continued to test positive

for those substances and marijuana in May 2017, and that he struggled to maintain

compliance with treatment for substance abuse or mental health counseling despite

       1
         N.M.L. has three additional children, G.P., A.P., and, T.P., who were removed from the
home as well. G.P. and A.P. are the children of T.P., who at the time of these proceedings was
serving sentences in the Louisiana State Penitentiary for one count of indecent behavior with
juveniles, one count of molestation of a juvenile under the age of 13, and one count of pornography
involving juveniles. The third child, T.P., was initially a part of these proceedings, but was later
determined to be the biological child of another man, and DCFS’s custody to that child was vacated
on October 20, 2016.

                                                 2
some initial success. DCFS further alleged that C.K.D. had not maintained a safe and

stable home that could support the return of his children, and he has not maintained

contact with the agency. The petition also alleged C.K.D. failed to pay $25 per child

per month in contributions to the care of his children as required by his case plan and

that he had no contact with the children since May 2017.

       N.M.L. filed a motion to grant guardianship to her uncle, D.L., and the matters

were consolidated for a December 11, 2017, trial. During a two-day trial, the district

court heard testimony and considered evidence on both issues, took judicial notice of

the non-hearsay portions of the CINC proceedings, and ultimately entered judgment

terminating both N.M.L.’s and C.K.D.’s parental rights as to A.L.D. and L.S.D.2

N.M.L.’s motion to grant guardianship to D.L. was denied, presumably as moot.3 The

district court stated that C.K.D.’s parental rights were terminated pursuant to La. Ch.

C. art. 1015(6). C.K.D. filed a motion for new trial, which was denied. C.K.D.

appealed the judgment.4

       The court of appeal reversed the termination of C.K.D.’s parental rights and

remanded the case to the district court for further proceedings, ordering that DCFS

maintain custody of the children, the CINC proceeding be reinstated, and the children

remain placed with their great-uncle, D.L.5 State in Interest of A.L.D., 52,239 (La.

App. 2 Cir. 6/27/18), 251 So. 3d 554 (2018). The court of appeal concluded that

DCFS did not meet its burden of proving the elements required for termination under

La. Ch. C. art. 1015(6) by clear and convincing evidence. The court reasoned that

       2
        The district court also terminated N.M.L.’s parental rights as to her other children in the
same proceeding.
       3
          Although an order denying the motion for guardianship does not appear in the record, the
parties all agree that the motion was denied.
       4
           Neither N.M.L. nor the children appealed the judgment.
       5
        According to all parties, D.L. was certified as a foster parent post-trial and DCFS
subsequently placed the children with him.

                                                 3
C.K.D. sufficiently demonstrated “substantial parental compliance” with the case plan

and found there was not clear and convincing evidence at trial to indicate there was

no reasonable expectation of significant improvement in C.K.D.’s condition or

conduct in the near future, particularly considering the short length of time between

the time the petition for termination was filed and the trial. Id. at 560-61. The court

of appeal also noted that although the children did not appeal the termination, their

appellate counsel appeared and argued that the district court was manifestly erroneous

in its judgment and that the children are bonded with their father, who has made

strides towards preserving the parent-child relationship and it was the position of the

children’s appellate counsel that termination was premature and not in their best

interests. Id. at 561.

       DCFS filed a writ application in this court, which we granted. State in Interest

of A.L.D., 18-1271 (La. 9/21/18), 252 So. 3d 490.

                                    DISCUSSION

       Permanent termination of the legal relationship existing between natural

parents and children is one of the most drastic actions the state can take against its

citizens. However, the primary concern of the courts and the state remains to

determine and insure the best interest of the child, which includes termination of

parental rights if justifiable statutory grounds exist and are proven by the state. State

ex rel. J.M., 02-2089 (La. 1/28/03), 837 So. 2d 1247, 1254. Louisiana Children’s

Code article 1015 sets forth the grounds for which parental rights may be terminated.

To terminate parental rights, the state has the burden of proving one of the statutory

grounds for termination by clear and convincing evidence. La. Ch. C. art. 1035(A).

“‘Clear and convincing’ evidence requires more than a ‘preponderance,’ but less than

‘beyond a reasonable doubt.’ Under the ‘clear and convincing’ standard, the existence



                                           4
of the disputed fact must be highly probable or much more probable than its

nonexistence.” In re L.M.M., Jr., 17-1988 (La. 6/27/18), -- So. 3d --, n. 13 (internal

citation removed). If a ground for termination is found, the district court must then

determine whether the termination is in the best interest of the child. La. Ch. C. art.

1039; State ex rel. L.B. v. G.B.B., 02-1715 (La. 12/4/02), 831 So. 2d 918, 922.

      The district court terminated C.K.D.’s parental rights on the basis of Article

1015(6), which provides:

      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.

Thus, under this Article, DCFS had to prove three elements: (1) it had been one year

since the children had been removed; (2) C.K.D. had not substantially complied with

the case plan for services; and, (3) there is no reasonable expectation of significant

improvement in C.K.D.’s condition or conduct in the near future. The dispute in this

case centers on elements two and three.

Lack of Substantial Compliance with Case Plan

      Children’s Code article 1036 provides that lack of parental compliance with a

case plan under Article 1015(6), 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


                                          5
      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.

      (8)(a) The parent’s failure to provide a negative test result for all
      synthetic or other controlled dangerous substances, except for any drug
      for which the parent has lawfully received a prescription, at the
      completion of a reasonable case plan.

      (b) For purposes of this Article, “controlled dangerous substance” shall
      have the meaning ascribed in R.S. 40:961.

At trial, Tiffany Allen from DCFS testified she is the case manager assigned to this

case. Although she had personally only been involved in the case since April 2017,

she had reviewed and was familiar with all agency records and information

concerning the parents. Regarding C.K.D.’s case plan compliance, she testified he

had submitted to random drug tests, but no extended period of sobriety had been

exhibited. She had no contact with C.K.D. from the end of May 2017 until October

2017. During that time, C.K.D. did not see his children. She attempted to visit

C.K.D.’s home more than once, but was unable to find him there. She testified the

house appeared abandoned with a lot of debris and trash in the yard, and her

photographs of the exterior of the home were introduced into evidence. She has never

been able to access the interior of C.K.D.’s home. Ms. Allen further testified that

consistency with mental health treatment has been an issue, and that pattern had not

changed as of the time of trial. Additionally, C.K.D. had not made the required

contributions to his children’s care. Ms. Allen verified that the most significant

problem in this case has been substance abuse and whether sobriety was being

maintained. In sum, she testified C.K.D. had complied with the parts of the case plan


                                          6
requiring him to obtain a legal source of income, receive counseling, and comply with

random drug testing. However, she testified C.K.D. had not been compliant with

parental contributions, maintaining a secure and safe home, and he was still

struggling with substance abuse issues.

       C.K.D. also testified at trial. He explained that he had been working for

Valvoline for two weeks, although he was previously working for Roshdoe

Foundation Repair for 7 months prior.6 He admitted that he has used drugs on and off

for the last 20 years (since he was 18 years old) and his longest period of sobriety has

been 19 months. C.K.D. testified that he completed Phase 1 of Active Recovery

substance abuse treatment in November 2016, but admitted he relapsed in February

2017. After he tested positive for drugs in May 2017, he cut off contact with DCFS

and his children for fear he would be arrested for drug use. He did not begin to

participate in program services again until the end of October 2017. C.K.D. admitted

he had not paid the required contribution for the care of his children, but testified he

did contribute to their support during the time they were placed with his mother.

C.K.D. conceded that he was living with his mother in May 2017 when the children

were placed there, and that the children tested positive for drugs during this time. He

stated he “caused contamination probably.” He admitted that he had not completed

all components of the case plan and needed 3-6 months to complete it. He further

admitted that he had not maintained a stable home environment for six months,

claiming that what DCFS would consider a stable home and what he considered

livable are two different things. C.K.D. had some difficulty explaining the condition

of the house, but described it as outdated and cluttered. He stated the house is a

family home that originally belonged to his grandmother, and is now owned by his


       6
       C.K.D. explained it was his understanding from the court that his IRS 1099 reported income
from Roshdoe was not sufficient and he needed to obtain employment with reported W-2 income.

                                               7
mother. He testified the house had issues from being unlevel, some of which he

claimed had been repaired. He testified the living room was “like a storage unit” and

stacked with boxes. He admitted there was a lot of furniture outside on the side of the

house. He claimed the house was livable, but not up to DCFS standards, and that it

was 90% complete. C.K.D. testified he had been living in the house for five months

at the time of trial, but that the house had been abandoned since 2013. He additionally

testified that if the house was deemed unfit by DCFS, he would obtain an apartment.

C.K.D. testified he was currently enrolled in Active Recovery for substance abuse

treatment, parenting classes and anger management classes. He claimed he had not

used drugs since June 2017.

      C.K.D. also introduced into evidence a letter from Active Recovery dated

12/5/17 confirming he was currently enrolled in intensive outpatient substance abuse,

parenting, and anger management programs, and that he was attending consistently

and participating in a productive manner. The letter stated that C.K.D. was assessed

for the program on 10/30/17, and as of 12/5/17 he had completed 14 of 24 substance

abuse counseling sessions, 4 of 10 parenting sessions and 5 of 10 anger management

sessions.

      The state introduced C.K.D.’s drug screening results from Company Clinic of

Louisiana, reflecting the following:

      •      7/13/16: hair specimen positive              for    amphetamine,
             methamphetamine and marijuana

      •      7/13/16: urine sample positive for amphetamine,
             methamphetamine, benzodiazepines and marijuana

      •      12/29/16: urine sample positive              for    amphetamine,
             methamphetamine and cocaine

      •      12/29/16: hair specimen positive for amphetamine,
             methamphetamine, benzoylecgonine and cocaine



                                          8
      •      5/18/17:  h a i r t e s t p o s i t i v e f o r a mp h e t a mi n e ,
             methamphetamine, benzoylecgonine, cocaine, and marijuana

      •      5/18/17: urine sample positive for                   amphetamine,
             methamphetamine, cocaine, and marijuana

      •      10/19/17:    urine test negative

      •      11/17/17:    hair test positive for cocaine

      •      11/17/17:    urine test negative

      Following the close of evidence and after hearing argument from counsel, the

district court issued a verbal ruling terminating C.K.D.’s parental rights:

      The Court:          The Court in this case does find that the evidence
                          warrants a termination of parental rights as to each
                          of the … children as to each of the parents. The state
                          has established by clear and convincing evidence
                          that the state is entitled to termination of [N.M.L’s]
                          rights and [C.K.D.’s] rights and the children’s
                          reciprocal rights to their parents.

                          And the Court also finds particularly that
                          termination of the parental rights in respect to
                          [A.L.D. and L.S.D.] is in each of those children’s
                          best interest.

                          ***

      [C.K.D.’s attorney]:Your Honor, can you specify which grounds?

      The Court:          I can. *** With respect to the father, it is under
                          1015(6).

                          ***

      [DCFS attorney]: Your Honor, do the children remain in the custody
                       of DCFS?

      The Court:          They are continued in the custody of the department
                          with no recommendations as to placement. I’m
                          leaving that in the department’s discretion. ***

The district court did not provide written reasons for its ruling.

      In reversing the district court’s ruling, the court of appeal noted the “lack of

precise reasoning” by the district court. As to whether C.K.D. had “substantially


                                           9
complied” with the case plan, the court of appeal stated:

       Regarding C.K.D.’s “substantial” compliance with his case plan,
       probably the most serious aspect would be his substance abuse.
       …C.K.D. testified that he completed “phase one” on Active Recovery
       regarding his substance abuse. At the time of the hearing, he was back
       at Active Recovery as an outpatient receiving services for parenting,
       anger management, and substance abuse. A DCFS case worker also
       testified that C.K.D. was compliant with her requests for random drug
       tests, a specific component of his case plan. While C.K.D.’s condition
       is of great concern, we do not believe the trial court gave enough
       emphasis to the progress C.K.D. has made toward being drug-free,
       particularly his “substantial” compliance. Clearly, C.K.D. has not
       disregarded the issue. In taking random drug screens and pursuing
       consistent substance abuse treatment, C.K.D. is exhibiting substantial
       effort to overcome his habit and substantially comply with his case plan.
       As to providing a home for the children, it is evident that the house
       appeared in disarray and disrepair when a DCFS case worker visited.
       However, the house has belonged to his family for some time, which
       weighs in his favor, and he has stated he knows it must be improved.
       AgainShe made an effort forward in this regard and has not totally
       disregarded the case plan’s requirements. Some consideration should be
       made for an attempt to comply, especially where such a drastic action is
       in consideration. Finally, he had worked seven months for a house
       foundation repair company, but had recently secured permanent
       employment, which he expressed was the desire of the court. All of
       these actions, although admittedly not perfect adherence, were in
       furtherance of his case plan and show an attempt to comply. Notably, the
       statute does not require “perfect parental compliance,” but “substantial
       parental compliance.”

A.L.D., 251 So. 3d at 560-61.

       In this court, DCFS argues the record supports the district court’s ruling and

it is clear C.K.D.’s compliance with the case plan was still an issue at the time of trial.

The district court was actively engaged at trial and heard all the witnesses and was

given an opportunity to weigh their testimony, and the court of appeal erred by

reinterpreting the evidence and engaging in a de novo review. DCFS points out

C.K.D.’s long-term drug use and limited periods of sobriety, as well as his continued

positive drug screens. DCFS argues that although C.K.D. denied drug use after June

2017, he offered no evidence to contradict his positive drug screen for cocaine in

November 2017. Further, C.K.D. has failed to provide adequate housing for the


                                            10
children. Although he claimed to have a home, C.K.D. offered no evidence to

demonstrate when, if ever, it would be appropriate for the children. Ms. Allen was

never allowed to view the inside of the home, and could not determine whether

C.K.D. actually resided in the home because it appeared abandoned from the outside.

DCFS argues C.K.D. has never paid the nominal contributions to the care of his

children as required by his case plan, despite the fact that he has purportedly obtained

employment. And, C.K.D. admitted that he had no contact with the children from

May 2017 until sometime in October 2017, after the termination of parental rights

petition was filed. DCFS argues any one of these failures supports the district court’s

determination that there had been a lack of parental compliance pursuant to Article

1036(C).

      By contrast, C.K.D. argues the record and law supports the court of appeal’s

decision. He argues that he has complied with several aspects of his case plan, which

in the totality of circumstances, amounts to “substantial parental compliance” on his

part. C.K.D. notes the district court did not order nominal contributions for the costs

of the children’s foster care until late October 2017. Thus, by the time of trial he had

missed only one court-ordered payment (i.e., his $50 payment for November 2017).

Further, C.K.D. cites to his trial testimony that he had nearly completed the

renovations on his family home needed to meet DCFS’s standards, and also indicated

his willingness to move into an apartment if needed. Further, the evidence showed he

substantially complied with several other aspects of his case plan: he maintained

gainful employment throughout the case; he was complying with random drug

screens; he completed a substance abuse program and re-enrolled after relapse; and

he was complying with newly added provisions of his plan requiring parenting

classes, anger management, and mental health counseling. While the court of appeal



                                          11
noted some evidence of “lack of parental compliance,” C.K.D. argues it correctly

pointed out that the plain language of Article 1015(6) requires “substantial”

compliance, not “perfect” parental compliance.

      An appellate court reviews a district court’s findings as to whether parental

rights should be terminated according to the manifest error standard. State ex rel. K.G.

and T.G., 02-2886 (La. 3/18/03), 841 So. 2d 759, 762. Based on our review of the

record, we conclude that the state satisfied its burden of proving that C.K.D. has not

substantially complied with the case plan. Although C.K.D. made some efforts toward

his case plan goals, we do not find those efforts sufficient to regain custody of his

children. The conditions that led to removal of the children have not been remedied.

See State In Interest of C.F., 17-1054 (La. 12/6/17), 235 So. 3d 1066, 1073.

      Unquestionably the primary condition that led to the children’s removal in this

case was parental substance abuse. Both parents tested positive for drugs at the time

the children were removed. Even more troubling is the fact that both children tested

positive for drugs. After the children were removed, C.K.D. had a positive drug

screen in July 2016 in conjunction with the CINC trial. Despite the case plan

requiring sobriety, C.K.D. continued to have positive drug screens in December 2016,

May 2017 and November 2017. At trial in December 2017, C.K.D. testified he had

not used drugs since June 2017, and that he was currently participating in substance

abuse treatment. However, there was evidence of a positive hair follicle drug screen

in November 2017 wherein C.K.D. tested positive for cocaine. Although C.K.D.

testified he understood he would “test dirty” for three months after drug use, he

presented no evidence at trial to explain the positive hair follicle test in November

2017Sfive months after his last admitted drug use. Based on our review of the record,

we find the state proved by clear and convincing evidence that C.K.D.’s substance



                                          12
abuse issues remain.

      The record also supports a finding that C.K.D. has failed to substantially

comply with his case plan requirement to provide adequate housing for the children.

DCFS presented evidence that the house appeared abandoned and was in a state of

disrepair, and that Ms. Allen was never able to gain access to the interior of the home.

Other than his own self-serving testimony that renovations to the house were 90%

complete to meeting DCFS’s standards, C.K.D. presented no other testimony or

photographs to demonstrate the condition of the house.

      Finally, we find the state met its burden of proving C.K.D. failed to

substantially comply with the case plan requirement to provide support to his

children. Although C.K.D. claimed at trial he contributed to the care of his children

during the time they were placed with his mother, he admitted that he had not paid the

required support to the state after the children were placed in foster care. In brief

before this court, C.K.D. attempts to minimize this failure by explaining the payment

requirement was not added to the case plan until October 2017, and thus he had only

missed one such payment at the time of trial. We decline to place much value on that

argument. It is worth noting that during oral argument before this court in December

2018, counsel for C.K.D. admitted that C.K.D. had still not made a single required

payment under the plan.

      In sum, the children were removed from their parents’ care in May and July

2016. Although C.K.D. initially participated in substance abuse treatment and

completed the first phase in November 2016, he admitted to relapse in February 2017.

C.K.D. took no action on his case plan from May 2017 until October 2017She did not

participate in services; he did not visit his children; he made no efforts to provide

financial contributions to their care; and he cut off all contact with DCFS. Although



                                          13
C.K.D. demonstrated he was participating in substance abuse treatment, parenting

classes, and anger management classes at the time of trial in December 2017, he did

not enroll in these programs until the end of October 2017. And, C.K.D. still had a

positive drug screen in November 2017. Further, the clear and convincing evidence

at trial proved C.K.D. has been unable to provide adequate housing for the children.

The fact remains that C.K.D. has not substantially complied with his case plan and

the conditions that led to the children’s removal persist.

No Reasonable Expectation of Significant Improvement in the Near Future

      Children’s Code article 1036(D) provides that under Article 1015(6), 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.
                                          ***
      (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.

The court of appeal found there was not clear and convincing evidence at trial to

indicate that there was no reasonable expectation of significant improvement in

C.K.D.’s condition or conduct in the near future. A.L.D., 251 So. 3d at 561. In so

ruling, the court of appeal specifically noted “there was no expert testimony offered

by the state tending to show C.K.D. has no possibility of improvement,” and further

stated that “with no articulated specific reasons by the district court on this issue, we

must determine its conclusion was manifestly erroneous.” Id. The court focused on

the “short period of time” the proceedings had been ongoing, and pointed out

C.K.D.’s efforts to obtain more reliable employment, to attain secure housing for the


                                           14
children, and that he appeared to be working on his substance abuse problem. The

court of appeal found C.K.D.’s efforts were “more positive in nature and tend to show

a more positive trend than negative,” and found it more reasonable than not that he

would make significant improvement in the future. Id.

      DCFS asserts the court of appeal erred in concluding the state had failed to

establish a lack of reasonable expectation of significant improvement in C.K.D.’s

condition or conduct in the near future. Contrary to the court of appeal’s apparent

suggestion that the state needed to produce expert testimony to show C.K.D. had no

possibility of improvement, DCFS argues that the plain language of Article 1036(D)

permits the state to establish a lack of any reasonable expectation of significant

improvement in the near future through either expert testimony or an established

pattern of behavior. DCFS points out C.K.D.’s long history of drug use and limited

periods of sobriety, and details his continued drug use during the course of these

proceedings. At trial, C.K.D. denied drug use between July and December 2017, but

offered no evidence to explain his positive drug screen in November 2017. Both

children tested positive for drugs while in C.K.D.’s care. C.K.D. absented himself

from the children’s lives between May 2017 and October 2017. DCFS argues this is

the established pattern of C.K.D.’s behavior and conduct. He may “work on things”

but he never accomplishes a change in his situation or behavior. He still uses drugs

and still has no safe home for the children.

      C.K.D. argues the court of appeal correctly applied the manifest error standard

to conclude that DCFS failed to prove by clear and convincing evidence that there

was no reasonable expectation of improvement in his condition or conduct in the near

future. C.K.D. argues the evidence shows he was addressing his substance abuse

issues; he had recently secured stable employment with a reportable income; he has



                                         15
nearly completed the renovations of his house needed to provide a safe and stable

home for the children; and he had started working his newly added case plan

provisions by attending parenting classes, anger management, and mental health

counseling. C.K.D. argues that in the absence of expert opinion, the court of appeal

could discern from the record no established pattern of behavior since the time of

removal indicating that he was unable or incapable of exercising parental

responsibilities. C.K.D. argues that in the short time frame since removal, he has

made substantial efforts to overcome his drug habit, evidenced by his two most recent

urine screens from October 2017 and November 2017.

       After review of the record, we find the court of appeal erred in reversing the

district court’s determination. First, any suggestion by the court of appeal that expert

testimony was necessary to prove there is no “reasonable expectation of improvement

in the near future,” is negated by Article 1036(D) which specifically allows proof

“based upon expert opinion or based upon an established pattern of behavior.”

Further, although we acknowledge written or verbal detailed reasons from the district

court are certainly beneficial in these cases, there is no mandate for the court to

provide such reasons. And, C.K.D. could have requested reasons from the district

court as permitted by La C.C.P. art 1917(A).7

       The record does not support a finding that C.K.D. will be able to remain drug

free and provide suitable, safe, and stable housing in the near future. If we consider

his established pattern of behavior, C.K.D. has been using drugs for twenty years with

only intermittent periods of sobriety. Although he completed the first phase of drug

treatment during the pendency of this case, his sobriety was short-lived. C.K.D. has


       7
         La. C.C.P. art. 1917(A) provides: “In all appealable contested cases, other than those tried
by a jury, the court when requested to do so by a party shall give in writing its findings of fact and
reasons for judgment, provided the request is made not later than ten days after the mailing of the
notice of the signing of the judgment.”

                                                 16
continued to test positive for drugs. We recognize C.K.D. testified to his desire to

change, however his testimony demonstrated an unrealistic and inflated view of his

abilities. For instance, in testifying that he deserves a second chance, C.K.D. stated:

“I have never not followed through with something.…When I put my mind to

something, I do it…. I will never fail another drug test, ever. Ever. Mark it down,

write it, I don’t care. I promise you. Come back ten years from now, I bet you I don’t

fail a drug test.” C.K.D. further testified that he only needed an additional 3-6 months

to comply with his case plan: “I’ll have it all done. Everything. Bigger and better than

you want.” C.K.D. claimed at trial that he had only failed two drug tests and that he

had “done every single thing to the T that you would want or need and more.” While

directly questioning C.K.D., the district court specifically asked him if he was

familiar with the term “grandiosity” and whether that was an issue for him. It is clear

the district court did not give much credence to C.K.D.’s testimony and overblown

promises. We agree with DCFS that despite some actions taken by C.K.D. towards

his case plan goals, there is no basis in this record on which to conclude his conduct

will significantly improve in the near future. The state proved by clear and convincing

evidence C.K.D. had an established pattern of behavior of drug use and failure to

follow things through to completion that has persisted even after removal of the

children.

Best Interests of the Children

      We further find the court of appeal failed to adequately focus on the best

interests of the children, which the district court found would best be served by

terminating C.K.D.’s parental rights. 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,



                                          17
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. C. art.

1001. This court has explained:

      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. The interests of the parent
      must be balanced against the child’s interest, but the child’s interest is
      paramount. More than simply protecting parental rights, our judicial
      system must protect the child’s right to thrive and survive. 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. 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. Children have a
      right to live in a safe, secure environment and to be reared by someone
      who is capable of caring for them.

C.F., 235 So. 3d at 1075 (internal citations removed).

      We recognize that a bond exists between C.K.D. and his children, and we

acknowledge C.K.D. presented uncontradicted evidence to this effect at trial. We

further note the children’s attorney is supportive of the father’s position. However,

we cannot ignore the fact that C.K.D. has demonstrated an inability to care for his

children, primarily due to his long-standing substance abuse problems. We find it

extremely troubling that both children have twice tested positive for drugs, either

while in the care of C.K.D. or while he was living in the same household. It is

paramount that we place the children’s best interests above that of their father. “There

comes a point when the best interests of the children must be served by terminating

parental rights in order to achieve permanency and stability for the children. The

focus of an involuntary termination proceeding is not whether the parent should be

deprived of custody, but whether it would be in the best interest of the child for all

legal relations with the parent to be terminated.” State ex rel. S.M.W., 00-3277 (La.


                                          18
2/21/01), 781 So. 2d 1223, 1238. In this case, we do not question C.K.D.’s love for

his children, however the record does not establish that C.K.D.’s circumstances have

improved such that it would be in the best interests of the children for C.K.D. to

retain his parental rights.

                                    CONCLUSION

       This court has always recognized that the primary concern of the courts and the

state in these cases is to secure the best interest for the child, including termination

of parental rights if justifiable statutory grounds exist and are proven. In this case, the

state proved by clear and convincing evidence the grounds for termination under

Louisiana Children’s Code article 1015(6) and that termination was in the best

interests of the children. These findings are clearly supported by the record and are

reasonable in light of the record in its entirety. The court of appeal erred by

substituting its own judgment for that of the district court. Therefore, we reverse the

ruling of the court of appeal and reinstate the district court’s ruling, terminating the

parental rights of C.K.D.

                                       DECREE

REVERSED. JUDGMENT OF THE DISTRICT COURT REINSTATED.

REMANDED TO THE DISTRICT COURT FOR FURTHER PROCEEDINGS.




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