
    STATE of Louisiana in the Interest of W.M.O. & R.M.O.
    No. 2004-CA-2025.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 1, 2005.
    
      Clarence L. Richardson, Jr., Orleans Indigent Defender Program, New Orleans, Counsel for Appellee, E.O.
    Katherine Dowling, Sherry Watters, Department of Social Services, Office of Community Services, New Orleans, Counsel for Appellant, State of Louisiana, Department of Social Services, Office of Community Services.
    T. Darlene Bewley, Metairie, Counsel for Appellees, Indigent Minor Children.
    
      Court composed of Judge PATRICIA RIVET MURRAY, Judge MAX N. TOBIAS Jr., Judge EDWIN A. LOMBARD.
   LOMBARD, J.

RELEVANT FACTS AND PROCEDURAL HISTORY

E.O., mother of R.M.O. and W.M.O., has received services from the Department of Social Services Office of Community Services (“DSS/OCS”) since 1993. W.M.O., twelve years old, and R.M.O., ten years old, entered foster care on August 19, 1999, and have remained in foster care ever since. Their thirteen-year-old brother, S.M.O., entered foster care with them, but is not part of this proceeding. On October 7, 1999, they were adjudicated to be “children in need of care” and the court approved a case plan for the safe return of the children to their family.

W.M.O. has been diagnosed with pervasive development disorder, disruptive behavior disorder, post-traumatic stress syndrome, and moderate mental retardation. A neighbor sexually abused W.M.O. when he lived with his mother, and W.M.O. sexually abused R.M.O. when they were placed together in foster care. R.M.O. has been diagnosed with bipolar disorder, attention deficit disorder, and nocturnal enuresis, having experienced previous neglect and sexual abuse. Some of these illnesses are lifelong conditions, but all are treatable with [^medication and therapy. The boys require continuous, direct supervision and support by an adult at all times.

Reunification of W.M.O. and R.M.O. with E.O. was attempted by starting with over-night visitation. During the reunification, the children were exposed to sexually inappropriate behavior by the mother and domestic violence between the mother and her boyfriend.

On September 29, 2004, the Orleans Parish Juvenile Court ruled that the State, through the Department of Social Services, Office of Community Services (“DSS/OCS”), proved the elements for a termination of parental rights required by Children’s Code Art. 1015 and proved that the children cannot be returned to the mother. The juvenile court also found that there was proof of grounds to terminate the father’s parental rights. The court found that, while the State proved the grounds for the termination of parental rights, the State did not prove that termination was in the children’s best interest.

The State filed an appeal as to the denial of the termination based on the best interest issue only. The mother, E.O., has appealed the finding that the grounds for termination were proven. The father did not appeal.

LAW AND DISCUSSION

An appellate court cannot set aside a juvenile court’s findings of fact in the absence of manifest error or unless those findings are clearly wrong. In re A.J.F., 00-0948, p. 25 (La.6/30/00), 764 So.2d 47, 61.

LSA-Ch.C. art. 1015 provides the grounds for which parental rights may be terminated. LSA-Ch.C. art. 1015(5) 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 |3court 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.

In this case, it is undisputed that more than one year has elapsed since R.M.O. and W.M.O. were removed from E.O.’s custody pursuant to a court order. The record reveals that the children were placed in foster care on August 19, 1999, and DSS/OCS filed its petition to terminate the parents’ parental rights on May 25, 2004. The State contends that it has met its burden of proving that E.O. has not substantially complied with the case plan, and there is no reasonable expectation of improvement of E.O.’s condition and/or conduct.

In order to terminate rights, the court must find that the State has established at least one of the statutory grounds contained in LSA-Ch.C. art. 1015 by clear and convincing evidence. State in the Interest of J.A., 99-2905, p. 8 (La. 1/12/00), 752 So.2d 806, 811. Further, even upon finding that the State has met its eviden-tiary burden, a court still should not terminate parental rights unless it determines that to do so is in the child’s best interest. LSA-Ch.C. art. 1037(A); State in the Interest of C.J.K., 00-2375, p. 8 (La.11/28/00), 774 So.2d 107, 113.

LSA-Ch.C. art. 1036(C) enumerates the substantive elements proving lack of substantial compliance with a court-approved case plan. This prong may be evidenced by one or more of the following:

|4(1) The parent’s failure to attend court-approved scheduled visitations with the child.
(2) The parent’s failure to communicate with the child.
(3) The parent’s failure to keep the department apprised of the parent’s whereabouts and significant changes affecting the parent’s ability to comply with the case plan for services.
(4) The parent’s failure to contribute to the costs of the child’s foster care, if ordered to do so by the court when approving the case plan.
(5) The parent’s repeated failure to comply with the required program of treatment and rehabilitation services provided in the case plan.
(6) The parent’s lack of substantial improvement in redressing the problems preventing reunification.

Likewise, the substantive elements proving lack of a reasonable expectation of significant improvement in the near future are set forth in LSA-Ch.C. art. 1036(D), which provides that this prong may be shown by one or more of the following:

(1) Any physical or mental illness, mental deficiency, substance abuse or chemical dependency that renders the parent unable or incapable of exercising parental responsibilities without exposing the child to a substantial risk of serious harm, based upon expert opinion or based upon an established pattern of behavior.
(2) A pattern of repeated incarceration of the parent that has rendered the parent unable to care for the immediate and continuing physical or emotional needs of the child for extended periods of time.
(3) Any other condition or conduct that reasonably indicates that the parent is unable or unwilling to provide an adequate permanent home for the child, based upon expert opinion or based upon an established pattern of behavior.

The primary concern of the courts and the State remains to determine and ensure the best interest of the child, which includes termination of parental rights if justifiable statutory grounds exist and are proven by the State. State in the Interest of S.M.W., 00-3277, p. 21 (La.2/21/01), 781 So.2d 1223, 1238.

Applying the aforementioned law to this case, we must determine (1) whether the State has established the grounds for termination set forth in LSA-Ch.C. art. 1015(5) by clear and convincing evidence; and, (2) whether, it is in |BR.M.O.’s and W.M.O.’s best interest to terminate E.O.’s parental rights.

Under E.O.’s case plan, she was to have evaluations, complete parenting classes, go to therapy, and participate in the children’s therapy. E.O. completed parenting classes and enrolled in advanced parenting, but did not complete the advanced class. Although she had no posi-' tive drug screens, she did not complete substance abuse treatment. She attended some, but not all, of the children’s therapy. E.O. did not pay child support as ordered and did not attend meetings with DSS/ OCS to plan for the children. She maintained relationships with violent men and did not keep sexual boundaries clear.

The evidence is clear that E.O. completed parts of the plan, but she has not demonstrated, despite five years of assistance, a change in parental behavior. Based on our review of the record, we conclude that the State has satisfied its burden of proving that E.O. has not substantially complied with the case plan to provide a stable environment for her children, and there is no reasonable expectation of improvement in her conduct.

At trial, the issue of the best interest of the’ children was presented to every expert witness. None of the experts agreed as to the permanency plans for the children. The experts and the -court did agree that R.M.O. and W.M.O. could not presently return to their mother, and they did not foresee where they could be returned to her at any time in the near future.

LSA-Ch.C. article 603(15) provides that permanent placement means the return of the legal custody of a child to his parent(s); placement of the child with adoptive parents pursuant to a final decree of adoption; or placement of the child with a legal guardian. LSA-Ch.C. article 1003(11) defines permanent placement as either placement of the child with a legal guardian or placement of the child ¡¿with adoptive parents, pursuant to a final decree of adoption. Thus, permanent placement does not include leaving children permanently in foster care. The primary goal is to reunite the family. However, if reunification is not possible, termination is appropriate to free the child or children for adoption. State in the Interest of J.M., 02-2089, p. 16 (La.1/28/03), 837 So.2d 1247, 1257.

Despite her efforts, it is clear that E.O. is incapable of meeting the special needs of her children. Accordingly, we conclude that the evidence clearly and convincingly reveals that it is in the best interest of R.M.O. and W.M.O. to terminate E.O.’s parental rights. The trial court erred in not doing so. Therefore, the trial court’s decision is hereby reversed, and E.O.’s parental rights are terminated.

REVERSED.

TOBIAS, J., concurs in the result in part, dissents in part, and assigns reasons.

TOBIAS, J.,

concurs in the result in part, dissents in part, and assigns reasons.

I respectively concur in the result reached by the panel due to the extraordinary facts presented in this case. However, I write separately to address some concerns that I have.

From the oral reasons for judgment assigned by the trial court, it appears that the state’s petition to terminate parental rights was denied due to the possibility that the state will immediately remove W.M.O. and R.M.O. from their current fosters home before suitable adoptive families were found and that these minors will never be adopted. Certainly, these are legitimate concerns. The evidence reveals that both children are in safe and caring foster homes and have greatly benefited from the structure, supervision, and consistent discipline received from their foster families. It is obviously important that DSS/OCS leave W.M.O. and R.M.O. in their present foster homes unless or until appropriate and permanent homes are found.

The testimony was that it is unlikely that W.M.O. will be adopted because of his special needs (pervasive personality disorder, disruptive behavior disorder, post-traumatic stress disorder, and moderate mental retardation) that require medication and around-the-clock supervision. It is difficult to comprehend the damage that has been done to this 12-year old child such that he is now a sexual li»perpetrator who cannot even be left alone with his own brother, much less any other child or unsuspecting adult. It is possible that once W.M.O. reaches puberty, intensive inpatient treatment may be necessary. The testimony was uncontroverted that W.M.O. should not have any further contact with his mother and that it would be in W.M.O.’s best interest to have parental rights severed. Under these facts, I find no reason to deny the state’s petition for termination of parental rights insofar as W.M.O. is concerned. Again, however, because of W.M.O.’s special needs, DSS/OCS should obviously leave him in his current foster home, where he has been for over five years, for as long as possible. Consequently, I concur in the majority’s decision to terminate E.O.’s parental rights to W.M.O.

R.M.O., 10 years old, presents a different set of issues. This child, who has been diagnosed with ADHD, bipolar disorder, post-traumatic stress disorder, and nocturnal enuresis, has a warm relationship with his mother and 13-year old brother, as demonstrated in their supervised visits. When told that he may not ever see his mother again, R.M.O. reacted aggressively and threatened to harm his foster family. Such a response demonstrates the bond R.M.O. feels towards his family, a factor that should be considered when determining what would be in his best interest.

On the other hand, even after five years of services, the DSS/OCS and various experts could not say when or if the mother will ever be able to care for R.M.O. and his special needs. Thus, there is no compelling reason to allow R.M.O. to remain in long-term foster care. The fact that it may prove difficult to obtain an adoptive home for R.M.O. does not provide such a reason; children in | Termination proceedings do not have to have an adoptive prospect for termination to be in their best interest.

La. Ch. C. art. 1001 sets forth the purpose of a termination of parental rights proceeding:

The purpose of this Title 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. 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 at all possible, to achieve the child’s adoption. [Emphasis supplied.]

The Children’s Code specifically provides for the possibility that children certified for adoption do not already have adoptive placements when parental rights are terminated. Within ninety days of the judgment, La, Ch. C. art. 1041 requires DSS/OCS to actively promote and recruit an adoptive home. During this process, La. Ch. C. art. 1042 requires regular review hearings to monitor the process. Only when adoption proves unavailable should long-term foster care. be considered. Therefore, I agree with the majority in finding that termination of parental rights is in the best interests of R.M.O.

The testimony regarding R.M.O. was also that it would be in his best interest to maintain continuing contact with his mother and older brother. The Children’s Code provides a means for on-going assessment of contact between R.M.O. and his biological family post-termination judgment. La. Ch. C. art. 702(D) requires the court to “consider a child’s need for continuing contact with any relative by blood, adoption or affinity with whom the child has an established and significant relationship.” The pre-adoption continuing contact is provided for through La. Ch. C. art. 1037.1(A), which provides in pertinent part:

| ¿Subsequent to a termination of parental rights judgment when custody is granted to the department, the court may order continuing contact between the child and the parent, sibling, or other biological relative. The court may grant such an order only after it makes finding of fact that continuing contact is in the best interest of the child. The court may receive expert testimony on the issue of continuing contact. [Emphasis supplied.]

I find that R.M.O.’s therapist(s) should determine the scope of the continuing contact, noting his evolving needs. This contact can even continue after R.M.O. is successfully adopted. La. Ch. C. art. 1269.1 states:

A.In an agency adoption in which the department is the custodian of the child, the court may approve an agreement providing for continuing contact between the child to be adopted and his grandparent, sibling, and any parent if both of the following conditions are met:
(1) The child has an established, significant relationship with that person to the extent that its loss would cause substantial harm to the child.
(2) The preservation of the relationship would otherwise be in the best interest of the child.
B. If there is no parental relationship that meets the requirements of Paragraph A, the court may approve an agreement providing for continuing contact between the child to be adopted and any other relative by blood, adoption, or affinity whose relationship with the child meets those requirements.
C. When adoption is approved by the court as the permanent plan for the child, the department shall inform any parent, grandparent, sibling, or any other relative by blood, adoption, or affinity who meets the requirements of Paragraph A or B, of the possibility of post-adoption contact with the child upon agreement with the adoptive parents in accordance with the provisions of this Chapter. [Emphasis supplied.]

Continuing post-adoption contact is permitted if the court should find that the loss of the relationships with his mother and brother would cause substantial harm to R.M.O.

1 sBecause the majority opinion does not include a remand to the trial court with instructions to determine a plan of continuing contact between R.M.O. and his mother and older brother, I respectfully dissent, for I cannot say in that regard (inherent in the trial court’s reasons for judgment) that the trial court is either manifestly erroneous or clearly wrong. 
      
      . Dr. Cornelius Schutte, W.M.O.’s psychologist since 2000, testified that he did not anticipate that W.M.O. would have any significant emotional problems if there was no visitation with his siblings.
     
      
      . However, after an intervention removed R.M.O. temporarily from the foster home, he returned and apologized to his foster mother.
     