author: CARAWAY, J.

text:
    STATE of Louisiana IN The INTEREST OF J.H.
    No. 51,100-JAC
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered November 16, 2016.

      LOUIS G. SCOTT, Counsel for Appellant, B.H.
    SUSAN E. SKIDMORE, Counsel for Appellee, State of Louisiana DCFS
    JAMES EDWARD PATTON II, Legal Services of North Louisiana, Counsel for the child, J.H.
    BOBBY RAY MANNING, Counsel for the alleged father, G.J.
    Before CARAWAY, DREW and STONE, JJ.
   CARAWAY, J.

hJ-H. was removed from his mother’s custody and adjudicated a child in need of care under Louisiana law after his mother, B.H., was pulled over for travelling over 100 miles per hour on the interstate while he, an infant less than a year old, was unrestrained in the car. While B.H. was serving prison time for charges related to the use of the car, she agreed to a case plan presented by the Louisiana Department of Children and Family Services (“DCFS”). Almost two years passed between the implementation of the plan and the hearing on the DCFS petition to terminate the parental rights of J.H.’s mother. During that time, B.H. failed multiple drug tests, failed to maintain a stable residence, and was noncompliant with the treatments for her mental health issues. Following a hearing on the petition, the juvenile court found that the State had met its burden of producing clear and convincing evidence of a lack of substantial compliance with the case plan, that there was not a substantial chance of improvement in the immediate future, and that termination was in the best interest of the child.

Facts

J.H. is a three-year-old boy who tested positive for marijuana when he was born, and was thus designated a “drug-exposed newborn” by the State when they were notified on August 8, 2013. A case was opened, but DCFS and the authorities were unable to locate J.H. and his mother, B.H., so the case was discontinued. J.H.’s biological father is unknown. J.H.’s foster mother believes he suffers from Fetal Alcohol Syndrome, and B.H. has admitted to consuming alcohol while she was pregnant. J.H. suffers from certain developmental delays including a very limited vocabulary, delays in | {.sitting and walking, and a leg that turns in causing him to walk on his toes and have low muscle tone. J.H. entered into the custody of his foster mother, Sonja Elmore, at the age of 9 months. While in the custody of his foster mother, J.H. has been enrolled in occupational, physical, and speech therapy programs.

On February 7, 2014, when J.H. was approximately 6 months old, he was brought into the hospital by his mother and her boyfriend for a respiratory virus infection. While at the hospital, B.H. and her boyfriend were arrested for allegedly stealing a wallet. B.H. was later released from those charges, but when asked whether she could pass a drug test at that time, B.H. responded that she could not. As a result of the incident, DCFS took custody of the child on February 10, 2014. At the later continued custody hearing, J.H. was returned to his mother’s custody, and B.H. was ordered to work with DCFS. At DCFS’s bequest, B.H. was supposed to enter an inpatient treatment facility for her substance abuse problems on April 3, 2014. However, on April 4, 2014, it was reported to DCFS that B.H. had fled out of a window of her home with J.H. to avoid going to the treatment facility. Although it was unknown at the time, B.H. took a Greyhound bus with J.H. to Tulsa, Oklahoma, to flee to her boyfriend, Gregory Johnson.

On April 9, 2014, J.H. entered into DCFS custody when an instanter order was issued by the Monroe City Court. The order was granted after B.H. was arrested after being pulled over for travelling over 100 miles per hour in a stolen car with J.H, unrestrained. This occurred as she was returning from Tulsa. B.H. stated that she was trying to feed J.H. and did |3not realize how fast she was going. She also stated that the car was her boyfriend’s and that he had reported it. stolen because he was angry that she was not answering her phone.

Later, on May 8, 2014, while B.H. was still in jail, the State filed a petition to have J.H. declared a “child in need of care” (“CINC”) under the Louisiana Children’s Code. A Family Team Conference including DCFS and B.H. was held ,on May 16, 2014, to outline the steps B.H. needed to take and identifying the goal of the case plan as reunification. On June 8, 2014, an adjudication order was entered by the Monroe City Court finding J.H. a CINC and continuing his custody with DCFS and his foster mother.

On September 9, 2014, B.H. pleaded guilty to the charge of unauthorized use of a motor vehicle and her understanding was that all other charges stemming from the speeding incident were dismissed. She was released from jail on September 12, 2014, and returned to living with her mother at 3300 Lee Avenue, Monroe, LA. DCFS and B.H. then began to work together to attempt to complete her case plan and restore custody of her child to her. To begin the substance abuse treatment portion of her case plan, B.H. was referred to the Monroe Office of Behavioral Health on September 29, 2014, to begin random drug screens, undergo a substance abuse assessment, and begin drug classes. Her urine test was negative on that day. Subsequent urine screens on October 20, 27, and 29, November 3, 10, 12, 13, and 24, and December 1 and 15,2014, were all negative for any illegal drugs. On November 21, 2014, an updated case plan was reviewed at a Family Team Conference between DCFS and B.H., and B.H.’s progress toward reunification with J.H. was noted.

|4B.H. was referred to the Monroe Office of Behavioral Health on December 12, 2014, for a mental health assessment to begin completing the mental health portion of her case plan. The assessment did not result in any recommendation, but B.H. did admit that she had not taken any medication for her diagnosed bipolar disorder for more than a year. She completed the parenting classes required by the day-to-day portion of her case plan with Tamara Thompson at River City Counseling Professionals on December 17, 2014. On December 19, 2014, B.H. underwent a domestic violence assessment at Wellspring in Monroe which resulted in a finding that no services needed to be offered. On December 31, 2014, B.H. completed her drug classes at the Office of Behavioral Health. At that time she either volunteered or was asked to attend the office’s Continuing Care classes for substance abuse. The Continuing Care classes were scheduled to begin in January, and B.H. agreed to attend.

DCFS attempted to conduct a home-study at 3300 Lee Avenue, B.H.’s residence, on January 21, 2015, with the goal of potentially allowing B.H.’s mother to have custody of J.H. while B.H. finished her case plan. B.H. at first refused to allow DCFS personnel to look inside the refrigerator, and when she did, they discovered there was no food. At some point during the home study process, DCFS discovered that B.H.’s mother had an outstanding warrant for disturbing the peace. B.H. and her mother stated that they would reconcile the matter, but there is no indication that it was ever taken care of. On March 3, 2015, DCFS was made aware that B.H. was not attending the Continuing Care classes that she had either volunteered for or been told to attend. B.H. was asked to submit to a urine drug test and a |shair follicle test on March 18, 2015. The urine screen was negative for any illegal drugs; however, the hair follicle test came back showing positive results for cocaine. Due to this positive test, B.H. was referred to the Office of Behavioral Health again.

On March 3, 2015, B.H. underwent a psychological evaluation with Dr. James Pinkston, a clinical psychologist in Shreveport, at the direction of DCFS. After performing multiple tests and a personal interview, Dr. Pinkston wrote a report indicating his findings and the various diagnoses that B.H. reported to him including alcohol, PCP, and marijuana abuse, with PCP being her “drug of choice” in the past. B.H. went to an appointment with a Dr. Agarwal on April 10, 2015, where she was prescribed a 30-day supply of 3 medications: Seroquel, Trazodone, and Wellbutrin.

On May 21, 2015, B.H. underwent a urine drug test that returned negative results, but on June 11, 2015, B.H. did a hair follicle drug test that returned a positive result for cocaine. As a result, B.H. was again referred to River City Counseling Professionals on June 30, 2015, for a substance abuse assessment, but her urine screen on that day showed negative results. After this flurry of testing and assessments, the State made a motion for a permanency healing and on July 21, 2015, the Monroe City Court entered a permanency judgment which continued the custody of J.H. with DCFS and his foster mother and approved changing the goal of the case plan from reunification to adoption.

Following the change to the case plan, B.H., at the urging of DCFS, made an appointment to return to Dr. Agarwal for a follow-up and to refill her prescriptions on September 18, 2015. B.H. had not refilled her 30-day | ¿prescriptions since April of 2015, but stated that she “had plenty of medication left.” She also complained that the medication made her sleepy and that she could focus better without it. B.H. went to the appointment and was given new prescriptions by Dr. Agarwal, this time only for Seroquel and Trazodone. On October 12, 2014, B.H. underwent another hair follicle test which again returned positive results for cocaine.

On October 19, 2015, the State filed a petition for the involuntary termination of the parental rights of B.H., the alleged father, and/or any other putative father. The petition alleged that B.H. had not substantially complied with the housing, mental health, substance abuse, and day-to-day parenting portions of her case plan, particularly noting the three positive hair follicle drug tests. The attorney for the child, J.H., joined in the recommendation that the parental rights be terminated.

B.H. was scheduled to take another drug test before the trial on the termination of her parental rights on January 6, 2016. Due to an alleged clerical error, the screening facility did not receive the paperwork for a hair follicle test, and only a urine test which returned negative results was conducted. Upon being made aware of the error, DCFS contacted B.H. to request that she submit to another screening on January 11, 2016. B.H. refused to go back for another screening at that time.

On January 26, 2016, a trial began on the involuntary termination of B.H.’s parental rights. Due to the length of the testimony, the trial was continued until and completed on February 3, 2016. In the time between those dates, B.H. went for another hair follicle test and, although the results were not available until after the close of the trial, the eventual result was a |7“no finding” — neither a positive or negative result — because the sample was insufficient. During the course of the trial, testimony was offered from multiple witnesses that was largely consistent with the above described sequence of events.

Ms. Tamara Thompson, a family therapist and the leader of B.H.’s parenting classes, testified first. Her testimony was that B.H. attended and completed her parenting classes, but that she had to do individualized lessons for B.H. to accomplish that. In addition, Ms. Thompson noted some concerns with B.H.’s ability to utilize the skills taught, although B.H. was a highly motivated and eager individual. During her classes, B.H. was informed that parents need to comply with the complete case plan agreed upon with DCFS in order to regain custody of a child,

Ms. Sonya Elmore, the foster parent of J.H. since he entered DCFS custody, was second to testify. Her testimony made clear that B.H. expressed love and affection for J.H., but that she had instances where it appeared that her parenting skills were not sufficient. An example referred to was when a visit was arranged at a McDonald’s restaurant and B.H. ordered a disproportionate amount of food for her young child. Ms. Elmore also stated that J.H. has been diagnosed with Fetal Alcohol Syndrome by two different doctors. She noted that J.H. has certain developmental delays including speech and mobility problems and that she takes him to occupational therapists and physical therapists throughout the week as well as having him enrolled in the Early Steps learning program.

B.H. also took the stand during the trial. B.H. testified that she agreed to the original case plan while she was still in jail. Later case plans which | ¿were revised and updated were agreed to by B.H. in October of 2014, and April and October of 2015. Explaining her living situation, B.H. stated that she now lived with her mother at 120 Egan Street, but before that at 2706 Lee Avenue. Other addresses which were given as B.H.’s residence during the period that the case plan was being implemented included 903 South 2nd Street, which she claimed was her boyfriend’s house, 3300 Lee Avenue, the address she moved into with her mother after being released from jail, and 711 Plum Street, a friend’s house. B.H. testified that she would not allow a home inspection to be done around October of 2015 at the Egan Street address because they had only been in the home a few months and had yet to have it furnished.

Regarding her mental health issues, B.H. testified that, although she was diagnosed bipolar at age 11, she chose not to take her medications for the prior 3 months because she could focus better when not taking them. She stated that she knew the plan required her to take the medications prescribed, but that she worried she would not be able to take care of a child if she took them. B.H. could not explain how there were three positive hair follicle tests showing cocaine use and stated that she had never used cocaine. She also identified that all of her urine tests had come back negative, both those given by DCFS and those required by her probation officer.

Dr. James Pinkston testified as an expert in the field of clinical psychology and gave his opinion stemming from his interview with B.H. on March 3, 2015. He stated that she was referred to him by DCFS for a psychological evaluation regarding her ability to parent a child. His evaluation yielded a finding that B.H.’s mental status was largely functional |nwith some impairments in her judgment and insight. Dr. Pinkston’s evaluation was that, although no single one of B.H.’s behaviors caused him to find her an unfit parent, her pattern of behaviors and the constellation of symptoms she exhibited would cause him great concern regarding her ability to appropriately make wise choices in caring for J.H. Noting that positive drug tests would increase his level of concern regarding B.H.’s parenting abilities, he rendered a professional opinion that B.H. did not understand the severity of her poor choices and the associated risks, making her incapable of independently parenting her young child, but he also noted that she would make a great choice as a supportive parent with liberal amounts of time to spend with the child. On cross-examination, Dr. Pink-ston clarified that he did not think it was inappropriate for B.H. to visit with the child and that he would not recommend that her parental rights be terminated.

Ms. Takia Boyette, the case worker in charge of J.H. and B.H.’s case, also testi-fled at the hearings. Her testimony was that all provisions of the case plan, including the possible termination of parental rights for noncompliance with the plan, were discussed and agreed upon by all parties on multiple occasions. B.H. gave Ms. Boyette at least 5 different addresses of residence while the case plan was in place and did not allow home studies as requested at various times. Ms. Boyette also testified to B.H.’s failure to take her medication for her mental health issues and unwillingness or inability to return to follow up appointments to refill prescriptions. Addressing B.H.’s substance abuse issues, Ms. Boyette testified that all urine tests were negative, but hair follicle tests in March, June, and October |1(tof 2015 returned positive results for cocaine. Ms. Boyette’s conclusion was that B.H. had not been compliant with her case plan.

At the close of the trial, all parties were given time to file post-trial briefs and the record was left open for the admission of the results of the drug test which was underway. DCFS filed a brief on February 17, 2016, and a brief was filed on behalf of J.H. on March 2, 2016. No brief was filed on behalf of B.H. despite her request to file through her attorney. On March 31, 2016, the court received a regular DCFS report on J.H.’s case which indicated that B.H. underwent another hair follicle test around March 23, 2016, and the results had come back as positive for cocaine, marijuana, and PCP. Deeming the matter ripe for judgment, the court issued its reasons for judgment on April 7, 2016, and a judgment terminating parental rights on April 12, 2016. The reasons indicated that the State had satisfied its burden of showing by clear and convincing evidence the grounds for La. Ch.C. art. 1015(5) and that B.H. had not substantially complied with her case plan. The three areas of particular concern indicated by the court were that she did not remain drug free, she had not maintained a stable home, and she was not compliant with her mental health medications. In addition to terminating the parental rights of J.H.’s parents, the judgment freed J.H. for adoption.

Discussion

Appellate courts review a trial court’s findings as to whether parental rights should be terminated according to the manifest error standard. State ex rel. K.G., 02-2886 (La. 3/18/03), 841 So.2d 759, 762. The manifest error h ¶ standard requires the appellate court to determine whether the record reflects that the trial court was clearly wrong. State in the Interest of H.A.B., 10-1111 (La. 10/19/10), 49 So.3d 345, 368. The Louisiana Supreme Court has indicated that the unique circumstances of a proceeding for the involuntary termination of parental rights require the court to consider both the private interest of the parent in parenting his or her child and the private interest of the child in establishing a relationship and proper care. State ex rel. H.A.S., 10-1529 (La. 11/30/2010), 52 So.3d 852, 859. However, the interest of the child is considered paramount and must be considered over that of the parent. Id. Involuntary termination proceedings must determine whether it is in the best interest of the child to sever all legal relations, not whether the parent should be deprived of custody of the child. Id.

It is well established that, under Title X of the Children’s Code, the parental rights of an individual may be involuntarily terminated upon a showing of one of the statutory grounds found at La. Ch.C. art. 1015. In addition to finding that a statutory ground has been proven, the judge must also find that termination is in the best interest of the child under La. Ch.C. art. 1039. The State bears the burden of proving the elements of one of the statutory grounds by clear and convincing evidence. La. Ch.C. art. 1035(A).

In this case, DCFS sought to have B.H.’s parental rights terminated under La. Ch.C. art. 1015(5), which states:

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 1 ^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 enumerated elements of this subsection require: (1) at least a year has passed since the child was removed from the parent; (2) no substantial compliance with the approved case plan; and (3) lack of any reasonable expectation of significant improvement in the parent’s conduct in the near future.

The first element has been satisfied as approximately eighteen months passed between the initial instanter order of April 9, 2014, and the State’s filing of the motion for involuntary termination of parental rights on October 19, 2015.

The second element, lack of substantial compliance with the case plan, is the topic of the most heated debate in this case. According to La. Ch.C. art. 1036(C), lack of substantial compliance with the case plan can be shown by one or more of seven circumstances, four of which are relevant here. Those circumstances include:

(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.
(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.

La. Ch.C. art. 1036(C).

| i3The third element of La. Ch.C. art 1015(5) requires the lack of any reasonable expectation of significant improvement in the parent’s conduct in the near future and is explained in La. Ch.C. art. 1036(D) as being shown by one or more of:

(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.

La. Ch.C. art. 1036(D).

The Louisiana Supreme Court has determined that “a mental deficiency related to the parenting ability is relevant in determining the role of the mother in abuse or neglect of the children,” but mental illness alone does not warrant termination of parental rights. State ex rel. C.J.K., 2000-2375 (La. 11/28/00), 774 So.2d 107, 115 (citing State in the Interest of J.A., 99-2905 (La. 1/12/00), 752 So.2d 806, 814). Further, we are admonished that the impairment must expose the child to a substantial risk of harm, and that risk must be substantiated by expert testimony or by a pattern of risk to the child from the parent’s acts or omissions. State ex rel. H.A.S., supra at 861.

In the petition for termination of parental rights and the trial court’s reasons for judgment, multiple failures to substantially comply with the case plan were noted, with the most dominant being the failed drug tests and the | ulack of compliance with taking medication for mental health. B.H.’s appeal appears to focus primarily on whether the evidence presented regarding the drug tests satisfies the clear and convincing standard required of the State. We find that the evidence presented was sufficient to meet that burden.

As explained by the above testimony, B.H. tested positive for cocaine on several occasions, but the only positive tests were hair follicle tests. The record indicates that the trial court attempted to resolve this issue by ordering another drug screen done after the first day of the hearing with an additional sample to be taken to provide an opportunity for B.H. to secure an independent analysis. According to the State, only one sample was taken and analyzed because the testing lab was only paid for one test and would not take a second sample without payment from B.H. Appellant asserts that this is not a reasonable explanation and that the failure to take two samples adversely affected the fairness of the case. However, appellant does not explain how this is unreasonable or why she did not procure her own test. Appellant also does not offer any explanation to challenge the positive results other than comparing them to the negative urine tests. We find that the State acted reasonably in paying for its test as required by the Court, and that B.H. had ample opportunity to secure her own independent test. In addition, the court does not find that the trial court committed manifest error when it determined that the multiple failed hair follicle tests were clear and convincing evidence of B.H.’s failure to substantially comply with the case plan.

Aside from the drug screen issue, and unchallenged in the appellant’s brief, the trial court found an additional lack of substantial compliance with |isthe case plan when B.H. failed to keep DCFS apprised of her adequate and stable housing and failed to adhere to the treatment plans for her mental health. The judgment specifically notes seven residences in two years and a failure to comply with mental health medications. These two findings alone, supported by clear and convincing evidence, satisfy the second element of La. Ch.C. art. 1015(5).

The third element required for termination of parental rights, lack of any reasonable expectation of significant improvement in the parent’s conduct in the near future, has been shown by the expert testimony of Dr. Pinkston. His testimony specifically stated that, without her medication, there was a strong likelihood of reoccurrence of depression and/or mania, and such an episode could potentially harm the child. In fact, Dr. Pinkston stated that even if J.H. were entirely healthy and did not have any special needs, he would “still have serious concerns about her ability to consistently provide an appropriate and safe environment for him.” His expert testimony clearly indicates that B.H. cannot independently parent her child without creating a substantial risk of harm, and no other expert testimony, is offered to rebut that statement.

This case is notably different from that addressed by the Louisiana Supreme Court in State ex rel. H.A.S. wherein the Court was not convinced that there had been a showing that termination of parental rights was in the best interests of the child or that there was no reasonable expectation of significant improvement in the future. State ex rel. H.A.S., supra at 862, As a result, the Court remanded the case for a new hearing nine months later. Id. The main reason for the new hearing was that the only mental health | ^examination had occurred more than two years before the hearing, and thus the doctor’s opinion was not persuasive about the prospects of improvement. Id. at 861. In addition, the parent in State ex rel. H.A.S. had not tested positive for illegal drugs for almost two years before the ruling, and the attorney for the child sided with maintaining the goal of reunification. In contrast, in this case B.H. has tested positive for drugs up to and after the hearing, was examined and prescribed medication just months before the hearing, and was not joined by the attorney for the child. There are Clear differences between the case cited by the appellant and the facts of the case before us.

The evidence presented at the hearing was clearly sufficient to satisfy the burden of showing that more than a year had passed before the motion to terminate parental rights, despite numerous chances B.H. failed at complying with fundamental provisions of her plan, and expert testimony did not forecast a significant chance, of change in the near future. In addition, we are convinced that termination would be in the best interest of the child as evidenced by the testimony of Dr. Pinkston and the planned adoption of J.H. by his foster mother.

Conclusion

Accordingly, we affirm the trial court’s judgment. Costs of this appeal are assessed to appellant.

AFFIRMED.

      . Ms. Sonya Elmore, J.H.’s current foster parent, has testified that she wants to adopt J.H., and DCFS representatives have indicated that they intend for J.H. to be adopted by Ms. Elmore if B.H.’s parental rights are terminated.


source: Caselaw Access Project

author: WILLIAMS, J.

license: Public Domain

text:
    STATE IN the INTEREST OF K.B. (D.O.B. 8/4/14)
    No. 51,140-JAC
    Court of Appeal of Louisiana, Second Circuit.
    November 16, 2016.

      LAYNE M. ADAMS Counsel for Appellant, S.N.S.
    LEGAL SERVICES OF NORTH LOUISIANA By: James E. Patton, II Counsel for Appellee, K.B.
    JOHNNY L. SANDERS, II Assistant District Attorney Counsel for Appellee, State of Louisiana
    SUSAN E. SKIDMORE Counsel for Appellee, State of Louisiana DCFS
    D.B. In Proper Person
    Before WILLIAMS, CARAWAY and GARRETT, JJ.
   WILLIAMS, J.

hThe mother, S.S., appeals a judgment terminating her parental rights to the minor child, K.B. The trial court found that the mother did not substantially complete the case plan and there was no reasonable expectation of compliance in the foreseeable future. For the following reasons, we affirm.

FACTS

The child, K.B, was born in August 2014. Her mother is S.S. and her father is D.B. In February 2015, an instanter order was issued alleging ongoing use of metham-phetamines by the mother based on several positive drug screens from October 2014 through January 2015, while K.B. was in her care and custody. K.B. was removed from her mother’s care and placed in the custody of the Department of Children and Family Services (“DCFS”). In April 2015, K.B. was adjudicated a child in need of care and the disposition was to continue custody with the DCFS.

After a hearing in July 2015, the trial court approved the initial case plan with the goal of reunification, requiring the mother to demonstrate her ability to provide a stable home for the child by maintaining adequate housing and income. The plan also required the mother to participate in substance abuse treatment with random drug screens. All subsequent case plans filed in the record included these same issues that needed to be resolved in order for the child to be returned to the mother’s home.

In February 2016, the court changed the goal to adoption, finding a lack of substantial compliance with the case plan by the mother and father. DCFS filed a petition to terminate the parental rights of S.S. and D.B., alleging the grounds of LSA-Ch.C. art. 1015(5). After a hearing, the trial 12court issued oral reasons for judgment finding that the state had proven by clear and convincing evidence that the parents had failed to substantially comply with the case plan by continuing to use drugs and failing to obtain substance abuse treatment. In addition, the court found that based on the parents’ performance during the past year, there was no reasonable expectation of compliance with the case plan in the foreseeable future and that the termination of parental rights was in the child’s best interest. The trial court rendered judgment terminating the parental rights of S.S. and D.B. and certifying the child for adoption. S.S. appeals the judgment.

DISCUSSION

The mother, S.S., contends the trial court erred in terminating her parental rights. S.S. argues that she should be allowed additional time to obtain inpatient substance abuse treatment based on her substantial compliance with all other requirements of the case plan.

The grounds for termination of parental rights include a showing that at least one year has elapsed since the 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 approved by the court as necessary for the safe return of the child and there is no reasonable expectation of significant improvement in the parent’s condition or conduct in the near future. LSA-Ch.C. art. 1015(5). The petitioner has the burden of establishing each element of a ground for termination of parental rights by clear and convincing evidence. LSA-Ch.C. art. 1035. Under Article 1015(5), lack of parental compliance with a case plan may be shown by evidence of the parent’s repeated failure to comply with the required program of treatment provided in the case plan or the persistence of |sconditions that led to removal of the child. LSA-Ch.C. art. 1036( C). The trial court’s factual findings in determining whether a basis for the termination of parental rights has been proven will not be set aside in the absence of manifest error. State in the Interest of V.T., 609 So.2d 1105 (La. App. 2d Cir. 1992), writ denied, 614 So.2d 1269 (La. 1993).

In the present case, during the termination hearing in May 2016, the state presented the testimony of Rosie Owens, a DCFS foster care worker. Owens testified that the child, K.B., entered state custody in February 2015, based on reports that the mother, S.S., was having positive drug screens and not getting treatment for substance abuse while involved with the agency for her other two children. Owens stated that under the court-approved case plan, the parents were required to maintain housing adequate in size for the family, remain free of illegal drugs, provide proof of adequate income, complete a parenting course and attend all visits with the child and all court hearings. Owens testified that the primary areas of noncompliance for S.S. were her continued drug abuse and need for adequate housing. Owens stated that S.S. has lived in three residences since February 2015, when she lived in a mobile home. In June 2015, S.S. moved into a one-bedroom apartment with D.B. that DCFS determined was not adequate in size; then she moved into the maternal grandmother’s house, which was not approved by DCFS due to issues of domestic violence and drug use by the grandmother’s live-in boyfriend.

Regarding the mother’s substance abuse, Owens testified that S.S. had attended outpatient drug treatment sessions, but did not successfully complete the program because of a positive drug screen in May 2015, when she was referred to inpatient drug treatment at Rayville Recovery. Owens Instated that as of the date of the trial, S.S. had never attended the inpatient drug treatment program despite telling DCFS a number of times that she planned to go, but then saying that she wanted to attend an inpatient facility in Monroe and not Rayville. Owens did not know of any inpatient facility available in Monroe and stated that DCFS was required to follow the referral to Rayville made by the Office of Behavioral Health. Owens testified that S.S. had not substantially complied with the requirement to submit to random drug screens because in June 2015, S.S. submitted a “cold” urine sample that could not be tested and refused to provide another sample, then S.S. missed drug screens in October and November 2015 and in January and February 2016. Owens stated that although S.S. has said that she was working at Waffle House, she had not provided any proof of income to DCFS since August 2015, when she submitted pay stubs at a court hearing. Owens acknowledged that S.S. had attended all of the weekly visits with the child at the DCFS office and that her visits were generally good, she was attentive to the child and usually brought snacks or toys for the child to the visits. Owens stated that S.S. attended the minimum six parenting sessions to complete the course.

The mother, S.S., testified that she was currently living with D.B. in her mother’s three-bedroom rental house. S.S. stated that the maternal grandmother’s boyfriend had moved out one month before and no longer resided at the house. S.S. testified that the week before the hearing, she had submitted to DCFS paycheck stubs showing her income for the month of April 2016. However, S.S. stated that she was currently not working after quitting her job at the Waffle House two weeks before so that she could go to inpatient drug rehab. S.S. testified that she had not completed the 1 ¡jinpatient drug treatment that was initially recommended in May 2015, but asserted she was now “willing” to go to Rayville and was supposed to call that day to see if a bed was available. S.S. acknowledged that her drug abuse had been a continuing problem and that in the last week, at a drug screen on May 18, 2016, she had tested positive for the presence of methamphetamine. S.S. testified that she was asking the court to allow her an additional 90 days to complete the inpatient drug treatment required in the case plan.

The foster parents testified that K.B. had been living with them for more than one year, she was healthy and has her own room. They stated that if K.B. was freed for adoption, then they intended to adopt the child.

In her brief, S.S. asserts that she has shown improvement and should be given more time to complete inpatient drug treatment and to attend AA meetings. However, the record shows that S.S. has already gone for a period of one full year without attending the inpatient drug treatment required in the case plan or providing documentation of attendance at a single AA meeting. The testimony demonstrates that despite having been advised in May 2015 that she needed to complete inpatient drug treatment, S.S. had not taken action to comply with this significant requirement in the subsequent year. This failure to obtain treatment shows the persistence of the primary condition that led to the child’s removal. S.S.’s lack of compliance is also shown by her repeated failure to submit to random drag screens as required in the case plan. In addition, despite her submission of paycheck stubs for one month of work shortly before the termination hearing, S.S. failed to substantially comply with the plan requirement that she provide DCFS with proof of income sufficient to meet her family’s needs.

|nThe trial court heard the testimony and weighed the credibility of the witnesses. Based upon this record, we cannot say the trial court was clearly wrong in finding that the state proved with clear and convincing evidence that S.S. has failed to substantially comply with the case plan. Thus, this assignment of error lacks merit.

S.S. contends the trial court erred in finding that there is no reasonable expectation of significant improvement in her condition or conduct in the near future. S.S. argues that her completion of parenting classes, visitation with the child and her willingness to attend inpatient drag treatment provides the basis for a reasonable expectation that her conduct will significantly improve.

Under Article 1015(5), the lack of any reasonable expectation of significant improvement in the parent’s conduct in the near future may be proved with evidence of substance abuse that renders the parent incapable of exercising parental responsibilities without exposing the child to a substantial risk of serious harm based upon an established pattern of behavior, or any other conduct that reasonably indicates the parent is unable or unwilling to provide an adequate permanent home for the child. LSA-Ch.C. art. 1036(D). Reformation sufficient to prevent termination of parental rights requires that the parent demonstrate substantial change, such as significantly altering or modifying that behavior which served as the basis for the state’s removal of the child from the home. State in the Interest of T.J., 48,612 (La. App. 2 Cir. 9/11/13), 124 So.3d 484; State in the Interest of TD v. Webb, 28,471 (La. App. 2 Cir. 5/8/96), 674 So.2d 1077.

The primary concern of the courts and the state is the effort to secure the best interest of the child, including the termination of parental rights if | justifiable grounds exist and are proven. State in the Interest of S.A.T., 49,143 (La. App. 2 Cir. 5/14/14), 141 So.3d 816. The evidence must allow the conclusion that termination is in the best interest of the child. State in the Interest of TD, supra.

In her brief, S.S. contends the record contains a substantial indication of her reform, including her completion of parenting classes, payment of child support, visitation with the child, employment and readiness to enter inpatient drag treatment. Contrary to the mother’s contention, the record does not establish that she has paid child support for K.B., that she is employed or that she has significantly modified the behavior that caused the child’s removal from her care.

Although S.S. testified that her wages were subject to assignment for child support, she was not sure whether support for K.B. was being withdrawn from her pay in addition to support for her other two children. At the time' of the termination hearing, S.S. was not employed after having quit her job without knowing if there was a spot available for her at the inpatient treatment facility. In addition, her positive drug test for methamphetamine a week before the termination hearing shows a continuation of the behavior that led to the child’s removal from the home.

The mother’s repeated past failure to attend inpatient drug treatment and her positive drug test at the time of the termination hearing show that S.S. has not significantly altered her behavior. Rather, her continued drug use renders her incapable of exercising her parental responsibilities without exposing the child to a risk of serious harm. The state also presented evidence that S.S. failed to attend domestic violence counseling after D.B. committed a battery against her. Such failure is an example of other conduct |8that indicates S.S. is unwilling or unable to provide an adequate permanent home for the child based on a pattern of behavioi’.

After reviewing the record, we conclude that the mother’s past failure to complete inpatient drug treatment and to attend counseling supports the finding that there is no reasonable expectation of significant improvement in her condition in the near future. Further, based upon the mother’s lack of compliance with the case plan and the absence of any reasonable expectation for her reformation in the future, the trial court did not err in finding that the termination of parental rights is in the best interest of the child. Thus, the assignment of error lacks merit.

CONCLUSION

For the foregoing reasons, the trial court’s judgment terminating the mother’s parental rights as to the child, K.B., is affirmed. No costs are assessed in this appeal.

AFFIRMED.


author: GARRETT, J.

text:
    STATE of Louisiana IN the INTEREST OF T.P.
    No. 51,172-JAC
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered November 16, 2016.

      LAYNE M. ADAMS, Counsel for Appellant/Mother
    SUSAN E. SKIDMORE, Counsel for Appellee/Dept, of Children and Family Services
    J. EDWARD PATTON II, Counsel for Appellee/Child
    JOHNNY L. SANDERS II, Counsel for Appellee/State of Louisiana
    Before WILLIAMS, CARAWAY, and GARRETT, JJ.
   GARRETT, J.

hThe schizophrenic mother of a four-year-old girl who has been in foster care since infancy appeals from a trial court judgment terminating her parental rights and releasing the child for adoption. We affirm the trial court judgment.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

In late June 2012, the 32-year-old mother — who has a significant and lengthy history of substance abuse and mental illness — gave birth to a daughter, T.P. After being discharged from the hospital, the mother and the child went to live with the maternal grandmother and the mother’s niece at the niece’s house. Initially, the grandmother and the niece took care of the child. However, on July 6, 2012, the mother began insisting upon caring for the child by herself. On July 8, 2012, the grandmother called the police and reported that, since the mother had assumed sole care of the child, she had failed to adequately feed and care for the infant. The grandmother also reported that the mother had locked herself and the baby in her bedroom for a period of time.

Elisha McNeal, an investigator for the Department of Children and Family Services (“DCFS”), was called to the home by the police. She interviewed the mother and her family. The grandmother informed her that the mother had severe mental health issues, which rendered her unable to care for the baby, and that she was prone to violent, erratic, and impulsive behavior. The niece verified the grandmother’s statements about the mother’s history of mental illness and violence. According, to the niece, | ¡.family members .were willing to help care for the baby, but were afraid of the mother’s reaction if they did. The mother told Ms. McNeal that she had been diagnosed with schizophrenia and prescribed Seroquel, an antipsychotic medication, which she was unable to take during her pregnancy. (When she was discharged from the hospital, the mother was offered a prescription to resume her medication, but she chose not to take it.) Ms. McNeal observed that the mother appeared to lack knowledge of basic child care.

The police took the mother to the hospital for an evaluation of her mental state. However, no psychiatrist was on staff that day, and the mother was discharged after she refused to be admitted and stay voluntarily.

An instanter order was issu'ed, placing the baby in DCFS custody. Initially, she was placed in foster care with a maternal great-aunt. In the supporting affidavit for the instanter order, Ms, McNeal stated that she had ascertained that the mother had been involved in a prior case in which she left her sister’s children, who were in her care, unattended and that she had an extensive history with law enforcement. The location of T.P.’s father was unknown at that time.

On July 12, 2012, a continued custody hearing was held. The mother and grandmother both attended and testified, as did Ms. McNeal. Attorneys for the state, the mother, and the child were also present. Ms. McNeal testified about how the child came into state custody. The mother denied | slocking herself and the baby in the bedroom or failing to feed the baby. She also denied having a mental problem; instead, she said she had a drug problem that related back to smoking POP nine years before. She admitted being diagnosed with schizophrenia and hearing “friendly voices.” She said that when she took Seroquel, she did not hear- the voices as much and was calmer. She insisted that she did not want her mother or niece to help care for the child and claimed that she was upset because they had done so to her exclusion since the baby came home from the hospital. She stated that she did not want the child returned at the time of the hearing because she was getting along with the grandmother and the return of the child would cause problems between them. The grandmother testified that, during the incident leading to the child’s removal, the door to the mother’s room was not locked. Although she could get in the room, the mother rebuffed her efforts to feed the baby. She said she was able to feed the baby at one point when the mother was bathing. She also noted that the mother failed to change the child’s clothing for three days.

Based upon the evidence, the court found reasonable grounds to believe that the child was in need of care, continued custody with DCFS was necessary for the child’s safety and protection, and DCFS had made all reasonable efforts to prevent removal. The court stated that it was encouraged by the mother’s testimony that she recognized that she needed to resume her medication. At the conclusion of the hearing, the court advised the mother that it could refer her to the Indigent Defender Board (“IDB”), so she could obtain free counsel for further proceedings. However, the mother repeatedly and emphatically refused the court’s offer.

|40n August 10, 2012, the state filed a petition to declare the child in need of care based on neglect/dependency and inadequate food. At the hearing to answer the petition on August 13, 2012, the court repeatedly and strongly encouraged the mother to obtain legal counsel. The mother unequivocally refused again, insisting that she could speak for herself and that she didn’t feel she needed an attorney. The mother entered a denial to the allegations in the petition, and a full child-in-need-of-care (“CINC”) hearing was ordered for September. 13,2012.

At the CINC hearing, testimony was given by Ms. McNeal and Donna Harris, a DCFS foster care worker. The mother also testified. At the beginning of the hearing, the court once again asked the mother if she wished to be referred to the IDB; the mother refused yet again. Ms. McNeal detailed the events surrounding T.P.’s removal from the mother’s custody, including how the family was too afraid of the mother to keep the baby.- She also stated that, when she interviewed the mother several days after the child was removed, the mother indicated that she was getting along well with her family and she was afraid that the child’s return would cause everything to “go to shambles again.” Ms. Harris testified that the case plan for reunification called for the mother to attend parenting classes, complete a substance abuse assessment, and obtain employment, and that the mother had indicated that she did not need any of those services. She further testified that DCFS was still working toward reunification,- but that its recommendation could change in 11 months if the mother continued to fail to work on the case plan.

The mother was questioned by the court, She explained that, on the day the police were called, she was angry because everyone else had been) staking care of the baby and she never got to hold her. She expressed her beliefs that she could care for the baby without any help and that she did not have to work the case plan because “[e]verything that I’m going through is just a bunch of lies.” She indicated that she had been taking Seroquel for nine years before she became pregnant and had resumed it for two months before her counselor recently changed it. She testified that she had been diagnosed as schizophrenic after getting sick from doing PCP nine years earlier and that she was being seen monthly at the Monroe Mental Health Center (“MMHC”) for her schizophrenia and substance abuse. She had also been prescribed an antidepressant. She conceded that she would be on medications for the rest of her life and asserted her willingness to take them.

At the conclusion of the evidence, the court found T.P. in need of care and continued her custody with the state. The court ordered the mother to comply with the case plan and further directed that the mother and the grandmother receive joint counseling to work out their issues.

In October 2012, DCFS submitted a case plan, the goal of which was reunification; the trial court signed a judgment approving it. The case plan showed that the mother attended the family team conference (“FTC”) in September 2012. Another case plan was submitted and signed in January 2013. It was noted in this case plan that the mother had been invited to the January 2013 FTC but failed to attend. Also, she had refused to visit the child for the past six months because “she doesn’t want to leave her once the visit is over” and she preferred the child to remain in state custody to prevent problems with the grandmother. In March 2013, an amended visitation contract was signed by the trial court.

|rJn July 2013, DCFS sought a permanency hearing for T.P. based on the fact she had been in foster care for a year. It recommended changing the case plan goal from reunification to adoption, noting the mother’s failure to work the case plan or even visit the child. The Court Appointed Special Advocate (“CASA”) volunteer appointed for the child recommended removing the little girl from the great-aunt who was caring for her due to the woman’s ill health and her decision to not adopt the child. CASA felt a different placement would be more beneficial to the child and lead to adoption.

Although invited, the mother failed to attend the FTC in July 2013. The mother’s refusal to visit the child was again noted and the case worker reported no contact with the mother for the six-month reporting period. The resulting case plan was approved by judgment in August 2013.

The mother missed the next two court dates, July 29, 2013, and August 22, 2013, which were set for a permanency hearing. However, the maternal grandmother had heard about the first hearing and appeared. Asked to explain her daughter’s absence, she said it was difficult to get her to “cooperate with a lot of things and her meds — she sleep[s] all day long, all day.” She further admitted that she was leery of waking her daughter because she sometimes would “wake up swinging.” However, the mother had actual notice of the second hearing and simply refused to attend. Ms. Harris testified that the mother had complied with only one component of the case plan, i.e., submitting to a substance abuse assessment, and had refused to visit the child. Consequently, DCFS requested that the case plan [ 7goal be changed from reunification to adoption due to the mother’s noncompliance. The court agreed and signed a permanency/case review judgment so ordering.

In September 2013, T.P. was placed with a couple. (She was briefly in another placement immediately after she was removed from her great-aunt’s care.) By February 2014, the couple had expressed interest in adopting T.P.

The mother failed to attend the January 2014 FTC; the FTC report indicated that the mother visited the child once in the last six months. On February 24, 2014, a six-month review was held. The mother, the grandmother, and the mothei’’s aunt attended. The child and her foster parents were also present. The mother’s refusal to have an attorney was again noted. In May 2014, T.P. was removed from her foster parents due to an allegation of abuse toward another foster child in their home. She was placed with a foster mother in Monroe. On November 12, 2014, DCFS filed a petition for involuntary termination of parental rights (“TPR”) and certification for adoption.

Another six-month review was held on November 13, 2014. The mother was present and objected to the child being released for adoption. Ms. Harris testified as to the present status of the case. She stated that the mother had not visited with the child since February 2014 (when she saw the child at the review hearing) and that she attended the FTC in July 2014 by phone. The court questioned the mother about her refusal to have legal counsel. The mother continued to maintain that she did not need a lawyer. |sHowever, the court sternly insisted that she obtain counsel and referred her to the IDB. When the mother appeared in court at the hearing to answer the TPR petition on December 8, 2014, she was represented by the same attorney who represented her at the first hearing in July 2012. He entered a denial to the petition on behalf of the mother.

In January 2015, DCFS requested court approval for T.P. to travel to Arizona for placement in the home of a maternal cousin. The request was approved.

In March 2015, the trial court ordered the mother to submit to a psychological examination. In compliance with this order, the mother was examined by a clinical psychologist, Dr. James Pinkston, in April 2015. He submitted a comprehensive written report in which he stated that he found her judgment and insight to be “significantly impaired” and her thought processes “delusional.” He listed his diagnostic impressions of: schizophrenia; major depressive disorder, recurrent, moderate; cannabis, cocaine and PCP use disorders; and borderline intellectual functioning. He noted that her answers indicated that she felt uncomfortable with her child and inadequate and overwhelmed by her role as a parent. According to Dr. Pinkston’s evaluation, the mother was incapable of assisting counsel at that time and required stabilization.

The TPR petition came before the court on May 28, 2015. The mother did not appear in court, apparently because she was upset by the psychologist’s conclusions, and the case was reset. The court indicated that, given the mother’s mental condition, it was concerned about protecting her due process rights. To that end, the court appointed Richard Bridges, LPC, as a limited curator to assist the mother in her defense for the TPR hearing.

|aOn June 29, 2015, the mother was present with her attorney and Mr. Bridges when the TPR hearing resumed. Testimony was given by Ms. Harris, the foster care manager for T.P., recounting the history of T.P.’s placement in foster care and DCFS’s efforts to assist the mother. She detailed the mother’s failure to attend parenting and anger management classes, her sporadic compliance with mental health treatment requirements under the case plan, and her poor record of visiting the child prior to the child’s move to Arizona. She recounted the mother’s statement that she was “okay” with the child being with a family member. Ms. Harris testified that, in the agency’s opinion, the mother was unable to parent the child and that it could not recommend reunification. She also testified that a psychological evaluation of the mother was part of the original case plan in 2012, but that one was not ordered until 2015. She explained that, instead of routinely scheduling psychological evaluations, the agency generally referred people to the Office of Behavioral Health (“OBH”). Since the mother had already been there and was receiving services, the agency obtained her existing medical records from OBH, which included some evaluations, in lieu of making the referral. However, she admitted that it was an oversight not to make a referral at a later time. At the conclusion of Ms. Harris’s testimony, the trial court recessed the hearing and ordered that the mother receive follow-up treatment, as recommended by Dr. Pink-ston in his report. She was hospitalized for a week at University Health-Conway.

At a status hearing on August 31, 2015, it was reported that the mother had failed to attend appointments with Mr. Bridges, as well as two jinFTCs. The mother claimed that she had either not received notice or that the notice was untimely. The mother informed the court that she did not feel better since being hospitalized after the last hearing. The court again encouraged the mother to cooperate with the people trying to help her.

At the next hearing, on October 22, 2015, the mother was not present. Ms. Harris stated that the mother was not home when she went to pick her up, the cell phone number she had for the mother was disconnected, and the maternal grandmother refused to give her the mother’s new cell phone number. While the hearing had already been rescheduled due to the mother’s inability to obtain transportation to a meeting with her curator, the mother was apparently unaware of the rescheduling.

On November 12, 2015, the hearing was resumed. The mother was present with her attorney and her curator. The mother’s medical records from MMHC were produced and admitted over the objections of the mother and the facility. These records detailed the mother’s extensive mental health history. They included psychosocial assessments and updates, as well as psychiatric evaluations. They reveal claims of two suicide attempts at age 12; three psychiatric hospitalizations between ages 13 and 16; use of alcohol and marijuana at about age 16, and use of POP beginning at age 17 or 18. In 2001, when she was 21, one of her sisters sought to commit her for violent physical attacks. In 2004, she was diagnosed with schizophrenia. In 2005, she was diagnosed vrith psychosis and was first prescribed Seroquel. In 2006, she was taken to the emergency room by the police after “aggressive behavior” at her home and had a significant alcohol level. Apparently she Inhad also used POP the night before. She was discharged with a diagnosis of chronic paranoid schizophrenia. Thereafter, she received treatment periodically. She was discharged as stable in August 2008, but her case was reopened in 2010 when her auditory hallucinations returned. When she was pregnant in 2012, her Seroquel was reduced. From August 2012 to 2014, after T.P.’s birth and removal, she tested positive for marijuana several times. On numerous occasions, she failed to show up for mental health appointments. She also failed to follow through on referrals for substance abuse counseling, as recently as 2014. In January 2015, her case was closed due to her failure to attend appointments. In February 2015, she returned to get her case reopened. She recounted that when she was off her medications, she would have nightmares and hear “friendly” voices. In March 2015, she reported being off her medications for two months. On many occasions throughout the records, she was noted to have borderline intellectual functioning and a “childlike” or “immature” demeanor which was not age appropriate.

Dr. Pinkston testified that the mother’s intellectual functioning was borderline with disorganized mental processes, impaired judgment and mild depression. She also manifested “pronounced delusions,” was defensive, and tried to minimize her history. He also described her as glib. The delusions included being kicked out by her mother and growing up on the streets since the age of two and having amnesia “since she was born.” She untruthfully denied ever receiving mental health treatment or being arrested. His review of her medical records revealed that, between 2005 and 2014, she had had at least eight psychiatric episodes severe enough to require treatment or presentation in an emergency room and she was “almost al-waysjjgdiagnosed with some form of psychosis.” On one such occasion, she tested positive for POP, cocaine and cannabis. Her most recent emergency room incident was in late August 2014, when she presented with depression and auditory hallucinations. At that time, she was prescribed Seroquel and Lexapro. However, when Dr. Pinkston saw her in April 2015, she admitted that she was not taking any medications. Dr. Pinkston indicated that she was incapable of independent living and could not even manage medications on her own due to her confusion. In fact, he said her judgment was too poor to understand why she should take the medications.

When asked if his diagnosis of schizophrenia was new or consistent with her past diagnosis, Dr. Pinkston stated that she had been diagnosed with schizophrenia in forms of psychosis in the past. In fact, he noted that she had been diagnosed with some form of psychosis in virtually every admission.

Dr. Pinkston observed that the best indicator of future behavior was past behavior. Based on the mother’s history, he found that it was “very likely” that she would continue to have significant problems in her ability to parent. Her schizophrenia is a lifelong disorder. While medications can make the symptoms manageable, patients “almost always” relapse, and the mother’s medication compliance has been “spotty.”

In addition to schizophrenia, Dr. Pink-ston found that the mother suffered from a major depressive disorder which was recurrent and moderate, and required treatment. Her drug disorders also concerned him as to her parenting ability. He found it notable that she was found to have three drugs in her system • at one time. He opined that the mother’s limited insight and judgment meant that she was prone to make poor choices for herself and |1Rher child. Her borderline intellectual functioning also put her at a significant additional disadvantage in coping. Due to her disorders and limitations, he believed that it was highly probable that she would have multiple episodes in the near future where she would show inappropriate judgment, lack of judgment, or poor behavior in maintaining a safe and appropriate environment for her child. He concluded that her ability to parent appropriately and consistently was impaired.

While Dr. Pinkston thought that medication, counseling, and occasional evaluation by a psychiatrist might lessen the mother’s confusion and delusions, he opined that they cannot be eliminated. Likewise, medication and treatment could possibly control her schizophrenia, but it cannot cure it. He further opined that the confusion caused by-her restricted intellectual functioning cannot be treated.

Ms. Harris, who left DCFS in October 2015, also testified about the case history. The state then rested its case.

On December 14, 2015⅝ the hearing resumed. The mother called two licensed professional counselors: Mr. Bridges, her court-appointed, limited curator, and Ella Gray, who was following her at MMHC. Mr. Bridges testified that the mother had received inconsistent treatment and conflicting diagnoses over the years. He stated that she had made “steady progress” since her recent court-ordered hospitalization. However, he conceded that some of her confusion could be caused by her limited intellectual functioning and there was no treatment for that. Although the mother claimed that she was currently free of illicit drug use, Mr. Bridges was aware that similar assertions in the past had been contradicted by drug test results. Ms. Gray testified that the mother had been attending monthly 114psychotherapy sessions of only 30 to 45 minutes consistently since September 2016; she admitted that the mother missed an appointment in August. The mother was also seeing a nurse practitioner every three months or as needed. She said the mother had stabilized “pretty well” and was less impulsive than she was when she was off her medications.

At the conclusion of the hearing, the court ruled that the state had overwhelmingly met its burden of proving by clear and convincing evidence that grounds for termination under La. Ch. C. art. 1015(5) had been met and that termination of parental rights was in the best interest of the child. In so ruling, the court noted that, while the mother had improved recently, her mental illness was a “lifelong challenge” that would not go away. At a review hearing on June 13, 2016, the court signed the judgment terminating the parental rights of T.P.’s parents and releasing her for adoption.

The mother appeals.

WAIVER OF COUNSEL

The mother contends that she was denied due process because she had no attorney during the CINC case. She asserts that the trial court failed to follow the provisions of La. Ch. C. art. 608(A)(1)—(3) when it allowed her to proceed without counsel. She maintains that, due to her mental impairment, she could not knowingly and intelligently waive counsel.

Law

In relevant part, La. Ch. C. art. 608 provides:

A. The parents of a child who is the subject of a child in need of care proceeding shall be entitled to qualified, independent counsel at the continued custody hearing and at all stages of the proceedings thereafter. This right may be waived by a parent if the court determines that the parent choosing to waive his right to representation has been instructed by the court about his rights and the 11fipossible consequences of waiver. Before accepting a waiver of counsel, the court shall ensure each of the following:
(1) The parent has been informed by the court that the Department of Children and Family Services cannot provide legal advice to the parent or represent the parent’s interest.
(2) The parent has been informed by the court that the child’s attorney cannot provide legal advice to the parent and does not represent the parent’s interest.
(3) The parent has been informed by the court that a proceeding brought under this Title may ultimately result in a termination of parental rights and a complete and permanent separation of the parent from the child.

Discussion

A review of the record reveals that the trial court repeatedly advised the mother of her right to free counsel at several hearings and vigorously implored her to take advantage of this resource. The court explained the disadvantages the mother would face due to her lack of knowledge of the law. Despite the court’s pleas, the mother continually and adamantly refused to accept counsel. Only after a different judge forcefully insisted that she accept counsel did the mother finally relent on the issue.

As to La. Ch. C. art. 608(A)(1) and (2), the trial court told the mother at the answer hearing on August 13, 2012: “I can’t give you advice. Only a lawyer representing you could do that. Nobody else in this courtroom could do that for you.” As to the advisement of possible termination of parental rights under La. Ch. C. art. 608(A)(3), this information was specifically presented to the mother in the case plan in a section entitled “Reasonable Expectations and Responsibilities of Biological Parents,” which she signed on September 5, 2012. Furthermore, there was considerable discussion of the possible termination of her parental rights at the CINC hearing on September 13, 2012. During a colloquy between the mother and counsel representing the child, the mother assured the attorney that she understood |1ftthat her failure to work her case plan could lead to both him and the state recommending that her parental rights be terminated. Despite knowing that her parental rights could be terminated, the mother still steadfastly continued to refuse counsel until November 2014. She also continued to refuse to work the case plan or even visit her child. Based on the above, we conclude that the mother was made aware of all requisite provisions of the statute early in the proceedings.

The mother contends that she was incompetent at the time she waived counsel and blames DCFS for not forcing her to undergo a psychological evaluation at an earlier point in the proceedings. She speculates that, had she been examined earlier, an attorney who would have safeguarded her rights would have been appointed and the outcome of this case might have been somehow different.

The mother’s argument is based on a great deal of unsupported conjecture. Contrary to her assertions, the eventual psychological evaluation and subsequent treatment failed to do anything to alter the ultimate — and inevitable — conclusion to this sad and tragic case, as will be discussed infra.

TERMINATION OF PARENTAL RIGHTS

The mother argues that DCFS failed to meet its statutory obligation to make reasonable efforts to make it possible for the child to safely return home to her. In particular, she contends that DCFS included a psychological evaluation in the case plan in 2012 and failed to follow through on it. She accuses DCFS of not doing its job because it failed to force her to undergo a psychological evaluation earlier in the proceedings. She also claims that, after the evaluation was finally performed and she was hospitalized as a result, her condition improved. Because of this, she argues that the trial |17court committed legal error in terminating her parental rights. The mother further claims that the trial court committed manifest error in terminating her parental rights. She requests that the judgment terminating her parental rights be reversed and that the foster mother be awarded custody or guardianship with continuing contact and visitation between the mother and child.

Law

Whether termination of parental rights is warranted is a question of fact, and a trial court’s determinations will not be set aside in the absence of manifest error. State in Interest of C.V.W., 48,166 (La.App. 2d Cir. 4/10/13), 113 So.3d 1202.

To terminate parental rights, the state must meet the onerous burden of proving one of the statutory grounds for termination set forth in La. Ch. C. art. 1015-by clear and convincing evidence. La. Ch. C. art. 1035(A); State ex rel. B.H. v. A.H., 42,864 (La.App. 2d Cir. 10/24/07), 968 So.2d 881. Proof by clear and convincing evidence requires a showing that the existence of the disputed fact is highly probable, meaning more probable than its nonexistence. State in Interest of K.D., 586 So.2d 692 (La. App. 2d Cir. 1991). Once a ground for termination is established; the trial court may terminate parental rights if termination is in the best interest of the child. La. Ch. C. art. 1037(B); State in Interest of J.M.L., 47,201 (La.App. 2d Cir. 4/11/12), 92 So.3d 447.

As set forth in La. Ch. C. art. 1015, the grounds for termination of parental rights are, in relevant part:

(5)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 Incompliance 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 im? provement 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. (Emphasis added.)

La. Ch. G. art. 1036 provides, in relevant part:

C. Under Article 1015(5), lack of parental compliance with a case plan may be evidenced by one or more of the following:
(1) The parent’s failure to attend court-approved scheduled visitations with the child.
(2) The parent’s failure to communicate with the child ..,
(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.
D. Under Article 1015(5), lack of any reasonable expectation of significant improvement in the parent’s conduct in the near future may be evidenced by one or more of the following:
(1) Any physical or mental illness, mental deficiency, substance abuse, or chemical dependency that renders the parent unable or incapable of exercising parental responsibilities without exposing the child to a substantial risk of serious harm, based upon expert opinion or based upon an established pattern of behavior. (Emphasis added.)

A parent who professes an intention to exercise his or her parental rights and responsibilities must take some action in furtherance of the intention to avoid having those rights terminated. State in Interest of C.S., 49,955 (La.App. 2d Cir. 3/18/15), 163 So.3d 193.

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. As such, the primary concern of the courts and the State remains to secure |19the best interest of the child, including termination of parental rights if justifiable grounds exist and are proven. State ex rel. K.G., 2002-2886 (La. 8/18/03), 841 So.2d 759; State in Interest of C.V.W., supra.

Assessment of whether there is a reasonable expectation of significant improvement in the parent’s condition in the near future should be made in light of the purposes stated in La. Ch. C. art. 1001, particularly that the proceedings shall be conducted expeditiously to avoid delays in resolving the status of the parent and in achieving permanency for the . children. State ex rel. L.R.S., 38,812 (La.App. 2d Cir. 6/23/04), 877 So.2d 1040; State in Interest of C.V.W., supra.

Mental illness or disability alone is insufficient grounds to warrant termination of parental rights. State ex rel. L.R.S., supra. The parent’s mental state, however, as it relates to the ability to care for the child is an important factor to be considered in a termination proceeding. State ex rel. J.A., 1999-2905 (La. 1/12/00), 752 So.2d 806; State ex rel. L.R.S., supra; State in Interest of C.V.W., supra.

More than simply protecting parental rights, our judicial system is required to protect the children’s rights to thrive and survive. A child has an interest in the termination of parental rights that prevent adoption and inhibit that 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 the procedural rules enacted to insure that parental rights are not thoughtlessly severed, those interests must ultimately yield to the paramount best interest of the children. State in Interest of S.M., 98-0922 (La. 10/20/98), 719 So.2d 445.

LnAdults can take years to improve their functioning, but developing children do not have such time, as children’s lives are significantly disrupted while their parents are attempting to deal with their own problems. State in Interest of E.I.R., 2013-450 (La. App. 5th Cir. 11/19/13), 130 So.3d 360.

Discussion

The mother claims that her mental health was the primary, if not sole, impediment to reunification with her child. She contends that DCFS failed to perform its statutory duty to assist her because it did not force her to undergo a psychological evaluation early in the proceedings. She maintains that, until the evaluation was done in 2015, DCFS was unaware of her mental health diagnosis and could not provide appropriate services which would lead to reunification.

However, the mother’s argument ignores the fact that, on the very day T.P. was removed, the mother herself was able to inform the DCFS investigator that she suffered from schizophrenia, the same primary diagnosis made by Dr. Pinkston in 2015. Thus, it cannot be said that this was a “new” diagnosis. The medical records to which DCFS was given access showed that the mother had a long history of psychotic episodes. DCFS was also made aware that the mother already had access to mental health treatment at MMHC.

. DCFS also argues that, contrary to the mother’s assertion, her mental health was not the sole or primary reason for the proceedings. The mother’s lack of understanding of basic child care and the. intra-family violence were also key factors which led to the inclusion of parenting and anger management classes in the case plan. It notes the mother’s failure to comply 121with virtually every aspect of the case plan, including attending any of these classes or even visiting her child. As to the failure to arrange a psychological evaluation, DCFS maintains that Dr. Pinkston’s testimony demonstrated that there was little more that could have been ordered for the mother other than the mental health care she was already receiving. Even after she received inpatient treatment and was admonished by the trial court to cooperate with DCFS’s efforts to help her, the mother continued to miss appointments and refused to cooperate with DCFS. DCFS argues that it made “reasonable efforts” to reunify the mother with T.P. which were ultimately frustrated by the mother’s actions and that the trial court correctly found that it had carried its burden of proving grounds for termination.

We agree, and we find neither legal error nor manifest error in the trial court judgment terminating the mother’s parental rights. For many years, the mother has had access to free mental health treatment; however, she only sporadically chose to avail herself of these services. While DCFS was aware that the mother had mental health issues for which she was receiving treatment, it lacked the ability to force her to consistently receive treatment. Likewise, DCFS was aware that the mother was prone to violence and that she lacked basic parenting skills. While it was able to offer her services designed to address those issues, it again lacked the ability to compel her to follow through with them if she elected not to do so. While the mother cannot be faulted for being afflicted with mental illness, she does bear Irresponsibility for her actions in exaeer-bating the situation with illegal drug abuse and in refusing to cooperate with the DCFS’s many efforts to help her.

Our review of the record shows that DCFS made reasonable efforts to reunite the mother with her child. These efforts were frequently frustrated by the mother’s lack of cooperation. DCFS is a governmental agency with thousands of cases and finite resources that cannot support the mother’s apparent need for long-term assistance. See State ex rel. C.J.K., 2000-2375 (La. 11/28/00), 774 So.2d 107; State in Interest of E.I.R., supra. The evidence further shows that the mother is afflicted with a devastating combination of mental illness and limited intellectual functioning which make it impossible for the child to ever be safely returned to her. While the medical testimony indicated that some symptoms of her conditions, including the periodic psychotic episodes associated with her schizophrenia, mighty possibly be “controlled somewhat,” it established that no amount of treatment will cure these conditions.

In fact, the only relief requested by the mother’s counsel in seeking reversal of the TPR judgment is a judgment of custody or guardianship to the foster mother with continuing contact and visitation between the mother and child, in lieu of releasing the child for adoption. However, the record shows that the mother has never made any efforts to consistently communicate with T.P. First, she refused to attend visitation with the child while she was present in this state. After the child moved out-of-state to live with a maternal cousin, the mother continued in her failure to maintain any [^contact, be it by telephone or mail, with the child, despite the willingness of the cousin to facilitate the communication.

The purpose of guardianship is to provide a permanent placement for children when neither reunification with a parent nor adoption has been found to be in their best interest; to encourage stability and permanence in the lives of children who have been adjudicated to be in need of care and have been removed from the custody of their parent; and to increase the opportunities for the prompt permanent placement of children, especially with relatives, without ongoing supervision by the department. La. Ch. C. art. 718(A).

In the instant case, the record clearly shows that termination of the mother’s parental rights and adoption are in the best interest of the child. T.P. is now four years old; she has been in foster care since she was only two weeks old. After several different placements, she is currently living with a cousin who wishes to offer her the stability and permanence of a loving home by adopting her. T.P. has bonded with the cousin’s other children. She was reported to be doing well in daycare and enjoying extracurricular activities like cheerleading and gymnastics. The cousin indicated that the mother is welcome to communicate with T.P. and that she was willing to allow the mother to see the child when they visited Monroe.

Placing T.P. under a guardianship would have the effect of trapping this child in an indefinite legal limbo. It would effectively deprive this child, who has been shuffled from placement to placement for her entire life, of much needed stability, security, and permanence for no valid reason. The evidence in the record before us demonstrates no realistic hope that the mentally ill mother will ever reach a point where she will establish — much l^less maintain— meaningful contact with the child. We find that the trial court’s holding that adoption is in the best interest of the child is fully supported by the record.

CONCLUSION

The trial court judgment terminating the mother’s parental rights and releasing the child for adoption is affirmed. No costs are assessed in this appeal.

AFFIRMED.

      . Among other things, the mother admitted sleeping with the baby in her bed, a practice which the agency did not consider safe. When Ms. McNeal explained the severe potential consequences of this action, the mother indicated she was not worried because the baby had not died yet. While being cared for by the grandmother and niece, the infant slept in a Pack ’n Play in the same room as the grandmother.

      . After he was located, he declined to work a case plan with DCFS, and his parental rights were terminated in the same judgment terminating those of the mother. He is not a party to the instant appeal.

      . She said that she learned that service of a subpoena for the hearing had been made at their former home by the current residents. However, there were subsequent indications that domiciliary service had, in fact, been made on the mother for this hearing.

      . While Judge Sharon Marchman presided over all the other proceedings, Judge Charles Traylor, II, conducted this hearing.

      . The evidence indicated that, out of 75 scheduled visits, the mother attended only five.

      . The mother had refused to sign a release to allow DCFS to obtain her most recent records.

      . As of August 2016, this provision is now designated as subsection (6).

      . The mother’s ability to parent the child was further compromised by her lack of a steady family support system to assist her with the child. Her niece indicated reluctance to help on the part of some family members due to fear of the mother. Although an aunt appeared late in the proceedings to offer assistance with transportation issues, the relative to whom the mother was apparently closest was her own mother, the maternal grandmother. The records showed that this relationship was, like many other aspects of the mother’s life, tumultuous and unstable.

      . See and compare State in Interest of E.I.R., supra, wherein the appellate court affirmed the termination of the parental rights of a schizophrenic mother with a history of psychosis, major depression and substance abuse, who made significantly more efforts to work her case plan and cooperate with DCFS than the mother in the instant case.


author: WINDHORST, J.

text:
    GULF ENGINEERING COMPANY, LLC v. Allison KUHN
    NO. 16-CA-425
    Court of Appeal of Louisiana, Fifth Circuit.
    December 21, 2016

      . COUNSEL FOR PLAINTIFF/APPELLANT, GULF ENGINEERING COMPANY, LLC, Brian E. Sevin, Sr., Christopher J. Stahulak
    COUNSEL FOR DEFENDANT/AP-PELLEE, ALLISON KUHN, David M. Bienvenu, Jr., John A. Viator, Patrick H. Hunt
    Panel composed of Marc E. Johnson, Robert M. Murphy, and Stephen J. Windhorst
   WINDHORST, J.

| Plaintiff, Gulf Engineering Company, LLC (“Gulf’), appeals from a judgment granting an exception of no cause of action, dismissing its suit against defendant, Allison Kuhn, with prejudice. For the reasons that follow, we affirm.

Gulf instituted these proceedings by filing its “Petition for Intentional Interference with Contract,” in which it alleged that it had a contract with The Dow Chemical Company (“Dow”) to inspect, verify, track and non-destructively test equipment at various Dow facilities in Louisiana, including Dow’s facility in St. Charles Parish. On April 1, 2014, Gulfs contract was renewed for an additional four years, for a term to end on September 30, 2018. The contract, referred to by Gulf as the “agreement,” further had provisions for either party to terminate the contract under certain provisions.

Under the terms of the agreement, Gulf utilized between 50 and 117 employees to perform its duties at the St. Charles Parish Dow facility. Dow appointed its employee, Troy Barbier, to oversee and supervise Gulfs activities, and Mr. Barbier was Dow’s “direct point of contact” with Gulf.

In its petition, Gulf alleges that Dow persistently failed to timely or appropriately schedule various third party contractors needed prior to Gulfs performance of its duties, causing a significant backlog of required regulatory inspections and testing at the Dow facilities, including the St. Charles Parish facility. Dow assigned its employee, Ms. Kuhn, to more efficiently organize the third party assignments prior to the Gulf assignments, and to address other deficiencies. However, Mr. Barbier remained Dow’s representative and contract supervisor assigned to Gulf.

Gulf further alleges that Ms. Kuhn- was unable to cure the deficiencies, and she began to interfere with Gulfs relationship with Dow, including dictating Gulfs relationships with its own employees, allowing third party contractors to 1 ¡.solicit Gulf employees contrary to Dow policy, sharing confidential Gulf information and misinformation, which caused dissention and distrust among Gulf staff and raised Dow’s concerns regarding Gulfs ability to perform.

Gulf contends that five months after its contract was renewed, Ms. Kuhn informed Gulf employees that Gulfs contract was terminated and that should they wish to remain on site, they would have to begin immediate employment with a new contractor hired to replace Gulf. Gulf contacted Mr. Barbier, who advised Gulf that he was unaware of Ms. Kuhn’s actions. Within days, Mr. Barbier informed Gulf that Dow was exercising its rights under the agreement to terminate the contract with a 90-day notice period. However, Ms. Kuhn ordered Gulf supervisory personnel to immediately vacate the premises. Ms. Kuhn informed Gulf that she considered that neither she nor Dow was bound by Mr. Barbier’s notice of 90 days.

Gulf charges that, as a result of these and other acts and omissions performed by Ms. Kuhn, it was forced to immediately discontinue its work for Dow, causing loss of revenue, separation under duress from over 100 of its employees, and loss of its entire non-destructive testing division. Gulf contends that these acts and omissions of Ms. Kuhn were “undertaken with malice and with the intent to make GULF’s obligations under the AGREEMENT more burdensome and/or impossible, and to induce a breach of the agreement between GULF and DOW.” Gulf further contended that “The acts - and omissions of KUHN served no legitimate business interest for DOW, were wholly unjustified, and were not performed in the belief that the same would accrue to the benefit of DOW.”

Ms. Kuhn filed an exception of no cause of action, alleging that a suit for intentional interference with a contract can only be maintained against a corporate officer, or someone who functions in .a manner similar to a corporate officer,, and that a,cause of action for tortious interference with a contract does not exist against |san employee of a corporation who is not a corporate officer. After a hearing, the trial court sustained Ms. Kuhn’s exception of no cause of action; however it allowed Gulf fifteen days to amend its petition. See La. C.C.P. art. 934.

Thereafter, Gulf filed a First Supplemental and Amending Petition, adding the following: '

I.
Plaintiff herein and hereby re-alleges and re-avers each and every allegation contained in its original Petition for Intentional Interference With Contracts as though re-alleged and re-pled herein in extenso.
II.-
Plaintiffs now add Paragraph 35a to the allegations contained in its original Petition for Intentional Interference With Contracts, to read as follows:
“Kuhn was therefore charged with the same duties, authority, and responsibilities as a corporate officer of Dow, which rendered her position completer ly indistinguishable from that of a corporate officer of Dow, which she effectively served as at all times pertinent hereto.
III.

Plaintiffs now add Paragraph 35b to the allegations contained in its original Petition for Intentional Interference With Contracts, to read as follows:

“In the alternative, Kuhn was therefore charged with the same duties, authority, and responsibilities as a ‘corporate official’ of Dow as defined in 9 to 5 Fashions, Inc. v. Spurney, 538 So.2d 228, 234 (La.1989), and which rendered her position completely indistinguishable from that of a corporate officer of Dow, which she effectively served as at all times pertinent hereto.”

IV.

Plaintiffs now add Paragraph 35c to the allegations contained in its original Petition for Intentional Interference With Contracts, to read as follows:

“Wielding the same duties, authority, and responsibilities as an officer and/or official of Dow, Kuhn’s actions and omissions cited hereinabove constituted a breach of the duties of such an officer and/or official, as recognized in 9 to 5 Fashions, Inc. v. Spurney, 538 So.2d 228 (La.1989).”

| ¿Ms. Kuhn filed a second exception of no cause of action, which was also granted by the trial court, and Gulfs suit was dismissed with prejudice. In this appeal, Gulf argues that the trial court erred in finding that a cause of action for intentional interference with contracts as provided in 9 to 5 Fashions, Inc. v. Spurney was limited to defendants who are corporate officials, that the court erred in finding that the cause of action did not extend to defendants who were non-officer corporate “officials,” and that the court erred in finding that Ms. Kuhn was not a de facto corporate officer so that the cause of action for intentional interference with contracts should apply.

The purpose of the peremptory exception of no cause of action is to determine the sufficiency in law of the petition. Laguerre v. Mendez, 08-784 (La.App. 5 Cir. 02/25/09), 9 So.3d 896, 898. The exception is triable on the face of the papers, and for the purpose of determining the issues raised by the exception, the court must presume that all well-pleaded facts in the petition are true. Id. All reasonable inferences are made in favor of the non-moving party in determining whether the law affords any remedy to the plaintiff. Id.

In 9 to 5 Fashions, Inc. v. Spurney, 538 So.2d 228, 232-34 (La.1989), the Court recognized a limited cause of action for tor-tious interference with contractual relations, that applies “to a corporate officer interfering with his employer’s contractual relations with third persons.” Miller v. Desoto Reg'l Health Sys., 13-639 (La.App. 3 Cir. 12/11/13), 128 So.3d 649, 658. The Court set forth the elements of the cause of action for intentional interference with contracts:

For purposes of analysis, the action against a corporate officer for intentional and unjustified interference with contractual relations may be divided into separate elements: (1) the existence of a contract or a legally protected interest between the plaintiff and the corporation; (2) the corporate officer’s knowledge of the contract; (3) the officer’s intentional inducement or causation of the corporation to breach the contract or his intentional rendition of its performance impossible or more burdensome; (4) absence of justification on the part of the | aofficer; (5) causation of damages to the plaintiff by the breach of contract or difficulty of its performance brought about by the officer.

In this case, Ms. Kuhn is not a corporate officer of Dow. Therefore, on its face the petition filed by Gulf fails to state a cause of action under Spurney, supra. However, Gulf alleges that its petition states a cause of action based on recent case law that expands a cause of action for tortious interference with contract, citing Communication & Info. Resources v. Expressions Acquisition Corp., 95-1070 (La. App. 5 Cir. 5/15/96), 675 So.2d 1164, which found a cause of action for intentional interference with contract against a member of the Board of Directors for a chain of furniture companies; Chaffin v. Chambers, 577 So.2d 1125 (La. App. 1 Cir. 1991), in which the appellate court failed to recognize an action between attorneys in joint partnership for tortious interference with a contract between an attorney and his client; WKG-TV Video Elec. College, Inc. v. Reynolds, 618 So.2d 1023 (La. App. 1 Cir. 1993), suit against a director/shareholder of a corporation. In each of these cases, the court found that there was a fiduciary duty owed to the corporation such that the alleged tortious interference with contract would constitute a breach of that duty.

In response to the trial court’s grant of Ms. Kuhn’s first exception of no cause of action, Gulf filed an amended petition that alleges that Ms. Kuhn had the same duties as a corporate officer of Dow. However, there are no factual allegations regarding what the duties of Dow’s corporate officers are and how Ms. Kuhn’s duties were the same. Louisiana has chosen a system of fact pleading. La. C.C.P. art. 854, comment (a). While it is not necessary for a plaintiff to plead the theory of his case in the petition, the mere conclusions of the plaintiff unsupported by facts does not set forth a cause of action. Foret v. Caruso, 15-682 (La.App. 5 Cir. 03/16/16), 194 So.3d 643, 646.

|BIn finding that the amendment did not state a cause of action, the trial court stated that Gulfs supplemental and amending petition did not “cure the defects in the original petition. On the face of the pleadings, it is clear that Defendant Allison Kuhn is not a corporate officer of Dow.” We find no error the trial court ruling that Gulfs mere assertions that Ms. Kuhn had duties similar to those of Dow’s corporate officers was not sufficient to state a cause of action for intentional interference with contracts as set forth in Spurney, supra. In addition, we decline to extend the cause of action set forth in Spurney to employees, even those in a supervisory capacity, who intentionally interfere with contracts between their employer and a third party.

We affirm the judgment of the trial court granting an exception of no cause of action and dismissing Gulfs suit against Ms. Kuhn with prejudice. Costs are assessed against plaintiff/appellant, Gulf.

AFFIRMED

      . The Louisiana Supreme Court reversed the Court of Appeal and reinstated an order of the trial court overruling the defendant's exception of no cause of action, Chaffin v. Chambers, 584 So.2d 665 (La. 1991).