author: WILLIAMS, J.

text:
    STATE of Louisiana v. IN the INTEREST OF M.L.H.
    No. 51,956-JAC
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered January 10, 2018
    W. ALLEN HAYNES, Counsel for Appellant, T.J.H.
    DEPARTMENT OF CHILDREN AND FAMILY SERVICES, By: Pamela Harper Jacob, Counsel for Appellee, State of Louisiana
    CHILD ADVOCACY PROGRAM, By: RENEÈ P. COTÈ, Counsel for Appellee, M.L.H.
    DANIEL T. WILSON, Counsel for Appellee, John Doe, Unknown Father, A.L.P.
    Before WILLIAMS, PITMAN, and COX, JJ.
   WILLIAMS, J.

T.J.H., the mother of M.L.H., appeals a judgment of the Caddo Parish juvenile court that irrevocably dissolved and terminated her parental rights and certified the child for adoption. For the reasons that follow, we affirm.

FACTS

M.L.H. was born on August 28, 2015. Her mother, T.J.H, has a moderate intellectual disability (formerly known as mental retardation ) with an IQ of 52, and she is HIV-positive. M.L.H.'s biological father is unknown. Additionally, the mother has reported that she is bipolar, schizophrenic and that she has ADHD. M.L.H. has been in and out of the custody of the Department of Children and Family Services ("DCFS") since she was approximately four months old.

In December 2015, M.L.H. was removed from her mother's custody after DCFS received a report that she was not gaining weight and she was often observed to be "dirty," wearing soiled diapers. However, the child was returned to her mother following a continued custody hearing held on December 17, 2015. At that time, the trial court ordered DCFS to provide services aimed to assist the mother in applying for food stamps and to assist her in learning how to clean and maintain her home. The mother was also referred to Life Changing Solutions and Homebuilders. The services provided included case workers coming into the mother's home to teach her certain life skills aimed at assisting her in maintaining a clean home and properly caring for M.L.H.

Once the services provided by DCFS ended, T.J.H. continued to struggle with caring for M.L.H. Dr. Sheila Farrell, a pediatrician at University Health in Shreveport, examined M.L.H. and expressed concern that the mother was feeding the young baby a mixture of baby food and water instead of formula. Dr. Farrell noted that M.L.H. was underweight and observed that the mother seemed to lack the capacity to properly care for the child. Dr. Farrell opined that when the services DCFS had provided to the mother ended, the mother began to revert to her old habits of not properly caring for M.L.H.

Dr. Ann Springer, another pediatrician at University Health, also examined M.L.H. She noted that the child had an ear infection, a "bad" diaper rash and that she was not gaining weight. Dr. Springer expressed her "concerns" that the mother lacked an understanding of how to feed M.L.H., despite being educated on how to do so.

Later in December 2015, M.L.H. was once again removed from the mother's custody. However, the juvenile court vacated the order and custody was returned to the mother. Thereafter, the mother's struggles with caring for M.L.H. continued: DCFS noted that the child was not being properly fed, she was not gaining weight and the mother was not keeping the child's medical appointments.

On March 23, 2016, DCFS received a report that the mother was not properly feeding M.L.H, the child was not gaining weight, was often observed to be "dirty" and was infected with head lice. Additionally, the daycare providers reported that M.L.H. usually arrived at the daycare with a heavily soiled diaper and without enough formula for the day. During the course of its investigation, DCFS learned that the mother was not giving M.L.H. the medication that had been prescribed to ward off the HIV virus. DCFS also discovered that M.L.H. had missed multiple medical appointments, which the mother never rescheduled. During her interview with the DCFS worker, the mother admitted that she fed M.L.H. by mixing water with baby food in a bottle and that she would "forget" to send formula to the daycare with the child. Further, an inspection of the mother's home revealed that it had a foul odor, the floor was cluttered with toys and clothing, the stove was covered with dirty pots and roaches were present inside the home.

On March 24, 2016, DCFS received an instanter order removing M.L.H. from her mother's custody and placing her in the custody of DCFS. On June 7, 2016, she was adjudicated a child in need of care ("CINC"). The court's disposition order continued custody with DCFS and approved an initial case plan wherein the permanent plan for M.L.H. was reunification with the mother. Due to the mother's limited intellectual/cognitive ability, the plan was simplified. The case plan contained the following requirements: (1) maintaining stable, adequate and clean housing; (2) following the cleaning instructions provided by DCFS service providers; (3) maintaining sufficient food in the home to feed herself and M.L.H.; (4) paying $25 per month to contribute to the care of M.L.H. in foster care; (5) attending parenting classes; (6) undergoing a mental health evaluation; (7) attending scheduled visits with M.L.H.; (8) maintaining regular contact with DCFS; (9) completing a medical examination to address the mother's current health issues and complying with all recommendations, including taking her medication and keeping her medical appointments; (10) completing a psychological examination and complying with all recommendations; (11) completing a psychiatric examination to assess the need for medication; and (12) cooperating with service providers and complying with all recommendations.

Subsequently, following multiple custody review hearings, the juvenile court changed the goal from reunification to adoption, finding lack of substantial compliance with the case plan by the mother and alleged father. On May 1, 2017, DCFS filed a petition to terminate the parental rights of the mother, A.L.P., "John Doe and/or any unknown father of [M.L.H.]." Following a hearing, the juvenile court found, by clear and convincing evidence, the necessary grounds for terminating the parental rights of the mother, A.L.P. and "John Doe and/or Any Unknown Father of [M.L.H.]." In its judgment, the court stated, in pertinent part:

* * *
6. [DCFS] has proven by clear and convincing evidence * * * that [the mother] has failed to work a court approved family case plan to ensure the minor child's health and safety, and make significant measurable progress towards alleviating the conditions that required the minor child to be in the custody of [DCFS], and her parental rights should be terminated.
* * *
9. The physical, mental and emotional welfare needs of the minor child, [M.L.H.], would best be served by terminating the parental rights of [the mother], [A.L.P.], John Doe and/or any unknown father of [M.L.H.] * * *; and that the child be freed and certified for adoption.
* * *

The mother appeals.

DISCUSSION

The mother contends the trial court erred in terminating her parental rights. She argues that DCFS did not prove, by clear and convincing evidence, the statutory grounds for termination or that terminating her parental rights was in the child's best interest. According to the mother, she has a mental and/or intellectual disability, which required DCFS to provide her with specialized services. She complains that DCFS failed to implement the services necessary to assist her in completing her case plan.

It is well settled that a parent has a constitutionally protected liberty interest in establishing and maintaining a meaningful relationship with his or her children. State in Interest of A.C. , 1993-1125 (La. 1/27/94), 643 So.2d 719, cert. denied , 515 U.S. 1128, 115 S.Ct. 2291, 132 L.Ed.2d 292 (1995) ; State in Interest of MTS , 49,630 (La. App. 2d Cir. 1/14/15), 161 So.3d 1025. This parental interest includes the companionship, care, custody and management of his or her children. Lassiter v. Dept. of Social Svcs. , 452 U.S. 18, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981) ; State in Interest of MTS, supra. Congruent with the parental interest, the state has a legitimate interest in limiting or terminating parental rights under certain conditions. State in Interest of A.C., supra ; State in Interest of MTS, supra ; State in Interest of ASW , 49,310 (La. App. 2d Cir. 6/25/14), 144 So.3d 1193.

A court may involuntarily terminate parental rights when the state proves the following elements: (1) at least one year has elapsed since the child was removed from the parent's custody pursuant to a court order; (2) there has been no substantial parental compliance with a case plan which has been previously filed by DCFS and approved by the court as necessary for the safe return of the child; and (3) despite earlier intervention, there is no reasonable expectation of significant improvement in the parent's condition or conduct in the near future, considering the child's age and his or her need for a safe, stable, and permanent home. La. Ch.C. art. 1015(5).

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 in Interest of MTS, supra. 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 MTS, supra ; State in Interest of J.M.L. , 47,201 (La. App. 2d Cir. 4/11/12), 92 So.3d 447.

At the time these proceedings were initiated, La. Ch.C. art. 1036 provided, in pertinent 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.
(3) The parent's failure to keep [DCFS] apprised of the parent's whereabouts and significant changes affecting the parent's ability to comply with the case plan for services.
(4) The parent's failure to contribute to the costs of the child's foster care, if ordered to do so by the court when approving the case plan.
(5) The parent's repeated failure to comply with the required program of treatment and rehabilitation services provided in the case plan.
(6) The parent's lack of substantial improvement in redressing the problems of 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.
* * *
(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.
* * *

In a proceeding for termination of parental rights, the issue of parental compliance with a case plan, the parent's expected success of rehabilitation, and the expectation of significant improvement in the parent's condition and conduct are questions of fact. An appellate court cannot set aside a trial court's findings of fact in the absence of manifest error or unless those findings are clearly wrong. State in Interest of MTS, supra ; State ex rel. C.M.M. v. T.P.M. , 42,238 (La. App. 2d Cir. 5/9/07), 957 So.2d 330.

Permanent termination of the legal relationship existing between natural parents and children is one of the most drastic actions the state can take against its citizens. However, the primary concern of the courts and the state remains to determine and insure the best interest of the child, which includes termination of parental rights if justifiable statutory grounds exist and are proven by the state. State ex rel. J.M. , 2002-2089 (La. 1/28/03), 837 So.2d 1247 ; State in Interest of MTS, supra.

In the instant case, Sylveria Hunt, the mother's DCFS case worker, testified as follows: before M.L.H. was adjudicated in need of care, DCFS worked with the family to provide "family services," whereby M.L.H. was allowed to remain in the home after DCFS had identified issues that could ultimately result in the removal of the child from the home; the goal of family services is to assist the mother in an effort to prevent removing M.L.H. from the home; after M.L.H. was placed in DCFS custody, the mother's case plan required her to pay $25 per month to contribute to the cost of her child being in foster care; the mother stated that she would make the monthly payments but she has never done so; she observed the mother and child during visits; the mother has a "very loving relationship with [M.L.H.]" and she is "very affectionate" toward the child; the mother interacts well with M.L.H. and is "always glad to see "[M.L.H.]"; M.L.H. recognizes the mother and the two "play a lot" during visits; the mother's role during visits seem to be "more playful" than parental; she has observed M.L.H. with her foster parents and they are "very affectionate towards each other"; M.L.H. seeks her foster parents for comfort; M.L.H. shares a bond with her foster parents and their extended family; the mother's visits with M.L.H. were reduced from weekly to once a month after the goal was changed from reunification to adoption; DCFS referred the mother to Michell Redding, LPC, LMFT, at the Redding Therapy Center for individualized parent counseling; Ms. Redding opined that the mother was unable to parent M.L.H. due to her cognitive limitations and an inadequate support system; it is the recommendation of DCFS that the parental rights of the mother, A.LP., and any other unknown father(s) be terminated and that M.L.H. be freed for adoption.

On cross-examination, Ms. Hunt testified that the mother's case plan "was written in a very simplified manner stating specifically what she needed to do"; Dr. Pinkston and other service providers had experience with working with people with intellectual disabilities; the mother was provided with individualized parent counseling; Redding reported that the mother would be able to parent a child "with a strong support system"; DCFS did not evaluate the mother's boyfriend with regard to his ability to parent because the mother had only been living with him for a short period of time; and she returned the mother's telephone calls and kept the mother updated regarding M.L.H.'s ear surgeries so that she would have the opportunity to be present for the surgeries.

A report prepared by Redding was introduced into the record. In the report, Redding expressed that the mother has displayed "genuine love, care and concern" for M.L.H. She also reported that the mother has been actively engaged in the parenting classes and that she had been "retaining information taught" in the classes. Nevertheless, Redding opined:

Unfortunately, due to [the mother's] cognitive limitations, she has not proven, based [on] her own independence that she is able to care for a baby. As stated prior, [the] therapist assisted [the mother] with what if and what to do scenarios. [The mother] was not able to determine the following: time (what time the baby would need medication if given every x amount of hours), amount (identify 4 oz on the baby bottle), (how many spoons are in x amount of spoonfuls). [The mother] also demonstrates poor judgment.

The mother testified as follows: she completed seven parenting classes; she had a history of seizures but she no longer took her anti-seizure medication; her case plan only required her to "take parenting"; she did not know she was required to pay parental contributions in the amount of $25 per month while M.L.H. was in foster care; she received $733 per month in SSI benefits; she lived with her boyfriend and they "split the bills down the middle"; she took her medication for HIV regularly, but she was unsure of the name of the medication; she saw her doctor in December 2016 but she had not scheduled an appointment for another visit; she had a son who passed away prior to his first birthday; M.L.H. had been removed from her custody on three separate occasions; the first time, M.L.H. was removed because "they said something about medical neglect or something"; M.L.H. was removed the second time because "she was losing weight and gaining weight," the phrase "failure to thrive" means "gaining weight and losing weight"; M.L.H. was also removed from her custody because she had "two [missed] doctors' appointments"; the juvenile court did not order DCFS to assist her with keeping her home clean and obtaining food stamps; she was not aware that she was supposed to comply with court orders regarding participating in services provided by DCFS; she took care of M.L.H. and she was not "beating her"; it was not her fault that M.L.H. failed to gain weight because "[y]ou can't make a baby grow weight overnight"; she fed M.L.H. with a mixture of baby food and water on one occasion because her sister suggested that she do so; mixing water and baby food and feeding it to her baby was not harmful "because my sister did it one time with her kids" and "my daddy did it with all four of us"; during high school, she was in special education and she "graduated from the tenth grade"; she had not received a GED; she did not proceed to the 11th grade in high school because "that was all. That was it. I graduated. That's all my classes. Plus I had bigger plans to go to college and make something of my life"; she did not go to college because "you got to take a step at a time"; she plans to get her own house and car "and then go to college"; she cannot enroll in college now because her boyfriend's "truck broke down"; she received SSI disability benefits because she had a seizure disorder and she "draws off [her] daddy"; she had been diagnosed with "bipolar, ADHD and sisterfrenic [sic]"; she does not take medication for any of her psychiatric/psychological diagnoses; and her visitation schedule with M.L.H. is every week but she visits with her "every other week."

When questioned by her attorney, the mother testified as follows: M.L.H. has her own room in the house she shares with her boyfriend; she and her boyfriend have been together "a little bit over a year" but are not planning to get married; she has family support from her father and her sister, who lives in Texas; if she cannot regain custody of M.L.H., she would like the court to consider placement with her sister because "I can trust my sister"; her sister, her sister's three children and her sister's boyfriend live with her mother and her mother's husband; Sylveria Hunt is her DCFS case worker; there is little communication between her and Hunt because "she don't [sic] ever return my phone calls"; she sometimes has to resort to contacting Hunt "through my daddy's old case worker"; her house is clean and free from safety hazards; she no longer receives food stamps because "they cut me off because they had to do an update"; Hunt did not tell her that she had to pay $25 per month; she underwent a psychiatric examination and had a "full scan on my head [to] see if I'm going to be able to take care of [M.L.H.] or not"; Hunt scheduled a doctor's appointment for her to determine if she needed to be placed on psychiatric medication; and she was placed on Seroquel for "my diagnosis"; in parenting classes, she learned "how to change a baby, baby needs, all type[s] of stuff"; she knows how to cook and operate kitchen appliances; she attends her visits with M.L.H.; she accompanies M.L.H. to her doctors' appointments; she sees a counselor every Thursday; the counselor is teaching her "how to open your ears and listen to your baby and stuff like that"; she is opposed to M.L.H. being certified for adoption because "I don't know why they took her in the first place. I really don't know why. Everybody makes mistakes, and everybody learns from it"; M.L.H. was removed from her custody "for nothing"; she has not seen A.L.P. in "way over a year" and she does not know where he lives; A.L.P. "denied a DNA test so I'm not worrying about that"; and she is agreeable to complying with her case plan.

The mother further testified as follows: she has lived with her boyfriend for approximately two weeks; prior to that, she lived with her father; if the relationship between her and her boyfriend ended, she would live with her father or her mother; she would more than likely live with her father because he "raised all of us"; her case plan required her to "keep doing good, but that's about it"; "somebody went over" the case plan with her and told her what she needed to do; and she is "upset" because M.L.H. was removed from her custody.

M.L.H.'s foster mother testified as follows: M.L.H. was placed in her home each time she was removed from the mother's custody; M.L.H. arrived at her home on two occasions in December 2015 with a severe diaper rash and an ear infection; M.L.H.'s diaper rash and ear infection had not healed when the child returned to her home in March 2016; she and her husband took M.L.H. to the hospital on consecutive days so that she could receive Rocephin injections for treatment of the ear infection; the pediatrician prescribed Nystatin for the diaper rash and the rash "cleared up very quickly"; M.L.H. was two years old and was "doing remarkably well" since being placed in her home; M.L.H. was "very playful, very happy"; initially, healthcare professionals had expressed concerns that M.L.H. would have developmental delays; when the child was first placed in her home, she exhibited weakness on her right side, had difficulty swallowing and had issues with coordination; the symptoms improved with therapy; a Court Appointed Special Advocate ("CASA") volunteer was appointed to the case; a CASA representative had been to her home three times since being appointed; the volunteer brought Christmas gifts for M.L.H. in "December, early January"; she had observed the mother's interactions with M.L.H.; the mother was attentive to the child; during visits, the mother plays with the child and gives her snacks on occasion; she and her husband have a 15-year-old daughter who has bonded with M.L.H.; and she and her husband would be willing to adopt M.L.H. in the event she was freed for adoption.

Jonathan Jackson, the mother's live-in boyfriend, testified as follows: he attends visits between the mother and M.L.H.; he is prepared to welcome M.L.H. into his home; he is employed and he owns his home; he does not have any children; he has a truck that is undergoing repairs; he does not know what medication the mother takes; the mother "goes every now and then to the little center" to get "disease clinic medicine"; the mother is unemployed; he purchased his home from a family member in "a rent to own type deal"; and he and the mother "pretty much split" the utility bills.

J.H., the mother's father, testified as follows: he has observed the mother's interactions with M.L.H.; the mother was "real nice to the baby" and she "fix[es] a bottle and give[s] her a bath at night"; the mother and her boyfriend had an "appropriate home" for M.L.H.; the mother would be able to be a "proper parent" to M.L.H.; he is willing to help the mother with M.L.H.; he receives a social security check every month; he lives with his son's ex-wife; he expects to have an apartment "in two months"; he frequently visits the home the mother shares with her boyfriend; he never visits for long because his mode of transportation is the bus; prior to living with his son's ex-wife, he lived in an apartment with one of his daughters; and he and his daughter moved because snakes were coming inside the apartment.

T.H., the mother's sister, testified as follows: she, her boyfriend and her three children lived in Texas in a home with her mother and stepfather; she would be willing to be a relative placement for M.L.H.; her mother's house has five bedrooms; her mother had agreed to allow M.L.H. to live with her; she was willing to cooperate with a home study; she has visited with M.L.H. "a couple of times" during the mother's visitation "at the State Building"; M.L.H. has never stayed a night at her house; she and her family moved to Texas in an effort to have "a better life for me and my family"; her mother has a car and "she takes me wherever I need to go"; she did not have transportation in Louisiana; before she moved to Texas, she lived in an undesirable area, her apartment had roaches and there were snakes around the apartment complex; she and her boyfriend are unemployed; she receives SSI disability benefits because she has "bipolar one, two and three, major depression and thyroid problems"; her boyfriend receives benefits because "he has seizures"; before leaving Louisiana, she was investigated by DCFS on three occasions; two investigations were initiated because her daughter's school reported that her daughter had "repeatedly [sic] head lice and [was] coming to school smelling"; as a result of the third investigation, two of her children were removed from her custody because "they found something in her system. I can't remember what it was"; her son was hospitalized for failure to thrive; her children were returned to her custody after three days; she does not remember the last time she saw M.L.H.; and she and her siblings spent time in foster care as children.

Frances McInnis, a supervisor for CASA, testified as follows: she takes on the role of an advocate when a volunteer is "not able to handle it"; she had not observed any visitations between the mother and M.L.H.; the mother would "need to help" with M.L.H.; she does not believe the mother would be able to parent M.L.H. without assistance; the mother "has some problems with following directions without some help"; when in-home parenting services were provided, the mother's ability to parent improved; she cannot say whether continuing in-home services would help the mother; she had visited the mother's home and it "was not totally put together, but it was clean"; she did not observe any safety hazards in the home; the home had an "alcove" with a baby bed and a side table; she "hopes" the mother's ability to parent would improve; she believes the mother "has not had the one-on-one time" that she needs to assist her in complying with her case plan; she had suggested to Hunt (the mother's case worker) that the mother might benefit from the use of a "dummy baby" to assist her with parenting; she recommended to Hunt that the mother might benefit from the use of "wrap around services or some type of services where she would get some help"; Hunt did not follow through with her suggestions; she has not observed the interactions between Hunt and the mother; she believed the mother had a "very difficult time getting in touch with her worker"; she had appealed to Hunt's supervisor to "help get some information for me"; and she has not seen "hardly anything" to suggest that DCFS had made any efforts to assist the mother with her case plan.

During cross-examination, McInnis testified as follows: her duties as a CASA supervisor included "guiding" and "working with" CASA volunteers; she had not observed any interactions between M.L.H. and the mother; the court ordered that CASA be appointed in December 2016; M.L.H. was placed "on a waiting list because we did not have an advocate for her"; normally, when a child is placed on a waiting list, a supervisor attends meetings until an advocate is assigned; she did not attend any meetings until M.L.H. was removed from the waiting list; she attended one family team meeting; she has visited the mother "about twice or three times" at her home; the mother has "some limited intelligence" and she needs "a lot of one on one" parenting assistance; she believes the mother can be taught how to care for M.L.H. "with a lot of training one on one"; wrap around services offer a range of services, including assisting with appointments, helping with the child and providing household assistance; she did not visit the home of the foster parents but one of the advocates did so; and she had not attended any of M.L.H.'s medical appointments. Nevertheless, McInnis opined that the mother's parental rights should not be terminated at this point because the mother has "not had enough time with her child. She's not had enough time with other services." McInnis admitted that she was unable to provide an opinion regarding whether the mother could successfully parent M.L.H. However, she expressed her reservations about not allowing the mother "to parent her child" and stated that she had "big problems with not pursuing a relative placement[.]" Further, McInnis testified that the mother loves M.L.H. and is willing to do whatever she has to do to care for her. However, she admitted that the mother had difficulty remembering appointments and reading prescriptions to ascertain the proper doses for medications.

Dr. James Pinkston, who performed a mental health evaluation of the mother, was accepted as an expert in clinical neuropsychology. He testified as follows: he evaluated the mother on April 25, 2016; he was unable to use standard tests on the mother because those tests required a reading level of at least fourth grade; the mother's cognitive and reading level was "restrictive"; testing revealed that the mother had a "very low" to moderate intellectual disability (also known as mental retardation ); the average IQ with regard to parenting a child is 100; the mother's parenting IQ was 52; DSM testing revealed that the mother requires extensive support and supervision "in almost all areas of [her] life"; the mother has the capacity to love and comfort M.L.H. on an intermittent basis but she does not have the ability to parent a child; the mother requires constant assistance to care for M.L.H.; the person assisting the mother "has to be one hundred percent responsible for the care of [M.L.H.]"; parenting with 24-hour-a-day assistance does not constitute "parenting"; it would not be useful to demonstrate parenting to the mother by using a "dummy doll"; the mother lacks the ability to reason; the mother has a "really, really, really bad ability to learn and obtain new information"; the mother "has a hard time learning, understanding, generalizing information and behaviors"; the mother "will not be able to learn[,] retain, and apply information"; the mother's intellectual disability is congenital and will never improve; the mother's confidence in herself fuels her belief that "she can do far more than she can"; the mother has markedly impaired judgment, insight and awareness of her limitations and deficits; the mother self-reported that she had ADHD, bipolar disorder and schizophrenia, but she had a poor understanding of what the diagnoses meant; the mother is able to learn simple things but she lacks the cognitive ability to benefit from training or education with regard to parenting a child; the mother "is not capable of independently parenting a child"; the mother is "not capable [of] being a secondary or partial caregiver"; the responsibility of M.L.H.'s well-being "cannot be left up to [the mother] in any portion"; and M.L.H. would be placed "at pronounced risk of neglect or harm" if she is returned to the mother's custody.

On cross-examination, Dr. Pinkston admitted that he had never seen the mother interact with M.L.H. He also admitted that some parents with intellectual disabilities have the ability to parent a child. However, he stated as follows: "I don't believe [the mother] can be held responsible for the child's behavior to any reasonable about of time"; the mother might "be able to watch a child who isn't being difficult or provide some level of assistance, but she can't be wholly responsible for that"; the tests he performed indicate that the mother has "a substantial level of risk of difficulty, confusion, poor reasoning, and judgment and understanding"; he does not believe the mother would "benefit from any real education in a meaningful way" in parenting; it is possible to "try specialized [services], but I don't see that it would be fruitful"; and the mother "is not suitable as a parent for any child."

It is undisputed that at least one year has elapsed since M.L.H. was removed from the custody of her mother pursuant to a court order. The evidence also established that the mother has failed to substantially comply with various aspects of the case plan and that there was no reasonable expectation of significant improvement in the mother's condition or conduct in the near future.

The evidence of record established that the mother loves M.L.H. and she has expressed a desire to retain and maintain custody of her. However, based upon Dr. Pinkson's opinion and the mother's established pattern of conduct, the evidence also shows that the mother's intellectual disability has rendered her incapable of exercising parental responsibilities, without exposing M.L.H. to a substantial risk of serious harm. Dr. Pinkston provided uncontroverted testimony that the mother lacks the cognitive ability to independently comply with her case plan. He testified that the mother requires extensive support and supervision "in almost all areas of [her] life" and that she would require constant assistance to care for M.L.H. He also stated that the mother lacks the ability to reason in a parental capacity and that her judgment is markedly impaired. Dr. Pinkston opined that the mother "is not capable of independently parenting a child," nor is she capable of "being a secondary or partial caregiver" to a child.

The record reveals that M.L.H. was placed in DCFS custody because she was not receiving adequate nutrition, she was not being kept clean and her medical needs were not being properly addressed. This record clearly demonstrates that the mother lacks the intellectual ability and insight required to independently care for a child. A key factor in this case is the mother's lack of understanding of basic child care, i.e. , adequately feeding the child, keeping the child clean, taking the child to medical appointments and administering medication to the child. Despite assistance from DCFS, the mother's actions revealed that she did not understand the need for proper nutrition for her child. Further, the mother's testimony revealed that she does not understand why M.L.H. was removed from her custody.

Moreover, the mother does not have an adequate support system to assist her. Her boyfriend testified that he is willing to assist her in caring for M.L.H. However, he is unable to provide the 24-hour-a-day assistance that she would require. Further, the mother's father testified that he would be willing to assist her. Yet, from this record, it is unclear what type of assistance he would be able to supply. He admitted that he did not have his own housing; he lived with his son's ex-wife. He also admitted that he was unable to visit the mother frequently because he did not have transportation to do so. Additionally, the mother's sister testified that she would be willing to assist and/or take custody of M.L.H. However, her testimony established that she does not have housing of her own: she, her boyfriend, and her three children live in the state of Texas in a home with her mother and stepfather. Furthermore, she testified that she has "bipolar one, two, and three" and she admitted that she has had her own issues with DCFS stemming from allegations of neglect with regard to two of her children.

The mother's living conditions are also a cause for concern. The mother and her boyfriend testified that they lived together in a home that he is in the process of buying. However, according to the report submitted by Redding, the mother reported that she was in an abusive relationship with her boyfriend and that, at some point, she had moved out of his home.

Consequently, we affirm the finding of the juvenile court. We agree with the court the state has proven, by clear and convincing evidence, that the mother had not substantially complied with her case plan, she is incapable of parenting the minor child, and there is no reasonable expectation that she will significantly improve her condition in the near future.

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 MTS, supra ; State in Interest of J.M.L., supra. The fundamental purpose of involuntary termination proceedings is to provide the greatest possible protection to a child whose parents are unwilling or unable to provide adequate care for his or her physical, emotional and mental health needs and adequate rearing, by providing an expeditious judicial process for terminating all parental rights and responsibilities and achieving permanency and stability for the child. State in the Interest of MTS, supra ; State in the Interest of B.J. , 48,857 (La. App. 2 Cir. 1/15/14), 135 So.3d 777.

Children have a need for permanency. Forcing children to remain in foster care indefinitely, when there is no hope for reuniting them with their families, runs afoul of the state and federal mandates to further the best interest of the child. State ex rel. J.M. , 2002-2089 (La. 1/28/03), 837 So.2d 1247 ; State in the Interest of MTS, supra.

This is a sad case. M.L.H. is now two years old and she has been in the custody of DCFS virtually all of her short life. As noted above, the evidence established that the mother lacks the intellectual and cognitive capacity to provide adequate care for the physical, emotional and mental health needs of M.L.H. Despite being provided with a simplified case plan, in-home assistance and parenting classes, the mother has not demonstrated the ability to parent and meet the essential needs of M.L.H. There is no evidence that her ability to care for M.L.H. has improved since DCFS became involved in this case over two years ago. In fact, Dr. Pinkston testified that the mother's condition and behavior will not improve in the future. The child has resided in the same placement for approximately two years and her foster family has expressed a desire to continue to care for her indefinitely. Most notably, Dr. Pinkston testified that M.L.H. would be placed "at pronounced risk of neglect or harm" if she is returned to the mother's custody. He further opined that, due to the mother's significant deficits, she "is not suitable as a parent for any child." Accordingly, we find that the juvenile court did not err in finding that the best interest of the M.L.H. will be served by terminating the mother's parental rights and certifying this child for adoption.

CONCLUSION

For the reasons set forth herein, we affirm the judgment of the juvenile court, terminating the parental rights of the mother. Costs of the appeal are assessed to the mother.

AFFIRMED.

      M.L.H. was born HIV-negative. However, she was placed on medication to prevent her from becoming HIV-positive.

      Initially, the mother identified M.D.W. as the biological father. However, DNA testing excluded him as the father. Several months prior to the hearing, the mother identified A.L.P. as the child's biological father. A.L.P. was eventually located but he refused to submit to a paternity test. Thereafter, the trial court ordered him to submit to a DNA paternity test; however, the test had not been conducted at the time of this proceeding.

      A.L.P., John Doe and/or any unknown father of the child did not appeal. Therefore, the judgment terminating their parental rights is final and will not be addressed in this opinion.

      Redding described incidents wherein the mother admitted that she often engaged in sexual intercourse with random strangers she met on the street. Further, Redding reported that the mother admitted that her live-in boyfriend was physically abusive and that the mother understood that living in an abusive home would not be good for M.L.H.

      On redirect examination, the mother explained that her father had a DCFS case worker "because my momma made up some lies wasn't [sic] even true." She testified that she and her siblings were placed in DCFS custody for "just about a year and a half."

      Additionally, when asked what she had learned from parenting classes, the mother stated, "I learned bad places and bad things, all kinds of stuff ... [b]ad people with a history and you kind of tell when they're bad, like been to jail and stuff like that. All type[s] of stuff."

      The foster mother later testified that M.L.H. had an ongoing issue with chronic ear infections. By the time of the trial, she stated that M.L.H. had undergone an adenoidectomy and was "on [her] second set of tubes" in her ears.

      In some portions of the record, her name is incorrectly spelled, "Francis McGinnis."


source: Caselaw Access Project

author: BROWN, C.J.

license: Public Domain

text:
    STATE of Louisiana IN the INTEREST OF K.B. (DOB 12/20/2005); B.B. (DOB 12/18/2006); A.B. (DOB 09/17/2009); S.B. (DOB 06/17/2011); K.B. (DOB 10/08/2012); A.B. (DOB 10/29/2014)
    No. 51,955-JAC
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered January 10, 2018
    VARHONDA E. BURRELL, Counsel for Defendant/Appellant, Father
    ACADIANA LEGAL SERVICES, CORP., By: Tammy D. Weaver Matzke, Counsel for Plaintiffs/Appellees, Children
    JEFF LANDRY, Attorney General, ROBERT S. TEW, District Attorney, JOHNNY L. SANDERS, II, Assistant District Attorney, Counsel for Plaintiff/Appellee, State of Louisiana
    COURTNEY W. FRANKLIN, Counsel for Plaintiff/Appellee, State of Louisiana, DCFS
    LAYNE M. ADAMS, Monroe, Counsel for Defendant/Appellee, Mother
    Before BROWN, STONE, and BLEICH (Ad Hoc ), JJ.
   BROWN, C.J.

In this child in need of care proceeding, the father appeals a trial court's judgment changing a case plan goal from reunification to adoption for the father's six children. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

The six children, K.B., age ten, B.B., age nine, A.B., age six, S.B., age four, Ki.B., age three, and Am.B., age 17 months, were removed from their parents' custody on March 18, 2016, based on allegations that the children were in need of care pursuant to La. Ch. C. art. 606(A) due to neglect and a lack of supervision for all six children, and the physical and sexual abuse of S.B. On March 17, 2016, S.B. was taken to the emergency department at Glenwood Regional Medical Center in West Monroe with a broken right femur. S.B.'s mother, B.B., and father, W.B., alleged that S.B. had fallen at their home and broken her leg.

The physicians at the medical center stated that S.B. had a spiral fracture of her femur, which was inconsistent with the parents' story of how S.B. was injured. A more thorough examination of S.B. was made, and doctors discovered signs of sexual abuse. After further investigation, B.B., the mother, revealed that on March 15, 2016, W.B. came to her while they were in the home and said that he thought he had broken S.B.'s leg when he grabbed her by her leg. Thereafter, the father was arrested and taken to the Ouachita Correctional Center.

The children were placed in the custody of the Louisiana Department of Children and Family Services ("DCFS"), and a continued custody hearing was held on March 21, 2016. The children were placed with foster families. At a hearing on June 2, 2016, the parents stipulated that the children were in need of care; the juvenile court accepted the stipulation and adjudicated the children as children in need of care under Title VI of the Louisiana Children's Code. The children had been removed from the parents' custody on two prior occasions. The children's custody was continued with DCFS at the conclusion of the June 2016 custody hearing. The case plan goal at that time was reunification with a secondary goal of adoption. At a permanency hearing held on April 24, 2017, the mother informed the court that she wanted to voluntarily surrender her parental rights. The court approved the voluntary surrender and signed a judgment terminating her rights on July 20, 2017.

At the permanency hearing held on March 16, 2017, DCFS submitted a report which stated that the father had retained adequate housing for the children and had completed his parenting and batterer's intervention classes, as well as a mental health evaluation. In January 2017, the father was referred to additional parenting classes in order to sufficiently parent his six children, four of whom had special needs. DCFS was unable to verify the father's social security income. The DCFS report also stated that the father had not explained or acknowledged how or why he broke S.B.'s leg. The DCFS report expressed concerns about his being able to effectively parent and supervise his six children alone. That concern was echoed in an April 24, 2017, report submitted to the court by the Court Appointed Special Advocate ("CASA") volunteer.

At a permanency hearing held on August 21, 2017, a DCFS worker and CASA volunteer each testified that it was in the best interest of the children that the permanent case plan goal be changed to adoption. The court found that the father had not adequately completed his case plan and ordered that the permanent case plan goal be changed to adoption. The father has appealed from this judgment.

DISCUSSION

The father has urged three assignments of error: 1) that the trial court committed manifest error when it ruled that the parents had not completed their case plan; 2) it is manifest error for the trial court to ignore the plain language of La. Ch. C. art. 702(C) ; and 3) the trial court committed manifest error when it found that DCFS had made reasonable efforts to reunite the family.

The health, safety, and best interest of the child is the paramount concern in all child in need of care proceedings and in the development of the case plan. La. Ch. C. arts. 601 and 675. La. Ch. C. art. 702 concerns permanency hearings and states in pertinent part as follows:

(C) The court shall determine the permanent plan for the child that is most appropriate and in the best interest of the child in accordance with the following priorities of placement:
(1) Return the child to the legal custody of the parents within a specified time period consistent with the child's age and need for a safe and permanent home. In order for reunification to remain as the permanent plan for the child, the parent must be complying with the case plan and making significant measurable progress toward achieving its goals and correcting the conditions requiring the child to be in care.
(2) Adoption.
...
(E) Except as otherwise provided in Article 672.1, the court shall determine whether the department had made reasonable efforts to reunify the parent and child or to finalize the child's placement in an alternative safe and permanent home in accordance with the child's permanent plan. The child's health and safety will be the paramount concern in the court's determination of the permanent plan.

In order for reunification to remain the permanent plan for the child, the parent must be complying with the case plan and making significant measurable progress toward achieving its goals and correcting the conditions requiring the child to be in care. La. Ch. C. art. 702(C)(1) ; State in the Interest of P.B. , 49,668 (La. App. 2 Cir. 12/17/14), 154 So.3d 806. Mere cooperation by a parent is not the sole focus of the evaluation of a permanency plan. Rather, the courts must assess whether the parent has exhibited significant improvement in the particulars that caused the state to remove the children from the parent's care and custody. Stability in the home environment and relationships is a consideration in the permanency plan determination. A parent who professes an intention to exercise his or her parental rights and responsibilities must make some action in furtherance of the intention to avoid having those rights terminated. Id.

To reverse a trial court's permanency plan determination, an appellate court must find from the record that the trial court's finding is clearly wrong or manifestly erroneous.

State in the Interest of N.B. , 51,374 (La. App. 2 Cir. 02/15/17), 215 So.3d 398 ; State in the Interest of C.S. , 49,955 (La. App. 2 Cir. 03/18/15), 163 So.3d 193. In a manifest error review, it is important that the appellate court not substitute its own opinion when it is the juvenile court that is in the unique position to see and hear the witnesses as they testify. State in the Interest of P.F. , 50,931 (La. App. 2 Cir. 06/22/16), 197 So.3d 745 ; State in the Interest of N.C. , 50,466 (La. App. 2 Cir. 11/18/15), 184 So.3d 760.

Where there is conflicting testimony, reasonable evaluations of credibility and inferences of fact should not be disturbed upon review, even when the appellate court may feel that its own evaluations and inferences are as reasonable as those of the juvenile court. If the juvenile court's findings are reasonable in light of the record reviewed in its entirety, the appellate court may not reverse, even though convinced that, had it been sitting as the trier of fact, it would have weighed the evidence differently. State in the Interest of E.M. , 51,511 (La. App. 2 Cir. 6/2/17), 224 So.3d 1122.

The father argues that he has made significant progress toward completing his case plan because he: (1) attended his initial parenting classes and batterer's intervention classes; (2) sought a required mental health assessment and has been compliant with taking his prescribed medications; and (3) obtained adequate housing for his children. However, the record shows that he has not completed a second round of parenting classes; in fact, he missed so many classes that he was dropped from the program. DCFS has also been unable to verify employment and his Social Security Income. He does not have reliable transportation. He also has not acknowledged how S.B.'s leg was broken or taken responsibility for his role in that incident. This case is not so much about the father's progress with his case plan, but, rather, about the special needs of the children involved. Several of the children have weekly and sometimes daily visits with therapists and other health care professionals to get the care they need.

The youngest child, Am.B., now age three, was 17 months old when she was removed from her parents' care. At that time, Am.B. had the appearance of an eight-month-old, she could not walk or eat solid food, and she had a five-word vocabulary. She also had chronic diarrhea due to a milk allergy, yet milk was the only thing Am.B. was being fed prior to removal. Her diarrhea has resolved, and she is now walking and talking. Am.B. now receives speech therapy and special instruction therapy.

Ki.B., now age five, was diagnosed with global developmental delay syndrome, ADHD and epilepsy, for which she now takes medication. Ki.B. receives daily Applied Behavioral Analysis ("ABA") therapy and physical, occupational and speech therapy several times a week; she also sees a counselor regularly.

S.B., now age six, attended counseling and has since been discharged; however, her counselor warned that S.B. will require additional counseling if she is returned to her father. S.B. was examined by a doctor two months after her leg was broken to evaluate the alleged sexual assault committed against her. The examining doctor, in his sparse report, found no evidence of sexual assault. The CASA volunteer and an examining nurse practitioner doubt the doctor's assertion that S.B. was not sexually abused. S.B. has stated that she wants to be adopted.

A.B., now age eight, was diagnosed with an autism spectrum disorder, 14q11.2 Microduplication Syndrome, a rare genetic disorder, and ADHD. A.B. was born with fetal alcohol syndrome, and his mother tested positive for drugs and alcohol at delivery. A.B. has developmental delays and receives speech and occupational therapy, adapted physical education and special education services through his school. A.B. is unable to perform self-help activities, such as brushing his teeth and bathing; his foster mother must do those things for him. A.B. also has deficiencies in motor, adaptive, academic and communication skills and is unable to express when he is hurt or afraid. A.B. has significant speech problems and has been given a speech generating device which required that his teacher attend special classes in order to operate. A.B. was shy and withdrawn prior to removal, but in foster care, he has made significant progress and has been able to make friends due to his improved ability to communicate.

B.B., now age 11, was diagnosed with an autism spectrum disorder and developmental and speech delays, and she had trouble with aggressive behavior, fighting with others and lashing out and yelling prior to entering foster care. B.B. was scheduled to complete her services, which included physical, occupational, speech and ABA therapy multiple times a week, as well as weekly in-home counseling, as of August 2017. B.B. has stated of returning to her father's care, "[N]o, please don't send me back. I want to be adopted."

K.B., the oldest child, now age 12, meets with a counselor weekly, and has had trouble controlling outbursts toward her foster parents and siblings. K.B. shares a foster home with B.B. and the five-year-old Ki.B. K.B. has stated that she wants to be adopted and does not want to return to her father's care. K.B. has expressed the belief that as soon as the children's services are complete, the living situation with her father would return to the appalling condition it was prior to removal, which is what happened when the children were removed twice before. K.B. stated that she was proud of her mother for terminating her parental rights and thanked her mother for doing so.

The six children are currently spread among four foster homes. Each foster family has expressed the desire to adopt their respective children. Significant coordination is required to get the children to their various therapy and doctors' appointments and counseling sessions, which one stay-at-home foster parent described as "a full-time job."

The CASA volunteer and DCFS worker expressed grave concerns as to whether the father is capable of adequately parenting his six children, given their special needs and that he "cannot fully understand the educational, emotional and physical needs of his children." He will be a single parent who must work full-time to provide a home and food for his children in addition to getting his children to their required appointments. He does not have reliable transportation to take his children to those various appointments. The oldest child, K.B., has expressed the fear that, if the children are returned to their father's care, she will be required to ensure that the children are fed, clothed, bathed, and arrive at school on time, effectively making her the children's mother at the age of 12.

The best interest of these children is of paramount concern. Nearly two years have passed since the children were removed from their parents' care and placed in DCFS custody. Since that time, the children have gained stability in their home lives. It is imperative to each child's well-being and emotional and mental health that this stability continue. The father has made some progress toward completing his case plan, but the best interest of the children in this case strongly favor adoption. It is for those reasons that we find that the trial court did not err in changing the case plan from reunification to adoption.

CONCLUSION

For the reasons stated above, we affirm the judgment of the trial court changing the permanent case plan goal in this matter from reunification to adoption. Costs of this appeal are assessed to the father, W.B.

AFFIRMED.


author: PENZATO, J.

text:
    Patricia Ashley BOWEN v. STATE of Louisiana, EX REL. SECRETARY OF HEALTH AND HOSPITALS, Earl K. Long Medical Center; Louisiana State University Agricultural and Mechanical College, through LSU Health Care Services Division, Manager of Earl K. Long and Stratos Elevator Company and StarNet Insurance Company; and York Risk Services Group, and Fara, a York Risk Service Company
    2017 CA 0938
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: March 21, 2018 Rehearing Denied April 13, 2018
    Louis R. Koerner, Jr., New Orleans, Louisiana, Counsel for Plaintiff/Appellant, Patricia Ashley Bowen
    Matthew D. Fontenot, Lafayette, Louisiana, Counsel for Intervenor/Appellant, Sentry Insurance Company, A Mutual Company
    Jeff Landry, Attorney General, Andrew Blanchfield, C. Reynolds LeBlanc, Special Assistant Attorney Generals, Baton Rouge, Louisiana, Counsel for Defendant/Appellee, State of Louisiana, The Board of Supervisors, Louisiana State University Agricultural and Mechanical College and Earl K. Long Medical Center
    André C. Gaudin, Scott O. Gaspard, Metairie, Louisiana, Counsel for Defendants/Appellees, Stratos Elevator Company and Starnet Insurance Company
    BEFORE: HIGGINBOTHAM, HOLDRIDGE, AND PENZATO, JJ.
   PENZATO, J.

This is an appeal from a trial court judgment granting a motion for summary judgment in favor of the defendants/appellees. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

Patricia Bowen filed this lawsuit on October 9, 2013, against the State of Louisiana, and the Board of Supervisors, Louisiana State University Agricultural and Mechanical College, and Earl K. Long Medical Center (collectively, "EKL") for injuries she sustained exiting an elevator located at Earl K. Long Medical Center. Also named as defendants were Stratos Elevator, Inc., which had a contract to provide maintenance services for the elevators at Earl K. Long Medical Center, and its insurer, StarNet Insurance Company (collectively, "Stratos"). According to Ms. Bowen, on October 10, 2012, the elevator dropped and then abruptly went up as she exited, causing her to be violently flung into the adjacent wall, causing serious injury. Ms. Bowen alleged that the defendants were negligent by not performing proper maintenance and/or maintaining preventative maintenance on the elevators at Earl K. Long Medical Center, and by not providing her with a safe environment. Ms. Bowen further alleged that at the time of the incident, she was performing her work duties for Amerigroup Corporation. In its capacity as the workers' compensation insurer that paid Ms. Bowen benefits as a result of the accident, Sentry Insurance, A Mutual Company ("Sentry"), filed a petition for intervention on November 20, 2013.

On June 3, 2015, EKL filed a motion for summary judgment, alleging that Ms. Bowen could not prove that EKL had prior notice of an alleged elevator defect, that the alleged defect presented an unreasonable risk of harm, and that EKL acted unreasonably. Stratos also filed a motion for summary judgment, alleging that Ms. Bowen had no evidence of an alleged elevator defect causing injury and no evidence that Stratos knew, or should have known, of any alleged defect.

Following a number of continuances to allow plaintiff to conduct discovery, the motions came for hearing on February 21, 2017. The trial court granted both motions for summary judgment. With regard to Stratos, the trial court found that there was no evidence of custody or control of the elevator, and no evidence of prior notice of a defect. With regard to EKL, the trial court found that "while there might be a genuine issue of material fact regarding whether or not there is a defect," there was no evidence of prior notice. The trial court signed a judgment in accordance with that ruling on March 8, 2017, granting both motions for summary judgment and dismissing plaintiff's claims with prejudice. Ms. Bowen and Sentry now appeal.

ASSIGNMENTS OF ERROR

Sentry alleged that the trial court erred in finding that there was no notice of a hazardous condition to EKL or Stratos, and in finding that there was no "garde" by Stratos. Ms. Bowen alleged that the trial court erred in: (1) granting EKL's motion for summary judgment despite its failure to comply with pending discovery; (2) granting EKL's motion for summary judgment despite its failure to preserve evidence; (3) granting summary judgment despite two expert affidavits and other evidence that appeared to negate the asserted bases for the summary judgments; and (4) failing to comply with La. C.C.P. art. 1425(F).

LAW AND DISCUSSION

After adequate discovery, a motion for summary judgment is properly granted if the pleadings, depositions, answers to interrogatories, and admissions, together with affidavits, if any, admitted for purposes of the motion, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B)(2) and (C)(1). The summary judgment procedure is expressly favored in the law and is designed to secure the just, speedy, and inexpensive determination of non-domestic civil actions. See La. C.C.P. art. 966(A)(2).

The mover bears the burden of proving that he is entitled to summary judgment. However, if the mover will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, he need only point out to the court that there is an absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. Thereafter, the nonmoving party must produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden at trial. If the nonmoving party fails to make this requisite showing, there is no genuine issue of material fact, and summary judgment should be granted. La. C.C.P. art. 966(C)(2). If, however, the mover fails in his burden to show an absence of factual support for one or more of the elements of the adverse party's claim, the burden never shifts to the adverse party, and the mover is not entitled to summary judgment. LeBlanc v. Bouchereau Oil Co., Inc. , 2008-2064 (La. App. 1 Cir. 5/8/09), 15 So.3d 152, 155, writ denied, 2009-1624 (La. 10/16/09), 19 So.3d 481.

In ruling on a motion for summary judgment, the trial court's role is not to evaluate the weight of the evidence or to determine the truth of the matter, but instead to determine whether there is a genuine issue of triable fact. Hines v. Garrett , 2004-0806 (La. 6/25/04), 876 So.2d 764, 765 (per curiam ). A fact is material if it potentially ensures or precludes recovery, affects a litigant's ultimate success, or determines the outcome of the legal dispute. A genuine issue is one as to which reasonable persons could disagree; if reasonable persons could reach only one conclusion, there is no need for trial on that issue and summary judgment is appropriate. Id. at 765-66. Factual inferences reasonably drawn from the evidence must be construed in favor of the party opposing the motion, and all doubt must be resolved in the opponent's favor. Willis v. Medders , 2000-2507 (La. 12/8/00), 775 So.2d 1049, 1050 (per curiam ).

In determining whether summary judgment is appropriate, appellate courts review evidence de novo under the same criteria that govern the trial court's determination of whether summary judgment is appropriate. Reynolds v. Bordelon , 2014-2371 (La. 6/30/15), 172 So.3d 607, 610. Because it is the applicable substantive law that determines materiality, whether a particular fact in dispute is material can be seen only in light of the substantive law applicable to the case. Pumphrey v. Harris , 2012-0405 (La. App. 1 Cir. 11/2/12), 111 So.3d 86, 89.

We first address Ms. Bowen's allegation that the trial court erred in failing to comply with La. C.C.P. art. 1425(F), which requires a pretrial hearing to determine whether a witness qualifies as an expert or whether the methodologies employed by the witness are reliable. On February 10, 2017, in opposition to the pending motions for summary judgment, Ms. Bowen attached the affidavits of two experts, contending that the experts' opinions created genuine issues of material fact. Both EKL and Stratos objected to the affidavits and reports, and argued that the reports should not be considered by the trial court. At the hearing on the motions for summary judgment, the trial court indicated that any motions to strike the reports were denied. In view of the fact that the trial court reviewed and Considered the expert reports submitted by Ms. Bowen, we find this assignment of error to be moot.

Stratos's Motion for Summary Judgment

As noted above, Ms. Bowen alleged in her petition that Stratos was negligent by not performing proper maintenance and/or maintaining preventative maintenance on the elevators at Earl K. Long Medical Center. When an elevator maintenance company is neither the owner of the elevator nor has exclusive "garde" of the elevator, it must exercise reasonable care in the performance of its services. King v. Home Depot U.S.A., Inc. , 98-0535 (La. App. 1 Cir. 4/1/99), 729 So.2d 1149, 1152.

In support of its motion for summary judgment, Stratos submitted the affidavit of Richie Doiron, the president of Stratos Elevator, Inc. Mr. Doiron attested that in 2010 Stratos executed an Elevator Maintenance and Repair Contract with EKL that was in effect at the time of Ms. Bowen's October 10, 2012 accident. He further attested that pursuant to the contract, "Stratos performed preventative elevator maintenance and lubrication services using Stratos's skilled maintenance personnel on the five elevators at [Earl K. Long Medical Center], including elevator # 1 (the elevator involved in Ms. Bowen's accident)." Mr. Doiron stated that on September 25, 2012, and again on October 3, 2012, Stratos performed routine maintenance on all of the elevators at Earl K. Long Medical Center, including elevator # 1, and that at those times elevator # 1 operated properly and no problems with the elevator were found. According to Mr. Doiron, routine maintenance included riding and checking the operation of the elevator including checking the floor levels, checking oil levels, checking motor and generator brushes, checking door safety, checking indicator lights, checking telephones in the car, checking the alarm bell, and cleaning and checking the car top, pit equipment, and machine room equipment. In addition to the routine maintenance and inspections, Stratos received bi-yearly inspection reports from inspectors hired by the State of Louisiana, Office of Risk Management, to search for any maintenance deficiencies. Stratos received a report documenting that elevator # 1 was inspected by the State's elevator inspectors on July 5, 2012, and was found to be operating properly. Finally, Mr. Doiron attested that following Ms. Bowen's accident, Stratos inspected elevator # 1 and found the elevator at floor level on the first floor. The elevator was run for two hours with no problems, and was floor-level every run. According to Mr. Doiron, no problem was found with the elevator and no repairs were needed.

In opposition to the motion for summary judgment, Sentry relied upon the deposition of Mr. Doiron, wherein he testified that the elevators at Earl K. Long Medical Center were forty years old, and that the air conditioner in the equipment room at the facility was never properly maintained, such that the temperature would get as high as 105 degrees. According to Mr. Doiron, the elevators were prone to heat, and because of their age they had old contacts. He further testified that the failure of one of the contacts could cause the elevator to act up, meaning that it might not stop at the floor, might not open the doors, "might go up, might go down below the floor level, level back up." Mr. Doiron testified that many of the problems that Stratos had with the elevators were due to the extensive heat in the equipment room.

Also admitted in opposition to the motion for summary judgment were the expert reports of Don Buisson and Gerald George. Mr. Buisson, an elevator operation and maintenance expert identified "multiple factors that contributed to the malfunction of the subject elevator." According to Mr. Buisson, elevators in use for over forty years require additional care and scrutiny than more updated models; a proposal made for renovation of the elevators indicated that they were likely to cause future safety problems; and the elevator service records revealed a history of problems related to malfunctions. He noted that the high heat in the machine room would affect the performance and safety of the elevators. Mr. George, a biomechanical expert opined that it was more probable than not that the subject elevator did in fact malfunction such that it failed to achieve and/or maintain proper alignment with the threshold at the first floor level after its door had opened, and that the mechanical malfunction was the direct, causal link to the accident and subsequent injuries sustained by Ms. Bowen.

Stratos introduced evidence that it had a maintenance and service contract that required it to service the elevators at Earl K. Long Medical Center on a regular basis. It further introduced evidence that it performed routine maintenance on elevator # 1 on September 25, 2012, and on October 3, 2012, and that at those times the elevator operated properly and no problems were found. In addition, Stratos received a report documenting that elevator # 1 was inspected by the State's elevator inspectors on July 5, 2012, and was found to be operating properly. The burden thus shifted to Ms. Bowen to produce factual support sufficient to establish that she would be able to satisfy her evidentiary burden at trial that Stratos was negligent by not performing proper maintenance and/or maintaining preventative maintenance on the elevators at Earl K. Long Medical Center. Ms. Bowen failed to produce evidence that Stratos owned the elevator or had exclusive garde of it. Moreover, Ms. Bowen failed to show that Stratos breached its duty to exercise reasonable care in the performance of its maintenance contract. Therefore, any argument that the trial court erred in granting summary judgment in favor of Stratos has no merit.

EKL's Motion for Summary Judgment

We first address Ms. Bowen's assertion that the trial court erred in granting EKL's motion for summary judgment despite its failure to comply with pending discovery and its failure to preserve evidence.

Ms. Bowen filed suit on October 9, 2013 for an incident that occurred on October 10, 2012. EKL filed its motion for summary judgment on June 3, 2015, and Stratos filed its motion for summary judgment on July 21, 2015. The motions were originally set for hearing on October 5, 2015, but were continued to December 14, 2015, and then again to February 22, 2016. Prior to the February 22, 2016 hearing, Ms. Bowen filed a motion to continue, asserting that discovery was incomplete. According to Ms. Bowen, in November of 2015, she served notice requesting the depositions of a number of individuals she asserted were associated with EKL, as well as a representative of Stratos. Ms. Bowen also requested documents which she asserted had not been provided. The February 22, 2016 hearing on the motions for summary judgment did not go forward, and was reassigned for June 27, 2016.

At the June 27, 2016 hearing, the trial court first addressed Ms. Bowen's motion to continue. Ms. Bowen indicated that she had taken the deposition of a Stratos representative, but that EKL had not satisfied her request for depositions. In response, EKL argued that the individuals that Ms. Bowen sought to depose were no longer employed by EKL following the closure of Earl K. Long Medical Center in 2013. The trial court noted that EKL had failed to provide to Ms. Bowen a response indicating that the individuals were no longer under the control of or employed by EKL, and providing their last known addresses. The trial court granted the motion to continue.

On November 16, 2016, EKL filed a motion to reset the hearing on the motions for summary judgment. According to EKL, on July 12, 2016, it provided Ms. Bowen with the last known contact information of the individuals identified in her deposition notice, and she had taken no action to pursue additional discovery since that time. Ms. Bowen opposed the motion to reset the motions for summary judgment, again arguing that EKL failed to respond to the discovery propounded and to set requested depositions. Ms. Bowen further argued that EKL failed to preserve evidence. According to Ms. Bowen, on January 18, 2017, she sent a request for all public records concerning an intent to renovate the elevators at Earl K. Long Medical Center, any communications concerning said elevators, and any reports of prior accidents, incidents, or injuries involving the elevators from the time of installation. In response, Ms. Bowen was advised by the State of Louisiana, Department of Health and Hospitals, that there were no records available, as records were retained for a period of three years plus the current year. As noted above, Earl K. Long Medical Center closed in 2013. Ms. Bowen argued that EKL had a duty to preserve the records in expectation of future litigation.

There is no absolute right to delay action on a motion for summary judgment until discovery is completed. Simoneaux v. E.I. du Pont de Nemours & Co., Inc. , 483 So.2d 908, 912 (La. 1986). Rather, the only requirement is that the parties be given a fair opportunity to present their claim. Unless plaintiff shows a probable injustice a suit should not be delayed pending discovery when it appears at an early stage that there is no genuine issue of fact. Id. at 913.

The theory of "spoliation" of evidence refers to an intentional destruction of evidence for the purpose of depriving opposing parties of its use. Clavier v. Our Lady of the Lake Hosp. Inc. , 2012-0560 (La. App. 1 Cir. 12/28/12), 112 So.3d 881, 885, writ denied, 2013-0264 (La. 3/15/13), 109 So.3d 384.

Under the facts of this case, Ms. Bowen had the opportunity for "adequate discovery." La. C.C.P. art. 966(C)(1). EKL's motion for summary judgment was filed on June 3, 2015, and ultimately came for hearing on June 27, 2016. At that time, the trial court granted Ms. Bowen's motion to continue the hearing, noting that EKL had failed to formally respond to discovery requests by providing the last known addresses of individuals no longer under the control of or employed by EKL. Ms. Bowen does not dispute that EKL provided her with that information on July 12, 2016, and acknowledged that the only action she took since receiving the information was to write to the individuals. In the seven months from receiving the information from EKL and the time of the hearing on the motion for summary judgment on February 21, 2017, Ms. Bowen failed to depose any of the individuals. Moreover, she did not request from the State of Louisiana, Department of Health and Hospitals, the records of communications concerning the elevators, and reports of prior accidents, incidents, or injuries, until January 18, 2017, more than four years after Ms. Bowen's October 10, 2012 accident. There is no proof that these records were intentionally destroyed for the purpose of depriving Ms. Bowen of their use. These assignments of error are without merit.

We now address the merits of the summary judgment in favor of EKL. A public entity's liability for a defective thing within its custody or care is analyzed under La. R.S. 9:2800. Broussard v. State ex rel. Office of State Bldgs. , 2012-1238 (La. 4/5/13), 113 So.3d 175, 181. Louisiana Revised Statutes 9:2800(A) provides that "[a] public entity is responsible under Civil Code Article 2317 for damages caused by the condition of buildings within its care and custody." Louisiana Civil Code article 2317 provides that "[w]e are responsible, not only for the damage occasioned by our own act, but for that which is caused by ... the things which we have in our custody." Louisiana Civil Code article 2322 modifies liability under La. C.C. art. 2317 as follows:

Art. 2322. Damage caused by ruin of building
The owner of a building is answerable for the damage occasioned by its ruin, when this is caused by neglect to repair it, or when it is the result of a vice or defect in its original construction. However, he is answerable for damages only upon a showing that he knew or, in the exercise of reasonable care, should have known of the vice or defect which caused the damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care. Nothing in this Article shall preclude the court from the application of the doctrine of res ipsa loquitur in an appropriate case.

Under La. C.C. art. 2322, a plaintiff must prove the following elements to hold the owner of a building liable for the damages caused by the building's ruin or a defective component: (1) ownership of the building; (2) the owner knew or, in the exercise of reasonable care, should have known of the ruin or defect; (3) the damage could have been prevented by the exercise of reasonable care; (4) the defendant failed to exercise such reasonable care; and (5) causation, Broussard , 113 So.3d at 182-83. Additionally, our jurisprudence requires that the ruinous building or its defective component part create an unreasonable risk of harm. Id. at 183.

The central issue raised on appeal is whether the trial court erred in finding that there was no notice of a hazardous condition to EKL. In support of its motion for summary judgment, EKL submitted the affidavit of Robert Simpson, who at all pertinent times was employed by Earl K. Long Medical Center as the Director of Maintenance. Mr. Simpson attested that at all pertinent times, Stratos was employed to perform routine maintenance and repair of any problems associated with the elevators located on the premises. He further attested that in his position he would receive notice of all complaints or reports of problems with the elevators, and that any and all complaints and/or reports regarding the elevators were directed to Stratos for maintenance and/or repair. Finally, he attested that prior to the date of Ms. Bowen's accident, Earl K. Long Medical Center received no notice of any elevator problems of the nature alleged by Ms. Bowen.

Sentry argued that the deposition testimony of Mr. Doiron established that conditions at the hospital were "ripe for creating malfunctions involving the elevators." Sentry further argued that Stratos's service records contained numerous notations of difficulties regarding the subject elevator. In particular the service records identify several entries on a telephone service request log. The notes on May 22, 2012, indicate the subject elevator had been turned off at the fifth floor and that both elevators were noted to be "out." The subject elevator was noted to be "out of service" on July 19, 2012, and on September 8, 2012, a passenger was trapped in the elevator. Finally, on September 14, 2012, the same elevator was noted to be "acting up."

Sentry also relied upon Mr. Doiron's deposition testimony that EKL was aware of the problems with the air conditioning in the equipment room. Ms. Bowen relied upon the expert reports of Mr. Buisson and Mr. George. As noted above, Mr. Buisson opined that the high heat in the machine room would affect the performance characteristics and safety of the elevators. He further opined that EKL was aware of the heat problem in the equipment room, and therefore "it can be readily established that [EKL] in fact knew that the subject elevator had in the past suffered from the very same performance characteristic that caused the Patricia Ashley Bowen Incident." Mr. George did not address the issue of whether EKL knew or should have known of a defect with the elevator.

We find that the evidence fails to create a genuine issue of material fact as to whether EKL either knew or should have known of any alleged defect in the elevator. As noted above, Mr. Doiron attested that on September 25, 2012, and again on October 3, 2012, Stratos performed routine maintenance on elevator # 1, and that at those times the elevator operated properly and no problems with the elevator were found. Mr. Doiron further attested that following Ms. Bowen's accident, Stratos inspected elevator # 1 and no problem was found with the elevator and no repairs were needed. Mr. Simpson's affidavit states that prior to the date of Ms. Bowen's accident, Earl K. Long Medical Center received no notice of any elevator problems of the nature alleged by Ms. Bowen. Whether EKL had notice of the alleged defect is a fact-intensive inquiry. As EKL has pointed out the absence of factual support that it had notice of the alleged defect in the elevator, the burden shifted to Ms. Bowen to produce facts sufficient to establish that she would be able to satisfy her evidentiary burden at trial that EKL had notice of the alleged defect. We find that EKL's knowledge of extensive heat in the equipment room is not sufficient to satisfy the requirement under La. C.C. art. 2322 that it knew or, in the exercise of reasonable care, should have known of a defect in the elevator that caused it to drop and then abruptly rise as Ms. Bowen exited the elevator, causing her to be violently flung into the adjacent wall. We further find that Mr. Buisson's opinion regarding EKL's knowledge is a legal conclusion that will not assist the fact finder in determining whether EKL had notice of the alleged defective condition. Thus, the evidence does not satisfy Ms. Bowen's duty to produce factual support sufficient to establish that she will be able to satisfy her evidentiary burden as to the notice issue at trial. Accordingly, we find that any argument that the trial court erred in granting summary judgment in favor of EKL has no merit.

CONCLUSION

Based on the foregoing, we affirm the March 8, 2017 judgment of the trial court. Costs of this appeal are assessed equally to plaintiff, Patricia Bowen, and intervenor, Sentry Insurance, A Mutual Company.

AFFIRMED.

      Stratos's motion for summary judgment was filed on July 21, 2015.

      Louisiana Code of Civil Procedure article 966 was amended and reenacted by 2015 La. Acts, No. 422, § 1, with an effective date of January 1, 2016. The amended version of article 966 does not apply to any motion for summary judgment pending adjudication or appeal on the effective date of the Act. As these motions for summary judgment were filed on June 3, 2015, and July 21, 2015, we refer to the former version of the article in this case. See 2015 La. Acts, No. 422, §§ 2 and 3.