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11/28/01 "See News Release93 for any concurrences and/or dissents."

SUPREME COURT OF LOUISIANA
No. 01-CJ-2128

STATE OF LOUISIANA IN THE INTEREST OF SNW, CJW, CLM, CNM, JAM & IMM Versus SADIE W. MITCHELL AND CHRISTOPHER L. MITCHELL, SR. ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, THIRD CIRCUIT, PARISH OF RAPIDES LOBRANO, Justice Pro Tempore* This is an involuntary termination of parental rights proceeding. Based on La. Ch.C. art. 1015(5), the trial court terminated Sadie Mitchell's parental rights to her six minor children, SNW, CJW, CLM, CNM, JAM, and IMM.1 Finding that decision manifestly erroneous, the court of appeal reversed.2 On the state's application, we granted certiorari to address the correctness of that decision.3 Concluding that the state satisfied its burden of proof under Article 1015(5), we reverse the court of appeal and reinstate the decision of the trial court terminating Sadie Mitchell's parental rights.

Retired Judge Robert L. Lobrano, assigned as Justice Pro Tempore, participating in the decision. The birth certificates of SNW and CJW state that their father is unknown; the birth certificates of CLM, CNM, JAM, and IMM state that their biological father is Christopher Mitchell, Sr. At this time, the children range in age from four to seventeen years old. 01-1744(La. App. 3d Cir. 6/20/01), 788 So. 2d 1271. The court of appeal affirmed the trial court's termination of Christopher's parental rights. See footnote one. Given that Christopher did not apply for certiorari, the judgment terminating his parental rights is final.
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01-2128 (La. 8/29/01), ___ So. 2d ___.

FACTS On May 1, 1997, the Alexandria Police Department contacted the state Office of Community Services ("OCS") in response to an incident of violence at the Mitchell's home. On that date, Christopher Mitchell, Sr., allegedly pointed a high powered, loaded rifle at his wife, Sadie, and her children. In addition, he allegedly threatened to "finish them off" when he was released from jail. Following Christopher's arrest, an OCS investigator visited the Mitchell's home. The investigator described the home as cluttered, but not filthy, and stressed that the sole food found in the home was some infant formula. Based on the belief that the children were in danger, an instanter order of custody was obtained for their emergency removal. La. Ch.C. art. 619. The next day the children were medically examined; almost all of them were labeled as "failing to thrive." In August 1997, all six children were adjudicated as children in need of care under La. Ch.C. art. 606. The children were placed in foster care and remained there at the time of trial.4 As the trial court notes in its reasons for judgment, the following additional family problems were discovered after the children were removed: [SNW] disclosed that she and a sister had been sexually abused by a family member and that all members of the family were subjected to extreme levels of violence. . . .[CLM] was diagnosed as suffering from a reactive attachment disorder that could be attributed to the failure of the care givers. Sadie Mitchell was diagnosed as suffering from a mental illness and exhibiting signs of paranoia at the time of removal and intermittently thereafter. Mrs. Mitchell was found to be experiencing chronic delusions as well. Within thirty days after the children's removal, OCS formulated an initial

The state points out that this family has been the subject of prior removal proceedings.

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case plan for Sadie. La.Ch.C. art. 673.5 At that point, OCS's goal was reunification. To accomplish that goal, the plan required that Sadie do the following: (i) undergo psychological evaluations; (ii) maintain bi-monthly contact with her OCS case manager, Karen Grant; (iii) comply with the visitation contract designed to facilitate contact with the children during their separation; (iv) forgo all reported acts of violence in the home;6 and (v) resist carrying weapons to OCS activities.7 In June 1997, Dr. John Simoneaux, a clinical counseling psychologist, evaluated Sadie. Dr. Simoneaux testified that during the evaluation Sadie appeared very paranoid and delusional, bordering actively psychotic. He further testified that she denied the allegations that Christopher was violently abusive and threatening to the family and painted an "idyllic" picture of her family life. Dr. Simoneaux

As discussed elsewhere, the record reflects that OCS complied with the various statutory requirements of promptly compiling a case plan, holding regular case plan reviews, and annual permanent placement hearings; these case plans were reviewed and approved by the district court, as statutorily required. See La. Ch.C. arts. 677 (case plan review), 700 (case review hearing); 710 (permanent placement plan). The significance of these requirements is that a court-approved case plan is a prerequisite to reliance on La. Ch.C. art. 1015(5) as a grounds for termination. No evidence in the record indicates that Sadie was responsible for any violence in the home; the allegations of violence in the home were all directed at Christopher. Indeed, in an apparent attempt to have the children returned, Sadie reported to OCS in September 1999 that she had separated from Christopher and that she was living with her brother. The trial court, however, factually found Sadie "still continue[d] her relationship with him." Both Karen Grant, the initial case manager, and Thomasene Willett, an OCS supervisor, testified that the reason for this requirement prohibiting both Sadie and Christopher from carrying firearms to agency activities was a pre-1997 report that Sadie had either carried a weapon to OCS hearings or made threatening comments to agency officials. Sadie's attorney objected to Ms. Willett's testimony regarding this issue given Ms. Willett did not observe these incidents and only a notation of the incidents was located in Sadie's files. The court, however, allowed the testimony because of the file notation.
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concluded that she appeared mentally ill, but probably would benefit from psychiatric evaluation and medication.8 In August 1997, a family team conference was held at which OCS revised the case plan to add a requirement that Sadie attend parenting classes offered by St. Francis Cabrini Hospital. These classes were educational in nature and designed to inform parents about rearing adolescents and young children. Although Sadie attended all the classes, Ms. Grant opined that Sadie did not grasp much from the classes. Ms. Grant, however, based her opinion on conversations with Cabrini staff; she never personally observed Sadie's progress (or lack thereof). In November 1997, a second family team conference was held at which OCS revised the case plan to require that Sadie attend: (i) individual counseling sessions with her case manager, Ms. Grant, to review parenting videos and pamphlets; (ii) women's group and family counseling sessions at Exodus;9 and (iii) psychological evaluations at Alexandria Mental Health Center ("Mental Health"). Despite Sadie's compliance with these requirements, OCS claimed that she still had made no substantial progress. Opining that the individual sessions were not beneficial, Ms. Grant cited one occasion on which Sadie became nonresponsive when asked to engage in dialogue about the contents of the video she had watched. Similarly, the executive director for the service provider at Exodus testified that Sadie attended some sessions, but was discharged after a few months due to her failure to comprehend the topics being discussed and her disruptive, off
As noted elsewhere, as a result of that recommendation, Sadie was referred to a psychiatrist, Dr. Lalitha Alla, who prescribed medication. The name of the facility where the women's group and family counseling sessions were held is Exodus; the Louisiana Black Alcoholism Council is the name of the service provider there.
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topic responses in group discussions. More particularly, the executive director's report states that "[i]t is evident that client's [Sadie's] understanding is far below average. On 9/31/98 client was discharged reason being no progress." In June 1998, based on Dr. Simoneaux's recommendation that she would probably benefit from psychiatric evaluation and medication, Sadie began treatment with Dr. Lalitha Alla, a psychiatrist at Mental Health. Dr. Alla diagnosed Sadie as delusional and, by mid-1999, prescribed the medication Haldol. Initially, Sadie refused to take the medication and lied about being pregnant as an excuse for not taking it. Once it was explained to her what the medication was for, she began taking it and was still taking it at the time of trial. When Dr. Alla last saw Sadie in December 1999, she observed that Sadie was more cooperative and had benefitted from the medication. Dr. Alla suggested that if Sadie was not under stress, she may not need the medication. In April 1998, less than one year after the removal of the children, OCS changed its goal from reunification to termination given that Sadie had shown neither substantial compliance with the case plan, nor significant improvement. This decision, however, was not communicated to Sadie until July 1998, when Ms. Grant formally informed her of this change. In the interim, in May 1998, a third family team conference was held at which OCS once again revised the case plan. The revised plan required Sadie: (i) to provide the children with a safe and secure home, (ii) to demonstrate positive parenting skills with her children, (iii) to actively participate in all scheduled parenting class sessions, (iv) to refrain from discussing OCS decisions with the children,10 and (v) to attend a psychological evaluation.
As to this requirement, Ms. Grant testified that Sadie "appeared" to discuss OCS decisions with the children during
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In June 1998, Dr. Daniel Lonowski, a clinical psychologist, evaluated Sadie and concluded that she has a very limited intellectual ability. He opined that she was functioning in the mild range of mental retardation but was not experiencing any emotional disorder. Although Dr. Lonowski acknowledged that change in the future was not likely to occur, he recognized that because of her intellectual deficiency compliance with the OCS case plan was questionable. Specifically, Dr. Lonowki testified that "Mrs. Mitchell would have difficulty simulating, acquiring, the information at a high enough level to consider it successful. Unless it was tailored, modified to more of the individual's educational effort." In November 1998, another family team conference and a permanent placement hearing were held.11 OCS's goal at that point remained to be termination based on Sadie's continued lack of progress. The trial judge approved that case plan in December 1998. One of the requirements of that case plan was that Sadie attend sessions at Mental Health and take all prescribed medications. TERMINATION PROCEEDING In September 1998, sixteen months after the children were removed, OCS filed its petition to terminate Sadie's parental rights based on La. Ch.C.

visitation, but conceded that she did not hear what Sadie discussed with them. Rather, Ms. Grant testified that this was based on observing their actions during visitation, which suggested that Sadie was doing so. As to visitation in general, Thomas Gibbs, who replaced Ms. Grant as Sadie's case manager in June 1999, testified that Sadie continued to visit the children pursuant to the case plan schedule. Gibbs noted, however, that Sadie became frustrated when OCS failed to comply with the visitation contract requirement that they bring all the children to the scheduled visitations. Pursuant to La. Ch.C. art. 702 B, permanency hearings are required to be held annually. In this case, another such hearing was held in November 1999. And, the termination proceeding was tried in February 2000.
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art. 1015(5), which sets forth the following three-pronged requirement: [i] 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; [ii] 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 [iii] despite earlier intervention, there is no reasonable expectation of significant improvement in the parent's condition or conduct in the near future, considering the child's age and his need for a safe, stable, and permanent home. Following several continuances, in February 2000, the termination proceeding was tried. The trial court found that the state carried its burden of establishing by clear and convincing evidence that: (a) Sadie failed to comply with the court-approved case plan, (b) that there was no "reasonable expectation" that she "is likely to make any significant improvement in the near future," and (c) that it was in the children's best interest to terminate Sadie's parental rights. Reversing based on manifest error, the court of appeal cited the following reasons: (i) Sadie "made every effort to comply with the rehabilitation protocol demanded by the state;" (ii) she "demonstrated improvement and possesses the potential to improve further in the future;"12 (iii) she poses a threat to neither her children, nor to OCS employees; and (iv) but for her association with "her estranged husband, the events leading to the children's removal would most certainly have been avoided." 01-1744 at pp. 11-12 (La. App. 3d Cir. 6/20/01), 788 So. 2d 1271, 1279. Before this court, neither side disputes Sadie's effort to comply with OCS's protocol as set forth in the court-approved case plan. Instead, the dispute centers
With respect to Sadie's potential to improve, the court of appeal pointed to the fact that all of the experts agreed her future improvement depended on her willingness to take the prescribed medication. Her current treating psychiatrist, Dr. Alla, opined there was no reason to suspect she was not taking her medication or will stop taking it unless permitted to do so.
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on two other issues. First, the parties dispute whether the trial court's factual finding that the state proved Sadie failed to substantially improve or would likely improve in the near future was manifestly erroneous. Second, the parties dispute whether OCS was required not only to recognize Sadie's mental deficiency, but also to tailor the case plan to meet her particular needs. Before addressing those specific issues, we briefly review the recent policy changes regarding termination proceedings in general. ANALYSIS A well-settled principle is that the "the fundamental liberty interest of natural parents in the care, custody, and management of their child does not evaporate simply because they have not been model parents." Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 1394-95, 71 L.Ed.2d 599, 606 (1982). Reiterating this principle, the Supreme Court recently remarked that this liberty interest is "perhaps the oldest of the fundamental liberty interests." Troxel v. Granville, 530 U.S. 57, 65, 120 S.Ct. 2054, 2060, 147 L.Ed.2d 49, 56 (2000). A corollary principle is that in an involuntarily termination of parental rights proceeding, a court must delicately balance the natural parent's fundamental right and the child's right to a permanent home. In 1997, Congress passed the Adoption and Safe Families Act (ASFA), 42 U.S.C.

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